Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 26731 

by contract to implement and maintain 

appropriate safeguards; and 

• Evaluate and adjust its information 

security programs in light of the results 

of testing and monitoring, any material 

changes to operations or business 

arrangements, or any other 

circumstances that it knows or has 

reason to know may have a material 

impact on its information security 

program. 

Part III of the proposed order requires 

Ceridian to obtain within the first one 

hundred eighty (180) days after service 

of the order, and on a biennial basis 

thereafter for a period of twenty (20) 

years, an assessment and report from a 

qualified, objective, independent thirdparty professional, certifying, among 

other things, that: (1) It has in place a 

security program that provides 

protections that meet or exceed the 

protections required by Part II of the 

proposed order; and (2) its security 

program is operating with sufficient 

effectiveness to provide reasonable 

assurance that the security, 

confidentiality, and integrity of 

sensitive consumer, employee, and job 

applicant information has been 

protected. Two Ceridian subsidiaries, 

Ceridian Stored Value Solutions, Inc. 

and Comdata Network Inc., are 

excluded from this requirement to the 

extent that they do not advertise, 

market, promote, offer for sale, or sell 

any product or service relating to 

payroll, taxes, or human resources. Part 

III does not apply to payment cards 

provided to employers by Comdata 

Network Inc. that are not linked to 

accounts maintained by individual 

employees. Parts IV through VIII of the 

proposed order are reporting and 

compliance provisions. Part IV requires 

Ceridian to retain documents relating to 

its compliance with the order. For most 

records, the order requires that the 

documents be retained for a five-year 

period. For the third-party assessments 

and supporting documents, Ceridian 

must retain the documents for a period 

of three years after the date that each 

assessment is prepared. Part V requires 

dissemination of the order now and in 

the future to all current and future 

subsidiaries, current and future 

principals, officers, directors, and 

managers, and to persons with 

responsibilities relating to the subject 

matter of the order. Part VI ensures 

notification to the FTC of changes in 

corporate status. Part VII mandates that 

Ceridian submit a compliance report to 

the FTC within 60 days, and 

periodically thereafter as requested. Part 

VIII is a provision ‘‘sunsetting’’ the order 

after twenty (20) years, with certain 

exceptions. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the proposed order or to modify its 

terms in any way. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2011–11183 Filed 5–6–11; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

[CMS–1355–NR] 

RIN 0938–AQ31 

Medicare Program; Hospice Wage 

Index for Fiscal Year 2012 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Notice of CMS ruling. 

SUMMARY: This notice announces a CMS 

Ruling that was signed on April 14, 

2011 regarding CMS’s determination to 

grant relief to any hospice provider that 

has a properly pending appeal (as 

defined in the Ruling) in any 

administrative appeals tribunal (that is, 

the Provider Reimbursement Review 

Board (PRRB), the Administrator of 

CMS, the Medicare fiscal intermediary 

hearing officer, or the CMS reviewing 

official) that seeks review of an 

overpayment determination for any 

hospice cap year (the period November 

1 to October 31) ending on or before 

October 31, 2011 by challenging the 

validity of the beneficiary counting 

methodology set forth in 42 CFR 

418.309(b)(1). 

DATES: Effective Date: This notice of 

CMS ruling is effective April 14, 2011. 

FOR FURTHER INFORMATION CONTACT: Lori 

Anderson, (410) 786–6190; Randy 

Throndset, (410) 786–0131. 

SUPPLEMENTARY INFORMATION: The CMS 

Administrator signed Ruling CMS– 

1355–R on April 14, 2011. The text of 

the CMS Ruling is as follows: 

CMS Rulings are decisions of the 

Administrator that serve as precedential 

final opinions and orders and 

statements of policy and interpretation. 

They are published under the authority 

of the Administrator of the Centers for 

Medicare & Medicaid Services (CMS). 

CMS Rulings are binding on all CMS 

components, on all Department of 

Health & Human Services (HHS) 

components that adjudicate matters 

under the jurisdiction of CMS, and on 

the Social Security Administration 

(SSA) to the extent that components of 

the SSA adjudicate matters under the 

jurisdiction of CMS. 

