# Vol. 76 Thursday,

No. 18 January 27, 2011

Part II



# Department of Health and Human Services

Centers for Medicare & Medicaid Services

42 CFR Part 412 Medicare Program; Inpatient Psychiatric Facilities Prospective Payment System—Update for Rate Year Beginning July 1, 2011 (RY 2012); Proposed Rule


### 4998 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

**DEPARTMENT OF HEALTH AND**
**HUMAN SERVICES**

**Centers for Medicare & Medicaid**
**Services**

**42 CFR Part 412**

**[CMS–1346–P]**

**RIN 0938–AQ23**

**Medicare Program; Inpatient Psychiatric Facilities Prospective**  **Payment System—Update for Rate Year Beginning July 1, 2011 (RY 2012)** 

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

**ACTION :**  Proposed rule.

**SUMMARY :**  This proposed rule would update the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilities (IPFs) for discharges occurring during the rate year beginning July 1, 2011 through September 30, 2012. The proposed rule would also change the IPF prospective payment system (PPS) payment rate update period to a rate year (RY) that coincides with a fiscal year (FY). In addition, the rule proposes policy changes affecting the IPF PPS teaching adjustment. It would also rebase and revise the Rehabilitation, Psychiatric, and Long-Term Care (RPL) market basket, and make some
clarifications and corrections to terminology and regulations text.

**DATES :**  To be assured consideration,
comments must be received at one of the addresses provided in the

**ADDRESSES** section no later than 5 p.m. EST on March 22, 2011.

**ADDRESSES :**  In commenting, please refer
to file code CMS–1346–P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX)

transmission.

You may submit comments in one of four ways (please choose only one of the ways listed):

1. Electronically. You may submit electronic comments on this regulation

to http://www.regulations.gov . Follow
the instructions under the ‘‘More Search Options’’ tab.

2. By regular mail. You may mail written comments (one original and two copies) to the following address ONLY:
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–1346– P, P.O. Box 8010, Baltimore, MD 21244–

1850.

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–1346–P, Mail Stop C4–26–05, 7500 Security Boulevard, Baltimore, MD 21244–1850.

4. By hand or courier. If you prefer, you may deliver (by hand or courier) your written comments before the close of the comment period to either of the following addresses:

a. For delivery in Washington, DC—
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445–G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201.

(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

b. For delivery in Baltimore, MD—
Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244–1850.

If you intend to deliver your comments to the Baltimore address, please call telephone number (410) 786– 9994 in advance to schedule your
arrival with one of our staff members.

Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

For information on viewing public comments, see the beginning of the

**SUPPLEMENTARY INFORMATION** section.

**FOR FURTHER INFORMATION CONTACT :**  Dorothy Myrick or Jana Lindquist, (410) 786–4533 (for general information). Mary Carol Barron, (410) 786–7943, or Bridget Dickensheets, (410) 786–8670, (for information regarding the market basket and labor-related share). Theresa Bean, (410) 786–2287 (for information regarding the regulatory impact analysis).

**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 Web site as soon as possible after they have
been received: http:// www.regulations.gov. Follow the search
instructions on that Web site to view public comments.

Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of
the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1–800–743–3951.

Table of Contents

To assist readers in referencing sections contained in this document, we are providing the following table of

contents.

I. Background

A. Annual Requirements for Updating the

IPF PPS B. Overview of the Legislative

Requirements of the IPF PPS
C. IPF PPS–General Overview D. Transition Period for Implementation of

the IPF PPS II. Proposal to Revise the IPF PPS Payment Rate Update Period from a Rate Year to
a Fiscal Year III. Proposed Rebasing and Revising of theRehabilitation, Psychiatric, and LongTerm Care (RPL) Market Basket for Inpatient Psychiatric Facilities A. Background B. Overview of the Proposed FY 2008–

Based RPL Market Basket C. Proposed Rebasing and Revising of the

RPL Market Basket 1. Development of Cost Categories and

Weights a. Medicare Cost Reports
b. Other Data Sources 2. Final Cost Category Computation
3. Selection of Price Proxies a. Wages and Salaries b. Employee Benefits c. Electricity d. Fuel, Oil, and Gasoline e. Water and Sewage f. Professional Liability Insurance g. Pharmaceuticals
h. Food: Direct Purchases
i. Food: Contract Services j. Chemicals
k. Medical Instruments l. Photographic Supplies
m. Rubber and Plastics n. Paper and Printing Products o. Apparel p. Machinery and Equipment q. Miscellaneous Products
r. Professional Fees: Labor-Related s. Administrative and Business Support

Services
t. All Other: Labor-Related Services
u. Professional Fees: Nonlabor-Related
v. Financial Services w. Telephone Services x. Postage y. All Other: Nonlabor-Related Services


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4. Proposed Methodology for Capital

Portion of the RPL Market Basket 5. Proposed RY 2012 Market Basket Update 6. Proposed Labor-Related Share IV. Updates to the IPF PPS for RY Beginning July 1, 2011A. Determining the Standardized BudgetNeutral Federal Per Diem Base Rate
1. Standardization of the Federal Per Diem

Base Rate and Electroconvulsive Therapy (ECT) Rate 2. Calculation of the Budget Neutrality

Adjustment a. Outlier Adjustment b. Stop-Loss Provision Adjustment
c. Behavioral Offset B. Proposed Update of the Federal Per

Diem Base Rate and Electroconvulsive Therapy Rate V. Proposed Update of the IPF PPS Adjustment Factors A. Overview of the IPF PPS Adjustment

Factors B. Proposed Patient-Level Adjustments 1. Proposed Adjustment for MS–IPF–DRG

Assignment 2. Proposed Payment for Comorbid

Conditions 3. Proposed Patient Age Adjustments 4. Proposed Variable Per Diem

Adjustments C. Facility-Level Adjustments 1. Proposed Wage Index Adjustment a. Background b. Proposed Wage Index for RY 2012
c. OMB Bulletins 2. Proposed Adjustment for Rural Location 3. Proposed Teaching Adjustment a. Proposed Temporary Adjustment to FTE

Cap to Reflect Residents Affected by Hospital Closure b. Proposed Temporary Adjustment to FTE

Cap to Reflect Residents Affected By Residency Program Closure 4. Proposed Cost of Living Adjustment for

IPFs Located in Alaska and Hawaii 5. Proposed Adjustment for IPFs with a

Qualifying Emergency Department (ED) D. Other Payment Adjustments and

Policies 1. Proposed Outlier Payments a. Proposed Update to the Outlier Fixed

Dollar Loss Threshold Amountb. Proposed Statistical Accuracy of Cost-toCharge Ratios 2. Expiration of the Stop-Loss Provision
3. Future Refinements VI. Proposed Regulations Text Corrections VII. Provisions of the Proposed Regulations VIII. Collection of Information Requirements IX. Regulatory Impact Analysis Regulations Text
Addenda

Acronyms

Because of the many terms to which we refer by acronym in this proposed rule, we are listing the acronyms used and their corresponding meanings in alphabetical order below:

BBRA Medicare, Medicaid and SCHIP [State Children’s Health Insurance Program] Balanced Budget Refinement Act of 1999, (Pub. L. 106–113)
CBSA Core-Based Statistical Area CCR Cost-to-charge ratio CAH Critical access hospital DSM–IV–TR Diagnostic and Statistical
Manual of Mental Disorders Fourth
Edition—Text Revision DRGs Diagnosis-related groups FY Federal fiscal year (October 1 through September 30)
ICD–9–CM International Classification of Diseases, 9th Revision, Clinical
Modification IPFs Inpatient psychiatric facilities IRFs Inpatient rehabilitation facilities LTCHs Long-term care hospitals MedPAR Medicare provider analysis and
review fileRPL Rehabilitation, Psychiatric, and LongTerm Care RY Rate Year (July 1 through June 30) TEFRA Tax Equity and Fiscal Responsibility Act of 1982, (Pub. L. 97– 248)

I. Background

A. Annual Requirements for Updating
the IPF PPS

In November 2004, we implemented the inpatient psychiatric facilities (IPF) prospective payment system (PPS) in a final rule that appeared in the November 15, 2004 Federal Register (69 FR 66922). In developing the IPF PPS,
in order to ensure that the IPF PPS is able to account adequately for each IPF’s case-mix, we performed an extensive regression analysis of the relationship between the per diem costs and certain patient and facility
characteristics to determine those
characteristics associated with statistically significant cost differences on a per diem basis. For characteristics with statistically significant cost differences, we used the regression
coefficients of those variables to determine the size of the corresponding payment adjustments.

In that final rule, we explained that we believe it is important to delay updating the adjustment factors derived from the regression analysis until we
have IPF PPS data that includes as much information as possible regarding the patient-level characteristics of the population that each IPF serves. Therefore, we indicated that we did not intend to update the regression analysis and recalculate the Federal per diembase rate and the patient- and facilitylevel adjustments until we complete that analysis. Until that analysis is complete, we stated our intention to publish a notice in the Federal Register each spring to update the IPF PPS (71 FR 27041). We are proposing to change the payment rate update period to a RY
that coincides with a FY. If we finalize this proposal, future update notices would be published in the Federal Register in the summer. See section II. of this proposed rule. Updates to the IPF PPS as specified in 42 CFR 412.428 include the following:

• A description of the methodology and data used to calculate the updated Federal per diem base payment amount.

• The rate of increase factor as described in § 412.424(a)(2)(iii), which is based on the Excluded Hospital With Capital market basket under the update methodology of section 1886(b)(3)(B)(ii) of the Social Security Act (the Act) for each year (effective from the implementation period until June 30, 2006).

• For discharges occurring on or after July 1, 2006, the rate of increase factor for the Federal portion of the IPF’s payment, which is based on theRehabilitation, Psychiatric, and LongTerm Care (RPL) market basket.

• The best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.

• Updates to the fixed dollar loss
threshold amount in order to maintain the appropriate outlier percentage.

• Description of the International Classification of Diseases, 9th Revision, Clinical Modification (ICD–9–CM) coding and diagnosis-related groups (DRGs) classification changes discussed in the annual update to the hospital inpatient prospective payment system (IPPS) regulations.

• Update to the electroconvulsive therapy (ECT) payment by a factor specified by CMS.

• Update to the national urban and rural cost-to-charge ratio medians and ceilings.

• Update to the cost of living adjustment factors for IPFs located in Alaska and Hawaii, if appropriate.

Our most recent IPF PPS annual update occurred in the April 30, 2010 Federal Register notice (75 FR 23106) (hereinafter referred to as the April 2010 IPF PPS notice) that set forth updates to the IPF PPS payment rates for RY 2011. This notice updated the IPF PPS per diem payment rates that were published in the May 2009 IPF PPS notice in
accordance with our established policies.

Since implementation of the IPF PPS, we have explained that we believe it is important to delay updating the adjustment factors derived from the regression analysis until we have IPF
PPS data that include as much information as possible regarding the patient-level characteristics of the population that each IPF serves. Now that we are approximately 5 years into the system, we believe that we have enough data to begin that process. Therefore, we have begun the necessary


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analysis in order to make future
refinements. While we are not proposing to make refinements in this rulemaking, as explained in section V.D.3 below, we believe that in the next rulemaking, for RY 2013, we will be ready to propose potential refinements.

B. Overview of the Legislative Requirements of the IPF PPS

Section 124 of the Medicare, Medicaid, and SCHIP (State Children’s Health Insurance Program) Balanced Budget Refinement Act of 1999, (Pub. L. 106–113) (BBRA) required implementation of the IPF PPS. Specifically, section 124 of the BBRA mandated that the Secretary develop a per diem PPS for inpatient hospital services furnished in psychiatric hospitals and psychiatric units that includes an adequate patient classification system that reflects the differences in patient resource use and costs among psychiatric hospitals and psychiatric units.

Section 405(g)(2) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108–173) extended the IPF PPS to distinct part psychiatric units of critical access hospitals (CAHs).

To implement these provisions, we published various proposed and final
rules in the Federal Register . For more information regarding these rules, see
the CMS Web sites http:// www.cms.hhs.gov/ InpatientPsychFacilPPS/ and http:// www.cms.hhs.gov/ InpatientpsychfacilPPS/

02

_ regulations.asp

.

Section 3401(f) of the Patient
Protection and Affordable Care Act (Pub. L. 111–148) as amended by section 10319(e) of that Act and by section 1105(d) of the Health Care and
Education Reconciliation Act of 2010 (Pub. L. 111–152) (hereafter referred to as ‘‘The Affordable Care Act’’) added subsection (s) to section 1886 of the Act.

Section 1886(s)(1) is titled ‘‘Reference to Establishment and Implementation of System’’ and it refers to section 124 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, which relates to the establishment
of the IPF PPS.

Section 1886(s)(2)(A)(i) of the Act requires the application of the productivity adjustment described in § 1886(b)(3)(B)(xi)(II) of the Act to the IPF PPS for the rate year beginning in 2012 and each subsequent rate year. Section 1886(s)(2)(A)(ii) of the Act requires the application of an ‘‘other adjustment’’ that reduces any update to an IPF PPS base rate by percentages specified in section 1886(s)(3) of the Act for rate years beginning in 2010 through the rate year beginning in 2019. For the rate year beginning in 2011, the reduction is 0.25 percentage point. We are proposing to implement that provision for RY 2012 in this proposed
rule.

Section 1886(s)(4) of the Act requires the establishment of a quality data reporting program for the IPF PPS beginning in RY 2014.

C. IPF PPS–General Overview

The November 2004 IPF PPS final rule (69 FR 66922) established the IPF PPS, as authorized under section 124 of the BBRA and codified at subpart N of part 412 of the Medicare regulations.
The November 2004 IPF PPS final rule set forth the per diem Federal rates for the implementation year (the 18-month period from January 1, 2005 through June 30, 2006), and it provided payment for the inpatient operating and capital costs to IPFs for covered psychiatric services they furnish (that is, routine, ancillary, and capital costs, but not costs of approved educational activities, bad debts, and other services or items that are outside the scope of the IPF PPS). Covered psychiatric services include services for which benefits are provided
under the fee-for-service Part A (Hospital Insurance Program) Medicare

program.

The IPF PPS established the Federal per diem base rate for each patient day
in an IPF derived from the national average daily routine operating, ancillary, and capital costs in IPFs in FY 2002. The average per diem cost was updated to the midpoint of the first year under the IPF PPS, standardized to account for the overall positive effects of the IPF PPS payment adjustments, and adjusted for budget neutrality.

The Federal per diem payment under the IPF PPS is comprised of the Federal per diem base rate described above and certain patient- and facility-level payment adjustments that were found in the regression analysis to be associated with statistically significant per diem
cost differences.

The patient-level adjustments include age, DRG assignment, comorbidities, and variable per diem adjustments to reflect higher per diem costs in the early days of an IPF stay. Facility-level adjustments include adjustments for the IPF’s wage index, rural location, teaching status, a cost of living adjustment for IPFs located in Alaska and Hawaii, and presence of a qualifying emergency department (ED).

The IPF PPS provides additionalpayment policies for: outlier cases; stoploss protection (which was applicable only during the IPF PPS transition period); interrupted stays; and a per treatment adjustment for patients who undergo ECT.

A complete discussion of the regression analysis appears in the November 2004 IPF PPS final rule (69 FR 66933 through 66936).

Section 124 of BBRA does not specify an annual update rate strategy for the IPF PPS and is broadly written to give the Secretary discretion in establishing an update methodology. Therefore, in the November 2004 IPF PPS final rule, we implemented the IPF PPS using the following update strategy:

• Calculate the final Federal per diem base rate to be budget neutral for the 18- month period of January 1, 2005 through June 30, 2006.

• Use a July 1 through June 30 annual update cycle.

• Allow the IPF PPS first update to be effective for discharges on or after July 1, 2006 through June 30, 2007.

D. Transition Period for Implementation of the IPF PPS

In the November 2004 IPF PPS final rule, we provided for a 3-year transition period. During this 3-year transition period, an IPF’s total payment under the PPS was based on an increasing percentage of the Federal rate with a corresponding decreasing percentage of the IPF PPS payment that is based on reasonable cost concepts. However, effective for cost reporting periods beginning on or after January 1, 2008, IPF PPS payments are based on 100 percent of the Federal rate.

II. Proposal To Revise the IPF PPS Payment Rate Update Period From a
Rate Year to a Fiscal Year

In this proposed rule, we are proposing a change to the current period for the annual updates of the IPF PPS Federal payment rates. We propose to revise the IPF PPS payment rate update period by switching from a RY that begins on July 1 and goes through June 30 to a period that coincides with a fiscal year (FY), that is, October 1 through September 30. We would also refer to the update period as a FY beginning with the update period that begins in 2012, that is, FY 2013. This change in the annual update period
would allow us to consolidate Medicare publications by aligning the IPF PPS update with the annual update of the ICD–9–CM codes, which are effective on October 1 of each year. Currently, in addition to our annual proposed and final rulemaking documents, we publish a change request transmittal every August updating the ICD–9–CM codes related to the DRG and comorbidity adjustments. By aligning the IPF PPS


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with the same update period as the ICD– 9–CM codes, we will eliminate the need to publish a transmittal off-cycle.

We maintain the same diagnostic coding and DRG classification for IPFs
that are used under the IPPS for providing the psychiatric care. When the IPF PPS was implemented, we adopted the same diagnostic code set and DRG patient classification systems (that is, the CMS DRGs) that were utilized at the time under the hospital IPPS. Every year, changes to the ICD–9– CM coding system are addressed in the IPPS proposed and final rules. These changes are effective October 1 of each year and must be used by acute care hospitals as well as other providers to report diagnostic and procedure information. The IPF PPS has always incorporated ICD–9–CM coding changes made in the annual IPPS update. This proposed change to the annual payment rate update period would allow the annual update to the rates and the ICD– 9–CM coding update to occur on the same schedule and appear in the same Federal Register document.

Our intent in making the change in the payment rate update schedule is to place the IPF PPS on the same update cycle as other PPSs, making it administratively efficient. In order to smoothly transition to a payment update period that runs from October 1 through September 30, we propose that the RY 2012 period run from July 1, 2011 to September 30, 2012 such that RY 2012
would be 15 months. Under this proposal, after RY 2012, the rate update period for the IPF PPS payment rates and other policy changes would begin on October 1 and go through September 30. The next update to the IPF PPS rates
after RY 2012 would be the FY 2013 update cycle, which would begin on October 1, 2012 and go through September 30, 2013. In addition, we are proposing to make a change to the regulations at § 412.402 to add the term ‘‘IPF Prospective Payment System Rate
Year’’ which would mean October 1 through September 30. We are proposing that the RY would be referred
to as a FY. The discussion of the proposed 15-month market basket update for the proposed 2012 rate year
can be found in section III.C.5. of this proposed rule.

III. Proposed Rebasing and Revising of the Rehabilitation, Psychiatric, and Long-Term Care (RPL) Market Basket for Inpatient Psychiatric Facilities

A. Background

The input price index (that is, the market basket) that was used to develop the IPF PPS was the Excluded Hospital with Capital market basket. This market
basket was based on 1997 Medicare cost report data and included data for Medicare participating IPFs, inpatient rehabilitation facilities (IRFs), long-term care hospitals (LTCHs), cancer hospitals, and children’s hospitals. Although ‘‘market basket’’ technically describes the mix of goods and services used in providing hospital care, this term is also commonly used to denote the input price index (that is, cost category weights and price proxies combined) derived from that market basket. Accordingly, the term ‘‘market
basket’’ as used in this document refers to a hospital input price index.

Beginning with the May 2006 IPF PPS final rule (71 FR 27046 through 27054), IPF PPS payments were updated using
a FY 2002-based market basket reflecting the operating and capital cost structures for IRFs, IPFs, and LTCHs (hereafter referred to as theRehabilitation, Psychiatric, and LongTerm Care (RPL) market basket).

We excluded cancer and children’s hospitals from the RPL market basket because their payments are based entirely on reasonable costs subject to
rate-of-increase limits established under the authority of section 1886(b) of the Act, which are implemented in regulations at § 413.40. They are not reimbursed through a PPS. Also, the FY
2002 cost structures for cancer and children’s hospitals are noticeably
different than the cost structures of the IRFs, IPFs, and LTCHs. A complete
discussion of the FY 2002-based RPL market basket appears in the May 2006 IPF PPS final rule (71 FR 27046 through 27054).

In the May 1, 2009 IPF PPS notice (74 FR 20362), we expressed our interest in exploring the possibility of creating a
stand-alone IPF market basket that reflects the cost structures of only IPF providers. We note that, of the available options, one would be to join the Medicare cost report data from freestanding IPF providers (presently incorporated into the FY 2002-based RPL market basket) with data from hospital-based IPF providers. We
indicated that an examination of the Medicare cost report data comparing freestanding and hospital-based IPFs
revealed considerable differences between the two with respect to cost levels and cost structures. At that time, we were unable to fully understand the differences between these two types of IPF providers. As a result, we felt that further research was required and we solicited public comment for additional information that might help us to better
understand the reasons for the variations in costs and cost structures, as indicated by the cost report data,between freestanding and hospitalbased IPFs (74 FR 20376).

