Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2016; Corrections

AGENCY:

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

ACTION:

Final rule; correcting amendment.

SUMMARY:

This document corrects technical and typographical errors that appeared in the final rule with comment period published in the November 16, 2015 Federal Register (80 FR 70886 through 71386) entitled “Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2016.”

DATES:

Effective date: This correcting document is effective March 7, 2016.

Applicability date: The corrections indicated in this document are applicable beginning January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Lisa Ohrin Wilson (410) 786-8852, or Matthew Edgar (410) 786-0698, for issues related to physician self-referral updates. Jessica Bruton, (410) 786-5991 for all other issues.

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2015-28005 (80 FR 70886 through 71386), the final rule entitled “Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2016” (hereinafter referred to as the CY 2016 PFS final rule with comment period), there were a number of technical and typographical errors that are identified and corrected in section IV., the Correction of Errors. The effective date for the rule was January 1, 2016, except for the definition of “ownership or investment interest” in § 411.362(a), which has an effective date of January 1, 2017. These corrections are applicable as of January 1, 2016. We note that Addenda B and C to the CY 2016 PFS final rule with comment period as corrected by this correcting amendment are available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

II. Summary of Errors

A. Summary of Errors in the Preamble

On page 70894, we inadvertently omitted a sentence from the first comment summary regarding applying the same overrides used for the MP RVU calculations to the PE calculations.

On page 70894, we inadvertently omitted a clause from the response summary regarding the overrides that also apply to the MP RVU calculation in the development of PE RVUs.

On page 70898, due to data errors made in the ratesetting process, many of the values contained in Table 4: Calculation of PE RVUs under Methodology for Selected Codes, are incorrect.

On page 70953, we inadvertently included language regarding the application of the equipment utilization assumption.

On page 70971,

a. Due to a typographical error, the work RVU for CPT code 76945 was listed incorrectly. As a result, the work RVU for CPT code 76948 was also inadvertently listed incorrectly.

b. Due to a typographical error, we inadvertently referred to CPT code 76948 rather than CPT code 76945.

On page 70992, due to a typographical error in Table 13—CY 2016 Actions on Codes with CY 2015 Interim Final RVUs, the CY 2016 work RVU for CPT code 76948 was incorrectly displayed.

On page 71317, we inadvertently included language in our comment discussion on the issue regarding compensation arrangements.

On page 71357,

a. Due to data errors, we incorrectly stated the estimated CY 2016 net reduction in expenditures.

b. Due to data errors, we incorrectly stated the reduction to the conversion factor.

c. Due to data errors, we incorrectly stated the CY 2016 PFS conversion factors. As a result, many of the values in Table 60—Calculation of the CY 2016 PFS Conversion Factor, are incorrect.

d. Due to data errors, we incorrectly stated the CY 2016 PFS anesthesia conversion factors. As a result, many of the values in Table 61—Calculation of the CY 2016 PFS Anesthesia Conversion Factor, are incorrect.

On pages 71358 through 71359, due to data errors, many of the values in Table 62—CY 2016 PFS Estimated Impact On Total Allowed Charges By Specialty, are incorrect.

On pages 71359 through 71360, due to data errors, many of the values in Table 63— Impact on CY 2016 Payment for Selected Procedures, are incorrect.

On page 71369,

a. Due to data errors, we incorrectly stated the CY 2016 national payment amount in the nonfacility setting for CPT code 99203.

b. Due to data errors, we incorrectly stated the CY 2016 proposed beneficiary coinsurance for CPT code 99203.

B. Summary of Errors in Regulation Text

On page 71375 of the CY 2016 PFS final rule with comment period, we made a typographical error in § 411.357(d)(1)(iv). In this paragraph, we inadvertently included the word “for”.

On page 71377 of the CY 2016 PFS final rule with comment period, we made a typographical error in § 411.357(x)(1)(vi)(A). In this paragraph, we inadvertently omitted the word “directly”.