This Ruling provides notice of CMS’s 

determination to grant relief to any 

hospice provider that has a properly 

pending appeal (as discussed herein) in 

any administrative appeals tribunal 

(that is, the Provider Reimbursement 

Review Board (PRRB), the 

Administrator of CMS, the Medicare 

fiscal intermediary hearing officer, or 

the CMS reviewing official) that seeks 

review of an overpayment 

determination for any hospice cap year 

(the period November 1 to October 31) 

ending on or before October 31, 2011 by 

challenging the validity of the 

beneficiary counting methodology set 

forth in 42 CFR 418.309(b)(1). In this 

regard, such a provider’s hospice cap 

determination (as defined under 42 

U.S.C. 1395f(i)(2)) for any cap year 

ending on or before October 31, 2011 

and for which a timely appeal has been 

filed and is otherwise properly pending 

(as discussed herein) will be 

recalculated using a patient-by-patient 

proportional methodology for counting 

the number of Medicare beneficiaries as 

opposed to the methodology currently 

set forth in 42 CFR 418.309. This Ruling 

requires the appropriate Medicare 

contractor to identify each covered 

appeal and recalculate the aggregate 

cap. This Ruling also holds that, in light 

of the required recalculation, the 

pertinent administrative appeals 

tribunal will no longer have jurisdiction 

over the covered appeal and, therefore, 

directs the pertinent administrative 

appeals tribunal to remand each 

qualifying appeal to the appropriate 

Medicare contractor. Moreover, the 

Ruling explains how CMS and the 

contractor will recalculate the hospice 

provider’s cap overpayment 

determination to account for 

beneficiaries who receive hospice 

services from the same hospice provider 

in multiple cap years using a 

methodology (the ‘‘patient-by-patient 

proportional methodology’’) that will 

allocate an individual beneficiary to 

multiple cap years based on the number 

of days the beneficiary receives service 

from the hospice in a given cap year 

relative to the total number of days in 

all cap years the beneficiary receives 

services from the hospice (or any 

hospice). 

Medicare Program 

Hospice 

Hospice Appeals for Review of an 

Overpayment Determination. 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

26732 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 

Citations: 42 U.S.C. 1395f(i)(2) and 42 

CFR parts 418 and 405 

Background 

In 1982, Congress amended the 

Medicare statute to provide coverage for 

hospice care under Part A. See Tax 

Equity and Fiscal Responsibility Act of 

1982 (TEFRA), Public Law 97–248, 

§ 122, 96 Stat. 356, 364 (1982). The 

hospice benefit was designed to provide 

patients who are terminally ill (that is, 

life expectancy of six months or less) 

with comfort and pain relief, as well as 

emotional and spiritual support, 

generally in a home setting. Specifically, 

Medicare hospice services include 

nursing care, physical or occupational 

therapy, counseling, home health aide 

services, physicians’ services, and shortterm inpatient care, as well as drugs and 

medical supplies. 42 U.S.C. 

1395x(dd)(1); see also 48 FR 56,008, 

56,008 (Dec. 16, 1983) (describing 

hospice benefit). 

The Medicare hospice benefit reflects 

a patient’s choice to receive palliative 

care rather than curative care. The 

individual waives all rights to Medicare 

payments for treatment of the 

underlying terminal illness and related 

conditions by someone other than the 

individual’s attending physician or the 

chosen hospice program. 42 U.S.C. 

1395d(d)(2)(A). 

Pursuant to 42 U.S.C. 1395f(i), 

Medicare pays hospice care providers 

on a per diem basis. See 42 CFR 

418.302. The total payment to a hospice 

in an accounting year (November 1 to 

October 31, also known as the cap year) 

is limited, however, by a statutory cap. 

See 42 U.S.C. 1395f(i)(2)(A). Payments 

made in excess of the statutory cap are 

considered overpayments and must be 

refunded by the hospice care provider. 

See 42 CFR 418.308. 

The statutory cap is calculated for 

each hospice care provider by 

multiplying the applicable ‘‘cap 

amount,’’ which is updated annually, by 

the ‘‘number of Medicare beneficiaries 

in the hospice program in that year.’’ 42 

U.S.C. 1395f(i)(2)(A). The statute 

provides that the number of Medicare 

beneficiaries in a hospice program in an 

accounting year ‘‘is equal to the number 

of individuals who have made an 

election [to receive hospice care] and 

have been provided hospice care by (or 

under arrangements made by) the 

hospice program under this part in the 

accounting year, such number reduced 

to reflect the proportion of hospice care 

that each such individual was provided 

in a previous or subsequent accounting 

year or under a plan of care established 

by another hospice program.’’ 42 U.S.C. 