We summarized the public comments we received and our responses in the April 2010 IPF PPS notice (75 FR 23111 through 23113). Despite receiving comments from the public on this issue, we remain unable to sufficiently
understand the observed differences in
costs and cost structures between hospital-based and freestanding IPFs,
and therefore we do not feel it is appropriate at this time to incorporate data from hospital-based IPFs with those of freestanding IPFs to create a
stand-alone IPF market basket.

Although we do not feel it would be appropriate to propose a stand-alone IPF market basket, we are currently exploring the viability of creating two separate market baskets from the current RPL, one of which would include freestanding IPFs and freestanding IRFs and would be used to update payments under both the IPF and IRF paymentsystems. The other would be a standalone LTCH market basket. Depending on the outcome of our research, we anticipate the possibility of proposing a rehabilitation and psychiatric (RP) market basket in the next update cycle. We welcome public comment on the possibility of using this type of market basket to update IPF payments in the
future.

For this update cycle, we are proposing to rebase and revise the FY 2002-based RPL market basket by creating a proposed FY 2008-based RPL
market basket as described below. In the following discussion, we provide an
overview of the market basket and describe the methodologies we propose to use for purposes of determining the operating and capital portions of the proposed FY 2008-based RPL market
basket.

B. Overview of the Proposed FY 2008–
Based RPL Market Basket

The proposed FY 2008-based RPL market basket is a fixed weight, Laspeyres-type price index. A Laspeyres price index measures the change in price, over time, of the same mix of goods and services purchased in the base period. Any changes in the quantity or mix of goods and services (that is, intensity) purchased over time
are not measured.

The index itself is constructed in three steps. First, a base period is selected (in this proposed rule, the base period is FY 2008) and total base period expenditures are estimated for a set of mutually exclusive and exhaustive spending categories with the proportion of total costs that each category


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represents being calculated. These proportions are called cost or expenditure weights. Second, each expenditure category is matched to an appropriate price or wage variable, referred to as a price proxy. In nearly every instance, these price proxies are derived from publicly available statistical series that are published on a consistent schedule (preferably at least on a quarterly basis). Finally, the expenditure weight for each cost category is multiplied by the level of its respective price proxy. The sum of these products (that is, the expenditure weights multiplied by their price levels) for all cost categories yields the composite index level of the market basket in a given period. Repeating this step for other periods produces a series
of market basket levels over time. Dividing an index level for a given period by an index level for an earlier period produces a rate of growth in the input price index over that timeframe.

As noted above, the market basket is described as a fixed-weight index because it represents the change in price over time of a constant mix (quantity and intensity) of goods and services needed to furnish hospital services. The effects on total expenditures resulting from changes in the mix of goods and services purchased subsequent to the base period are not measured. For example, a hospital hiring more nurses to accommodate the needs of patients would increase the volume of goods and services purchased by the hospital, but would not be factored into the price change measured by a fixed-weight hospital market basket. Only when the index is rebased would changes in the quantity and intensity be captured, with those changes being reflected in the cost weights. Therefore, we rebase the market basket periodically so the cost weights reflect recent changes in the mix of goods and services that hospitals purchase (hospital inputs) to furnish inpatient care between base periods.

C. Proposed Rebasing and Revising of
the RPL Market Basket

We are inviting public comments on our proposed methodological changes to
the RPL market basket. The terms ‘‘rebasing’’ and ‘‘revising,’’ while often used interchangeably, actually denote different activities. ‘‘Rebasing’’ means moving the base year for the structure of costs of an input price index (for example, in this proposed rule, we are proposing to shift the base year cost
structure for the RPL market basket from FY 2002 to FY 2008). ‘‘Revising’’ means changing data sources, price proxies, or methods, used to derive the input price index. We propose to rebase and revise the market basket used to update the IPF

PPS.

1. Development of Cost Categories and Weights

a. Medicare Cost Reports

The proposed FY 2008-based RPL market basket consists of several major cost categories derived from the FY 2008 Medicare cost reports for freestanding IRFs, freestanding IPFs, and LTCHs including wages and salaries, pharmaceuticals, professional liability insurance, capital, and a residual. These FY 2008 cost reports include providers whose cost report begin date is on or between October 1, 2007 and September 30, 2008. We choose to use FY 2008 as the base year
because we believe that the Medicare cost reports for this year represent the most recent, complete set of Medicare cost report data available for IRFs, IPFs, and LTCHs. However, there is an issue with obtaining data specifically for
benefits and contract labor from this set of FY 2008 Medicare cost reports since IRFs, IPFs, and LTCHs were not required to complete the Medicare cost report worksheet from which these data were collected (Worksheet S–3, part II). As a result, only a small number of providers (less than 30 percent) reported data for these categories, and we do not expect these FY 2008 data to improve over time. Furthermore, since IRFs, IPFs, and LTCHs were not required to submit data for Worksheet S–3, part II in previous cost reporting years, we have always had this issue of incomplete Medicare cost report data for benefits and contract labor (including
when we finalized the FY 2002-based RPL market basket). Due to the incomplete benefits and contract labor data for IRFs, IPFs, and LTCHs, we propose to develop these cost weights using FY 2008 Medicare cost report data for IPPS hospitals (similar to the method
that was used for the FY 2002-based RPL market basket). Additional detail is provided later in this section.

Since our goal is to measure cost
shares that are reflective of case mix and practice patterns associated with providing services to Medicare beneficiaries, we are proposing to limit our selection of Medicare cost reports to those from hospitals that have a Medicare average length of stay (LOS) that is within a comparable range of their total facility average LOS. We believe this provides a more accurate
reflection of the structure of costs for Medicare covered days. We propose to use the cost reports of IRFs and LTCHs with Medicare average LOS within 15 percent (that is, 15 percent higher or lower) of the total facility average LOS for the hospital. This is the same edit applied to derive the FY 2002-based RPL market basket and generally
includes those LTCHs and IRFs with Medicare LOS within approximately 5 days of the facility average LOS of the hospital.

We are proposing to use a less stringent measure of Medicare LOS for IPFs. For this provider-type, and in order to produce a robust sample size, we propose to use those facilities’ Medicare cost reports whose average LOS is within 30 or 50 percent (depending on the total facility average LOS) of the total facility average LOS. This is the same edit applied to derive
the FY 2002-based RPL market basket.

We applied these LOS edits to first obtain a set of cost reports for facilities
that have a Medicare LOS within a comparable range of their total facility LOS. Using this set of Medicare cost reports, we then calculated cost weights for four cost categories directly from the FY 2008 Medicare cost reports for freestanding IRFs, freestanding IPFs, and LTCHs (found in Table 1 below). These Medicare cost report cost weights were then supplemented with
information obtained from other data sources (explained in more detail below) to derive the proposed FY 2008- based RPL market basket cost weights.



### T ABLE 

### 1—M AJOR 

### C OST 

### C ATEGORIES

AND 

### T HEIR 

### R ESPECTIVE 

### C OST 

### W EIGHTS AS 

### C ALCULATED 

### D IRECTLY 

### F ROM 

### FY 2008 M EDICARE 

### C OST 

### R EPORTS

Major cost categories Proposed FY 2008-based RPL market

basket (percent)

Wages and salaries .............. 47.371Professional liability insurance (Malpractice) ............ 0.764

Pharmaceuticals ................... 6.514 Capital ................................... 8.392
All other ................................ 36.959

b. Other Data Sources

In addition to the IRF, IPF and LTCH Medicare cost reports for freestanding IRFs and freestanding IPFs, and LTCHs,
the other data sources we used to develop the proposed FY 2008-based RPL market basket cost weights were the FY 2008 IPPS Medicare cost reports and the Benchmark Input-Output (I–O) Tables created by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce. The FY 2008 Medicare cost reports include providers whose cost report begin date is on or


### 5003 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

between October 1st, 2007 and September 30, 2008.

As noted above, the proposed FY 2008-based RPL cost weights for
benefits and contract labor were derived using FY 2008-based IPPS Medicare cost reports. We used these Medicare cost reports to calculate cost weights for Wages and Salaries, Benefits, and Contract Labor for IPPS hospitals for FY 2008. For the proposed Benefits cost weight for the FY 2008-based RPL market basket, the ratio of the FY 2008 IPPS Benefits cost weight to the FY 2008 IPPS Wages and Salaries cost weight was applied to the RPL Wages and Salaries cost weight. Similarly, the ratio
of the FY 2008 IPPS Contract Labor cost weight to the FY 2008 IPPS Wages and Salaries cost weight was applied to the RPL Wages and Salaries cost weight to derive a Contract Labor cost weight for the proposed FY 2008-based RPL market
basket.

The All Other cost category is divided into other hospital expenditure category shares using the 2002 BEA Benchmark I–O data following the removal of the portions of the All Other cost category provided in Table 1 that are attributable
to Benefits and Contract Labor. The BEA
Benchmark I–O data are scheduled for publication every 5 years. The most
recent data available are for 2002. BEA also produces Annual I–O estimates; however, the 2002 Benchmark I–O data represent a much more comprehensive and complete set of data that are derived
from the 2002 Economic Census. The Annual I–O is simply an update of the
Benchmark I–O tables. For the FY 2002- based RPL market basket, we used the
1997 Benchmark I–O data. We are proposing to use the 2002 Benchmark I–
O data in the FY 2008-based RPL market basket. Instead of using the less detailed Annual I–O data, we aged the 2002
Benchmark I–O data forward to 2008. The methodology we used to age the data forward involves applying the annual price changes from the respective price proxies to the appropriate cost categories. We repeat this practice for each year.

The All Other cost category expenditure shares are determined as being equal to each category’s proportion to total ‘‘all other’’ in the aged 2002 Benchmark I–O data. For instance, if the cost for telephone services represented 10 percent of the
sum of the ‘‘all other’’ Benchmark I–O hospital expenditures, then telephone services would represent 10 percent of
the RPL market basket’s All Other cost
category. 2. Final Cost Category Computation

As stated previously, for this rebasing we are proposing to use the FY 2008 Medicare cost reports for IRFs, IPFs, and LTCHs to derive four major cost categories. The proposed FY 2008-based

RPL market basket includes two additional cost categories that were not broken out separately in the FY 2002-

based RPL market basket: ‘‘Administrative and Business Support

Services’’ and ‘‘Financial Services’’. The

inclusion of these two additional cost categories, which are derived using the Benchmark I–O data, is consistent with the addition of these two cost categories

to the FY 2006-based IPPS market basket (74 FR 43845). We are proposing to break out both categories so we can better match their respective expenses with more appropriate price proxies. A thorough discussion of our rationale for each of these cost categories is provided in the section III.C.3.s. of this proposed rule. Also, the proposed FY 2008-based

RPL market basket excludes one cost category: Photo Supplies. The 2002 Benchmark I–O weight for this category is considerably smaller than the 1997 Benchmark I–O weight, presently accounting for less than one-tenth of one percentage point of the RPL market basket. Therefore, we are proposing to include the photo supplies costs in the Chemical cost category weight with other similar chemical products.

We are not proposing to change our
definition of the labor-related share. However, we are proposing to rename our aggregate cost categories from
‘‘labor-intensive’’ and ‘‘nonlaborintensive’’ services to ‘‘labor-related’’
and ‘‘nonlabor-related’’ services. This is
consistent with the FY 2006-based IPPS market basket (74 FR 43845). As
discussed in more detail below and
similar to the FY 2002-based RPL market basket, we classify a cost category as labor-related and include it
in the labor-related share if the costcategory is defined as being laborintensive and its cost varies with the local labor market. In previous regulations, we grouped cost categories
that met both of these criteria into laborintensive services. We believe the proposed new labels more accurately reflect the concepts that they are intended to convey. We are not proposing to change our definition of
the labor-related share because we continue to classify a cost category as
labor-related if the costs are laborintensive and vary with the local labor
market. 3. Selection of Price Proxies

After computing the FY 2008 cost weights for the proposed rebased RPL market basket, it was necessary to select appropriate wage and price proxies to reflect the rate of price change for each expenditure category. With the exception of the proxy for Professional Liability Insurance, all of the proxies for the operating portion of the proposed
FY 2008-based RPL market basket are
based on Bureau of Labor Statistics (BLS) data and are grouped into one of the following BLS categories:

Producer Price Indexes—Producer Price Indexes (PPIs) measure price changes for goods sold in markets other
than the retail market. PPIs are preferable price proxies for goods and services that hospitals purchase as inputs because these PPIs better reflect the actual price changes faced by hospitals. For example, we use a special PPI for prescription drugs, rather than the Consumer Price Index (CPI) for prescription drugs, because hospitals generally purchase drugs directly from a
wholesaler. The PPIs that we use measure price changes at the final stage of production.

Consumer Price Indexes—Consumer Price Indexes (CPIs) measure change in the prices of final goods and services bought by the typical consumer. Because they may not represent the price faced by a producer, we used CPIs only if an appropriate PPI was not available, or if the expenditures were more similar to those faced by retail consumers in general rather than by purchasers of goods at the wholesale level. For example, the CPI for food purchased away from home is used as a proxy for contracted food services.

Employment Cost Indexes— Employment Cost Indexes (ECIs) measure the rate of change in employee wage rates and employer costs for employee benefits per hour worked. These indexes are fixed-weight indexes and strictly measure the change in wage rates and employee benefits per hour. Appropriately, they are not affected by shifts in employment mix.

We evaluated the price proxies using the criteria of reliability, timeliness, availability, and relevance. Reliability
indicates that the index is based on
valid statistical methods and has low sampling variability. Timeliness implies that the proxy is published regularly, preferably at least once a quarter. Availability means that the proxy is publicly available. Finally, relevance means that the proxy is applicable and representative of the cost category weight to which it is applied. The


### 5004 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

proposed CPIs, PPIs, and ECIs selected
meet these criteria.

Table 2 sets forth the proposed FY 2008-based RPL market basket including cost categories, and their respective weights and price proxies. For comparison purposes, the corresponding FY 2002-based RPL market basket cost weights are listed, as well. For example, Wages and Salaries are 49.447 percent of total costs in the proposed FY 2008-based RPL market basket compared to 52.895 percent for
the FY 2002-based RPL market basket. Employee Benefits are 12.831 percent in the proposed FY 2008-based RPL market basket compared to 12.982 percent for

the FY 2002-based RPL market basket. As a result, compensation costs (Wages and Salaries plus Employee Benefits) for the proposed FY 2008-based RPL market basket are 62.278 percent of total costs compared to 65.877 percent for the FY

2002-based RPL market basket.

Following Table 2 is a summary outlining the choice of the proxies we propose to use for the operating portion
of the FY 2008-based RPL market basket. The price proxies proposed for the capital portion are described in more detail in the capital methodology section ( see section III.C.4. of this proposed rule).

We note that the proxies for the operating portion of the FY 2008-based

RPL market basket are the same as those

used for the FY 2006-based IPPS operating market basket. Because these proxies meet our criteria of reliability, timeliness, availability, and relevance, we believe they are the best measures of price changes for the cost categories. For
further discussion on the FY 2006-based IPPS market basket, see the IPPS final rule published in the Federal Register on August 27, 2009 (74 FR 43843).



### T ABLE 

### 2—P ROPOSED 

### FY 2008-B ASED 

### RPL M ARKET 

### B ASKET 

### C OST 

### C ATEGORIES 

### , W EIGHTS



### , AND 

### P RICE 

### P ROXIES 

### W ITH 

### FY 2002-B ASED 

### RPL M ARKET 

### B ASKET 

### C OST 

### W EIGHTS 

### I NCLUDED FOR 

### C OMPARISON

Cost categories FY 2002-based RPL market basket cost

weights Proposed FY 2008-based RPL market basket cost

weights Proposed FY 2008-based RPL market basket price proxies

1. Compensation .......................................................... 65.877 62.278 A. Wages and Salaries 1 ....................................... 52.895 49.447 ECI for Wages and Salaries, Civilian Hospital Workers. B. Employee Benefits 1 .......................................... 12.982 12.831 ECI for Benefits, Civilian Hospital Workers.
2. Utilities ...................................................................... 0.656 1.578 A. Electricity ........................................................... 0.351 1.125 PPI for Commercial Electric Power. B. Fuel, Oil, and Gasoline ..................................... 0.108 0.371 PPI for Petroleum Refineries. C. Water and Sewage ........................................... 0.197 0.082 CPI–U for Water & Sewerage Maintenance. 3. Professional Liability Insurance ................................ 1.161 0.764 CMS Hospital Professional Liability Insurance

Premium Index.
4. All Other Products and Services .............................. 22.158 26.988
A. All Other Products ............................................ 13.325 15.574 (1.) Pharmaceuticals ............................................. 5.103 6.514 PPI for Pharmaceutical Preparations for Human Use (Prescriptions). (2.) Food: Direct Purchases .................................. 0.873 2.959 PPI for Processed Foods & Feeds. (3.) Food: Contract Services ................................. 0.620 0.392 CPI–U for Food Away From Home. (4.) Chemicals 2

..................................................... 1.100 1.100 Blend of Chemical PPIs. (5.) Medical Instruments ........................................ 1.014 1.795 PPI for Medical, Surgical, and Personal Aid Devices

. (6.) Photographic Supplies .................................... 0.096 (7.) Rubber and Plastics ....................................... 1.052 1.131 PPI for Rubber & Plastic Products. (8.) Paper and Printing Products .......................... 1.000 1.021 PPI for Converted Paper & Paperboard Products. (9.) Apparel ............................................................ 0.207 0.210 PPI for Apparel. (10.) Machinery and Equipment ............................ 0.297 0.106 PPI for Machinery & Equipment. (11.) Miscellaneous Products ................................ 1.963 0.346 PPI for Finished Goods less Food and Energy.
B. All Other Services ............................................. 8.833 11.414 (1.) Labor-related Services .................................... 5.111 4.681 (a.) Professional Fees: Labor-related 3

................. 2.892 2.114 ECI for Compensation for Professional and Related Occupations.(b.) Administrative and Business Support Services 4

. n/a 0.422 ECI for Compensation for Office and Administrative
Services. (c.) All Other: Labor-Related Services 5

................ 2.219 2.145 ECI for Compensation for Private Service Occupations. (2.) Nonlabor-Related Services ............................. 3.722 6.733 (a.) Professional Fees: Nonlabor-Related 3

.......... n/a 4.211 ECI for Compensation for Professional and Related Occupations. (b.) Financial Services 5

........................................ n/a 0.853 ECI for Compensation for Financial Activities. (c.) Telephone Services ........................................ 0.240 0.416 CPI–U for Telephone Services. (d.) Postage ........................................................... 0.682 0.630 CPI–U for Postage. (e.) All Other: Nonlabor-Related Services 6

.......... 2.800 0.623 CPI–U for All Items less Food and Energy. 5. Capital-Related Costs .............................................. 10.149 8.392 A. Depreciation ...................................................... 6.187 5.519 (1.) Fixed Assets ................................................... 4.250 3.286 BEA chained price index for nonresidential cons truction for hospitals and special care facilities—vintage weighted (26 years). (2.) Movable Equipment ........................................ 1.937 2.233 PPI for Machinery and Equipment—vintage weighted (11 years).
B. Interest Costs .................................................... 2.775 1.954 (1.) Government/Nonprofit ..................................... 2.081 0.653 Average yield on domestic municipal bonds (Bond Buyer 20 bonds)—vintage-weighted (26 years).


### 5005 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

T ABLE 

### 2—P ROPOSED 

### FY 2008-B ASED 

### RPL M ARKET 

### B ASKET 

### C OST 

### C ATEGORIES 

### , W EIGHTS



### , AND 

### P RICE 

### P ROXIES 

### W ITH 

### FY 2002-B ASED 

### RPL M ARKET 

### B ASKET 

### C OST 

### W EIGHTS 

### I NCLUDED FOR 

### C OMPARISON 

### —Continued

Cost categories FY 2002-based RPL market basket cost

weights Proposed FY 2008-based RPL market basket cost

weights Proposed FY 2008-based RPL market basket price proxies

(2.) For Profit ......................................................... 0.694 1.301 Average yield on Moody’s Aaa bonds—vintageweighted (26 years). C. Other Capital-Related Costs ............................ 1.187 0.919 CPI–U for Residential Rent.

Total ............................................................... 100.000 100.000

**Note:** Detail may not add to total due to rounding.

1 Contract Labor is distributed to Wages and Salaries and Employee Benefits based on the share of total compensation that each ca tegory represents.

2 To proxy the Chemicals cost category, we used a blended PPI composed of the PPI for Industrial Gases, the PPI for Other Basic I norganic Chemical Manufacturing, the PPI for Other Basic Organic Chemical Manufacturing, and the PPI for Soap and Cleaning Compound Manu facturing. For more detail about this proxy, see section III.C.3.j. of the preamble of this proposed rule.