C. Summary and Correction of Errors in the Addenda on the CMS Web site

Due to the errors identified and summarized in section II.A and B of this document, we are correcting errors in the work, PE or MP RVUs (or combinations of these RVUs) in Addendum B: CY 2016 Relative Value Units (RVUs) And Related Information Used In Determining Final Medicare Payments and Addendum C: CY 2016 Interim Final Relative Value Units (RVUs). We note that corrections to the RVUs for codes with identified errors affect additional codes due to the budget neutrality and relativity of the PFS. These errors are corrected in the revised Addenda B and C available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

In addition to the errors identified in section II.A. of this document, the following errors occur in the addenda.

Due to a technical error in the development of PE RVUs, the PE RVUS displayed in Addenda B and C were incorrect. In constructing the algorithm used to adjust specialty-specific volume for individual codes as described on page 70895 of the CY 2016 PFS final rule, claims volumes for codes billed with payment modifiers with different adjustments for payment and time were erroneously adjusted based on the time-based adjustment factor, not the payment-based factor. As a result, payment-adjusted volume associated with those modifiers for which the time-based adjustment factor is different from the payment-based adjustment factor was inaccurate and has been corrected. The direct impact of the errors were limited to the practice expense for services frequently reported with payment modifiers with different adjustments for payment and time. However, the PE RVUs for many more codes may have been affected indirectly due to BN adjustments. The two specialties that report services paid under the anesthesia fee schedule were the only specialties significantly affected by the change. The PE RVUs that result from the correction of this error are reflected in the corrected Addendum B (and Addendum C, if applicable) available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to an error in the algorithm that we used to identify services that were subject to the phase-in of significant RVU reductions, CPT codes 67108, 67113, 67227 and 67228 were not included on the list of codes subject to the phase-in. These errors are corrected in the revised Codes Subject to Phase-in file available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/,, and the resulting changes to the RVUs are reflected in the corrected Addenda B and C, available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to a data error, the useful life for the equipment item “FibroScan” (ER101) was incorrect in the direct PE input database. This error is corrected in the revised Direct PE Input Database available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ . As a result of this error being corrected, changes to PE RVUs are reflected in the corrected Addenda B and C, available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to a data error, the incorrect CY 2016 global periods were included in Addendum B (and Addendum C, if applicable) for the following CPT codes: 20240, 43210, 61650, 67227, 67228, 73060, and 73560. The corrected CY 2016 global periods for these codes are reflected in the corrected Addendum B (and Addendum C, if applicable) available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to an inadvertent error, the CY 2016 work RVUs for HCPCS codes G0296 and G0297 were incorrectly displayed in Addendum B. The correct CY 2016 work RVUS for these codes are reflected in the corrected Addendum B available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to a technical error, the clinical labor times associated with CPT codes 31654, 88333 and 99416 were inadvertently omitted from the direct PE input database. This error is corrected in the revised direct PE input database available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ . The PE RVUs that result from the correction of this error are reflected in the corrected Addendum B available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

Due to a data input omission, the RVUs that reflect the appropriate payment rates for the treatment of intensive cardiac rehabilitation, as specified under section 1848(b)(5) of the Social Security Act (the Act), were not included in Addendum B. The appropriate RVUs for intensive cardiac rehabilitation are reflected in the corrected Addendum B available on the CMS Web site at http://www.cms.gov//PhysicianFeeSched/ .

III. Waiver of Proposed Rulemaking

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements; similarly, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and comment, and delay in effective date requirements of the Act. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest; and includes a statement of the finding and the reasons for it in the notice. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it.

In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects typographical and technical errors in the CY 2016 PFS final rule with comment period and the corresponding addenda posted on the CMS Web site. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were adopted subject to notice and comment procedures in the CY 2016 PFS final rule with comment period. As a result, the corrections made through this correcting document are intended to ensure that the CY 2016 PFS final rule with comment period accurately reflects the policies adopted in that rule.

Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the CY 2016 PFS final rule with comment period or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the CY 2016 PFS final rule with comment period accurately reflects our final policies as soon as possible following the date they take effect. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies, but rather, we are simply correcting the Federal Register document to reflect the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the CY 2016 PFS final rule with comment period accurately reflects these policies. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date.