1395f(i)(2)(C). 

In 1983, HHS adopted a rule that 

allocates hospice care on an aggregate 

basis by allocating each beneficiary 

entirely to the cap year in which he or 

she would be likely to receive the 

preponderance of his or her care. 48 FR 

56,008, 56,022 (Dec. 16, 1983). The 

current regulation calculates the number 

of hospice beneficiaries as follows: 

Those Medicare beneficiaries who 

have not previously been included in 

the calculation of any hospice cap and 

who have filed an election to receive 

hospice care, in accordance with 

§ 418.24, from the hospice during the 

period beginning on September 28 (35 

days before the beginning of the cap 

period) and ending on September 27 (35 

days before the end of the cap period). 

42 CFR 418.309(b)(1). 

Once a beneficiary is counted for a 

given hospice, the beneficiary is not 

counted toward the hospice’s cap in 

subsequent years if he or she continues 

to receive services from the hospice. 

Thus, under this methodology, a patient 

who receives services in multiple years 

is counted as 1.0 beneficiary in a single 

year, rather than as some fraction less 

than 1.0 in multiple years (with the 

fractions summing to 1.0). 

Since its promulgation in 1983, the 

vast majority of hospice providers have 

not objected to the current counting 

methodology set forth in 42 CFR 

418.309(b)(1). Of the thousands of 

hospice providers in the Medicare 

program, typically only a small 

percentage each year exceed the 

statutory cap. Of those hospices that do 

exceed the cap and are issued notices of 

overpayment determinations (calculated 

pursuant to the methodology set forth in 

42 CFR 418.309(b)(1)), only a small 

percentage since FY 2006 have filed 

administrative appeals objecting to the 

current counting methodology. 

In the April 24, 2009 ‘‘Hospice Wage 

Index For FY 2010’’ proposed rule (74 

FR 18,912, 18,920–22) and in the July 

22, 2010 ‘‘Hospice Wage Index for FY 

2011’’ notice with comment period (75 

FR 42,944, 42,950–51) CMS solicited 

comments on various options for 

modernizing the hospice aggregate cap, 

including an option which would 

proportionally allocate each individual 

beneficiary across all the cap years in 

which the beneficiary received hospice 

care in any hospice. We received 24 

comments in 2009 and 26 comments in 

2010 (some on behalf of groups) about 

the aggregate cap. A number of 

commenters, including associations, 

urged CMS to retain the existing cap 

calculation methodology set forth in 42 

CFR 418.309(b)(1), as any changes to the 

current methodology would result in 

additional cost and burden to providers. 

The major hospice associations urged 

CMS to defer any major changes to the 

cap calculation methodology until the 

implementation of hospice payment 

reform, because of similar burden and 

cost concerns. Commenters also urged 

CMS to retain the current methodology 

as it results in a more streamlined and 

timely cap determination for providers 

as compared to other options 

considered, including any proportional 

methodology that allocates beneficiaries 

across more than one cap year. A 

significant advantage of the current 42 

CFR 418.309(b)(1) methodology is that, 

once made, cap determinations can 

remain final without need to revise to 

account for situations in which the 

percentage of time a beneficiary 

received services in a prior cap year 

declines as his or her overall hospice 

stay continues into subsequent cap 

years. In contrast, a proportional 

methodology which allocates a 

beneficiary across more than one cap 

year leaves ‘‘final’’ determinations 

somewhat open-ended. Many who 

commented on the 2009 and 2010 final 

rules described above suggested that, 

because of these advantages, CMS adopt 

the current methodology as an option 

for providers even if CMS were to 

change its methodology to allow for cap 

determinations to be calculated on a 

patient-by-patient proportional basis. 75 

FR at 42,950–51. 

1. Current Litigation 

The current method of counting 

beneficiaries set forth in § 418.309(b)(1) 

has been the subject of litigation. A 

small percentage of hospice providers 

have filed PRRB appeals challenging 

this methodology, seeking to have 

hospice overpayment determinations 

using this methodology invalidated. 

Many of these appeals have reached 

federal district court. To date, all federal 

district courts and the two courts of 

appeals that have directly ruled on the 

question have issued decisions 

concluding that this methodology is 

inconsistent with the plain language of 

the Medicare statute and have set aside 

these overpayment determinations. 