2 To proxy the Chemicals cost category, we used a blended PPI composed of the PPI for Industrial Gases, the PPI for Other Basic I norganic Chemical Manufacturing, the PPI for Other Basic Organic Chemical Manufacturing, and the PPI for Soap and Cleaning Compound Manu facturing. For more detail about this proxy, see section III.C.3.j. of the preamble of this proposed rule.

3 The Professional Fees: Labor-related and Professional Fees: Nonlabor-related cost categories were included in one cost category called Professional Fees in the FY 2002-based RPL market basket. For more detail about how these new categories were derived, we refer readers to sections III.C.6. of the preamble of this proposed rule, on the labor-related share.

4 The Administrative and Business Support Services cost category was contained within All Other: Labor-intensive Services cost category in the FY 2002-based RPL market basket. The All Other: Labor-intensive Services cost category is renamed the All Other: Labor-related Services cost category for the FY 2008-based RPL market basket.

5 The Financial Services cost category was contained within the All Other: Non-labor Intensive Services cost category in the FY 2 002-based RPL market basket. The All Other: Non-labor Intensive Services cost category is renamed the All Other: Nonlabor-related Services cost category for the FY 2008-based RPL market basket. a. Wages and Salaries

We are proposing to use the ECI for Wages and Salaries for Hospital Workers (All Civilian) (BLS series code CIU1026220000000I) to measure the price growth of this cost category. This same proxy was used in the FY 2002-
based RPL market basket.

b. Employee Benefits

We are proposing to use the ECI for Employee Benefits for Hospital Workers (All Civilian) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

c. Electricity

We are proposing to use the PPI for Commercial Electric Power (BLS series code WPU0542). This same proxy was
used in the FY 2002-based RPL market
basket.

d. Fuel, Oil, and Gasoline

For the FY 2002-based RPL market basket, this category only included expenses classified under North American Industry Classification System (NAICS) 21 (Mining). We proxied this category using the PPI for Commercial Natural Gas (BLS series code WPU0552). For the proposed FY 2008-based market basket, we are proposing to add costs to this category that had previously been grouped in other categories. The added costs include petroleum-related expenses under NAICS 324110 (previously captured in the miscellaneous category), as well as petrochemical manufacturing classified under NAICS 325110 (previously captured in the chemicals category). These added costs represent 80 percent of the hospital industry’s fuel, oil, and gasoline expenses (or 80 percent of this category). Because the majority of the industry’s fuel, oil, and gasoline expenses originate from petroleum refineries (NAICS 324110), we are proposing to use the PPI for Petroleum Refineries (BLS series code PCU324110324110) as the proxy for this
cost category.

e. Water and Sewage

We are proposing to use the CPI for Water and Sewerage Maintenance (All Urban Consumers) (BLS series code CUUR0000SEHG01) to measure the price growth of this cost category. This same proxy was used in the FY 2002-
based RPL market basket.

f. Professional Liability Insurance

We are proposing to proxy price changes in hospital professional liability insurance premiums (PLI) using percentage changes as estimated by the CMS Hospital Professional Liability Index. To generate these estimates, we collect commercial insurance premiums for a fixed level of coverage while holding nonprice factors constant (such as a change in the level of coverage). This method is also used to proxy PLI price changes in the Medicare Economic Index (75 FR 73268). This same proxy
was used in the FY 2002-based RPL
market basket. g. Pharmaceuticals
We are proposing to use the PPI for Pharmaceuticals for Human Use, Prescription (BLS series code WPUSI07003) to measure the price growth of this cost category. We note that we are not making a change to the PPI that is used to proxy this cost category. There was a recent change to the BLS naming convention for this series; however this is the same proxy
that was used in the FY 2002-based RPL
market basket.

h. Food: Direct Purchases

We are proposing to use the PPI for Processed Foods and Feeds (BLS series code WPU02) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

i. Food: Contract Services

We are proposing to use the CPI for Food Away From Home (All Urban Consumers) (BLS series code CUUR0000SEFV) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

j. Chemicals

We are proposing to use a blended PPI composed of the PPI for Industrial Gas Manufacturing (NAICS 325120) (BLS series code PCU325120325120P), the PPI for Other Basic Inorganic Chemical Manufacturing (NAICS 325180) (BLS series code PCU32518–32518-), the PPI for Other Basic Organic Chemical Manufacturing (NAICS 325190) (BLS


### 5006 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

series code PCU32519–32519-), and the PPI for Soap and Cleaning Compound Manufacturing (NAICS 325610) (BLS series code PCU32561–32561-). Using the 2002 Benchmark I–O data, we found

that these NAICS industries accounted for approximately 90 percent of the hospital industry’s chemical expenses.

Therefore, we are proposing to use
this blended index because we believe its composition better reflects the composition of the purchasing patterns of hospitals than does the PPI for Industrial Chemicals (BLS series code WPU061), the proxy used in the FY
2002-based RPL market basket. Table 3 below shows the weights for each of the four PPIs used to create the blended PPI, which we determined using the 2002
Benchmark I–O data.



### T ABLE 

### 3—B LENDED 

### C HEMICAL 

### PPI W EIGHTS

Name Weights (in percent) NAICS

PPI for Industrial Gas Manufacturing ........................................................................................... ........................... 35 325120 PPI for Other Basic Inorganic Chemical Manufacturing ........................................................................... .............. 25 325180 PPI for Other Basic Organic Chemical Manufacturing ............................................................................. ............... 30 325190 PPI for Soap and Cleaning Compound Manufacturing ............................................................................... ............ 10 325610

k. Medical Instruments

We are proposing to use the PPI for Medical, Surgical, and Personal Aid Devices (BLS series code WPU156) to measure the price growth of this cost category. In the 1997 Benchmark I–O data, approximately half of the expenses classified in this category were for surgical and medical instruments. Therefore, we used the PPI for Surgical
and Medical Instruments and Equipment (BLS series code WPU1562) to proxy this category in the FY 2002-
based RPL market basket. The 2002 Benchmark I–O data show that surgical and medical instruments now represent only 33 percent of these expenses and that the largest expense category is surgical appliance and supplies manufacturing (corresponding to BLS series code WPU1563). Due to this reallocation of costs over time, we are proposing to change the price proxy for this cost category to the more aggregated PPI for Medical, Surgical, and Personal
Aid Devices.

l. Photographic Supplies

We are proposing to eliminate the cost category specific to photographic supplies for the proposed FY 2008-
based RPL market basket. These costs
would now be included in the Chemicals cost category because the costs are presently reported as all other chemical products. Notably, although we would be eliminating the specific cost category, these costs would still be
accounted for within the RPL market
basket.

m. Rubber and Plastics

We are proposing to use the PPI for Rubber and Plastic Products (BLS series code WPU07) to measure price growth of this cost category. This same proxy
was used in the FY 2002-based RPL
market basket. n. Paper and Printing Products
We are proposing to use the PPI for Converted Paper and Paperboard Products (BLS series code WPU0915) to measure the price growth of this cost category. This same proxy was used in
the FY 2002-based RPL market basket.

o. Apparel

We are proposing to use the PPI for Apparel (BLS series code WPU0381) to measure the price growth of this cost category. This same proxy was used in
the FY 2002-based RPL market basket.

p. Machinery and Equipment

We are proposing to use the PPI for Machinery and Equipment (BLS series code WPU11) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

q. Miscellaneous Products

We are proposing to use the PPI for Finished Goods Less Food and Energy (BLS series code WPUSOP3500) to measure the price growth of this cost category. Using this index would remove the double-counting of food and energy prices, which would already be captured elsewhere in the market basket. This same proxy was used in the
FY 2002-based RPL market basket.

r. Professional Fees: Labor-Related

We are proposing to use the ECI for Compensation for Professional and Related Occupations (Private Industry) (BLS series code CIS2020000120000I) to measure the price growth of this category. It includes occupations such as legal, accounting, and engineering services. This same proxy was used in
the FY 2002-based RPL market basket.

s. Administrative and Business Support

Services

We are proposing to use the ECI for Compensation for Office and Administrative Support Services (Private Industry) (BLS series code CIU2010000220000I) to measure the price growth of this category. Previously
these costs were included in the All Other: Labor-intensive category (now
renamed the All Other: Labor-related Services category), and were proxied by the ECI for Compensation for Service Occupations. We believe that this compensation index better reflects the changing price of labor associated with the provision of administrative services and its incorporation represents a technical improvement to the market
basket.

t. All Other: Labor-Related Services

We are proposing to use the ECI for Compensation for Service Occupations (Private Industry) (BLS series code CIU2010000300000I) to measure the price growth of this cost category. This same proxy was used in the FY 2002-
based RPL market basket.

u. Professional Fees: Nonlabor-Related

We are proposing to use the ECI for Compensation for Professional and Related Occupations (Private Industry) (BLS series code CIS2020000120000I) to measure the price growth of this category. This is the same price proxy that we are proposing to use for the
Professional Fees: Labor-related cost category.

v. Financial Services

We are proposing to use the ECI for Compensation for Financial Activities (Private Industry) (BLS series code CIU201520A000000I) to measure the price growth of this cost category. Previously these costs were included in
the All Other: Nonlabor-intensive category (now renamed the All Other: Nonlabor-related Services category), and were proxied by the CPI for All Items. We believe that this compensation index better reflects the changing price of labor associated with the provision of


### 5007 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

financial services and its incorporation represents a technical improvement to
the market basket.

w. Telephone Services

We are proposing to use the CPI for Telephone Services (BLS series code CUUR0000SEED) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

x. Postage

We are proposing to use the CPI for Postage (BLS series code CUUR0000SEEC01) to measure the price growth of this cost category. This same proxy was used in the FY 2002-based
RPL market basket.

y. All Other: Nonlabor-Related Services

We are proposing to use the CPI for All Items Less Food and Energy (BLS series code CUUR0000SA0L1E) to measure the price growth of this cost category. Previously these costs were proxied by the CPI for All Items in the
FY 2002-based RPL market basket. We believe that using the CPI for All Items Less Food and Energy would remove the double counting of changes in food and energy prices, as they are already captured elsewhere in the market basket. Consequently, we believe that the incorporation of this proxy would represent a technical improvement to
the market basket.

4. Proposed Methodology for Capital
Portion of the RPL Market Basket

In the FY 2002-based RPL market basket, we did not have IRF, IPF, and LTCH 2002 Medicare cost report data for the capital cost weights, due to a change in the 2002 reporting requirements. Therefore, we used these hospitals’ 2001 expenditure data for the capital cost categories of depreciation, interest, and other capital expenses, and aged the data to a 2002 base year using relevant price proxies.

For the proposed FY 2008-based RPL market basket, we are proposing to calculate weights for the proposed RPL market basket capital costs using the
same set of FY 2008 Medicare cost reports used to develop the operating share for IRFs, IPFs, and LTCHs. To calculate the proposed total capital cost weight, we first apply the same LOS edits as applied prior to calculating the operating cost weights as described above in section III.C.3. The resulting proposed capital weight for the FY 2008 base year is 8.392 percent.

Lease expenses are unique in that they are not broken out as a separate cost category in the RPL market basket, but rather are proportionally distributed amongst the cost categories of Depreciation, Interest, and Other, reflecting the assumption that the underlying cost structure of leases is similar to that of capital costs in general.
As was done in the FY 2002-based RPL market basket, we first assumed 10 percent of lease expenses represents overhead and assigned those costs to the Other Capital-Related Costs category accordingly. The remaining lease expenses were distributed across the three cost categories based on the respective weights of depreciation, interest, and other capital not including lease expenses.

Depreciation contains two subcategories: (1) Building & Fixed Equipment; and (2) Movable Equipment. The apportionment between building & fixed equipment and movable equipment was determined using the FY 2008 Medicare cost reports for freestanding IRFs, IPFs, and LTCHs. This methodology was also used to compute the apportionment used in the FY 2002-based RPL market basket (70 FR 47912).

The total Interest expense cost category is split between government/ nonprofit interest and for-profit interest.
The FY 2002-based RPL market basket allocated 75 percent of the total Interest cost weight to government/nonprofit interest and proxied that category by the average yield on domestic municipal bonds. The remaining 25 percent of theInterest cost weight was allocated to forprofit interest and was proxied by the average yield on Moody’s Aaa bonds (70 FR 47912). This was based on the FY 2002-based IPPS capital input price index (70 FR 23406) due to insufficient Medicare cost report data for IPFs, IRFs, and LTCHs. For the proposed FY 2008- based RPL market basket, we are proposing to derive the split using the relative FY 2008 Medicare cost report data on interest expenses for government/nonprofit and for-profit IRFs, IPFs, and LTCHs. Based on these data, we calculated a proposed 33/67 split between government/nonprofit and for-profit interest. We believe it is important that this split reflects the
latest relative cost structure of interest expenses for RPL providers. As stated above, we first apply the LOS edits (as described in section III.C.3.) prior to calculating this split. Therefore, we are using cost reports that are reflective of case mix and practice patterns associated with providing services to Medicare beneficiaries. Using data specific to government/nonprofit and for-profit IRFs, IPFs, and LTCHs as well as the application of these LOS edits are the primary reasons for the difference in this split relative to the FY 2002-based
RPL market basket.

Because capital is acquired and paid for over time, capital expenses in any given year are determined by both past and present purchases of physical and financial capital. The vintage-weighted capital portion of the FY 2008-based
RPL market basket is intended to capture the long-term consumption of capital, using vintage weights for depreciation (physical capital) and interest (financial capital). These vintage weights reflect the proportion of capital purchases attributable to each year of the expected life of building & fixed equipment, movable equipment, and interest. We are proposing to usethe vintage weights to compute vintageweighted price changes associated with depreciation and interest expense.

Vintage weights are an integral part of the proposed FY 2008-based RPL market basket. Capital costs are inherently complicated and are determined by complex capital purchasing decisions, over time, based on such factors as interest rates and debt financing. In addition, capital is depreciated over time instead of being consumed in the same period it is purchased. The capital portion of the proposed FY 2008-based
RPL market basket would reflect the annual price changes associated with capital costs, and would be a useful simplification of the actual capital investment process. By accounting for the vintage nature of capital, we are able to provide an accurate and stable annual measure of price changes. Annual nonvintage price changes for capital are unstable due to the volatility of interest rate changes and, therefore, do not reflect the actual annual price changes for Medicare capital-related costs. The capital component of the proposed FY
2008-based RPL market basket would reflect the underlying stability of the capital acquisition process and provides hospitals with the ability to plan for changes in capital payments.

To calculate the vintage weights for depreciation and interest expenses, we needed a time series of capital purchases for building & fixed equipment and movable equipment. We found no single source that provides a uniquely best time series of capital purchases by hospitals for all of the above components of capital purchases. The early Medicare cost reports did not have sufficient capital data to meet this
need. Data we obtained from the American Hospital Association (AHA) do not include annual capital purchases. However, AHA does provide
a consistent database back to 1963. We used data from the AHA Panel Survey and the AHA Annual Survey to obtain


### 5008 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

a time series of total expenses for hospitals. We then used data from the AHA Panel Survey supplemented with the ratio of depreciation to total hospital expenses obtained from the Medicare cost reports to derive a trend of annual depreciation expenses for 1963 through

2008.

In order to estimate capital purchases using data on depreciation expenses, the expected life for each cost category (building & fixed equipment, movable equipment, and interest) is needed to calculate vintage weights. For the FY 2002-based RPL market basket, due to insufficient Medicare cost report data for IRFs, IPFs, and LTCHs, we used 2001 Medicare Cost Reports for IPPS hospitals to determine the expected life of building & fixed equipment and movable equipment (70 FR 47913). The
FY 2002-based RPL market basket was based on an expected life of building & fixed equipment of 23 years. It used 11 years as the expected life for movable equipment. We believed that this data
source reflected the latest relative cost structure of depreciation expenses for hospitals at the time and was analogous to IRFs, IPFs, and LTCHs.

The expected life of any piece of equipment can be determined by dividing the value of the asset (excluding fully depreciated assets) by its current year depreciation amount. This calculation yields the estimated useful life of an asset if depreciation were to continue at current year levels, assuming straight-line depreciation. Following a similar method to what was applied for the FY 2002-based RPL market basket, we are proposing to use the expected life of building & fixed equipment to be equal to 26 years, and the expected life of movable equipment to be 11 years. These expected lives are calculated using FY 2008 Medicare cost reports for IPPS hospitals since we are currently unable to obtain robust measures of the expected lives for building & fixed equipment and movable equipment using the Medicare cost reports from IRFs, IPFs, and LTCHs.

We also propose to use the building & fixed equipment and movable equipment weights derived from FY 2008 Medicare cost reports for IRFs, IPFs, and LTCHs to separate the depreciation expenses into annual amounts of building & fixed equipment depreciation and movable equipment depreciation. Year-end asset costs for building & fixed equipment and movable equipment were determined by multiplying the annual depreciation amounts by the expected life
calculations. We then calculated a time series, back to 1963, of annual capital purchases by subtracting the previous year asset costs from the current year asset costs. From this capital purchase time series, we were able to calculate the vintage weights for building & fixed equipment and for movable equipment. Each of these sets of vintage weights is explained in more detail below.

For the proposed building & fixed equipment vintage weights, we used the real annual capital purchase amounts for building & fixed equipment to capture the actual amount of the physical acquisition, net of the effect of price inflation. This real annual purchase amount for building & fixed equipment was produced by deflating the nominal annual purchase amount by the building & fixed equipment price proxy, BEA’s chained price index for
nonresidential construction for hospitals and special care facilities. Because building & fixed equipment have an expected life of 26 years, the vintage weights for building & fixed equipment are deemed to represent the average purchase pattern of building & fixed equipment over 26-year periods. With real building & fixed equipment purchase estimates available from 2008 back to 1963, we averaged twenty 26- year periods to determine the average vintage weights for building & fixed equipment that are representative of average building & fixed equipment purchase patterns over time. Vintage weights for each 26-year period are calculated by dividing the real building & fixed capital purchase amount in any given year by the total amount of purchases in the 26-year period. This calculation is done for each year in the 26-year period, and for each of the twenty 26-year periods. We used the average of each year across the twenty 26-year periods to determine the average building & fixed equipment vintage weights for the FY 2008-based RPL
market basket.

For the proposed movable equipment vintage weights, the real annual capital purchase amounts for movable equipment were used to capture the actual amount of the physical acquisition, net of price inflation. This real annual purchase amount for movable equipment was calculated by deflating the nominal annual purchase amounts by the movable equipment price proxy, the PPI for Machinery and Equipment. This is the same proxy used
for the FY 2002-based RPL market
basket. Based on our determination that movable equipment has an expected life of 11 years, the vintage weights for movable equipment represent the average expenditure for movable equipment over an 11-year period. With real movable equipment purchase
estimates available from 2008 back to 1963, thirty-five 11-year periods were averaged to determine the average vintage weights for movable equipment that are representative of average movable equipment purchase patterns over time. Vintage weights for each 11- year period are calculated by dividing the real movable capital purchase amount for any given year by the total amount of purchases in the 11-year period. This calculation was done for each year in the 11-year period and for each of the thirty-five 11-year periods. We used the average of each year across the thirty-five 11-year periods to determine the average movable equipment vintage weights for the FY
2008-based RPL market basket.

For the proposed interest vintage weights, the nominal annual capital purchase amounts for total equipment (building & fixed, and movable) were used to capture the value of the debt
instrument. Because we have determined that hospital debt instruments have an expected life of 26 years, the vintage weights for interest are deemed to represent the average purchase pattern of total equipment over 26-year periods. With nominal total equipment purchase estimates available from 2008 back to 1963, twenty 26-year periods were averaged to determine the average vintage weights for interest that are representative of average capital purchase patterns over time. Vintage weights for each 26-year period are calculated by dividing the nominal total capital purchase amount for any given year by the total amount of purchases in the 26-year period. This calculation is done for each year in the 26-year period and for each of the twenty 26-year periods. We used the average of each year across the twenty 26-year periods to determine the average interest vintage weights for the FY 2008-based RPL market basket. The vintage weights for the capital portion of the FY 2002-based
RPL market basket and the FY 2008- based RPL market basket are presented
in Table 4.