Correction of Errors

In FR Doc. 2015-28005 of November 16, 2015 (80 FR 70886), make the following corrections:

A. Correction of Errors in the Preamble

1. On page 70894, first column,

a. First full paragraph, line 9, is corrected by adding the sentence “One commenter suggested that for CY 2016 we apply the same overrides used for the MP RVU calculations to the PE calculations.”.

b. Second full paragraph, lines 21 through 27, the sentence “Therefore, we are finalizing the policy as proposed for CY 2016 but will seek comment on the proposed CY 2017 PFS rates and whether or not the incorporation a new year of utilization data mitigates the need for service-level overrides.” is corrected to read “Therefore, we are finalizing the policy as proposed for CY 2016 and only apply the overrides that also apply to the MP RVU calculation in the development of PE RVUs but will seek comment on the proposed CY 2017 PFS rates and whether or not the incorporation of a new year of utilization data mitigates the need for service-level overrides.”.

2. On page 70898, Table 4-Calculation of PE RVUs under Methodology for Selected Codes, the table is corrected to read as follows:

3. On page 70953, second column, first partial paragraph, lines 3 through 6, the sentence “This approach is consistent with the application of the equipment utilization assumption for advanced diagnostic imaging” is deleted.

4. On page 70971,

a. First column, first full paragraph, line 15, the phrase “work RVU of 0.56” is corrected to read “work RVU of 0.67”.

b. First column, third full paragraph, line 12, the CPT code “76945” is corrected to read “76948”.

c. First column, fourth full paragraph, line 4 the CPT code “76945” is corrected to read “76948”.

d. First column, fourth full paragraph, line 16 the CPT code “76945” is corrected to read “76948”.

5. On page 70992, in Table 13—CY 2016 Actions on Codes with CY 2015 Interim Final RVUs, bottom half of the page, in columns 3 and 4, the work RVU “0.38” for CPT code 76948 is corrected to read “0.67”.

6. On page 71317,

a. Third column, second full paragraph, line 2, the phrase “on this issue (38, 50, 68, 73, 80)” is corrected to read “on this issue”.

b. Third column, second full paragraph, line 10, the phrase “Another commenter (38)” is corrected to read “Another commenter”.

7. On page 71357,

a. Third column, first partial paragraph, line 13, the figure “0.23” is corrected to read “0.22”.

b. Third column, first partial paragraph, line 24, the figure “-0.77” is corrected to read “−0.78.”

c. Third column, first full paragraph, line 9, the figure “$35.8279” is corrected to read “$35.8043”.

d. Third column, first full paragraph, line 17, the figure “$22.3309” is corrected to read “$21.9935”.

e. Table 60—Calculation of the CY 2016 PFS Conversion Factor, the table is corrected to read as follows:

f. Table 61—Calculation of the CY 2016 Anesthesia Conversion, the table is corrected to read as follows:

8. On pages 71358 through 71359, Table 62—CY 2016 PFS Estimated Impact On Total Allowed Charges By Specialty, the table is corrected to read as follows:

9. On pages 71359 through 71360, Table 63—Impact on CY 2016 Payment for Selected Procedures, the table is corrected to read as follows:

10. On page 71369,

a. Second column, fifth paragraph, line 20, the figure “$109.28” is corrected to read “108.85”.

b. Second column, fifth paragraph, line 23, the figure “$21.86” is corrected to read “21.77”.

List of Subjects in 42 CFR Part 411

• Kidney diseases
• Medicare
• Physician referral
• Reporting and recordkeeping requirements

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments to part 411:

PART 411—EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT

1. The authority citation for part 411 continues to read as follows:

Authority: Secs. 1102, 1860D-1 through 1860D-42, 1871, and 1877 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, 1395hh, and 1395nn).

2. Section 411.357 is amended:

a. In paragraph (d)(1)(iv) by removing the phrase “is for at least 1 year” and adding in its place the phrase “is at least 1 year”.

b. In paragraph (x)(1)(vi)(A) by removing the phrase “The nonphysician practitioner has a compensation arrangement with” and adding in its place the phrase “The nonphysician practitioner has a compensation arrangement directly with”.