Some district courts have also enjoined 

CMS from using the methodology to 

calculate the plaintiff-hospice’s cap 

determinations in future cap years. See, 

e.g., Los Angeles Haven Hospice, Inc. v. 

Leavitt, 2009 WL 5868513 (C.D. Cal. 

2009), affirmed in part, ___ F.3d ___, 

2011 WL 873303 (9th Cir. Mar. 15, 

2011); Lion Health Servs., Inc. v. 

Sebelius, 689 F. Supp. 2d 849 (N.D. Tex. 

2010), affirmed in part, ___ F.3d. ___, 

2011 WL 834018 (5th Cir. Mar. 11, 

2011); Hospice of New Mexico, LLC, v. 

Sebelius, No. CIV 09–145 (D.N.M. Mar. 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 26733 

5, 2010), appeal pending, No. 10–2136 

(10th Cir.); IHG Healthcare, Inc. v. 

Sebelius, 717 F. Supp. 2d 696 (S.D. Tex. 

2010), appeal pending, No. 10–20531 

(5th Cir.); Russell-Murray Hospice, Inc. 

v. Sebelius, 724 F.Supp.2d 43 (D.D.C. 

2010), appeal pending, No. 10–5311 

(D.C. Cir.); Affinity Healthcare Servs., 

Inc. v. Sebelius, 2010 WL 4258989 

(D.D.C. 2010), appeal pending, No. 11– 

5037 (D.C. Cir.). 

CMS continues to believe that the 

methodology set forth in § 418.309(b)(1) 

is consistent with the Medicare statute, 

and in coordination with the 

Department of Justice it has filed 

appeals from adverse federal district 

court decisions. Nonetheless, CMS has 

determined that it is in the best interest 

of the agency and the Medicare program 

to take action to prevent future litigation 

and alleviate the litigation burden on 

providers, the agency, and the courts 

that already exists. To achieve these 

ends, CMS is issuing, 

contemporaneously with this Ruling, a 

proposed rule that sets forth the 

proposed hospice wage index for fiscal 

year (FY) 2012. In the FY 2012 hospice 

wage index proposed rule, CMS is 

proposing to revise the current 

methodology set forth at § 418.309(b)(1) 

to provide for application of a patientby-patient proportional methodology 

(which is consistent with the 

proportional methodology described 

below in Section 2) for cap years 2012 

and beyond, or, at the provider’s 

election, application of the current 

methodology set forth in § 418.309(b)(1). 

CMS is also proposing to allow certain 

hospice providers that, as of the 

effective date of the proposed Rule, have 

not received the Medicare contractor’s 

final cap determination for one or more 

cap years ending on or before October 

31, 2011 to elect to have that 

determination calculated pursuant to a 

patient-by-patient proportional 

methodology. 

2. Proportional Methodology 

In order to provide relief to hospices 

that have properly pending appeals in 

which they challenge the validity of the 

existing methodology at 42 CFR 

418.309(b)(1), CMS will apply a patientby-patient proportional methodology 

pursuant to the implementation 

procedures set forth in Section 3 below. 

For purposes of this Ruling only, a 

‘‘properly pending’’ appeal is one in 

which a provider has met all timeliness 

requirements set forth in section 1878 of 

the Social Security Act, Medicare 

regulations and other agency 

publications, guidelines, rulings, orders 

or rules. 

Under the proportional methodology, 

each Medicare beneficiary who received 

hospice care in a cap year will be 

allocated to that hospice provider’s cap 

year on the basis of a fraction. The 

numerator of the fraction will be the 

number of patient days for that 

beneficiary in that hospice for that cap 

year (which will be determined after the 

end of the cap year and is therefore 

generally a fixed number) and the 

denominator will be the total number of 

all patient days for that beneficiary in 

all cap years in which the beneficiary 

received hospice services (using the best 

available data at the time of the 

calculation). The individual beneficiary 

counts for a given cap year will then be 

summed to compute the hospice’s total 

aggregate beneficiary count (number of 

Medicare beneficiaries) for that cap 

year. A new payment cap will be 

calculated and a notice of overpayment 

determination will be issued for that cap 

year to the hospice provider. 

It may be the case that, at the time of 

the recalculation using this patient-bypatient proportional methodology, a 

hospice beneficiary is still continuing to 

receive hospice services and his or her 

overall hospice stay has not ended. 