### 5009 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

T ABLE 

### 4—FY 2002 AND 

### FY 2008 V INTAGE 

### W EIGHTS FOR 

### C APITAL 

### -R ELATED 

### P RICE 

### P ROXIES

Year Building and fixed equipment Movable equipment Interest

FY 2002 23 years FY 2008 26 years FY 2002 11 years FY 2008 11 years FY 2002 23 years FY 2008 26 years

1 ............................................................... 0.021 0.021 0.065 0.071 0.010 0.010

2 ............................................................... 0.022 0.023 0.071 0.075 0.012 0.012

3 ............................................................... 0.025 0.025 0.077 0.080 0.014 0.014

4 ............................................................... 0.027 0.027 0.082 0.083 0.016 0.016

5 ............................................................... 0.029 0.028 0.086 0.085 0.019 0.018

6 ............................................................... 0.031 0.030 0.091 0.089 0.023 0.020

7 ............................................................... 0.033 0.031 0.095 0.092 0.026 0.021

8 ............................................................... 0.035 0.033 0.100 0.098 0.029 0.024

9 ............................................................... 0.038 0.035 0.106 0.103 0.033 0.026

10 ............................................................. 0.040 0.037 0.112 0.109 0.036 0.029

11 ............................................................. 0.042 0.039 0.117 0.116 0.039 0.033

12 ............................................................. 0.045 0.041 ........................ ........................ 0.043 0.035

13 ............................................................. 0.047 0.042 ........................ ........................ 0.048 0.038

14 ............................................................. 0.049 0.043 ........................ ........................ 0.053 0.041

15 ............................................................. 0.051 0.044 ........................ ........................ 0.056 0.043

16 ............................................................. 0.053 0.045 ........................ ........................ 0.059 0.046

17 ............................................................. 0.056 0.046 ........................ ........................ 0.062 0.049

18 ............................................................. 0.057 0.047 ........................ ........................ 0.064 0.052

19 ............................................................. 0.058 0.047 ........................ ........................ 0.066 0.053

20 ............................................................. 0.060 0.045 ........................ ........................ 0.070 0.053

21 ............................................................. 0.060 0.045 ........................ ........................ 0.071 0.055

22 ............................................................. 0.061 0.045 ........................ ........................ 0.074 0.056

23 ............................................................. 0.061 0.046 ........................ ........................ 0.076 0.060

24 ............................................................. ........................ 0.046 ........................ ..........

.............. ........................ 0.063

25 ............................................................. ........................ 0.045 ........................ ..........

.............. ........................ 0.064

26 ............................................................. ........................ 0.046 ........................ ..........

.............. ........................ 0.068

Total .................................................. 1.000 1.000 1.000 1.000 1.000 1.000

Note: Numbers may not add to total due to rounding.

After the capital cost category weights were computed, it was necessary to select appropriate price proxies to

reflect the rate-of-increase for each expenditure category. We are proposing to use the same price proxies for the capital portion of the proposed FY 2008-

based RPL market basket that were used

in the FY 2002-based RPL market basket with the exception of the Boeckh Construction Index. We replaced the

Boeckh Construction Index with BEA’s chained price index for nonresidential construction for hospitals and special care facilities. The BEA index represents

construction of facilities such as hospitals, nursing homes, hospices, and rehabilitation centers. Although these price indices move similarly over time, we believe that it is more technically appropriate to use an index that is more specific to the hospital industry. We believe these are the most appropriate proxies for hospital capital costs that meet our selection criteria of relevance, timeliness, availability, and reliability.

The price proxies (prior to any vintage weighting) for each of the capital cost categories are the same as those used for

the FY 2006-based CIPI as described in the IPPS FY 2010 final rule (74 FR at 43857). 5. Proposed RY 2012 Market Basket Update

For the proposed RY 2012 (that is, beginning July 1, 2011 and ending September 30, 2012), we are proposing to use a 15-month (that is July 1, 2011 through September 30, 2012) estimate of the proposed FY 2008-based RPL market
basket based on the best available data. Consistent with historical practice, we estimate the RPL market basket update
for the IPF PPS based on IHS Global Insight’s forecast using the most recent available data. IHS Global Insight, Inc. is a nationally recognized economic and financial forecasting firm that contracts with CMS to forecast the components of
the market baskets.

To determine a 15-month market basket update for RY 2012, we calculate the 5-quarter moving average index level for July 1, 2011 through September 30, 2012 and the 4-quarter moving average index level for July 1, 2010 through June 30, 2011. The percent change in these two values represents the proposed 15-month market basket update.

Based on IHS Global Insight’s 4th quarter 2010 forecast with history through the 3rd quarter of 2010, the projected 15-month market basket update for the proposed 15-month RY 2012 (July 1, 2011 through September 30, 2012) is 3.0 percent. Therefore, consistent with our historical practice of estimating market basket increases based on the best available data, we are proposing a market basket update of 3.0 percent for the proposed 15-month RY 2012. Furthermore, because the proposed RY 2012 update is based on
the most recent market basket estimate for the 15-month period (currently 3.0 percent), we are also proposing that if more recent data are subsequently available (for example, a more recent estimate of the market basket), we would use such data, if appropriate, to determine the RY 2012 update in the
final rule.

We note that the most recent estimate
of the FY 2008-based RPL market basket update for July 1, 2011 through June 30, 2012, based on IHS Global Insight’s 4th quarter 2010 forecast with history through the 3rd quarter of 2010, is 2.6 percent. We determine this 12-month market basket update by calculating the 4-quarter moving average index level for July 1, 2011 through June 30, 2012 and the 4-quarter moving average index level for July 1, 2010 through June 30, 2011. The percent change in these two values represents the proposed 12- month market basket update. Consistent with our historical practice of using


### 5010 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

market basket estimates based on the most recent available data, if we were not proposing to extend the 2012 IPF PPS rate year by 3 months, we would have proposed a market basket update for a 12-month RY 2012 of 2.6 percent, based on the most recent estimate of the 12-month RPL market basket update for July 1, 2011 through June 30, 2012.

Using the current FY 2002-based RPL market basket and IHS Global Insight’s 4th quarter 2010 forecast for the market basket components, the 15-month RY 2012 update would also be 3.0 percent. The 12-month RY 2012 update would be 2.6 percent. Table 5 below compares the proposed FY 2008-based RPL market

basket and the FY 2002-based RPL market basket percent changes.



### T ABLE 

### 5—FY 2002-B ASED AND 

### P ROPOSED 

### FY 2008-B ASED 

### RPL M ARKET 

### B ASKET 

### P ERCENT 

### C HANGE 

### , RY 2006

T HROUGH 

### FY 2014

Rate Year (RY) or Fiscal Year (FY) FY 2002-Based RPL Market Basket Index Percent Change FY 2008-Based Proposed RPL Market Basket Index Percent Change

Historical data:
RY 2006 1

............................................................................................................................... .............. 3.8 3.7
RY 2007 1

............................................................................................................................... .............. 3.5 3.5
RY 2008 1

............................................................................................................................... .............. 3.5 3.6
RY 2009 1

............................................................................................................................... .............. 3.2 3.3
RY 2010 1

............................................................................................................................... .............. 2.2 2.1 Average 2006–2010 .............................................................................................................. ............... 3.2 3.2
Forecast:
RY 2011 1

............................................................................................................................... .............. 2.2 2.3
RY 2012 2

............................................................................................................................... .............. 3.0 3.0
FY 2013 3

............................................................................................................................... ............... 3.0 2.9
FY 2014 3

............................................................................................................................... ............... 3.0 3.0 Average 2011–2014 .............................................................................................................. ............... 2.8 2.8

1 RY 2006 through RY 2011 represent 12-month updates, which include July 1 through June 30.

2 RY 2012 represents a 15-month update, which includes July 1, 2011 through September 30, 2012.

3 FY 2013 through FY 2014 represent 12-month updates, which include October 1 through September 30. Note that these market basket percent changes do not include any further adjustments as may be statutorily required. Source: IHS Global Insight, Inc. 4th quarter 2010 forecast.

For the RY 2012 proposed market basket update, there is no difference between the 15-month top-line FY 2002- based and the proposed FY 2008-based
RPL market basket increases due to offsetting factors. The lower total compensation weight in the proposed
FY 2008-based RPL market basket (62.278 percent) relative to the FY 2002- based RPL market basket (65.877 percent), absent other factors, would have resulted in a slightly lower market basket update using the FY 2008-based RPL market basket. This impact, however, is offset by the larger weight
associated with the Professional Fees category. In both market baskets, these expenditures are proxied by the ECI for Compensation for Professional and Related Services. The weight for
Professional Fees in the FY 2002-based RPL market basket is 2.892 percent compared to 6.325 percent in the proposed FY 2008-based RPL market
basket.

6. Proposed Labor-Related Share

As described in section V.C.1. of this proposed rule, due to the variations in costs and geographic wage levels, we are proposing that payment rates under the IPF PPS continue to be adjusted by a geographic wage index. This wage index would apply to the labor-related portion of the proposed Federal per diem baserate, hereafter referred to as the laborrelated share.

The labor-related share is determined by identifying the national average proportion of total costs that are related to, influenced by, or vary with the local labor market. We continue to classify a cost category as labor-related if the costs are labor-intensive and vary with the local labor market. Given this, based on our definition of the labor-related share, we are proposing to include in the
labor-related share the sum of the relative importance of Wages and Salaries, Employee Benefits, Professional Fees: Labor-related, Administrative and Business Support Services, All Other: Labor-related Services (previously referred to in the
FY 2002-based RPL market basket as labor-intensive), and a portion of the Capital-Related cost weight.

Consistent with previous rebasings,
the All Other: Labor-related Services cost category is mostly comprised of building maintenance and security services (including, but not limited to, commercial and industrial machinery and equipment repair, nonresidential maintenance and repair, and investigation and security services).
Because these services tend to be laborintensive and are mostly performed at the hospital facility (and, therefore, unlikely to be purchased in the national market), we believe that they meet our
definition of labor-related services.

As stated in the April 2010 IPF PPS notice (75 FR 23110), the labor-related
share was defined as the sum of the relative importance of Wages and Salaries, Fringe Benefits, Professional Fees, Labor-intensive Services, and a portion of the capital share from an appropriate market basket. Therefore, to
determine the labor-related share for the IPF PPS for RY 2011, we used the FY
2002-based RPL market basket cost weights relative importance to
determine the labor-related share for the

IPF PPS.

For the proposed FY 2008-based RPL market basket rebasing, the proposed
inclusion of the Administrative and Business Support Services cost category
into the labor-related share remains
consistent with the current labor-related share because this cost category waspreviously included in the Laborintensive cost category. As previously stated, we are proposing to establish a separate Administrative and Business Support Service cost category so that we can use the ECI for Compensation for Office and Administrative Support Services to more precisely proxy these specific expenses.


### 5011 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

For the FY 2002-based RPL market basket, we assumed that all nonmedical professional services (including accounting and auditing services, engineering services, legal services, and management and consulting services) were purchased in the local labor market and, therefore, all of their
associated fees varied with the local labor market. As a result, we previously included 100 percent of these costs in
the labor-related share. In an effort to more accurately determine the share of professional fees that should be included in the labor-related share, we surveyed hospitals regarding the proportion of those fees that go to companies that are located beyond their own local labor market (the results are discussed below).

We continue to look for ways to refine our market basket approach to more accurately account for the proportion of costs influenced by the local labor market. To that end, we conducted a survey of hospitals to empirically determine the proportion of contracted professional services purchased by the industry that are attributable to local firms and the proportion that are purchased from national firms. We notified the public of our intent to conduct this survey on December 9, 2005 (70 FR 73250) and received no comments (71 FR 8588).

With approval from the Office of Management and Budget (OMB), we contacted a sample of IPPS hospitals and received responses to our survey from 108 hospitals. We believe that these data serve as an appropriate proxy for the purchasing patterns of professional services for IPFs as they are also institutional providers of health care services. Using data on FTEs to allocate responding hospitals across strata (region of the country and urban/ rural status), we calculated poststratification weights. Based on these weighted results, we determined that hospitals purchase, on average, the following portions of contracted professional services outside of their
local labor market:

• 34 percent of accounting and auditing services.

• 30 percent of engineering services.

• 33 percent of legal services.

• 42 percent of management consulting services. We applied each of these percentages to its respective Benchmark I–O cost category underlying the professional fees cost category. This is the methodology that we used to separate
the FY 2008-based RPL market basket professional fees category into
Professional Fees: Labor-related and
Professional Fees: Nonlabor-related cost categories. In addition to the professional services listed above, we also classified expenses under NAICS 55, Management of Companies and Enterprises, into the Professional Fees cost category as was done in previous rebasings. The NAICS 55 data are mostly comprised of corporate, subsidiary, and regional managing offices, or otherwise referred to as home offices. Formerly, all of the expenses within this category were considered to vary with, or be influenced by, the local
labor market and were thus included in the labor-related share. Because many hospitals are not located in the same geographic area as their home office, we analyzed data from a variety of sources in order to determine what proportion of these costs should be appropriately
included in the labor-related share.

Using data primarily from the Medicare cost reports and a CMS
database of Home Office Medicare Records (HOMER) (a database that provides city and state information (addresses) for home offices), we were able to determine that 19 percent of the total number of freestanding IRFs, IPFs,
and LTCHs that had home offices had
those home offices located in their respective local labor markets—defined as being in the same Metropolitan Statistical Area (MSA).

The Medicare cost report requires hospitals to report their home office provider numbers. Using the HOMER
database to determine the home office location for each home office provider number, we compared the location of the provider with the location of the hospital’s home office. We then placed providers into one of the following three

groups:

• Group 1—Provider and home office
are located in different States.

• Group 2—Provider and home office
are located in the same State and same city. • Group 3—Provider and home office
are located in the same State and different city.

We found that 63 percent of the providers with home offices were classified into Group 1 (that is, different State) and, thus, these providers were
determined to not be located in the
same local labor market as their home office. Although there were a very limited number of exceptions (that is, providers located in different States but the same MSA as their home office), the 63 percent estimate was unchanged.

We found that 9 percent of all providers with home offices were classified into Group 2 (that is, same State and same city and, therefore, the same MSA). Consequently, these providers were determined to be located
in the same local labor market as their
home offices.

We found that 27 percent of all providers with home offices were classified into Group 3 (that is, same State and different city). Using data
from the Census Bureau to determine the specific MSA for both the provider and its home office, we found that 10 percent of all providers with home offices were identified as being in the same State, a different city, but the same

MSA.

Pooling these results, we were able to determine that approximately 19 percent of providers with home offices
had home offices located within their local labor market (that is, 9 percent of providers with home offices had their home offices in the same State and city (and, thus, the same MSA), and 10 percent of providers with home offices had their home offices in the same State, a different city, but the same MSA). We are proposing to apportion the NAICS 55 expense data by this percentage. Thus, we are proposing to classify 19 percent of these costs into the
Professional Fees: Labor-related cost category and the remaining 81 percent
into the Professional Fees: Nonlaborrelated Services cost category.

Table 6 below shows the proposed RY 2012 relative importance labor-related share using the proposed FY 2008-based
RPL market basket and the FY 2002-
based RPL market basket.


### 5012 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

T ABLE 

### 6—C OMPARISON OF THE 

### RY 2011 (12-M ONTH 

### ) R ELATIVE 

### I MPORTANCE 

### L ABOR 

### -R ELATED 

### S HARE 

### B ASED ON THE 

### FY 2002-B ASED 

### RPL M ARKET 

### B ASKET AND THE 

### P ROPOSED 

### RY 2012 (15-M ONTH 

### ) R ELATIVE 

### I MPORTANCE 

### L ABOR 

### R ELATED 

### S HARE BASED ON THE 

### P ROPOSED 

### FY 2008-B ASED 

### RPL M ARKET 

### B ASKET

RY 2011 Relativeimportance laborrelated share Proposed RY 2012 relativeimportance laborrelated share

Wages and Salaries ............................................................................................................. ....................... 52.600 49.248 Employee Benefits .............................................................................................................. ......................... 13.935 12.988
Professional Fees: Labor-Related ............................................................................................... ................ 2.853 2.085 Administrative and Business Support Services ................................................................................... ........ .............................. 0.417
All Other: Labor-Related Services .............................................................................................. ................. 2.118 2.104
Subtotal ....................................................................................................................... ................................. 71.506 66.842 Labor-Related Portion of Capital Costs (46%) ................................................................................... ......... 3.894 3.657

Total Labor-Related Share ...................................................................................................... ............. 75.400 70.499

The proposed labor-related share for RY 2012 is the sum of the proposed RY2012 relative importance of each laborrelated cost category, and would reflect the different rates of price change for these cost categories between the base year (FY 2008) and RY 2012. The sum of the proposed relative importance for RY 2012 for operating costs (Wages and Salaries, Employee Benefits, Professional Fees: Labor-Related, Administrative and Business Support Services, and All Other: Labor-related Services) would be 66.842 percent, as
shown in Table 6 above. We are proposing that the portion of Capital that is influenced by the local labor market is estimated to be 46 percent, which is the same percentage applied to
the FY 2002-based RPL market basket. Since the relative importance for Capital-Related Costs would be 7.950 percent of the proposed FY 2008-based RPL market basket in RY 2012, we are proposing to take 46 percent of 7.950 percent to determine the proposed labor-related share of Capital for RY
2012. The result would be 3.657 percent, which we propose to add to 66.842 percent for the operating cost amount to determine the total proposed
labor-related share for RY 2012. Therefore, the labor-related share that we propose to use for IPF PPS in RY 2012 would be 70.499 percent. This proposed labor-related share is determined using the same methodology as employed in calculating all previous IPF labor-related shares (69 FR 66952). The wage index and the labor-related share are adjusted for budget neutrality.

IV. Updates to the IPF PPS for RY Beginning July 1, 2011

The IPF PPS is based on a standardized Federal per diem base rate calculated from IPF average per diem costs and adjusted for budget-neutrality in the implementation year. The Federal per diem base rate is used as the standard payment per day under the IPF PPS and is adjusted by the patient- and facility-level adjustments that are applicable to the IPF stay. A detailed explanation of how we calculated the average per diem cost appears in the November 2004 IPF PPS final rule (69 FR 66926).

A. Determining the Standardized Budget-Neutral Federal Per Diem Base

Rate

Section 124(a)(1) of the BBRA requires that we implement the IPF PPS in a budget neutral manner. In other words, the amount of total payments under the IPF PPS, including any payment adjustments, must be projected to be equal to the amount of total payments that would have been made if the IPF PPS were not implemented.Therefore, we calculated the budgetneutrality factor by setting the total estimated IPF PPS payments to be equal to the total estimated payments that

would have been made under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) (Pub. L. 97–248) methodology had the IPF PPS not been implemented.

Under the IPF PPS methodology, we calculated the final Federal per diem base rate to be budget neutral during the IPF PPS implementation period (that is, the 18-month period from January 1, 2005 through June 30, 2006) using a July 1 update cycle. We updated the average cost per day to the midpoint of the IPF PPS implementation period (that is, October 1, 2005), and this amount was used in the payment model to establish the budget-neutrality adjustment.

A step-by-step description of the methodology used to estimate payments under the TEFRA payment system appears in the November 2004 IPF PPS final rule (69 FR 66926). 1. Standardization of the Federal Per

Diem Base Rate and Electroconvulsive Therapy (ECT) Rate

In the November 2004 IPF PPS final rule, we describe how we standardized the IPF PPS Federal per diem base rate

in order to account for the overall positive effects of the IPF PPS payment adjustment factors. To standardize the IPF PPS payments, we compared the IPF PPS payment amounts calculated from the FY 2002 Medicare Provider Analysis and Review (MedPAR) file to the projected TEFRA payments from the FY 2002 cost report file updated to the midpoint of the IPF PPS implementation period (that is, October 2005). The standardization factor was calculated by dividing total estimated payments under the TEFRA payment system by estimated payments under

the IPF PPS. The standardization factor

was calculated to be 0.8367.

As described in detail in the May 2006 IPF PPS final rule (71 FR 27045), in reviewing the methodology used to simulate the IPF PPS payments used for the November 2004 IPF PPS final rule, we discovered that due to a computer code error, total IPF PPS payments were underestimated by about 1.36 percent. Since the IPF PPS payment total should have been larger than the estimated figure, the standardization factor should have been smaller (0.8254 vs. 0.8367). In turn, the Federal per diem base rate and

the ECT rate should have been reduced by 0.8254 instead of 0.8367.

To resolve this issue, in RY 2007, we amended the Federal per diem base rate and the ECT payment rate prospectively. Using the standardization factor of 0.8254, the average cost per day was effectively reduced by 17.46 percent (100 percent minus 82.54 percent = 17.46 percent).


### 5013 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

2. Calculation of the Budget Neutrality Adjustment

To compute the budget neutrality adjustment for the IPF PPS, we separately identified each component of the adjustment, that is, the outlier adjustment, stop-loss adjustment, and
behavioral offset.

