## Tuesday,
August 3, 2010

Book 2 of 3 Books Pages 45699–46168



# Part II



# Department of Health and Human Services

Centers for Medicare and Medicaid

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.

**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 § 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). Sincethe ASC payment amounts for officebased 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


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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**