Because of the need to give a hospice 

provider prompt notice of its final 

payment determination and to promptly 

collect any newly calculated 

overpayment, the Medicare contractor 

will not wait until all patients have 

ended their hospice stays (that is, they 

have expired or otherwise left hospice 

care) before recalculating the final 

payment determination for a given year. 

For each beneficiary, the Medicare 

contractor will use the best data 

available at the time regarding the total 

number of hospice patient days in all 

years to perform the recalculation. The 

impact of this methodology will be that 

the fractional allocations for some 

patients might be overstated (never 

understated) in the sense that the 

denominator might not include patient 

days for services received after the date 

of the calculation. The cap for any cap 

year which includes that beneficiary 

would therefore be overstated as well 

(again, never understated). 

Hospice cap determinations issued 

pursuant to this Ruling are subject to 

reopening, under CMS’s normal 

reopening regulations, to recalculate 

beneficiary fractional allocations when 

more recent data regarding those 

beneficiaries are available. A particular 

beneficiary’s fractional allocation for 

that cap year might decrease—and the 

payment cap decrease 

correspondingly—because the 

denominator of the fraction for the 

beneficiary may include data regarding 

additional days of care received in later 

cap years which were not available at 

the date of the preceding calculation. It 

also should be noted that, in some cases, 

a hospice beneficiary may receive 

hospice services in three or four cap 

years (or more). Under the patient-bypatient proportional methodology, some 

proportion of a hospice beneficiary’s 

patient days will be counted toward the 

hospice cap in each and every cap year 

he or she receives hospice services. 

Implementation of This Ruling 

3. Implementation by CMS and the 

Medicare Contractors 

In order to resolve in an orderly 

manner timely pending administrative 

appeals in which hospice providers seek 

review of overpayment determinations 

by challenging the validity of the 

methodology set forth in 42 CFR 

418.309(b)(1) and for which relief is 

afforded in this Ruling, the appropriate 

Medicare contractor shall identify each 

properly pending administrative appeal 

in which a hospice challenges an 

overpayment demand calculated 

pursuant to 42 CFR 418.309(b)(1), notify 

the appropriate administrative tribunal 

that the appeal is covered by this ruling, 

and recalculate the aggregate cap using 

the patient-by-patient proportional 

methodology described in Section 2 of 

this Ruling. As explained above, each 

recalculation will be performed using 

the best data available as to the overall 

number of hospice patient days for each 

beneficiary (the denominator of the 

fractional allocation) at the time the 

calculation is performed. The Medicare 

contractor will include the hospice cap 

overpayment determination in a new 

determination of program 

reimbursement letter which shall serve 

as a notice of program reimbursement 

(NPR) under 42 CFR 405.1803(a)(3). The 

revised overpayment determination 

contained therein will be subject to 

administrative and judicial review in 

accordance with the applicable 

jurisdictional and procedural 

requirements of section 1878 of the Act, 

the Medicare regulations, and other 

agency rules and guidelines. 

Many hospice providers prefer the 

current methodology and have not 

objected to it. For all hospice providers 

that have never filed an administrative 

appeal challenging a cap overpayment 

determination alleging the invalidity of 

42 CFR 418.309(b)(1), Medicare 

contractors will continue to issue 

hospice cap determinations based upon 

the methodology currently set forth in 

42 CFR 418.309(b)(1) for any cap year 

ending on or before October 31, 2011, 

unless CMS adopts a rule providing 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

26734 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 

otherwise in the hospice wage index 

final rule for FY 2012. This Ruling 

applies to cap years prior to the cap year 

ending October 31, 2012. The 

methodology for calculating cap 

determinations for cap years ending 

October 31, 2012 and later will be 

addressed in the hospice wage index 

final rule for FY 2012. 

4. Implementation by the 

Administrative Appeals Tribunals 

a. Implementation Procedure 

In light of this Ruling, the 

administrative appeals tribunals no 

longer have jurisdiction over properly 

pending administrative appeals 

challenging overpayment 

determinations calculated pursuant to 

42 CFR 418.309(b)(1). On receiving 

notification from a Medicare contractor 

that an appeal is covered by this Ruling, 

administrative appeals tribunals shall 

remand covered appeals to the Medicare 

contractor. If an administrative appeals 

tribunal determines that an appeal is 

covered by this ruling prior to receiving 

notification from a Medicare contractor, 

the tribunal may, on its own motion, 

remand the appeal to the appropriate 

Medicare contractor for a recalculation 

of the aggregate cap as described in 

Section 2 of this Ruling. 

