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[Federal Register: August 3, 2010 (Volume 75, Number 148)]
[Rules and Regulations]               
[Page 45699-45768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au10-12]                         

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Part II

Book 2 of 3 Books

Pages 45699-46168

Department of Health and Human Services

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Centers for Medicare and Medicaid

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42 CFR Parts 410, 416 and 419

Medicare Program: Changes to the Hospital Outpatient Prospective 
Payment System and CY 2010 Payment Rates; Changes to the Ambulatory 
Surgical Center Payment System and CY 2010 Payment Rates; Corrections; 
Final Rule, Notice, and Proposed Rule

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 410, 416, and 419

[CMS-1414-CN2]
RIN 0938-AP41

 
Medicare Program: Changes to the Hospital Outpatient Prospective 
Payment System and CY 2010 Payment Rates; Changes to the Ambulatory 
Surgical Center Payment System and CY 2010 Payment Rates; Corrections

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

ACTION: Correction of final rule with comment period.

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SUMMARY: This document corrects technical errors that appeared in the 
final rule with comment period found in the Federal Register (FR) on 
November 20, 2009, entitled ``Medicare Program: Changes to the Hospital 
Outpatient Prospective Payment System and CY 2010 Payment Rates; 
Changes to the Ambulatory Surgical Center Payment System and CY 2010 
Payment Rates'' and in the correction document found in the Federal 
Register on December 31, 2009, entitled ``Medicare Program: Changes to 
the Hospital Outpatient Prospective Payment System and CY 2010 Payment 
Rates; Changes to the Ambulatory Surgical Center Payment System and CY 
2010 Payment Rates.''

DATES: Effective Date: This document is effective on August 3, 2010.
    Applicability Date: The corrections in this document are applicable 
on and after January 1, 2010.

FOR FURTHER INFORMATION CONTACT: Alberta Dwivedi, (410) 786-0378.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. E0-26499 of November 20, 2009 (74 FR 60316) (hereinafter 
referred to as the CY 2010 OPPS/ASC final rule), there were several 
technical and typographic errors. Some of these errors were corrected 
in the correction document of December 31, 2009 (74 FR 69502) 
(hereinafter referred to as the December 31, 2009 CY 2010 OPPS/ASC 
correction document). We identified additional errors to the practice 
expense (PE) relative value units (RVUs) and the conversion factor (CF) 
for the Medicare Physician Fee Schedule (MPFS) in the November 25, 2009 
Medicare Program; Payment Policies Under the Physician Fee Schedule and 
Other Revisions to Part B for CY 2010 final rule with comment period 
(74 FR 61738) (hereinafter referred to as the CY 2010 MPFS final rule), 
which were corrected in the May 11, 2010 CY 2010 MPFS correction 
document (75 FR 26350). The revised ASC payment system uses the PE RVUs 
and the CF for the MPFS as part of the office-based and ancillary 
radiology payment methodology. This notice updates the CY 2010 OPPS/ASC 
final rule to include these additional corrections.
    The provisions in this correction document are effective as if they 
had been included in the CY 2010 OPPS/ASC final rule appearing in the 
November 20, 2009 Federal Register (74 FR 60316). Accordingly, the 
corrections are effective January 1, 2010.

II. Summary of Errors

A. Errors in the December 31, 2009 Correction

    In the December 31, 2009 CY 2010 OPPS/ASC correction document, we 
republished Addendum AA on pages 69505 through 69629 and Addendum BB on 
pages 69630 through 69675 to take into account updated CY 2010 MPFS 
information. As required under Sec.  416.171(d), the revised ASC 
payment system limits payment for office-based procedures and covered 
ancillary radiology services to the lesser of the ASC rate or the 
amount calculated by multiplying the nonfacility PE RVUs for the 
service by the CF under the MPFS. However, the MPFS CF and PE RVUs 
listed for some CPT codes in Addendum B to the CY 2010 MPFS final rule 
(74 FR 62017) were incorrect due to certain technical errors and, 
consequently, were corrected in a December 10, 2009 correction document 
to the CY 2010 MPFS final rule (74 FR 65450). Since the ASC payment 
amounts for office-based procedures and covered ancillary radiology 
services are determined using the amounts in the MPFS final rule, we 
corrected the CY 2010 payment amounts for ASC procedures and services 
using the corrected MPFS amounts in the December 31, 2009 CY 2010 OPPS/
ASC correction document.
    Additional technical and typographical errors were discovered in 
the CY 2010 MPFS final rule, as well as the December 10, 2009 CY 2010 
MPFS correction document. These changes were corrected in the May 11, 
2010 CY 2010 MPFS correction document (75 FR 26350). That correction 
document:
     Made corrections to the PE and malpractice (MP) RVUs to 
align their values to the final CY 2010 MPFS policies for PE and MP 
RVUs; and
     Made corrections to the CF resulting from corrections to 
the PE and MP RVUs to align their values with the final CY 2010 MPFS 
policies for PE and MP RVUs, taking into consideration comments 
received from the public and further review following display of the CY 
2010 MPFS final rule.
    We refer readers to the May 11, 2010 CY 2010 MPFS correction 
document (75 FR 26350) for more information on the changes made to the 
MPFS.
    In summary, addenda AA and BB in the December 31, 2009 CY 2010 
OPPS/ASC correction document contained errors in the rates for surgical 
procedures designated as office-based and for covered ancillary 
radiology procedures which are corrected in this notice.