A complete discussion of how we calculate each component of the budget neutrality adjustment appears in the November 2004 IPF PPS final rule (69 FR 66932 through 66933) and in the May 2006 IPF PPS final rule (71 FR 27044 through 27046).

a. Outlier Adjustment

Since the IPF PPS payment amount for each IPF includes applicable outlier amounts, we reduced the standardized Federal per diem base rate to account for aggregate IPF PPS payments
estimated to be made as outlier payments. The outlier adjustment was calculated to be 2 percent. As a result, the standardized Federal per diem base rate was reduced by 2 percent to account for projected outlier payments.

b. Stop-Loss Provision Adjustment

As explained in the November 2004IPF PPS final rule, we provided a stoploss payment during the transition from cost-based reimbursement to the per diem payment system to ensure that an IPF’s total PPS payments were no less than a minimum percentage of their TEFRA payment, had the IPF PPS not been implemented. We reduced the standardized Federal per diem base rate by the percentage of aggregate IPF PPSpayments estimated to be made for stoploss payments. As a result, the standardized Federal per diem base rate was reduced by 0.39 percent to account for stop-loss payments. Since the transition was completed in RY 2009, the stop-loss provision is no longer applicable, and for cost reporting periods beginning on or after January 1, 2008, IPFs were paid 100 percent PPS.

c. Behavioral Offset

As explained in the November 2004 IPF PPS final rule, implementation of the IPF PPS may result in certain changes in IPF practices, especially with respect to coding for comorbid medical conditions. As a result, Medicare may make higher payments than assumed in our calculations. Accounting for these effects through an adjustment is commonly known as a behavioral offset.

Based on accepted actuarial practices and consistent with the assumptions made in other PPSs, we assumed in determining the behavioral offset that IPFs would regain 15 percent of potential ‘‘losses’’ and augment payment increases by 5 percent. We applied this actuarial assumption,
which is based on our historical experience with new payment systems, to the estimated ‘‘losses’’ and ‘‘gains’’ among the IPFs. The behavioral offset
for the IPF PPS was calculated to be 2.66 percent. As a result, we reduced the standardized Federal per diem base rate by 2.66 percent to account for behavioral changes. As indicated in the November 2004 IPF PPS final rule, we do not plan to change adjustment factors or projections until we analyze IPF PPS
data.

If we find that an adjustment is warranted, the percent difference may be applied prospectively to the
established PPS rates to ensure the rates accurately reflect the payment level intended by the statute. In conducting this analysis, we will be interested in the extent to which improved coding of patients’ principal and other diagnoses, which may not reflect real increases in underlying resource demands, has
occurred under the PPS.

B. Update of the Federal Per Diem Base Rate and Electroconvulsive Therapy

Rate

As described in the November 2004 IPF PPS final rule (69 FR 66931), the average per diem cost was updated to the midpoint of the implementation year. This updated average per diem cost of $724.43 was reduced by 17.46 percent to account for standardization to projected TEFRA payments for the implementation period, by 2 percent to account for outlier payments, by 0.39 percent to account for stop-loss payments, and by 2.66 percent to
account for the behavioral offset. The Federal per diem base rate in the implementation year was $575.95. The increase in the per diem base rate for RY 2009 included the 0.39 percent increase due to the removal of the stop-loss provision. We indicated in the November 2004 IPF PPS final rule (69 FR 66932) that we would remove this 0.39 percent reduction to the Federal per diem base rate after the transition.
As discussed in section IV.D.2. of the May 2008 IPF PPS notice, we increased the Federal per diem base rate and the ECT base rate by 0.39 percent in RY
2009. Therefore for RY 2009 and beyond, the stop-loss provision has ended and is no longer a part of budget neutrality.

In accordance with section 1886(s)(2)(A)(ii) of the Act, which requires the application of an ‘‘other adjustment,’’ described in section 1886(s)(3) of the Act (specifically, section 1886(s)(3)(A) for RYs 2011 and 2012) that reduces the update to the IPF PPS base rate for the rate year beginning in Calendar Year (CY) 2011, we are proposing to adjust the IPF PPS update by 0.25 percentage point for rate year 2012. We are proposing to apply the 15-
month 2008-based RPL market basket increase of 3.0 percent, as adjusted by the ‘‘other adjustment’’ of

¥ 0.25 percentage point, and the wage index budget neutrality factor of 0.9995 to the RY 2011 Federal per diem base rate of $665.71 yielding a proposed Federal per diem base rate of $683.68 for RY 2012. Similarly, we propose applying the market basket increase, as adjusted by the ‘‘other adjustment’’, and the wage index budget neutrality factor to the RY 2011 ECT base rate, yielding a proposed ECT base rate of $294.33 for RY 2012.

V. Proposed Update of the IPF PPS Adjustment Factors

A. Overview of the IPF PPS Adjustment

Factors

The IPF PPS payment adjustments were derived from a regression analysis of 100 percent of the FY 2002 MedPAR data file, which contained 483,038 cases. For this proposed rule, we used the same results of the regression analysis used to implement the
November 2004 IPF PPS final rule. For a more detailed description of the data file used for the regression analysis, see
the November 2004 IPF PPS final rule (69 FR 66935 through 66936). While we
have since used more recent claims data
to set the fixed dollar loss threshold amount, we used the same results of this regression analysis to update the IPF PPS for RY 2011 and we are proposing
to use these same results for RY 2012. Now that we are approximately 5 years into the IPF PPS, we believe that we have enough data to begin looking at the process of refining the IPF PPS as appropriate. We believe that in the next rulemaking, for FY 2013, we will be ready to propose potential refinements to the system.

As we stated previously, we do not plan to update the regression analysis until we are able to analyze IPF PPS claims and cost report data. However,
we continue to monitor claims and payment data independently from cost report data to assess issues, to determine whether changes in case-mix or payment shifts have occurred among freestanding governmental, non-profit and private psychiatric hospitals, and psychiatric units of general hospitals,
and CAHs and other issues of importance to IPFs.

B. Proposed Patient-Level Adjustments

In the April 2010 IPF PPS notice (75 FR 23113 through 23117), we


### 5014 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

announced payment adjustments for the following patient-level characteristics: Medicare Severity diagnosis related groups (MS–DRGs) assignment of the patient’s principal diagnosis, selected comorbidities, patient age, and the variable per diem adjustments.

1. Proposed Adjustment for MS–IPF– DRG Assignment

The IPF PPS includes payment adjustments for the psychiatric DRG assigned to the claim based on each patient’s principal diagnosis. The IPF PPS recognizes the MS–DRGs. The DRG adjustment factors were expressed relative to the most frequently reported psychiatric DRG in FY 2002, that is, DRG 430 (psychoses). The coefficient values and adjustment factors were derived from the regression analysis.

In accordance with § 412.27(a), payment under the IPF PPS is conditioned on IPFs admitting ‘‘only patients whose admission to the unit is required for active treatment, of an intensity that can be provided appropriately only in an inpatient hospital setting, of a psychiatric principal diagnosis that is listed in Chapter Five (‘‘Mental Disorders’’) of
the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD–9–CM)’’ or in the Fourth Edition, Text Revision of the American Psychiatric Association’s Diagnostic and Statistical Manual, (DSM–IV–TR). IPF claims with a principal diagnosis included in Chapter
Five of the ICD–9–CM or the DSM–IV– TR are paid the Federal per diem base
rate under the IPF PPS and all other applicable adjustments, including any applicable DRG adjustment. Psychiatric principal diagnoses that do not group to one of the designated DRGs still receive the Federal per diem base rate and all other applicable adjustments, but the payment would not include a DRG adjustment.

The Standards for Electronic Transaction final rule published in the Federal Register on August 17, 2000 (65 FR 50312), adopted the ICD–9–CM as the designated code set for reporting diseases, injuries, impairments, other health related problems, their manifestations, and causes of injury, disease, impairment, or other health related problems. Therefore, we use the ICD–9–CM as the designated code set
for the IPF PPS.

We believe that it is important to maintain the same diagnostic coding
and DRG classification for IPFs that are used under the IPPS for providing psychiatric care. Therefore, when the IPF PPS was implemented for cost reporting periods beginning on or after January 1, 2005, we adopted the same diagnostic code set and DRG patient classification system (that is, the CMS DRGs) that were utilized at the time under the hospital inpatient prospective payment system (IPPS). Since the inception of the IPF PPS, the DRGs used as the patient classification system under the IPF PPS have corresponded exactly with the CMS DRGs applicable under the IPPS for acute care hospitals.

Every year, changes to the ICD–9–CM coding system are addressed in the IPPS proposed and final rules. The changes to
the codes are effective October 1 of each year and must be used by acute care hospitals as well as other providers to report diagnostic and procedure information. The IPF PPS has always incorporated ICD–9–CM coding changes made in the annual IPPS update. We publish coding changes in a Transmittal/Change Request, similar to how coding changes are announced by
the IPPS and LTCH PPS. Those ICD–9– CM coding changes are also published in the following IPF PPS RY update, in either the IPF PPS proposed and final rules, or in an IPF PPS update notice.

In the May 2008 IPF PPS notice (73 FR 25709), we discussed CMS’ effort to better recognize resource use and the severity of illness among patients. CMS adopted the new MS–DRGs for the IPPS
in the FY 2008 IPPS final rule with comment period (72 FR 47130). We believe by better accounting for patients’ severity of illness in Medicare payment rates, the MS–DRGs encourage hospitals to improve their coding and documentation of patient diagnoses. The MS–DRGs, which are based on the CMS DRGs, represent a significant increase in the number of DRGs (from 538 to 745, an increase of 207). For a full description of the development and implementation of the MS–DRGs, see
the FY 2008 IPPS final rule with comment period (72 FR 47141 through 47175).

In the May 2008 IPF PPS notice, the IPF PPS recognized the MS–DRGs. A crosswalk, to reflect changes that were
made to the DRGs under the IPF PPS to the new MS–DRGs was provided (73 FR 25716). Since then, we have referred to
the IPF PPS DRGs as MS–DRGs. In this proposed rule, we are proposing that all
references to the MS–DRGs used for the IPF PPS, would be to MS–IPF–DRGs. This would only be a change in terminology. We are proposing to revise § 412.402 to add the definition of MS–

IPF–DRG.

All of the ICD–9–CM coding changes are reflected in the FY 2011 GROUPER, Version 28.0, effective for IPPS discharges occurring on or after October 1, 2010 through September 30, 2011. The GROUPER Version 28.0 software package assigns each case to an MS– DRG on the basis of the diagnosis and procedure codes and demographic information (that is, age, sex, and discharge status). The Medicare Code Editor (MCE) 27.0 uses the new ICD–9– CM codes to validate coding for IPPS discharges on or after October 1, 2010.
For additional information on the GROUPER Version 28.0 and MCE 27.0, see Transmittal 2060 (Change Request 7134), dated October 1, 2010. The IPF PPS has always used the same
GROUPER and Code Editor as the IPPS. Therefore, the ICD–9–CM changes,
which were reflected in the GROUPER
Version 28.0 and MCE 27.0 on October 1, 2010, also became effective for the IPF PPS for discharges occurring on or after October 1, 2010.

The impact of the new MS–DRGs on the IPF PPS was negligible. Mapping to
the MS–DRGs resulted in the current 17 MS–DRGs, instead of the original 15, for which the IPF PPS provides an adjustment. Although the code set is updated, the same associated adjustment factors apply now that have been in place since implementation of the IPF PPS, with one exception that is unrelated to the update to the codes.
When DRGs 521 and 522 were consolidated into MS–DRG 895, we carried over the adjustment factor of 1.02 from DRG 521 to the newly
consolidated MS–DRG. This was done to reflect the higher claims volume under DRG 521, with more than eight
times the number of claims than billed under DRG 522. The updates are
reflected in Tables 7 and 8. For a detailed description of the mapping changes from the original DRG adjustment categories to the current MS–DRG adjustment categories we refer readers to the May 2008 IPF PPS notice (73 FR 25714).

The official version of the ICD–9–CM
is available on CD–ROM from the U.S. Government Printing Office. The FY 2009 version can be ordered by contacting the Superintendent of Documents, U.S. Government Printing Office, Department 50, Washington, DC 20402–9329, telephone number (202) 512–1800. Questions concerning the
ICD–9–CM should be directed to Patricia E. Brooks, Co-Chairperson, ICD–
9–CM Coordination and Maintenance Committee, CMS, Center for Medicare Management, Hospital and Ambulatory Policy Group, Division of Acute Care, Mailstop C4–08–06, 7500 Security Boulevard, Baltimore, Maryland 21244–

1850.

Further information concerning the
official version of the ICD–9–CM can be
found in the IPPS final rule with


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comment period, ‘‘Changes to Hospital Inpatient Prospective Payment System
and Fiscal Year 2011 Rates’’ in the August 16, 2010 Federal Register (75 FR 50042) and at Tables 7 and 8 below list
the FY 2011 new and revised ICD–9–CM diagnosis codes that group to one of the
17 MS–DRGs for which the IPF PPS provides an adjustment. These tables are only a listing of FY 2011 changes and do not reflect all of the currently valid and applicable ICD–9–CM codes classified in the MS–DRGs. When coded as a principal code or diagnosis, these codes receive the correlating MS–DRG adjustment.



### T ABLE 

### 7—FY 2011 N EW 

### D IAGNOSIS 

### C ODES

Diagnosis code MS–DRG descriptions MS–DRG

799.51 ....................................................................... Attention or concentration deficit ................ ...................................................... 886 799.52 ....................................................................... Cognitive communication deficit ................... .................................................... 884 799.54 ....................................................................... Psychomotor deficit ............................... ........................................................... 884
799.55 ....................................................................... Frontal lobe and executive function deficit ....... ................................................ 884 799.59 ....................................................................... Other signs and symptoms involving cognition ...... .......................................... 884



### T ABLE 

### 8—FY 2011 R EVISED 

### D IAGNOSIS 

### C ODE

Diagnosis code Description MS–DRG

307.0 ......................................................................... Adult onset fluency disorder ..................... ........................................................ 887

Because we do not plan to update the regression analysis until we are able to analyze IPF PPS data, we propose that the MS–IPF–DRG adjustment factors (as shown in Table 9) would continue to be paid for discharges occurring in RY

2012.



### T ABLE 

### 9—P ROPOSED 

### RY 2012 C URRENT 

### MS–IPF–DRGS A PPLICABLE FOR THE 

### P RINCIPAL 

### D IAGNOSIS 

### A DJUSTMENT

MS–DRG MS–IPF–DRG Descriptions Adjustment Factor

056 ............................................................................ Degenerative nervous system disorders w MCC ..... ........................................ 1.05 057 ............................................................................ Degenerative nervous system disorders w/o MCC ... ....................................... 1.05 080 ............................................................................ Nontraumatic stupor & coma w MCC ................ ............................................... 1.07 081 ............................................................................ Nontraumatic stupor & coma w/o MCC .............. .............................................. 1.07 876 ............................................................................ O.R. procedure w principal diagnoses of mental i llness .................................. 1.22 880 ............................................................................ Acute adjustment reaction & psychosocial dysfunc tion ................................... 1.05 881 ............................................................................ Depressive neuroses ............................. ........................................................... 0.99 882 ............................................................................ Neuroses except depressive ...................... ...................................................... 1.02 883 ............................................................................ Disorders of personality & impulse control ...... ................................................. 1.02 884 ............................................................................ Organic disturbances & mental retardation ....... ............................................... 1.03 885 ............................................................................ Psychoses ......................................................................................................... 1.00 886 ............................................................................ Behavioral & developmental disorders ............ ................................................. 0.99 887 ............................................................................ Other mental disorder diagnoses ................. .................................................... 0.92 894 ............................................................................ Alcohol/drug abuse or dependence, left AMA ...... ............................................ 0.97 895 ............................................................................ Alcohol/drug abuse or dependence w rehabilitation therapy ........................... 1.02 896 ............................................................................ Alcohol/drug abuse or dependence w/o rehabilitation therapy w MCC ........... 0.88 897 ............................................................................ Alcohol/drug abuse or dependence w/o rehabilitation therapy w/o MCC ........ 0.88

2. Proposed Payment for Comorbid

Conditions

The intent of the comorbidity adjustments is to recognize the

increased costs associated with comorbid conditions by providing additional payments for certain concurrent medical or psychiatric conditions that are expensive to treat. In the April 2010 IPF PPS notice (75 FR 23114), we explained that the IPF PPS includes 17 comorbidity categories and identified the new, revised, and deleted ICD–9–CM diagnosis codes that generate a comorbid condition payment adjustment under the IPF PPS for RY 2011 (75 FR 23115). Comorbidities are specific patient conditions that are secondary to the patient’s principal diagnosis and that require treatment during the stay. Diagnoses that relate to an earlier episode of care and have no bearing on the current hospital stay are excluded and must not be reported on IPF claims.
Comorbid conditions must exist at the time of admission or develop subsequently, and affect the treatment received, length of stay (LOS), or both
treatment and LOS.

For each claim, an IPF may receive only one comorbidity adjustment per comorbidity category, but it may receive an adjustment for more than one comorbidity category. Billing instructions require that IPFs must enter the full ICD–9–CM codes for up to 8 additional diagnoses if they co-exist at the time of admission or develop subsequently and impact the treatment provided.

The comorbidity adjustments were determined based on the regression analysis using the diagnoses reported by IPFs in FY 2002. The principal diagnoses were used to establish the DRG adjustments and were not accounted for in establishing the comorbidity category adjustments, except where ICD–9–CM ‘‘code first’’ instructions apply. As we explained in the April 2010 IPF PPS notice (75 FR 23115), the code first rule applies when


### 5016 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

a condition has both an underlying etiology and a manifestation due to the underlying etiology. For these conditions, the ICD–9–CM has a coding convention that requires the underlying conditions to be sequenced first followed by the manifestation. Whenever a combination exists, there is

a ‘‘use additional code’’ note at the etiology code and a code first note at the
manifestation code.

As discussed in the MS–IPF–DRG section (where we are proposing that all
references to MS–DRGs used for the IPF PPS be to MS–IPF–DRGs, as detailed above), it is our policy to maintain the same diagnostic coding set for IPFs that is used under the IPPS for providing the same psychiatric care. Although the ICD–9–CM code set has been updated, the same adjustment factors have been in place since the implementation of the

IPF PPS.

Table 10 below lists the FY 2011 new ICD diagnosis codes that impact the comorbidity adjustments under the IPF
PPS. Table 10 is not a list of all currently valid ICD codes applicable for the IPF PPS comorbidity adjustments.



### T ABLE 

### 10—FY 2011 N EW 

### ICD C ODES 

### A PPLICABLE FOR THE 

### C OMORBIDITY 

### A DJUSTMENT

Diagnosis code Description Comorbidity category

237.73 ................................................................... Schwannomatosis ....................................................................................... Oncology.
237.79 ................................................................... Other neurofibromatosis ............................... ............................................... Oncology.

For RY 2012, we are applying the seventeen comorbidity categories for which we are providing an adjustment, their respective codes, including the new FY 2011 ICD–9–CM codes, and their respective adjustment factors in

Table 11 below.



### T ABLE 

### 11—RY 2012 D IAGNOSIS 

### C ODES AND 

### A DJUSTMENT 

### F ACTORS FOR 

### C OMORBIDITY 

### C ATEGORIES

Description of comorbidity Diagnoses codes Adjustment factor

Developmental disabilities .......................................... 317, 3180, 3181, 3182, and 319 ............................. ............................... 1.04 Coagulation Factor Deficits ........................................ 2860 through 2864 ........................................... ...................................... 1.13 Tracheostomy ............................................................. 51900 through 51909 and V440 .......................... .................................. 1.06 Renal Failure, Acute ................................................... 5845 through 5849, 63630, 63631, 63632, 63730, 63731, 63 732, 6383, 6393, 66932, 66934, 9585. 1.11

Renal Failure, Chronic ............................................... 40301, 40311, 40391, 40402, 40412, 40413, 40492, 40493, 58 53, 5854, 5855, 5856, 5859, 586, V451, V560, V561, and V562. 1.11

Oncology Treatment ................................................... 1400 through 2399 with a radiation therapy code 92.21–92.29 or chemotherapy code 99.25. 1.07

Uncontrolled Diabetes-Mellitus with or without complications. 25002, 25003, 25012, 25013, 25022, 25023, 25032, 25033, 25042, 25043, 25052, 25053, 25062, 25063, 25072, 25073, 25082, 25083, 25092, and 25093. 1.05

Severe Protein Calorie Malnutrition ........................... 260 through 262 .................................................. ................................... 1.13 Eating and Conduct Disorders ................................... 3071, 30750, 31203, 31233, and 31234 ............................ .................... 1.12 Infectious Disease ...................................................... 01000 through 04110, 042, 04500 through 05319, 05440 th rough 05449, 0550 through 0770, 0782 through 07889, and 07950 through 07959. 1.07

Drug and/or Alcohol Induced Mental Disorders ......... 2910, 2920, 29212, 2922, 30300, and 30400 ................................. ....... 1.03 Cardiac Conditions ..................................................... 3910, 3911, 3912, 40201, 40403, 4160, 4210, 4211, and 42 19 ........... 1.11 Gangrene .................................................................... 44024 and 7854 ..................................... ................................................ 1.10 Chronic Obstructive Pulmonary Disease ................... 49121, 4941, 5100, 51883, 51884, V4611 and V4612, V4613 and

V4614. 1.12

Artificial Openings—Digestive and Urinary ................ 56960 through 56969, 9975, and V441 through V446 ...................... .... 1.08
Severe Musculoskeletal and Connective Tissue Diseases. 6960, 7100, 73000 through 73009, 73010 through 73019, and 73020 through 73029. 1.09

Poisoning .................................................................... 96500 through 96509, 9654, 9670 through 9699, 9770, 9800 through 9809, 9830 through 9839, 986, 9890 through 9897. 1.11

3. Proposed Patient Age Adjustments

As explained in the November 2004 IPF PPS final rule (69 FR 66922), we analyzed the impact of age on per diem cost by examining the age variable (that is, the range of ages) for payment adjustments.

In general, we found that the cost per day increases with age. The older age groups are more costly than the under 45 age group, the differences in per

diem cost increase for each successive age group, and the differences are statistically significant.

We do not plan to update the regression analysis until we are able to analyze IPF PPS data. Therefore, for RY 2012, we are proposing to continue to use the patient age adjustments currently in effect as shown in Table 12

below. 

### T ABLE 

### 12—A GE 

### G ROUPINGS AND 

### A DJUSTMENT 

### F ACTORS

Age Adjustment factor

Under 45 ........................... 1.00

45 and under 50 ............... 1.01

50 and under 55 ............... 1.02

55 and under 60 ............... 1.04

60 and under 65 ............... 1.07

65 and under 70 ............... 1.10

70 and under 75 ............... 1.13

75 and under 80 ............... 1.15

80 and over ...................... 1.17


### 5017 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

4. Proposed Variable Per Diem Adjustments

We explained in the November 2004 IPF PPS final rule (69 FR 66946) that the regression analysis indicated that per
diem cost declines as the LOS increases. The variable per diem adjustments to the Federal per diem base rate account for ancillary and administrative costs that occur disproportionately in the first days after admission to an IPF.

We used a regression analysis to estimate the average differences in per diem cost among stays of different lengths. As a result of this analysis, we established variable per diem adjustments that begin on day 1 and decline gradually until day 21 of a patient’s stay. For day 22 and thereafter, the variable per diem adjustment remains the same each day for the remainder of the stay. However, the adjustment applied to day 1 depends upon whether the IPF has a qualifying ED. If an IPF has a qualifying ED, it receives a 1.31 adjustment factor for day 1 of each stay. If an IPF does not have a qualifying ED, it receives a 1.19 adjustment factor for day 1 of the stay. The ED adjustment is explained in more detail in section IV.C.5 of this proposed
rule.

For RY 2012, we are proposing to continue to use the variable per diem adjustment factors currently in effect as shown in Table 13 below. A complete discussion of the variable per diem adjustments appears in the November 2004 IPF PPS final rule (69 FR 66946).



### T ABLE 

### 13—V ARIABLE 

### P ER 

### D IEM 

### A DJUSTMENTS

Day-of-Stay Adjustment factor

Day 1—IPF Without a

Qualifying ED ................ 1.19Day 1—IPF With a Qualifying ED ........................ 1.31 Day 2 ................................ 1.12 Day 3 ................................ 1.08 Day 4 ................................ 1.05 Day 5 ................................ 1.04 Day 6 ................................ 1.02 Day 7 ................................ 1.01 Day 8 ................................ 1.01 Day 9 ................................ 1.00 Day 10 .............................. 1.00 Day 11 .............................. 0.99 Day 12 .............................. 0.99 Day 13 .............................. 0.99 Day 14 .............................. 0.99 Day 15 .............................. 0.98 Day 16 .............................. 0.97 Day 17 .............................. 0.97 Day 18 .............................. 0.96 Day 19 .............................. 0.95 Day 20 .............................. 0.95 Day 21 .............................. 0.95 After Day 21 ..................... 0.92 C. Facility-Level Adjustments
The IPF PPS includes facility-level adjustments for the wage index, IPFs located in rural areas, teaching IPFs, cost of living adjustments for IPFs located in Alaska and Hawaii, and IPFs with a qualifying ED.

1. Proposed Wage Index Adjustment

a. Background

As discussed in the May 2006 IPF PPS final rule and in the May 2008 and May 2009 IPF PPS notices, in providing an adjustment for geographic wage levels, the labor-related portion of an IPF’s payment is adjusted using an appropriate wage index. Currently, an IPF’s geographic wage index value is
determined based on the actual location
of the IPF in an urban or rural area as defined in § 412.64(b)(1)(ii)(A) through § 412.64(C).

b. Proposed Wage Index for RY 2012

Since the inception of the IPF PPS, we have used hospital wage data in developing a wage index to be applied to IPFs. We are continuing that practice for RY 2012. We apply the wage index adjustment to the labor-related portion of the Federal rate, which is 70.499 percent. This percentage reflects the labor-related relative importance of the proposed FY 2008-based RPL market basket for RY 2012 (see section III.C.6 of this proposed rule). The IPF PPS uses the pre-floor, pre-reclassified hospital wage index. Changes to the wage index are made in a budget neutral manner so that updates do not increase expenditures.

For RY 2012, we are proposing to apply the most recent hospital wage index (that is, the FY 2011 pre-floor, pre-reclassified hospital wage index because this is the most appropriate
index as it best reflects the variation in
local labor costs of IPFs in the various geographic areas) using the most recent hospital wage data (that is, data from hospital cost reports for the cost reporting period beginning during FY 2007), and applying an adjustment in accordance with our budget neutrality policy. This policy requires us to
estimate the total amount of IPF PPS payments in RY 2011 using the applicable wage index value divided by the total estimated IPF PPS payments in RY 2012 using the most recent wage index. The estimated payments are based on FY 2009 IPF claims, inflated to the appropriate RY. This quotient is the wage index budget neutrality factor, and it is applied in the update of the Federal per diem base rate for RY 2012
in addition to the market basket
described in section III.C.5 of this proposed rule. The wage index budget neutrality factor for RY 2012 is 0.9995.

The wage index applicable for RY 2012 appears in Table 1 and Table 2 in Addendum B of this proposed rule. As explained in the May 2006 IPF PPS final rule for RY 2007 (71 FR 27061), the IPF PPS applies the hospital wage index without a hold-harmless policy, and without an out-commuting adjustment or out-migration adjustment because the statutory authority for these policies applies only to the IPPS.

Also in the May 2006 IPF PPS final rule for RY 2007 (71 FR 27061), we adopted the changes discussed in the Office of Management and Budget (OMB) Bulletin No. 03–04 (June 6, 2003), which announced revised definitions for Metropolitan Statistical Areas (MSAs), and the creation of Micropolitan Statistical Areas and Combined Statistical Areas. In adopting
the OMB Core-Based Statistical Area (CBSA) geographic designations, since the IPF PPS was already in a transition period from TEFRA payments to PPS payments, we did not provide a separate transition for the CBSA-based wage
index.

As was the case in RY 2011, for RY 2012 we are proposing to continue to use the CBSA-based wage index values as presented in Tables 1 and 2 in Addendum B of this proposed rule. A complete discussion of the CBSA labor market definitions appears in the May 2006 IPF PPS final rule (71 FR 27061 through 27067).

In summary, for RY 2012 we are proposing to use the FY 2011 wage index data (collected from cost reports submitted by hospitals for cost reporting periods beginning during FY 2007) to adjust IPF PPS payments beginning July

1, 2011.

c. OMB Bulletins

The Office of Management and Budget (OMB) publishes bulletins regarding CBSA changes, including changes to CBSA numbers and titles. In the May 2008 IPF PPS notice, we incorporated the CBSA nomenclature changes published in the most recent OMB bulletin that applies to the hospital wage data used to determine the current IPF PPS wage index (73 FR 25721). We
will continue to do the same for all such OMB CBSA nomenclature changes in future IPF PPS rules and notices, as necessary. The OMB bulletins may be
accessed online at http:// www.whitehouse.gov/omb/bulletins/
index.html.


### 5018 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

2. Proposed Adjustment for Rural

Location

In the November 2004 IPF PPS final rule, we provided a 17 percent payment adjustment for IPFs located in a rural area. This adjustment was based on the regression analysis, which indicated that the per diem cost of rural facilities was 17 percent higher than that of urban facilities after accounting for the
influence of the other variables included in the regression. For RY 2012, we are proposing to apply a 17 percent payment adjustment for IPFs located in
a rural area as defined at § 412.64(b)(1)(ii)(C). As stated in the November 2004 IPF PPS final rule, we do not intend to update the adjustment factors derived from the regression analysis until we are able to analyze IPF PPS data. A complete discussion of the adjustment for rural locations appears in
the November 2004 IPF PPS final rule (69 FR 66954).

3. Proposed Teaching Adjustment

In the November 2004 IPF PPS final rule, we implemented regulations at§ 412.424(d)(1)(iii) to establish a facilitylevel adjustment for IPFs that are, or are part of, teaching hospitals. The teaching adjustment accounts for the higher indirect operating costs experienced by hospitals that participate in graduate medical education (GME) programs. The payment adjustments are made based on the number of full-time equivalent (FTE) interns and residents training in the IPF and the IPF’s average daily census.

Medicare makes direct GME payments (for direct costs such as resident and teaching physician salaries, and other direct teaching costs) to all teaching hospitals including those paid under a PPS, and those paid under the TEFRA
rate-of-increase limits. These direct GME payments are made separately from payments for hospital operating costs and are not part of the PPSs. The direct GME payments do not address the estimated higher indirect operating costs teaching hospitals may face.

For teaching hospitals paid under the TEFRA rate-of-increase limits, Medicare does not make separate payments for
indirect medical education costs because payments to these hospitals are based on the hospitals’ reasonable costs which already include these higher indirect costs that may be associated with teaching programs.

The results of the regression analysis
of FY 2002 IPF data established the basis for the payment adjustments
included in the November 2004 IPF PPS
final rule. The results showed that the indirect teaching cost variable is significant in explaining the higher costs of IPFs that have teaching programs. We calculated the teaching adjustment based on the IPF’s ‘‘teaching variable,’’ which is one plus the ratio of the number of FTE residents training in the IPF (subject to limitations described below) to the IPF’s average daily census (ADC).

We established the teaching adjustment in a manner that limited the
incentives for IPFs to add FTE residents for the purpose of increasing their teaching adjustment. We imposed a cap
on the number of FTE residents that may be counted for purposes of calculating the teaching adjustment. The cap limits the number of FTE residents that teaching IPFs may count for the purpose of calculating the IPF PPS teaching adjustment, not the number of residents teaching institutions can hire
or train. We calculated the number of
FTE residents that trained in the IPF during a ‘‘base year’’ and used that FTE resident number as the cap. An IPF’s FTE resident cap is ultimately
determined based on the final
settlement of the IPF’s most recent cost report filed before November 15, 2004 (that is, the publication date of the IPF PPS final rule).

In the regression analysis, the logarithm of the teaching variable had a
coefficient value of 0.5150. We converted this cost effect to a teaching payment adjustment by treating the regression coefficient as an exponent and raising the teaching variable to a power equal to the coefficient value. We
note that the coefficient value of 0.5150 was based on the regression analysis holding all other components of the payment system constant.

As with other adjustment factors derived through the regression analysis, we do not plan to rerun the regression analysis until we analyze IPF PPS data. Therefore, for RY 2012, we are proposing to retain the coefficient value of 0.5150 for the teaching adjustment to the Federal per diem base rate.

A complete discussion of how the teaching adjustment was calculated appears in the November 2004 IPF PPS final rule (69 FR 66954 through 66957) and the May 2008 IPF PPS notice (73 FR 25721).

Proposed FTE Intern and Resident Cap Adjustment

CMS has been asked to reconsider the current IPF teaching policy and permit a temporary increase in the FTE resident cap when the IPF increases the number
of FTE residents it trains due to the acceptance of displaced residents (residents that are training in an IPF or a program before the IPF or program closed) when another IPF closes or closes its medical residency training

program.

To help us assess how many IPFs have been, or expect to be adversely affected by their inability to adjust their caps under § 412.424(d)(1) and under these situations, we specifically requested public comment from IPFs in the May 1, 2009 IPF PPS notice (74 FR 20376 through 20377). A summary of the comments and our response can be reviewed in the April 30, 2010 IPF PPS notice (75 FR 23106, 23117). All of the
commenters recommended that CMS modify the IPF PPS teaching adjustment policy, supporting a policy change that would permit the IPF PPS residency cap to be temporarily adjusted when that IPF trains displaced residents due to
closure of an IPF or closure of an IPF’s medical residency training program(s).
The commenters recommended a temporary resident cap adjustment policy similar to such policies applied
in similar contexts for acute care hospitals.

We agree with the commenters that, when a hospital temporarily takes on residents because another hospital closes or discontinues its program, a temporary adjustment to the cap would be appropriate for rotation that occurs in an IPF setting (freestanding or units). In these situations, residents may have partially completed a medical residency training program at the hospital that has closed its training program and may be unable to complete their training at another hospital that is already training residents up to or in excess of its cap. We believe that it is appropriate to allow temporary adjustments to the FTE caps for an IPF that provides residency training to medical residents who have partially completed a residency training program at an IPF that closes or at an IPF that discontinues training residents in a residency training program(s) (also referred to as a ‘‘closed’’ program throughout this preamble). For this reason, we are proposing to adopt the following temporary resident cap adjustment policies, similar to the temporary adjustments to the FTE cap used for acute care hospitals. We are proposing that the cap adjustment would be temporary because it is resident specific and would only apply to the displaced resident(s) until the resident(s) completes training in that specialty. We propose that, as under the IPPS policy for displaced residents, the IPF PPS temporary cap adjustment would apply only to residents that were still training at the IPF at the time the
IPF closed or at the time the IPF ceased training residents in the residency training program(s). Residents who leave the IPF, for whatever reason,


### 5019 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

before the closure of the IPF hospital or medical residency training program would not be considered displaced residents for purposes of the IPF temporary cap adjustment policy. Similarly, as under the IPPS policy, we are proposing that medical students who match to a program at an IPF but the IPF or medical residency training program closes before the individual begins training at that IPF are also not considered displaced residents for purposes of the IPF temporary cap adjustments. For detailed information on these acute care hospital GME/IME payment policies, see 66 FR 39899 (August 1, 2001), 64 FR 41522 (July 30 1999), and 64 FR 24736 (May 7 1999). We note that although we are proposing to adopt a policy under the IPF PPS that is consistent with the policy applicable under the IPPS, the actual caps under the two payment systems may not be commingled.

a. Proposed Temporary Adjustment to the FTE Cap To Reflect Residents Added Due to Hospital Closure

We are proposing to allow an IPF to receive a temporary adjustment to the FTE cap to reflect residents added
because of another IPF’s closure. This adjustment is intended to account for
medical residents who would have partially completed a medical residency training program at the hospital that has closed and may be unable to complete their training at another hospital because that hospital is already training residents up to or in excess of its cap. We are proposing this change because
IPFs have indicated a reluctance to accept additional residents from a closed IPF without a temporary adjustment to their caps. For purposes of this policy on IPF closure, we are proposing to adopt the IPPS definition of ‘‘closure of a hospital’’ in 42 CFR § 413.79(h) to mean the IPF terminates its Medicare provider agreement as specified in 42 CFR § 489.52. Therefore, we are proposing to add a new § 412.424(d)(1)(iii)(F)(1) to allow a temporary adjustment to an IPF’s FTE cap to reflect residents added because of an IPF’s closure on or after July 1, 2011 to be effective for cost reporting periods beginning on or after July 1, 2011. We would allow an adjustment to an IPF’s FTE cap if the IPF meets the following criteria: (a) The IPF is training displaced
residents from an IPF that closed on or after July 1, 2011; (and (b) the IPF that is training the displaced residents from the closed IPF submits a request for a temporary adjustment to its FTE cap to
its Medicare contractor no later than 60 days after the hospital first begins training the displaced residents, and documents that the IPF is eligible for this temporary adjustment to its FTE cap by identifying the residents who
have come from the closed IPF and have caused the IPF to exceed its cap, (or the IPF may already be over its cap), and specifies the length of time that the adjustment is needed. After the displaced residents leave the IPF’s training program or complete their residency program, the IPF’s cap would revert to its original level. This means that the temporary adjustment to the FTE cap would be available to the IPF only for the period of time necessary for the displaced residents to complete their training. Further, as under the IPPS policy, we are also proposing that the total amount of temporary cap adjustment that can be distributed to all receiving hospitals cannot exceed the cap amount of the IPF that closed.

We also note that section 5506 of the Affordable Care Act, ‘‘Preservation of Resident Cap Positions from Closed Hospitals,’’ does not apply to IPFs that closed. Section 5506 only amends sections 1886(d) and (h) of the Act with respect to direct GME and IPPS IME payments. Therefore, the IME FTE cap redistributions under section 5506 only apply to ‘‘subsection (d)’’ IPPS hospitals. Section 5506 has no applicability to the IME teaching adjustments under the IPF PPS (or the IRF PPS, for that matter).

b. Proposed Temporary Adjustment to FTE Cap To Reflect Residents Affected by Residency Program Closure

We are proposing that if an IPF that ceases training residents in a residency training program(s) agrees to temporarily reduce its FTE cap, another IPF may receive a temporary adjustment to its FTE cap to reflect residents added
because of the closure of another IPF’s residency training program. For purposes of this policy on closed residency programs, we are proposing to adopt the IPPS definition of ‘‘closure of a hospital residency training program’’ to mean that the hospital ceases to offer training for residents in a particular approved medical residency training program as specified in § 413.79(h). The methodology for adjusting the caps for the ‘‘receiving IPF’’ and the ‘‘IPF that closed its program’’ is described below.

i. Receiving IPF

We are proposing that an IPF(s) may receive a temporary adjustment to its FTE cap to reflect residents added
because of the closure of another IPF’s residency training program for cost reporting periods beginning on or after July 1, 2011 if— • The IPF is training additional residents from the residency training program of an IPF that closed its program on or after July 1, 2011; and

• No later than 60 days after the IPF begins to train the residents, the IPF
submits to its Medicare Contractor a request for a temporary adjustment to its FTE cap, documents that the IPF is eligible for this temporary adjustment by identifying the residents who have come from another IPF’s closed program
and have caused the IPF to exceed its cap, (or the IPF may already be in excess of its cap), specifies the length of time the adjustment is needed, and, as explained in more detail below, submits to its Medicare contractor a copy of the FTE cap reduction statement by the IPF closing the residency training program.

In general, the proposed temporary adjustment criteria established for closed medical residency training programs at IPFs is similar to the criteria
established for closed IPFs. We are proposing that more than one IPF may be eligible to apply for the temporary adjustment because residents from one closed program may migrate to different IPFs, or they may complete their training at more than one IPF. Also, only to the extent to which an IPF would exceed its FTE cap by training displaced residents would it be eligible for the temporary adjustment.

Finally, we are proposing that IPFs that meet the proposed criteria would be eligible to receive temporary adjustments to their FTE caps for cost reporting periods beginning on or after July 1, 2011.

ii. IPF That Closed Its Program(s)

We are proposing that an IPF that agrees to train residents who have been displaced by the closure of another IPF’s resident teaching program may receive a temporary FTE cap adjustment only if the IPF with the closed program meets the following criteria—

• Temporarily reduces its FTE cap by
the number of FTE residents in each program year training in the program at the time of the program’s closure. The yearly reduction would be determined by deducting the number of those residents who would have been training in the program during the year of the closure, had the program not closed;
and

• No later than 60 days after the
residents who were in the closed program begin training at another IPF,
submits to its Medicare contractor a statement signed and dated by its representative that specifies that it agrees to the temporary reduction in its FTE cap to allow the IPF training the displaced residents to obtain a


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temporary adjustment to its cap;
identifies the residents who were training at the time of the program’s closure; identifies the IPFs to which the residents are transferring once the program closes; and specifies the reduction for the applicable program

years.

Unlike the proposed closed IPF policy at § 412.424(d)(1)(iii)(F)(1), we propose under this closed program policy that in order for the receiving IPF(s) to qualify for a temporary adjustment to their FTE cap, the IPFs that are closing their programs would need to reduce their FTE cap for the duration of time the displaced residents would need to finish their training. We are proposing
this because the IPF that closes the program still retains the FTE slots in its cap, even if the IPF chooses not to fill
the slots with residents. We believe it is inappropriate to allow an increase to the receiving IPF’s cap without an attendant decrease to the cap of the IPF with the closed program, because the IPF that closed a program(s) could fill these slots with residents from other programs even
if the increase and related decrease is only temporary.

We are proposing that the cap
reduction for the IPF with the closed program would be based on the number of FTE residents in each program year who were in the program at the IPF at the time of the program’s closure, and who begin training at another IPF.

In summary we are proposing to revise § 412.424(d)(1)(iii) and to establish § 412.424(d)(1)(iii)(F)(2) to implement policies related to temporary adjustments to FTE caps to reflect
residents added due to closure of an IPF or an IPFs medical residency training

program. 4. Proposed Cost of Living Adjustment
for IPFs Located in Alaska and Hawaii

The IPF PPS includes a payment adjustment for IPFs located in Alaska and Hawaii based upon the county in
which the IPF is located. As we explained in the November 2004 IPF PPS final rule, the FY 2002 data
demonstrated that IPFs in Alaska and Hawaii had per diem costs that were disproportionately higher than other IPFs. Other Medicare PPSs (for example, the IPPS and LTCH PPS) have adopted a cost of living adjustment (COLA) to
account for the cost differential of care
furnished in Alaska and Hawaii.

We analyzed the effect of applying a COLA to payments for IPFs located in
Alaska and Hawaii. The results of our analysis demonstrated that a COLA for
IPFs located in Alaska and Hawaii would improve payment equity for
these facilities. As a result of this analysis, we provided a COLA in the
November 2004 IPF PPS final rule.

A COLA adjustment for IPFs located in Alaska and Hawaii is made by multiplying the nonlabor-related portion of the Federal per diem base rate by the applicable COLA factor based on
the COLA area in which the IPF is
located.

As previously stated in the November 2004 IPF PPS final rule, we will update the COLA factors according to updates established by the U.S. Office of Personnel Management (OPM), which issued a final rule, May 28, 2008 to change COLA rates.

The COLA factors are published on the OPM Web site at ( http:// www.opm.gov/oca/cola/rates.asp ).

We note that the COLA areas for Alaska are not defined by county as are
the COLA areas for Hawaii. In 5 CFR 591.207, the OPM established the following COLA areas:

(a) City of Anchorage, and 80- kilometer (50-mile) radius by road, as measured from the Federal courthouse;

(b) City of Fairbanks, and 80- kilometer (50-mile) radius by road, as measured from the Federal courthouse;

(c) City of Juneau, and 80-kilometer (50-mile) radius by road, as measured from the Federal courthouse;

(d) Rest of the State of Alaska. For RY 2012, we are proposing that
IPFs located in Alaska and Hawaii will continue to receive the updated COLA
factors based on the COLA area in
which the IPF is located as shown in
Table 14 below.



### T ABLE 

### 14—P ROPOSED 

### COLA F AC



### TORS FOR 

### A LASKA AND 

### H AWAII 

### IPF S

Location COLA

Alaska ............ Anchorage ............ 1.19
Fairbanks ............. 1.19
Juneau ................. 1.19
Rest of Alaska ...... 1.21 Hawaii ............ Honolulu County .. 1.21 Hawaii County ...... 1.14 Kauai County ....... 1.21 Maui County ......... 1.21 Kalawao County ... 1.21

5. Proposed Adjustment for IPFs With a Qualifying Emergency Department (ED)

Currently, the IPF PPS includes a facility-level adjustment for IPFs with qualifying EDs. We provide an adjustment to the Federal per diem base
rate to account for the costs associated with maintaining a full-service ED. The adjustment is intended to account for ED costs incurred by a freestanding psychiatric hospital with a qualifying ED or a distinct part psychiatric unit of an acute hospital or a CAH for preadmission services otherwise payable under the Medicare Outpatient Prospective Payment System (OPPS) furnished to a beneficiary during the day immediately preceding the date of admission to the IPF ( see § 413.40(c)(2)) and the overhead cost of maintaining the ED. This payment is a facility-level adjustment that applies to all IPF admissions (with one exception described below), regardless of whether a particular patient receives preadmission services in the hospital’s

ED.

The ED adjustment is incorporated into the variable per diem adjustment for the first day of each stay for IPFs with a qualifying ED. That is, IPFs with a qualifying ED receive an adjustment factor of 1.31 as the variable per diem adjustment for day 1 of each stay. If an IPF does not have a qualifying ED, it receives an adjustment factor of 1.19 as the variable per diem adjustment for day 1 of each patient stay.

The ED adjustment is made on every qualifying claim except as described below. As specified in § 412.424(d)(1)(v)(B), the ED adjustment is not made where a patient is discharged from an acute care hospital or critical access hospital (CAH) and admitted to the same hospital’s or CAH’s psychiatric unit. An ED adjustment is not made in this case
because the costs associated with ED
services are reflected in the DRG payment to the acute care hospital or through the reasonable cost payment made to the CAH. If we provided the ED adjustment in these cases, the hospital would be paid twice for the overhead costs of the ED, as stated in the November 2004 IPF PPS final rule (69 FR 66960).

Therefore, when patients are discharged from an acute care hospital
or CAH and admitted to the same hospital’s or CAH’s psychiatric unit, the IPF receives the 1.19 adjustment factor as the variable per diem adjustment for the first day of the patient’s stay in the

IPF.

For RY 2012, we are proposing to retain the 1.31 adjustment factor for IPFs with qualifying EDs. A complete discussion of the steps involved in the calculation of the ED adjustment factor appears in the November 2004 IPF PPS final rule (69 FR 66959 through 66960) and the May 2006 IPF PPS final rule (71 FR 27070 through 27072).

D. Other Payment Adjustments and
Policies

For RY 2012, the IPF PPS includes an outlier adjustment to promote access to IPF care for those patients who require expensive care and to limit the financial


### 5021 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

risk of IPFs treating unusually costly patients. In this section, we also explain the reason for ending the stop-loss provision that was applicable during the transition period.

1. Proposed Outlier Payments

In the November 2004 IPF PPS final rule, we implemented regulations at § 412.424(d)(3)(i) to provide a per-case payment for IPF stays that are extraordinarily costly. Providing additional payments to IPFs for extremely costly cases strongly improves the accuracy of the IPF PPS in determining resource costs at the patient and facility level. These additional payments reduce the financial losses
that would otherwise be incurred in treating patients who require more costly care and, therefore, reduce the
incentives for IPFs to under-serve these patients.

We make outlier payments for discharges in which an IPF’s estimated
total cost for a case exceeds a fixed
dollar loss threshold amount (multiplied by the IPF’s facility-level adjustments) plus the Federal per diem payment amount for the case.

In instances when the case qualifies for an outlier payment, we pay 80 percent of the difference between the
estimated cost for the case and the adjusted threshold amount for days 1 through 9 of the stay (consistent with the median LOS for IPFs in FY 2002), and 60 percent of the difference for day
10 and thereafter. We established the 80 percent and 60 percent loss sharing
ratios because we were concerned that a single ratio established at 80 percent (like other Medicare PPSs) might provide an incentive under the IPF per diem payment system to increase LOS in order to receive additional payments. After establishing the loss sharing ratios,
we determined the current fixed dollar loss threshold amount of $6,372 through payment simulations designed to compute a dollar loss beyond which payments are estimated to meet the 2 percent outlier spending target.

a. Proposed Update to the Outlier Fixed
Dollar Loss Threshold Amount

In accordance with the update methodology described in § 412.428(d), we are proposing to update the fixed
dollar loss threshold amount used under the IPF PPS outlier policy. Based on the regression analysis and payment simulations used to develop the IPF PPS, we established a 2 percent outlier policy which strikes an appropriate balance between protecting IPFs from extraordinarily costly cases while ensuring the adequacy of the Federal per diem base rate for all other cases
that are not outlier cases.

We believe it is necessary to update
the fixed dollar loss threshold amount because an analysis of the latest available data (that is, FY 2009 IPF claims) and rate increases indicates that adjusting the fixed dollar loss amount is necessary in order to maintain an outlier percentage that equals 2 percent of total estimated IPF PPS payments.

In the May 2006 IPF PPS final rule (71 FR 27072), we describe the process by
which we calculate the outlier fixed
dollar loss threshold amount. We are proposing to continue to use this process for RY 2012. We begin by simulating aggregate payments with and without an outlier policy, and applying an iterative process to determine an
outlier fixed dollar loss threshold
amount that will result in outlier payments being equal to 2 percent of total estimated payments under the simulation. Based on this process, using the FY 2009 claims data, we estimate that IPF outlier payments as a percentage of total estimated payments are approximately 2.2 percent in RY 2010. Thus, we are proposing to update
the RY 2012 IPF outlier threshold
amount to ensure that estimated RY 2012 outlier payments are approximately 2 percent of total estimated IPF payments. We are proposing to change the outlier fixed dollar loss threshold amount of $6,372 for RY 2011 to $7,316 for RY 2012 to reduce estimated outlier payments and thereby maintain estimated outlier payments at 2 percent of total estimated aggregate IPF payments for RY 2012.

b. Proposed Statistical Accuracy of Costto-Charge Ratios

As previously stated, under the IPF PPS, an outlier payment is made if an IPF’s cost for a stay exceeds a fixed
dollar loss threshold amount. In order to establish an IPF’s cost for a particular case, we multiply the IPF’s reported charges on the discharge bill by its overall cost-to-charge ratio (CCR). This approach to determining an IPF’s cost is consistent with the approach used
under the IPPS and other PPSs. In FY 2004, we implemented changes to the IPPS outlier policy used to determine CCRs for acute care hospitals because we became aware that payment vulnerabilities resulted in inappropriate outlier payments. Under the IPPS, we
established a statistical measure of accuracy for CCRs in order to ensure
that aberrant CCR data did not result in inappropriate outlier payments.

As we indicated in the November 2004 IPF PPS final rule, because we believe that the IPF outlier policy is susceptible to the same payment vulnerabilities as the IPPS, we adopted an approach to ensure the statistical accuracy of CCRs under the IPF PPS (69 FR 66961). Therefore, we adopted the following procedure in the November
2004 IPF PPS final rule:

• We calculated two national ceilings,
one for IPFs located in rural areas and
one for IPFs located in urban areas. We computed the ceilings by first calculating the national average and the
standard deviation of the CCR for both
urban and rural IPFs.

To determine the rural and urban ceilings, we multiplied each of the standard deviations by 3 and added the result to the appropriate national CCR average (either rural or urban). We estimated a proposed upper threshold
CCR for IPFs in RY 2012 of 1.8522 for rural IPFs, and 1.7619 for urban IPFs, based on CBSA-based geographic designations. If an IPF’s CCR is above the applicable ceiling, the ratio is considered statistically inaccurate and we assign the appropriate national (either rural or urban) median CCR to
the IPF.

We apply the national CCRs to the following situations:

++ New IPFs that have not yet
submitted their first Medicare cost report.

++ IPFs whose overall CCR is in
excess of 3 standard deviations above the corresponding national geometric mean (that is, above the ceiling).

++ Other IPFs for which the Medicare
contractor obtains inaccurate or incomplete data with which to calculate

a CCR.

For new IPFs, we are using these national CCRs until the facility’s actual CCR can be computed using the first tentatively or final settled cost report.

We are not making any changes to the procedures for ensuring the statistical accuracy of CCRs in RY 2012. However, we are proposing to update the national urban and rural CCRs (ceilings and medians) for IPFs for RY 2012 based on
the CCRs entered in the latest available IPF PPS Provider Specific File.

Specifically, for RY 2012, and to be
used in each of the three situations listed above, we estimate a proposed national average CCR of 0.6480 for rural IPFs and a proposed national average
CCR of 0.5140 for urban IPFs. These
calculations are based on the IPF’s location (either urban or rural) using the CBSA-based geographic designations.

A complete discussion regarding the national median CCRs appears in the November 2004 IPF PPS final rule (69 FR 66961 through 66964).


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2. Expiration of the Stop-Loss Provision

In the November 2004 IPF PPS final rule, we implemented a stop-loss policy
that reduced financial risk to IPFs projected to experience substantial reductions in Medicare payments during the period of transition to the IPF PPS. This stop-loss policy guaranteed that each facility received total IPF PPS payments that were no less than 70 percent of its TEFRA payments had the IPF PPS not been implemented. This policy was applied to the IPF PPS portion of Medicare payments during the 3-year transition.

In the implementation year, the 70 percent of TEFRA payment stop-loss policy required a reduction in the standardized Federal per diem and ECT base rates of 0.39 percent in order to make the stop-loss payments budget neutral. As described in the May 2008 IPF PPS notice for RY 2009, we increased the Federal per diem base rate and ECT rate by 0.39 percent because these rates were reduced by 0.39 percent in the implementation year to ensure stop-loss payments were budget neutral.

The stop-loss provision ended during RY 2009 (that is for discharges occurring on or after July 1, 2008 through June 30, 2009). The stop-loss policy is no longer applicable under the IPF PPS.

3. Future Refinements

As we have noted throughout this proposed rule, we have delayed making
refinements to the IPF PPS until we have adequate IPF PPS data on which to
base those decisions. Now that we are approximately 5 years into the system, we believe that we have enough data to begin that process. We have begun the necessary analysis to better understand IPF industry practices so that we may refine the IPF PPS as appropriate. While we are not proposing to make the following refinements in this rulemaking, we believe that in the rulemaking for FY 2013 we will be ready to present the results of our analysis.

Specifically, with the change from ICD–9–CM to ICD–10–CM coming in 2013, we are analyzing the comorbidity categories and related codes for utilization and continued suitability. While we would continue to provide for comorbidity adjustments, we are analyzing whether the current groupings
and codes continue to be warranted and whether other appropriate codes should be added. Also, we are analyzing our current policies for interrupted stays, readmissions, same-day transfers, and length of stays in order to assess whether these policies continue to be appropriate. Additionally, in accordance with section 1886(s)(4) of the Act, which was added by section 10322 of the Affordable Care Act, IPFs must submit data on quality measures, as specified by the Secretary, for each RY beginning in RY 2014. If data is not submitted, any annual update to a Federal base rate for discharges for the payments shall be reduced by 2 percentage points. Quality measures are currently being developed to effectuate this requirement. Lastly, for the first
time MedPAC will become involved in evaluating facility margins and will likely make recommendations regarding the appropriate payment update to IPFs based on their findings. CMS is interested in gaining feedback on these
areas for future refinements and
therefore we invite comments on these
issues described in this section at this

time.

VI. Proposed Regulations Text

Corrections

We are proposing several minor corrections to the regulations text to address typographical errors. We note that these proposed changes do not impact policy. We are proposing to correct typographical errors at § 412.404, ‘‘Conditions for payment under the prospective payment system for inpatient hospital services of psychiatric facilities; § 412.422, ‘‘Basis of payment;’’ and § 412.426, ‘‘Transition period.’’ In addition to these corrections, we are proposing to add clarifying language at § 412.426 and § 412.432(d), ‘‘Method of payment under the inpatient psychiatric facility prospective payment system.’’ The proposed revisions are described below.

Section 412.404(a)(1)

Under § 412.404, in paragraph (a)(1), ‘‘General requirements,’’ we are proposing to delete the word ‘‘in’’
between the words ‘‘furnished’’ and ‘‘to
Medicare’’.

Section 412.422(b)(2)

Under § 412.422, in paragraph (b)(2), we are proposing to correct the reference to § 413.80 to § 413.89. The regulations covered at § 413.89 include bad debts, charity, and courtesy
allowances.

Section 412.426(a)

Under § 412.426, in paragraph (a), ‘‘Duration of transition period and composition of the blended transition payment,’’ we are proposing to replace ‘‘Except as provided in paragraph (d) of this section’’ with ‘‘Except as provided in paragraph (c) of this section.’’ There is no paragraph (d); this exception should refer to paragraph (c), ‘‘Treatment of new inpatient psychiatric
facilities.’’

Also in paragraph (a), we are proposing to add the words ‘‘of this part’’ after ‘‘as specified in § 412.424(d)’’ and ‘‘of this section’’ after ‘‘as specified under paragraph (b).’’ This regulatory language is required by the Federal Register

.

In each of paragraphs § 412.426(a)(1) through (a)(3), we are proposing to delete the words ‘‘on or’’ directly before the words ‘‘before January’’. For example, paragraph (a)(1) currently states, ‘‘For cost reporting periods beginning on or after January 1, 2005 and on or before January 1, 2006* * *’’ We are proposing that this statement read: ‘‘For cost reporting periods beginning on or after January 1, 2005 and before January 1, 2006 * * * ’’ This correction does not represent a change in policy. Rather, it is a correction to conform the regulation text to our policy, which was established in our final rule that appeared in the Federal Register on November 15, 2004 (69 FR 66980) (which was subsequently corrected on April 1, 2005 (70 FR 16729)). It is clear that the current regulation text is incorrect. The same January date (for example, January 1, 2007) cannot be both the date on which a new transition period begins and the date on which the previous transition period ends. Our policy, since we established the transition, has been to begin a transition period on or after a January 1 date and to end that transition period before the next transition period begins. Because our regulation text does not accurately reflect our actual policy, we are proposing this correction.

At § 412.426(a)(4), we are proposing to replace the statement, ‘‘For cost reporting periods beginning on or after July 1, 2008, payment is based entirely on the Federal per diem payment amount’’ with the following statement: ‘‘For cost reporting periods beginning on or after January 1, 2008, payment is based entirely on the Federal per diem payment amount.’’ The transition period during which payment was based on a combination of the Federal per diem payment amount and TEFRA payments, ended on January 1, 2008, not July 1,

2008.

Section 412.432(d)

Under § 412.432, in paragraph (d), ‘‘Outlier payments,’’ we are proposing to add the words ‘‘of this part’’ after ‘‘subject to the cost report settlement specified in § 412.84(i) and § 412.84(m).’’ This regulatory language is required by the Federal Register and clarifies that § 412.84(i) and § 412.84(m) refer to 42 CFR part 412, ‘‘Prospective


### 5023 Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Proposed Rules

Payment Systems for Inpatient Hospital

Services.’’

VII. Provisions of the Proposed Regulations

In this proposed rule, we are proposing to update the IPF PPS payment rates for RY 2012. We are also proposing to revise the IPF PPS payment update period and make other policy changes and clarifications. The following is a summary of the areas that we are addressing in this proposed rule:

• We are proposing to switch the annual update period for the IPF PPS from a rate year that begins on July 1 and goes through June 30 to one that coincides with a FY, that is, that begins on October 1 and goes through September 30. For the update period that begins in 2012, and thereafter, we would refer to the update period as a FY. In order to make this switch, we are proposing that rate year 2012 be a 15- month period, from July 1, 2011 through September 30, 2012. This change in the payment update period would allow us to have one consolidated annual update
to both the rates and the ICD–9–CM coding changes (MS–DRG and comorbidities). The coding changes will
continue to be effective October 1 of each year.

• We are proposing to rebase and
revise the FY 2002-based RPL market
basket to a FY 2008-based RPL market basket. We are proposing a 3.0 percent market basket update to the IPF PPS for
RY 2012 based on the most recent estimate of the market basket update for the proposed 15-month 2012 IPF PPS rate year, with a 0.25 percentage point reduction as required by section 1886 (s)(3)(A) of the Act.

• We are proposing to adopt IPF policies similar to such IPPS GME policies providing for temporary adjustments to an IPF’s FTE cap to
reflect residents added due to the closure of an IPF or an IPF’s residency training program.

• We are proposing to update the
fixed dollar loss threshold amount in order to maintain the appropriate outlier percentage.

• We are proposing to update the ECT adjustment by a factor specified by

CMS.

• We are proposing to update the national urban and rural cost-to-charge ratio medians and ceilings.

• We are proposing to update the cost of living adjustment factors for IPFs located in Alaska and Hawaii, if appropriate.

• We are proposing to describe the
ICD–9–CM and MS–DRG classification changes discussed in the annual update to the hospital inpatient prospective payment system regulations.

• We are proposing the best available hospital wage index and information regarding whether an adjustment to the Federal per diem base rate is needed to maintain budget neutrality.

• We are proposing to retain the 17 percent adjustment for IPFs located in rural areas, the 1.31 adjustment for IPFs with a qualifying ED, the 0.5150 teaching adjustment to the Federal per diem rate, and the MS–DRG adjustment factor currently being paid to IPFs for

RY 2011.

• We are proposing to update the MS–DRG listing and comorbidity categories to reflect the ICD–9–CM revisions effective October 1, 2010.

VIII. Collection of Information Requirements

This document does not impose any
information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

IX. Regulatory Impact Analysis

A. Statement of Need

This proposed rule would update the prospective payment rates for Medicare inpatient hospital services provided by inpatient psychiatric facilities for discharges occurring during the rate year beginning July 1, 2011 through September 30, 2012. We propose to apply the 15-month FY2008-based RPL market basket increase of 3.0 percent, adjusted by the 0.25 percentage point reduction, as required by section 1886(s)(3)(A) of the Act. In addition, the rule proposes policy changes affecting the IPF PPS teaching adjustment, as
well as makes some clarifications and corrections to terminology and regulations text.

B. Overall Impact

We have examined the impacts of this proposed rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the September 19, 1980 Regulatory Flexibility Act (RFA) (Pub. L. 96–354), section 1102(b) of the Act, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)).

Executive Order 12866 directs 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). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This proposed rule is a major rule as defined in Title 5, United States Code, section 804(2), because we estimate that the impact to the Medicare program, and the annual effects to the economy, will be more than $100
million. We estimate that the total impact of these proposed changes for estimated RY 2012 payments compared to estimated RY 2011 payments would be an increase of approximately $110 million (this reflects a $120 million increase from the update to the payment rates and a $10 million decrease due to the proposed update to the outlier
threshold amount to decrease estimated outlier payments from approximately 2.2 percent in RY 2011 to 2.0 percent in RY 2012).

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 entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IPFs and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7 million to $34.5 million in any one year (for details, refer to the SBA Small
Business Size Standards found at http:// ecfr.gpoaccess.gov/cgi/t/text/text-idx? c=ecfr&sid=2465b064ba6965cc1fbd2 eae60854b11&rgn=div8&view=text&
node=13:1.0.1.1.16.1.266.9&idno=13 ).
Because we lack data on individual hospital receipts, we cannot determine the number of small proprietary IPFs or the proportion of IPFs’ revenue that is derived from Medicare payments. Therefore, we assume that all IPFs are
considered small entities. The Department of Health and Human Services generally uses a revenue impact of 3 to 5 percent as a significance
threshold under the RFA. As shown in Table 15, we estimate that the revenue impact of this proposed rule on all IPFs
is to increase estimated Medicare payments by about 2.54 percent, with
rural IPFs estimated to receive an
increase in estimated Medicare payments greater than 3 percent (an aggregate 3.56 percent). Since Medicare payments do not necessarily constitute total revenue for all IPFs, the overall total revenue impact to IPFs would be less than the significant threshold of 3


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to 5 percent under the RFA. As a result, the Secretary has determined that this proposed rule will not have a significant impact on a substantial number of small entities. Medicare fiscal intermediaries, Medicare Administrative Contractors,
and carriers are not considered to be
small entities. Individuals and States are
not included in the definition of a small entity. We solicit comment on the above analysis.

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
fewer than 100 beds. As discussed in detail below, the rates and policies set forth in this proposed rule will not have an adverse impact on the rural hospitals
based on the data of the 387 rural units and 67 rural hospitals in our database of 1,653 IPFs for which data were available. Therefore, we are not preparing an analysis for section 1102(b) of the Act because the Secretary has determined that this proposed rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

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 2010, that threshold is approximately $135 million. This proposed rule will not impose spending costs on State, local, or tribal governments in the aggregate, or by the private sector, of $135 million.

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. As stated above this proposed rule
would not have a substantial effect on State and local governments.

C. Anticipated Effects of the Proposed
Rule

We discuss below the historical background of the IPF PPS and the impact of this proposed rule on the Federal Medicare budget and on IPFs.

1. Budgetary Impact

As discussed in the November 2004 and May 2006 IPF PPS final rules, we applied a budget neutrality factor to the Federal per diem and ECT base rates to ensure that total estimated payments
under the IPF PPS in the implementation period would equal the amount that would have been paid if the IPF PPS had not been implemented. The budget neutrality factor includes the following components: outlier adjustment, stop-loss adjustment, and
the behavioral offset. As discussed in the May 2008 IPF PPS notice (73 FR 25711), the stop-loss adjustment is no longer applicable under the IPF PPS.

In accordance with § 412.424(c)(3)(ii),
we indicated that we would evaluate the accuracy of the budget neutrality adjustment within the first 5 years after implementation of the payment system. We may make a one-time prospective adjustment to the Federal per diem and
ECT base rates to account for differences
between the historical data on costbased TEFRA payments (the basis of the budget neutrality adjustment) and estimates of TEFRA payments based on actual data from the first year of the IPF PPS. As part of that process, we will reassess the accuracy of all of the factors impacting budget neutrality. In addition, as discussed in section III.C.6 of this proposed rule, we are using the wage index and labor-related share in a budget neutral manner by applying a wage index budget neutrality factor to the Federal per diem and ECT base rates. Therefore, the budgetary impact to the Medicare program of this proposed
rule will be due to the 15-month market basket update for RY 2012 of 3.0 percent (see section III.C.5 of this proposed rule) as adjusted by the ‘‘other adjustment’’ of

¥ 0.25 percentage point according to section 1886(s)(3)(A) of the Act, and the proposed update to the outlier fixed
dollar loss threshold amount.

We estimate that the RY 2012 impact would be a net increase of $110 million in payments to IPF providers. This reflects a $120 million increase from the update to the payment rates and a $10 million decrease due to the proposed update to the outlier threshold amount to decrease estimated outlier payments from approximately 2.2 percent in RY 2011 to 2.0 percent in RY 2012.

2. Impacts on Providers

To understand the impact of the changes to the IPF PPS on providers, discussed in this proposed rule, it is necessary to compare estimated payments under the IPF PPS rates and
factors for RY 2012 versus those under RY 2011. The estimated payments for
RY 2011 and RY 2012 will be 100 percent of the IPF PPS payment, since the transition period has ended and stop-loss payments are no longer paid. We determined the percent change of estimated RY 2012 IPF PPS payments to estimated RY 2011 IPF PPS payments for each category of IPFs. In addition, for each category of IPFs, we have included the estimated percent change in payments resulting from the proposed update to the outlier fixeddollar loss threshold amount, the laborrelated share and wage index changes for the RY 2012 IPF PPS, and the 15- month market basket update for RY 2012, as adjusted by the ‘‘other adjustment’’ according to section 1886(s)(3)(A) of the Act.

To illustrate the impacts of the RY 2012 changes in this proposed rule, our analysis begins with a RY 2011 baseline
simulation model based on FY 2009 IPF payments inflated to the midpoint of RY 2011 using IHS Global Insight’s most
recent forecast of the market basket update ( see section III.C.5 of this proposed rule); the estimated outlier payments in RY 2011; the CBSA designations for IPFs based on OMB’s MSA definitions after June 2003; the FY 2010 pre-floor, pre-reclassified hospital wage index; the RY 2011 labor-market share; and the RY 2011 percentage amount of the rural adjustment. During the simulation, the total estimated outlier payments are maintained at 2 percent of total estimated IPF PPS payments.

Each of the following proposed changes is added incrementally to this
baseline model in order for us to isolate the effects of each change:

• The update to the outlier fixed
dollar loss threshold amount.

• The FY 2011 pre-floor, prereclassified hospital wage index and RY
2012 labor-related share.

• The 15-month market basket update for RY 2012 of 3.0 percent adjusted by 0.25 percentage point reduction in accordance with section 1886(s)(3)(A) of
the Act.

Our final comparison illustrates the percent change in payments from RY 2011 (that is, July 1, 2010 to June 30, 2011) to RY 2012 (that is, July 1, 2011 to September 30, 2012) including all the changes in this proposed rule.

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3. Results

Table 15 above displays the results of our analysis. The table groups IPFs into the categories listed below based on characteristics provided in the Provider of Services (POS) file, the IPF provider specific file, and cost report data from

HCRIS:

• Facility Type.

• Location.


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• Teaching Status Adjustment.

• Census Region.

• Size. The top row of the table shows the overall impact on the 1,653 IPFs included in this analysis.

In column 3, we present the effects of the proposed update to the outlier fixed
dollar loss threshold amount. We estimate that IPF outlier payments as a percentage of total estimated IPF payments are 2.2 percent in RY 2011. Thus, we are proposing to adjust the outlier threshold amount from $6,372 in RY 2011 to $7,316 in RY 2012 in order to set total estimated outlier payments equal to 2 percent of total estimated payments in RY 2012. The estimated change in total IPF payments for RY 2012, therefore, includes an approximate 0.2 percent decrease in payments because the estimated outlier portion of total payments is estimated to decrease from approximately 2.2 percent to 2 percent.

The overall aggregate effect of this proposed outlier adjustment updates (as shown in column 3 of table 15), across all hospital groups, is to decrease total estimated payments to IPFs by about 0.21 percent. We do not estimate that any group of IPFs will experience an increase in payments from this proposed update. We estimate the largest decrease in payments to be a 1.57 percent decrease in estimated payments to urban, government IPF units located
in CAHs which is due to the small number of IPFs of that type and the high volume of outlier payments made to
those IPFs.

In column 4, we present the effects of the proposed budget-neutral update to the labor-related share and the wage index adjustment under the CBSA geographic area definitions announced by OMB in June 2003. This is a comparison of the simulated RY 2012 payments under the FY 2011 hospital wage index under CBSA classification
and associated labor-related share to the simulated RY 2011 payments under the FY 2010 hospital wage index under
CBSA classifications and associated
labor-related share. We note that there is no projected change in aggregate payments to IPFs, as indicated in the first row of column 4. However, there would be distributional effects among different categories of IPFs. For example, we estimate a 0.98 percent increase in overall payments to rural IPFs, with the largest increase in estimated payments of 2.2 percent for rural, for-profit freestanding psychiatric hospitals. In addition, we estimate the largest decrease in estimated payments to be a 0.89 percent decrease for IPFs in the New England region. Column 5 shows the estimated effect of the proposed update to the IPF PPS payment rates, which includes a 3.0 percent 15-month market basket update with the 0.25 percentage point
reduction in accordance with section 1886(s)(3)(A).

Column 6 compares our estimates of the changes reflected in this proposed rule for RY 2012, to our estimates of payments for RY 2011 (without these changes). This column reflects all RY 2012 changes relative to RY 2011. The average estimated increase for all IPFs is approximately 2.54 percent. This
estimated net increase includes the effects of the 3.0 percent 15-month market basket update adjusted by the ‘‘other adjustment’’ of

¥ 0.25 percentage point, as required by section 1886(s)(3)(A) of the Act. It also includes the approximate 0.2 percent overall
estimated decrease in estimated IPF outlier payments from the proposed update to the outlier fixed dollar loss threshold amount. Since we are making the updates to the IPF labor-relatedshare and wage index in a budgetneutral manner, they will not affect total estimated IPF payments in the aggregate. However, they will affect the estimated distribution of payments among providers.

Overall, no IPFs are estimated to experience a net decrease in payments as a result of the proposed updates in
this rule. IPFs in urban areas will experience a 2.37 percent increase and IPFs in rural areas will experience a 3.56 percent increase. The largest payment increase is estimated at 4.98 percent for rural, for-profit freestanding psychiatric hospitals. This is due to the larger than average positive effect of theFY 2011 CBSA wage index and laborrelated share updates for rural IPFs in this category.

4. Effect on the Medicare Program

Based on actuarial projections resulting from our experience with other PPSs, we estimate that Medicare spending (total Medicare program payments) for IPF services over the next 5 years would be as shown in Table 16
below.



### T ABLE 

### 16—E STIMATED 

### P AYMENTS

Rate year Dollars in millions

July 1, 2011 to June 30, 2012 $4,615 July 1, 2012 to June 30, 2013 4,938 July 1, 2013 to June 30, 2014 5,320 July 1, 2014 to June 30, 2015 5,750 July 1, 2015 to June 30, 2016 6,235

These estimates are based on the
current forecast of the increases in the RPL market basket, including an adjustment for productivity, for the rate year beginning in 2012 and each subsequent rate year, as required by section 1886(s)(3)(A) of the Act, as
follows:

• 2.6 percent for rate years beginning in 2011 (RY 2012).

• 1.7 percent for rate years beginning in 2012 (RY 2013).

• 1.9 percent for rate years beginning in 2013 (RY 2014).

• 2.1 percent for rate years beginning in 2014 (RY 2015).

• 2.3 percent for rate years beginning in 2015 (RY 2016).

The estimates in Table 14 also include the application of the ‘‘other adjustment,’’ as required by section 1886(s)(3)(A) of the Act, as follows:

•

¥ 0.25 percent for rate years beginning in 2011.

•

¥ 0.1 percent for rate years beginning in 2012.

•

¥ 0.1 percent for rate years beginning in 2013.

•

¥ 0.3 percent for rate years beginning in 2014.

•

¥ 0.2 percent for rate years beginning in 2015.

We estimate that there would be a change in fee-for-service Medicare beneficiary enrollment as follows:

• 3.3 percent in RY 2012.

• 3.7 percent in RY 2013.

• 4.3 percent in RY 2014.

• 4.9 percent in RY 2015.

• 5.6 percent in RY 2016.

5. Effect on Beneficiaries

Under the IPF PPS, IPFs would receive payment based on the average resources consumed by patients for each day. We do not expect changes in the quality of care or access to services for
Medicare beneficiaries under the RY 2012 IPF PPS. In fact, we believe that
access to IPF services will be enhanced due to the patient- and facility-level adjustment factors, all of which are intended to adequately reimburse IPFs for expensive cases. Finally, the outlier policy is intended to assist IPFs that experience high-cost cases.

D. Alternatives Considered

The statute does not specify an update strategy for the IPF PPS and is broadly written to give the Secretary discretion in establishing an update methodology. Therefore, we are updating the IPF PPS using the methodology published in the
November 2004 IPF PPS final rule.

We note that this proposed rule initiates policy changes with regard to the IPF PPS, and it also provides an update to the rates for RY 2012. We considered making refinements to the IPF PPS in this proposed rule. However,


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we decided that we needed more time
to assess the data and would therefore once again delay running the regression analysis until we have adequate IPF PPS data. We have initiated the necessary analysis to better understand IPF industry practices. We did not consider rebasing the IPF PPS for concerns thatrebasing would be too costly (recalculate the cost-per-day) and time consuming.

E. Accounting Statement

As required by OMB Circular A–4 (available at http://www.whitehouse. gov/omb/circulars/a004/a-4.pdf ), in Table 17 below, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of this proposed rule. This table provides our
best estimate of the increase in Medicare payments under the IPF PPS as a result of the proposed changes presented in this proposed rule and based on the data for 1,653 IPFs in our database. All expenditures are classified as transfers to Medicare providers (that is, IPFs).



### T ABLE 

### 17—A CCOUNTING 

### S TATEMENT 

### :

C LASSIFICATION OF 

### E STIMATED 

### E X



### PENDITURES 

### , F ROM THE 

### 2011 IPF
PPS RY TO THE 

### 2012 IPF PPS RY

[In millions]

Category Transfers

Annualized Monetized

Transfers. $110

From Whom To

Whom? Federal Government

To IPF Medicare

Providers.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 412

Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:

**PART 412—PROSPECTIVE PAYMENT**
**SYSTEMS FOR INPATIENT HOSPITAL**
**SERVICES**

1. The authority citation for part 412
continues to read as follows:

Authority: Secs. 1102, 1862, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395y, and 1395hh). **Subpart N—Prospective payment system for inpatient hospital services**  **of inpatient psychiatric facilities**

2. In § 412.402, new definitions of ‘‘IPF prospective payment system rate year’’ and ‘‘MS–IFP–DRG’’ are added in alphabetical order to read as follows:

**§ 412.402 Definitions.**

* * * * *

IPF prospective payment system rate

year means —

(1) Through June 30, 2011, the 12- month period of July 1 through June 30.

(2) Beginning July 1, 2011, the 15- month period of July 1, 2011 through September 30, 2012.

(3) Beginning October 1, 2012, the 12- month period of October 1 through September 30, referred to as Fiscal Year (FY).

* * * * *

MS–IFP–DRG means the severity adjusted diagnosis groups used to classify IPF patients. For IPF discharges occurring on or after July 1, 2008, all
reference to MS–DRGs used for the IPF

PPS are to MS–IPF–DRGs.

* * * * *

3. Section 412.404 is amended by revising paragraph (a)(1) to read as
follows:

**§ 412.404 Conditions for payment under the prospective payment system for**  **inpatient hospital services of psychiatric**
**facilities.**

(a) General requirements. (1) Effective for cost reporting periods beginning on or after January 1, 2005, an inpatient psychiatric facility must meet the
conditions of this section to receive payment under the prospective payment system described in this subpart for inpatient hospital services furnished to
Medicare Part A fee-for-service
beneficiaries.

* * * * *

4. Section 412.422 is amended by revising paragraph (b)(2) to read as
follows:

**§ 412.422 Basis of payment.**

* * * * *

(b) * * * (2) In addition to the Federal per diem payment amounts, inpatient psychiatric facilities receive payment for bad debts of Medicare beneficiaries, as specified in § 413.89 of this chapter.

5. Section 412.424 is amended by adding a new paragraph (d)(1)(iii)(F) to
read as follows:

**§ 412.424 Methodology for calculating the Federal per diem payment amount.** 

* * * * *

(d) * * * (1) * * * (iii) * * * (F) Closure of an IPF. ( 1 ) For cost reporting periods beginning on or after July 1, 2011, an IPF may receive a temporary adjustment to its FTE cap to
reflect residents added because of
another IPF’s closure if the IPF meets the following criteria:

( i ) The IPF is training additional
residents from an IPF that closed on or after July 1, 2011.

( ii ) No later than 60 days after the IPF begins to train the residents, the IPF submits a request to its Medicare contractor for a temporary adjustment to its cap, documents that the IPF is eligible for this temporary adjustment by identifying the residents who have
come from the closed IPF and have caused the IPF to exceed its cap, and specifies the length of time the adjustment is needed.

( 2 ) Closure of an IPF’s residency training program. If an IPF that closes its residency training program agrees to temporarily reduce its FTE cap according to the criteria specified in paragraph (d)(1)(iii)(F)( 2 )( ii ) of this section, another IPF(s) may receive a temporary adjustment to its FTE cap to
reflect residents added because of the closure of the residency training program if the criteria specified in paragraph (d)(1)(iii)(F)( 2 )( i ) of this

section are met.

( i ) Receiving IPF(s). For cost reporting periods beginning on or after July 1, 2001, an IPF may receive a temporary adjustment to its FTE cap to reflect
residents added because of the closure of another IPF’s residency training program if the IPF is training additional residents from the residency training program of an IPF that closed a program; and if no later than 60 days after the IPF begins to train the residents, the IPF
submits to its Medicare Contractor a request for a temporary adjustment to its FTE cap, documents that it is eligible for this temporary adjustment by identifying the residents who have come from another IPF’s closed program and have caused the IPF to exceed its cap, specifies the length of time the adjustment is needed, and submits to its Medicare contractor a copy of the FTE reduction statement by the hospital that closed its program, as specified in paragraph (d)(1)(iii)(F)( 2 )( ii ) of this

section.

( ii ) IPF that closed its program. An IPF that agrees to train residents who have been displaced by the closure of another IPF’s program may receive a temporary FTE cap adjustment only if the hospital with the closed program temporarily reduces its FTE cap based on the FTE residents in each program year training in the program at the time


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of the program’s closure. This yearly reduction in the FTE cap will be
determined based on the number of
those residents who would have been training in the program during that year had the program not closed. No later than 60 days after the residents who were in the closed program begin training at another hospital, the hospital with the closed program must submit to
its Medicare contractor a statement signed and dated by its representative that specifies that it agrees to the temporary reduction in its FTE cap to allow the IPF training the displaced residents to obtain a temporary adjustment to its cap; identifies the residents who were in training at the time of the program’s closure; identifies
the IPFs to which the residents are transferring once the program closes; and specifies the reduction for the applicable program years.

* * * * *

6. Section 412.426 is amended by revising paragraph (a) to read as follows:

**§ 412.426 Transition period.**

(a) Duration of transition period and composition of the blended transition payment. Except as provided in paragraph (c) of this section, for cost reporting periods beginning on or after January 1, 2005 through January 1, 2008, an inpatient psychiatric facility receives a payment comprised of a blend of the estimated Federal per diem payment amount, as specified in § 412.424(d) of this subpart and a facility-specific payment as specified under paragraph (b) of this section.

(1) For cost reporting periods beginning on or after January 1, 2005 and before January 1, 2006, payment isbased on 75 percent of the facilityspecific payment and 25 percent is based on the Federal per diem payment

amount.

(2) For cost reporting periods beginning on or after January 1, 2006 and before January 1, 2007, payment isbased on 50 percent of the facilityspecific payment and 50 percent is based on the Federal per diem payment

amount.

(3) For cost reporting periods beginning on or after January 1, 2007 and before January 1, 2008, payment isbased on 25 percent of the facilityspecific payment and 75 percent is based on the Federal per diem payment

amount.

(4) For cost reporting periods beginning on or after January 1, 2008, payment is based entirely on the Federal per diem payment amount.

* * * * * 7. Section 412.432 is amended by revising paragraph (d) to read as
follows:

**§ 412.432 Method of payment under the inpatient psychiatric facility prospective**  **payment system.**

* * * * *

(d) Outlier payments. Additional payments for outliers are not made on an interim basis. Outlier payments are
made based on the submission of a discharge bill and represents final payment subject to the cost report settlement specified in § 412.84(i) and § 412.84(m) of this part.

* * * * *

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

Dated: January 13, 2011.

Donald Berwick, Administrator, Centers for Medicare &
Medicaid Services.

Approved: January 20, 2011.

Kathleen Sebelius,
Secretary.

[Note: The following Addendums will not appear in the Code of Federal Regulations].

Addendum A—Rate and Adjustment

Factors


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[FR Doc. 2011–1507 Filed 1–21–11; 4:15 pm]

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