However, if the administrative 

tribunal finds that a given claim is 

outside the scope of the Ruling (because 

such claim does not challenge the 

existing hospice cap methodology) or an 

appeal is not properly pending, as 

described in the first paragraph of 

Section 2, then the appeals tribunal will 

issue a written order, briefly explaining 

why the tribunal found that such claim 

is not subject to the Ruling. The appeals 

tribunal will then process the provider’s 

original appeal of the same claim in 

accordance with the tribunal’s usual, 

generally applicable appeal procedures. 

b. ‘‘Mixed’’ Appeals Where Some Claims 

Are, But Other Claims Are Not, Subject 

to the Ruling 

We note that it is possible that a given 

administrative appeal might include 

some claims that qualify for relief under 

this Ruling, along with other claims that 

are not subject to the Ruling. If the 

administrative tribunal finds that only 

some, but not all, of the specific claims 

raised in a given appeal qualify for relief 

under this Ruling, then the appeals 

tribunal should remand to the 

contractor, for recalculation of the 

hospice cap, only the particular claims 

for which the Ruling was deemed 

applicable by the appeals tribunal. The 

other claims in such appeal which the 

appeals tribunal found did not qualify 

for relief under the Ruling should be 

processed in accordance with the 

tribunal’s usual, generally applicable 

appeal procedures. 

Similarly, if the Medicare contractor 

finds that some, but not all, of the 

particular claims at issue in an appeal 

are subject to the Ruling, then the 

contractor should recalculate the 

hospice’s cap overpayment 

determination, in accordance with the 

applicable provisions of the Ruling. As 

for the remaining claims in such appeal 

which the contractor found were not 

subject to the Ruling, the provider may 

resume without prejudice its original 

appeal of such claims before the 

administrative tribunal that previously 

remanded the claims to the contractor 

under the alternative implementation 

procedure. If the provider elects to 

resume its original appeal of such 

claims, then those claims should be 

processed in accordance with the 

tribunal’s usual, generally applicable 

appeal procedures. 

c. Requests for Review of a Finding That 

a Claim Is Not Subject to the Ruling 

We recognize that, if a specific claim 

were found outside the scope of, or not 

in compliance with all applicable 

timeliness requirements for, relief under 

this Ruling, then the provider might 

consider seeking administrative and 

judicial review of such a finding. For 

example, if a Medicare contractor were 

to find that a specific appeal seeking 

review of an overpayment 

determination was filed outside the time 

limits set forth in section 1878 of the 

Social Security Act and thus was 

outside the scope of the Ruling, then the 

provider might elect to resume its 

original PRRB appeal of the same claim, 

and ask the PRRB to review the 

contractor’s finding that the Ruling was 

not applicable to the claim. Similarly, if 

the PRRB were to find that the Ruling 

did not apply to a provider’s appeal 

because the provider did not meet one 

of the PRRB’s procedural requirements 

(such as the requirement of the timely 

filing of appropriate position papers) or 

the PRRB were to find that the appeal 

did not challenge the validity of 42 CFR 

418.309(b)(1), then the provider might 

seek review by the Administrator of 

CMS of the PRRB’s finding that its 

appeal did not qualify for relief under 

this Ruling. 

This Ruling does not address whether 

the Medicare statute and regulations 

would support, under any 

circumstances, administrative and 

judicial review of a provider’s challenge 

to a finding that a particular claim is not 

subject to the Ruling. Nonetheless, we 

believe that it is appropriate to address 

the timing of any administrative and 

judicial review of a provider’s challenge 

to a finding that a specific claim is 

outside the scope of the Ruling or does 

not satisfy all applicable requirements 

for relief under the Ruling. [[[ 

Accordingly, it is hereby held that the 

administrative appeals tribunals may 

not review or decide a provider’s 

interlocutory appeal of a finding, 

whether made by an appeals tribunal or 

by a Medicare contractor, that a specific 

claim is outside the scope of the Ruling 

or that such claim does not satisfy all 

applicable timeliness requirements for 

relief under the Ruling. Instead of 

reviewing or deciding any such 

interlocutory appeal, the pertinent 

administrative appeals tribunal should 

address, through its usual, generally 

applicable appeal procedures, the 

provider’s challenge to a finding that a 

specific claim is not subject to the 

Ruling. Moreover, the administrative 

appeals tribunal should not review or 

decide the ‘‘merits’’ of a provider’s 

challenge to a finding that a particular 

claim is outside the scope of the Ruling 

or that such claim is not a properly 

pending appeal, unless and until the 

appeals tribunal were to conclude 

specifically that the Medicare statute 

and regulations support subject matter 

jurisdiction over the provider’s 

challenge to a finding that the Ruling 

does not apply to a particular claim. 