B. Correction of Errors in the December 31, 2010 Correction

    The changes to the MPFS impacted multiple codes within Addenda AA 
and BB. Therefore, we are republishing Addenda AA and BB, which were 
republished on pages 69505 through 69629 and 69630 through 69675 of the 
December 31, 2009 CY 2010 OPPS/ASC correction document to take into 
account the updated CY 2010 MPFS information. The ASC payment amounts 
for office-based procedures and covered ancillary radiology services 
are determined using the MPFS final calendar year CF and PE RVUs. We 
must correct the CY 2010 payment amounts for covered office-based 
procedures and covered ancillary radiology services using the final CY 
2010 corrected MPFS values. The revised rates continue to reflect the 
negative update to the MPFS for CY 2010 based on current law at the 
time of publication of the CY 2010 MPFS final rule and the corrections 
to the RVUs and CFs. The corrected payment amounts are reflected in 
Addenda AA and BB to this correction document and also are posted on 
the CMS Web site at: http://www.cms.gov/ASCPayment.
    We note that the Department of Defense Appropriations Act, 2010 
(Pub. L. 111-118), the Temporary Extension Act of 2010 (Pub. L. 111-
144), and the Continuing Extension Act of 2010 (Pub. L. 111-157) 
extended a zero percent update for the MPFS from January 1, 2010 
through May 31, 2010. We are publishing a notice around the same time 
as this correction document announcing certain provision of the Patient 
Protection and Affordable Care Act (Affordable Care Act), as amended by 
the Health Care and Education Reconciliation Act of 2010 (HCERA), for 
CY 2010. Because the changes required by the Affordable Care Act and 
HCERA are effective January 1, 2010, and because the public laws listed 
above

[[Page 45701]]

authorize a zero percent update for the MPFS for CY 2010 through May 
31, 2010, the notice incorporates a zero percent update for MPFS 
payment. If Congress chooses not to extend the zero percent MPFS update 
beyond May 31, 2010 or chooses to revise the MPFS update to be 
something other than zero, we will recalculate the payment rates 
presented in that notice based on the CY 2010 MPFS payment rates 
calculated using the revised update factor.
    The payment rates presented in this correction document technical 
corrections made to the CY 2010 OPPS/ASC final rule and will not be 
used for payment. The payment rates presented in the notice being 
published around the same time as this correction document are the 
final ASC payment rates from January 1, 2010, through May 31, 2010. We 
recalculated the ASC payment rates, including budget neutrality 
calculations, in that notice to reflect changes created by the 
Affordable Care Act and HCERA, and the technical corrections addressed 
in this correction document.

IV. Waiver of Proposed Rulemaking and Delay in Effective Date

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register to provide a period for public comment before the 
provisions of a notice such as this take effect, in accordance with the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). We also 
ordinarily provide a 30-day delay in the effective date of the 
provisions of a notice in accordance with the APA (5 U.S.C. 553(d)). 
However, we can waive both the notice and comment procedures and the 
30-day delay in the effective date if the Secretary finds, for good 
cause, that it is impracticable, unnecessary or contrary to the public 
interest to follow the notice and comment procedures or to comply with 
the 30-day delay in the effective date, and incorporates a statement of 
the finding and the reasons therefor in the notice. This correction 
document merely provides technical corrections to the CY 2010 OPPS/ASC 
final rule, as corrected by the December 31, 2009 CY 2010 OPPS/ASC 
correction document, that was effective on January 1, 2010. The 
provisions of the CY 2010 OPPS/ASC final rule were promulgated through 
notice and comment rulemaking, and the corrections contained in this 
document do not make substantive changes to the policies or payment 
methodologies that were finalized in the CY 2010 OPPS/ASC final rule. 
In addition, we believe it is in the public interest to have the 
correct information and to have it as soon as possible and not delay 
its dissemination. For the reasons stated above, we find that both 
notice and comment procedures and the 30-day delay in effective date 
for this correction document are unnecessary and contrary to the public 
interest. Therefore, we find there is good cause to waive notice and 
comment procedures and the 30-day delay in effective date for this 
correction document.

(Catalog of Federal Domestic Assistance Program No. 93.774, 
Medicare-- Supplementary Medical Insurance Program)

    Dated: June 24, 2010.
Dawn L. Smalls,
Executive Secretary to the Department.
    Therefore, CMS is republishing Addenda AA and BB, which were 
republished on pages 69505 through 69629 and 69630 through 69675 of the 
December 31, 2009, CY 2010 OPPS/ASC correction document to take into 
account the updated CY 2010 MPFS information.

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[FR Doc. 2010-16043 Filed 7-2-10; 2:30 pm]
BILLING CODE 4120-01-P
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