Also, if the administrative appeals 

tribunal were to decide whether the 

same appeals tribunal or a different 

administrative tribunal had jurisdiction 

over a provider’s challenge to a finding 

that a specific claim is not subject to the 

Ruling, the tribunal should issue a 

written decision that includes an 

explanation of the specific legal and 

factual bases for the tribunal’s 

jurisdictional ruling. 

5. Appeals and Reopenings of Hospice 

Cap Recalculations Made Pursuant to 

This Ruling and Based Upon the 

Application of the Patient-by-Patient 

Proportional Methodology 

Just as hospice cap determinations 

based on application of the existing 

methodology in 42 CFR 418.309 are 

subject to administrative appeal in 

accordance with 42 CFR 418.311 (which 

refers to 42 CFR part 405, subpart R), 

under this Ruling hospice cap 

determinations that are recalculated 

based on application of the patient-bypatient proportional methodology are 

determinations subject to administrative 

appeal (in accordance with 42 CFR 

418.311) and ultimately judicial review, 

after the contractor has issued a cap 

determination and if all applicable 

requirements for administrative and 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 26735 

judicial review are met. Pursuant to 42 

CFR 418.311 (which incorporates 42 

CFR part 405, subpart R), the provider 

may appeal an intermediary’s cap 

determination in accordance with the 

requirements contained in either 42 CFR 

405.1811 or 42 CFR 405.1835, 

whichever is applicable. In accordance 

with the applicable regulations, any 

such appeal must be filed to the 

appropriate authority no later than 180 

days from the date of the contractor’s 

determination. If a provider properly 

pursues and exhausts the administrative 

appeals process and receives a final 

agency decision, the final agency 

decision is subject to judicial review in 

accordance with 42 CFR part 405, 

subpart R and 42 U.S.C. 1395oo. 

In addition, all hospice cap 

determinations based on application of 

a patient-by-patient proportional 

methodology are subject to reopening 

(for up to 3 years in accordance with the 

requirements of 42 CFR 405.1885). 

Thus, a hospice cap payment 

determination made pursuant to this 

Ruling may be reopened at a later time 

(e.g., to revise the proportional 

allocations to account for additional 

days of care after the year in question, 

which would increase the denominators 

of some proportions and thus decrease 

some fractional allocations). We 

recognize that this might increase 

uncertainty, but this concern must be 

balanced against other considerations 

such as payment accuracy and 

timeliness of payment determinations. 

Nothing in this Ruling, however, shall 

be construed as requiring reopening and 

recalculation of cap determinations for 

an earlier year when there is a 

recalculation for any given year. 

Ruling 

First, it is CMS’ Ruling that the 

agency and the Medicare contractors 

will resolve and grant relief in each 

properly pending appeal in which a 

hospice provider seeks review of a final 

determination of overpayment for a cap 

year ending on or before October 31, 

2011 by challenging the validity of the 

methodology set forth in 42 CFR 

418.309(b)(1). CMS will grant relief in 

each appeal by directing its Medicare 

contractors to recalculate the final 

overpayment determination in 

accordance with the patient-by-patient 

proportional methodology described in 

Section 2 of this Ruling. 

Second, it is also CMS’ Ruling that the 

pertinent administrative appeals 

tribunal (that is, the PRRB, the 

Administrator of CMS, the fiscal 

intermediary hearing officer, or the CMS 

reviewing official) and the appropriate 

Medicare contractor will process, in 

accordance with the instructions set 

forth in Sections 3 and 4 of this Ruling, 

each appeal (including any 

interlocutory appeals) and each putative 

claim (in such appeal) seeking review of 

a hospice cap overpayment 

determination for a cap year ending on 

or before October 31, 2011 on the basis 

that the methodology set forth in 42 CFR 

418.309(b)(1) is invalid. 

Third, it is CMS’ further Ruling that 

the agency and the appropriate 

Medicare contractor will process, in 

accordance with the instructions set 

forth in Section 5 of this Ruling, each 

properly pending appeal seeking review 

of a hospice cap overpayment 

determination for a cap year ending on 

or before October 31, 2011 on the basis 

that the methodology set forth in 42 CFR 

418.309(b)(1) is invalid and that is 

remanded by the administrative appeals 

tribunal and is found to qualify for relief 

under this Ruling. 

Fourth, it is CMS’ further Ruling that, 

pursuant to 42 CFR 405.1801(a), 

405.1885(c)(1), (2), this Ruling is not an 

appropriate basis for the reopening of 

final determinations of the Secretary or 

a Medicare contractor or of any decision 

by a reviewing entity, except to the 

extent that this Ruling provides for 

reopening in accordance with existing 

regulations and policy; accordingly, it is 

hereby held that this Ruling does not 

provide an independent basis for the 

administrative appeals tribunals, the 

fiscal intermediaries, and other 

Medicare contractors to reopen any final 

hospice cap determination in a manner 

inconsistent with existing regulations 

and policy. 

Fifth, it is also CMS’ Ruling that, 

pursuant to 42 CFR 401.108, this Ruling 

is a final precedent opinion and order 

and a binding statement of policy that 

does not give rise to any putative 

retroactive rulemaking issues; in any 

event, it is hereby held that, if this 

Ruling were deemed to implicate 

potential retroactive rulemaking issues, 

then, in accordance with 42 U.S.C. 

1395hh(e)(1)(A), retroactive application 

of this Ruling is necessary to ensure 

continuing compliance with 42 U.S.C. 

1395f(i)(2) and to serve the public 

interest. 

Sixth, it is also CMS’ Ruling that, 

pursuant to 42 CFR 401.108, this Ruling 

is a final precedent opinion and order 

and a binding statement of policy. This 

Ruling is not a substantive or legislative 

rule requiring notice and comment; to 

the extent that this Ruling is deemed to 

be a substantive or legislative rule, it is 

CMS’s Ruling that good cause exists to 

dispense with rulemaking procedures 

pursuant to 42 U.S.C. 1395hh(b)(2)(C) 

and 5 U.S.C. 553(b)(B) to ensure 

continued compliance with 42 U.S.C. 

1395f(i)(2). 

(Catalog of Federal Domestic Assistance 

Program No. 93.773 Medicare—Hospital 

Insurance Program; and No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: April 14, 2011. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

[FR Doc. 2011–10694 Filed 4–28–11; 4:15 pm] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

National Institutes of Health 

National Institute on Alcohol Abuse 

and Alcoholism; Notice of Closed 

Meeting 

Pursuant to section 10(d) of the 

Federal Advisory Committee Act, as 

amended (5 U.S.C. App.), notice is 

hereby given of the following meeting. 

The meeting will be closed to the 

public in accordance with the 

provisions set forth in sections 

552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 

as amended. The grant applications and 

the discussions could disclose 

confidential trade secrets or commercial 

property such as patentable material, 

and personal information concerning 

individuals associated with the grant 

applications, the disclosure of which 

would constitute a clearly unwarranted 

invasion of personal privacy. 

Name of Committee: National Institute on 

Alcohol Abuse and Alcoholism Initial 

Review Group, Clinical, Treatment and 

Health Services Research Review 

Subcommittee. 

Date: July 12, 2011. 

Time: 8 a.m. to 6:30 p.m. 

Agenda: To review and evaluate grant 

applications. 

Place: Hyatt Regency Bethesda, One 

Bethesda Metro Center, 7400 Wisconsin 

Avenue, Bethesda, MD 20814. 

Contact Person: Katrina L Foster, PhD, 

Scientific Review Officer, National Institute 

on Alcohol Abuse & Alcoholism, National 

Institutes of Health, 5635 Fishers Lane, Rm. 

2019, Rockville, MD 20852, 301–443–4032, 

katrina@mail.nih.gov. 

(Catalogue of Federal Domestic Assistance 

Program Nos. 93.271, Alcohol Research 

Career Development Awards for Scientists 

and Clinicians; 93.272, Alcohol National 

Research Service Awards for Research 

Training; 93.273, Alcohol Research Programs; 

93.891, Alcohol Research Center Grants; 

93.701, ARRA Related Biomedical Research 

and Research Support Awards, National 

Institutes of Health, HHS) 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES