Table of Contents
[Federal Register: November 1, 2002 (Volume 67, Number 212)] [Rules and Regulations] [Page 66717-66766] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01no02-19] [[Page 66717]] ----------------------------------------------------------------------- Part II Department of Health and Human Services ----------------------------------------------------------------------- Centers for Medicare & Medicaid Services ----------------------------------------------------------------------- 42 CFR Parts 405 and 419 Medicare Program; Changes to the Hospital Outpatient Prospective Payment System and Calendar Year 2003 Payment Rates; and Changes to Payment Suspension for Unfiled Cost Reports; Final Rule [[Page 66718]] ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405 and 419 [CMS-1206-FC and CMS-1179-F] RIN 0938-AL19 and 0938-AK59 Medicare Program; Changes to the Hospital Outpatient Prospective Payment System and Calendar Year 2003 Payment Rates; and Changes to Payment Suspension for Unfiled Cost Reports AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Final rule with comment period. ----------------------------------------------------------------------- SUMMARY: This final rule with comment period revises the Medicare hospital outpatient prospective payment system to implement applicable statutory requirements and changes arising from our continuing experience with this system. In addition, it describes changes to the amounts and factors used to determine the payment rates for Medicare hospital outpatient services paid under the prospective payment system. These changes are applicable to services furnished on or after January 1, 2003. This rule also allows the Secretary to suspend Medicare payments ``in whole or in part'' if a provider fails to file a timely and acceptable cost report. In addition, this rule responds to public comments received on the November 2, 2001 interim final rule with comment period (66 FR 55850) that set forth the criteria the Secretary will use to establish new categories of medical devices eligible for transitional pass-through payment under the Medicare's hospital outpatient prospective payment system. Finally, this rule responds to public comments received on the August 9, 2002 proposed rule for revisions to the hospital outpatient prospective payment system and payment rates (67 FR 52092). CMS finds good cause to waive proposed rulemaking for the assignment of new codes to Ambulatory Payment Classifications and for the payment of influenza and pneuomococcal vaccines under reasonable cost; justification for the waiver will follow in a subsequent Federal Register notice. DATES: Effective date: This final rule is effective January 1, 2003. Comment date: We will consider comments on the ambulatory payment classification assignments of Healthcare Common Procedure Coding System codes identified in Addendum B with condition code NI, and on Sec. 419.23(d)(3), if we receive them at the appropriate address, as provided below, no later than 5 pm on December 31, 2002. FOR FURTHER INFORMATION CONTACT: Anita Heygster, (410) 786-0378-- outpatient prospective payment issues; Lana Price, (410) 786-4533-- partial hospitalization and end-stage renal disease issues; Gerald Walters, (410) 786-2070--payment suspension issues. SUPPLEMENTARY INFORMATION: Availability of Copies and Electronic Access Copies: To order copies of the Federal Register containing this document, send your request to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. Specify the date of the issue requested and enclose a check or money order payable to the Superintendent of Documents, or enclose your Visa or Master Card number and expiration date. Credit card orders can also be placed by calling the order desk at (202) 512-1800 (or toll-free at 1-888-293- 6498) or by faxing to (202) 512-2250. The cost for each copy is $10. As an alternative, you can view and photocopy the Federal Register document at most libraries designated as Federal Depository Libraries and at many other public and academic libraries throughout the country that receive the Federal Register. This Federal Register document is also available from the Federal Register online database through GPO Access, a service of the U.S. Government Printing Offi ce. The Web site address is: http:// www.access.gpo.gov/nara/index.html. To assist readers in referencing sections contained in this document, we are providing the following table of contents. ----------------------------------------------------------------------- Outline of Contents I. Background A. Authority for the Outpatient Prospective Payment System (OPPS) B. Summary of Rulemaking for the Outpatient Prospective Payment System C. Authority for Payment Suspensions for Unfiled Cost Reports D. Summary of Changes in the August 9, 2002 Proposed Rule 1. Changes Relating to the OPPS a. Changes Required by Statute b. Additional Changes to OPPS c. Changes to the Regulations Text 2. Changes Relating to Payment Suspension for Unfiled Cost Reports E. Summary of the November 2, 2001 Interim Final Rule with Comment Period F. Public Comments and Responses to the August 9, 2002 Proposed Rule 1. OPPS 2. Payment Suspension for Unfiled Cost Reports II. Changes to the Ambulatory Payment Classification (APC) Groups and Relative Weights A. Recommendations of the Advisory Panel on APC Groups 1. Establishment of the Advisory Panel 2. General Issues Considered by the Advisory Panel 3. Recommendations of the Advisory Panel and Our Responses B. Other Changes Affecting Ambulatory Payment Classification (APC) Assignments 1. Limit on Variation of Costs of Services Classified Within a Group 2. Procedures Moved from New Technology APCs to Clinically Appropriate APCs 3. APC Assignment for New Codes Created During Calenday Year (CY) 2002 and Selected Codes and APC Assignments for 2003 4. Other Public Comments on APC Assignments and Payment Rates 5. Procedures That Will Be Paid Only As Inpatient Procedures C. Partial Hospitalization III. Recalibration of APC Weights for 2003 A. Data Issues 1. Treatment of ``Multiple Procedure'' Claims 2. Calendar Year 2002 Charge Data for Pass-Through Device Categories B. Description of How Weights Were Calculated for 2003 IV. Transitional Pass-Through and Related Payment Issues A. Background B. Discussion of Pro Rata Reduction C. Expiration of Transitional Pass-Through Payments in Calendar Year 2003 for Devices D. Expiration of Transitional Pass-Through Payments in Calendar Year 2003 for Drugs and Biologicals (Including Radiopharmaceuticals, Blood, and Blood Products) E. Expiration of Transitional Pass-Through Payments in Calendar Year 2003 for Brachytherapy F. Payment for Transitional Pass-Through Drugs and Biologicals for Calendar Year 2003 V. Criteria for New Device Categories As Implemented in the November 2, 2001 Interim Final Rule with Comment A. Criteria for Eligibility for Pass-Through Payment of a Medical Device B. Criteria for Establishing Additional Device Categories 1. Application Process for Creation of a New Device Category 2. Announcing a New Device Category VI. Wage Index Changes for Calendar Year 2003 VII. Copayment for Calendar Year 2003 VIII. Conversion Factor Update for Calendar Year 2003 IX. Outlier Policy for Calendar Year 2003 X. Other Policy Decisions and Changes A. Hospital Coding for Evaluation and Management (E/M) Services B. Observation Services [[Page 66719]] C. Payment Policy When A Surgical Procedure on the Inpatient List Is Performed on an Emergency Basis 1. Current Policy 2. Hospital Concerns 3. Clarification of Payment Policy 4. Orders to Admit D. Status Indicators E. Other Policy Issues Relating to Pass-Through Device Categories 1. Reducing Transitional Pass-Through Payments To Offset Costs Packaged Into APC Groups 2. Devices Paid With Multiple Procedures F. Outpatient Billing for Dialysis XI. Summary and Responses of Public Comments to CMS's Response to MedPAC Recommendations XII. Provisions of the Final Rule With Comment for 2003 A. OPPS 1. Statutory and Discretionary Changes 2. Changes to the Regulations Text B. Payment Suspension for Unfiled Cost Reports C. Partial Hospitalization Services D. Pneumococcal and Influenza Vaccines XIII. Response to Public Comments XIV. Collection of Information Requirements XV. Regulatory Impact Analysis A. OPPS 1. General 2. Changes in this Final Rule 3. Limitations of Our Analysis 4. Estimated Impacts of this Final Rule on Hospitals 5. Estimated Impacts of this Final Rule on Beneficiaries B. Payment Suspension for Unfiled Cost Reports Regulations Text 1. Effects on Provider that File Cost Reports 2. Effects on Other Providers 3. Effects on the Medicare Program 4. Effects on Beneficiaries Addenda Addendum A--List of Ambulatory Payment Classifications (APCs) with Status Indicators, Relative Weights, Payment Rates, and Copayment Amounts Addendum B--Payment Status by HCPCS Code, and Related Information Addendum C--Hospital Outpatient Payment for Procedures by APC: Displayed on CMS Web site Only Addendum D--Payment Status Indicators for the Hospital Outpatient Prospective Payment System Addendum D1--Code Conditions Addendum E--CPT Codes That Would Be Paid Only As Inpatient Procedures Addendum G--Service Mix Indices by Hospital: Displayed on CMS Web site Only Addendum H--Wage Index for Urban Areas Addendum I--Wage Index for Rural Areas Addendum J--Wage Index for Hospitals That Are Reclassified Alphabetical List of Acronyms Appearing in the Final Rule ACEP--American College of Emergency Physicians AMA--American Medical Association APC--Ambulatory payment classification AWP--Average wholesale price BBA--Balanced Budget Act of 1997 BIPA--Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 BBRA--Balanced Budget Refinement Act of 1999 CCR--Cost center specific cost-to-charge ratio CMHC--Community mental health center CMS--Centers for Medicare & Medicaid Services (Formerly known as the Health Care Financing Administration) CPT (Physician's) Current Procedural Terminology, Fourth Edition, 2002, copyrighted by the American Medical Association CSW Clinical social worker CY Calendar year DRG Diagnosis-related group DSH Disproportionate Share Hospital EACH Essential Access Community Hospital E/M Evaluation and management ERCP Endoscopic retrograde cholangiopancreatography ESRD End-stage renal disease FACA Federal Advisory Committee Act FY Federal fiscal year HCPCS Healthcare Common Procedure Coding System HIPAA Health Insurance Portability and Accountability Act of 1996 ICU Intensive care unit ICD-9-CM International Classification of Diseases, Ninth Edition, Clinical Modification IME Indirect Medical Education IPPS (Hospital) inpatient prospective payment system LTC Long Term Care MedPAC Medicare Payment Advisory Commission MDH Medicare Dependent Hospital MSA Metropolitan statistical area NECMA New England County Metropolitan Area OCE Outpatient code editor OMB Office of Management and Budget OPD (Hospital) outpatient department OPPS (Hospital) outpatient prospective payment system OT Occupational therapist PHP Partial hospitalization program PPS Prospective payment system PPV Pneumococcal pneumonia (virus) PRA Paperwork Reduction Act RFA Regulatory Flexibility Act RRC Rural Referral Center RVUs Relative value units SCH Sole Community Hospital TEFRA Tax Equity and Fiscal Responsibility Act USPDI United States Pharmacopoeia Drug Information ----------------------------------------------------------------------- I. Background A. Authority for the Outpatient Prospective Payment System (OPPS) When the Medicare statute was originally enacted, Medicare payment for hospital outpatient services was based on hospital-specific costs. In an effort to ensure that Medicare and its beneficiaries pay appropriately for services and to encourage more efficient delivery of care, the Congress mandated replacement of the cost-based payment methodology with a prospective payment system (PPS). The Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33), enacted on August 5, 1997, added section 1833(t) to the Social Security Act (the Act) authorizing implementation of a PPS for hospital outpatient services. The Balanced Budget Refinement Act of 1999 (BBRA) (Pub. L. 106-113), enacted on November 29, 1999, made major changes that affected the hospital outpatient PPS (OPPS). The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106-554), enacted on December 21, 2000, made further changes in the OPPS. The OPPS was first implemented for services furnished on or after August 1, 2000. B. Summary of Rulemaking for the Outpatient Prospective Payment System [sbull] On September 8, 1998, we published a proposed rule (63 FR 47552) to establish in regulations a PPS for hospital outpatient services, to eliminate the formula-driven overpayment for certain hospital outpatient services, and to extend reductions in payment for costs of hospital outpatient services. On June 30, 1999, we published a correction notice (64 FR 35258) to correct a number of technical and typographic errors in the September 1998 proposed rule including the proposed amounts and factors used to determine the payment rates. [sbull] On April 7, 2000, we published a final rule with comment period (65 FR 18434) that addressed the provisions of the PPS for hospital outpatient services scheduled to be effective for services furnished on or after July 1, 2000. Under this system, Medicare payment for hospital outpatient services included in the PPS is made at a predetermined, specific rate. These outpatient services are classified according to a list of ambulatory payment classifications (APCs). The April 7, 2000 final rule with comment period also established requirements for provider departments and provider-based entities and prohibited Medicare payment for nonphysician services furnished to a hospital outpatient by a provider or supplier other than a hospital unless the services are furnished under arrangement. In addition, this rule extended reductions in payment for costs of hospital outpatient services as required by the BBA and amended by the BBRA. Medicare regulations governing the hospital OPPS are set forth at 42 CFR part 419. [[Page 66720]] [sbull] On June 30, 2000, we published a notice (65 FR 40535) announcing a delay in implementation of the OPPS from July 1, 2000 to August 1, 2000. We implemented the OPPS on August 1, 2000. [sbull] On August 3, 2000, we published an interim final rule with comment period (65 FR 47670) that modified criteria that we use to determine which medical devices are eligible for transitional pass- through payments. The August 3, 2000 rule also corrected and clarified certain provider-based provisions included in the April 7, 2000 rule. [sbull] On November 13, 2000, we published an interim final rule with comment period (65 FR 67798). This rule provided for the annual update to the amounts and factors for OPPS payment rates effective for services furnished on or after January 1, 2001. We implemented the 2001 OPPS on January 1, 2001. We also responded to public comments on those portions of the April 7, 2000 final rule that implemented related provisions of the BBRA and public comments on the August 3, 2000 rule. [sbull] On August 24, 2001, we published a proposed rule (66 FR 44672) that would revise the OPPS to implement applicable statutory requirements, including relevant provisions of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2002 (BIPA) and changes arising from our continuing experience with this system. It also described proposed changes to the amounts and factors used to determine the payment rates for Medicare hospital outpatient services paid under the PPS. The changes applied to services furnished on or after January 1, 2002. [sbull] On November 2, 2001, we published a final rule (66 FR 55857) that announced the Medicare OPPS conversion factor for calendar year 2002. In addition, it described the Secretary's estimate of the total amount of the transitional pass-through payments for CY 2002 and the implementation of a uniform reduction in each of the pass-through payments for that year. [sbull] On November 2, 2001, we also published an interim final rule with comment period (66 FR 55850) that set forth the criteria the Secretary will use to establish new categories of medical devices eligible for transitional pass-through payments under Medicare's OPPS. [sbull] On November 30, 2001, we published a final rule (66 FR 59856) that revised the Medicare OPPS to implement applicable statutory requirements, including relevant provisions of BIPA, and changes resulting from continuing experience with this system. It addition, it described the CY 2002 payment rates for Medicare hospital outpatient services paid under the PPS. This final rule also announced a uniform reduction of 68.9 percent to be applied to each of the transitional pass-through payments for certain categories of medical devices and drugs and biologicals. [sbull] On December 31, 2001, we published a final rule (66 FR 67494) that delayed, until no later than April 1, 2002, the effective date of CY 2002 payment rates and the uniform reduction of transitional pass-through payments that were announced in the November 30, 2001 final rule. In addition, this final rule indefinitely delayed certain related regulatory provisions. [sbull] On March 1, 2002, we published a final rule (67 FR 9556) that corrected technical errors that affected the amounts and factors used to determine the payment rates for services paid under the Medicare OPPS and corrected the uniform reduction to be applied to transitional pass-through payments for CY 2002 as published in the November 30, 2001 final rule. These corrections and the regulatory provisions that had been delayed became effective on April 1, 2002. [sbull] On August 9, 2002, we published a proposed rule (67 FR 52092) that would revise the OPPS to implement applicable statutory requirements and changes arising from our continuing experience with this system. The changes would be applicable to services furnished on or afterJanuary 1, 2003. This rule also proposed to allow the Secretary to suspend Medicare payments ``in whole or in part'' if a provider fails to file a timely and acceptable cost report. C. Authority for Payment Suspensions for Unfiled Cost Reports Authority for the provision regarding payment suspensions for unfiled cost reports is contained within the authority for subpart C of 42 CFR part 405, that is, sections 1102, 1815, 1833, 1842, 1866, 1870, 1871, 1879, and 1892 of the Social Security Act (42 U.S.C. 1302, 1395g, 1395l, 1395u, 1395cc, 1395gg, 1395hh, 1395pp, and 1395ccc) and 31 U.S.C. 3711. D. Summary of Changes in the August 9, 2002 Proposed Rule 1. Changes Relating to the OPPS On August 9, 2002, we published a proposed rule (67 FR 52092) that set forth proposed changes to the Medicare hospital OPPS and CY 2003 payment rates including changes used to determine these payment rates. The following is a summary of the major changes that we proposed and the issues we addressed in the August 9, 2002 proposed rule. a. Changes Required By Statute We proposed the following changes to implement statutory requirements: [sbull] Add APCs, delete APCs, and modify the composition of some existing APCs. [sbull] Recalibrate the relative payment weights of the APCs. [sbull] Update the conversion factor and the wage index. [sbull] Revise the APC payment amounts to reflect the APC reclassifications, the recalibration of payment weights, and the other required updates and adjustments. [sbull] Cease transitional pass-through payments for drugs and biologicals (including blood and blood products) and devices (including brachytherapy), that will, on January 1, 2003, have been paid under transitional pass-through methodology for at least 2 years. b. Additional Changes to OPPS We proposed the following additional changes to the OPPS and Payment Suspension Provisions: [sbull] Creation of new evaluation and management service codes for outpatient clinic and emergency department encounters for implementation no earlier than January 1, 2004. [sbull] Changes to the list of services that we do not pay in outpatient departments because we define them as inpatient only procedures. [sbull] Changes to our policy of nonpayment for procedures on the inpatient only list in special cases involving death or transfer before inpatient admission. [sbull] Changes to our policy governing observation in cases of direct admission to observation. [sbull] Changes to status indicators for Healthcare Common Procedure Coding System (HCPCS) codes. [sbull] Changes to our policies governing dialysis for end-stage renal disease (ESRD) patients and regarding partial hospitalization. C. Changes to the Regulations Text A. We proposed to make the following changes to our regulations: Amend Sec. 419.66(c)(1) to specify that we must establish a new category for a medical device if it is not described by any category previously in effect as well as an existing category. 2. Changes Relating to Payment Suspension for Unfiled Cost Reports [[Page 66721]] We proposed to revise Sec. 405.371(c) to specify that we may suspend Medicare payments ``in whole or in part'' if a provider has failed to timely file an acceptable cost report. This provision is consistent with the existing provisions in Sec. 405.371(a) governing the suspension of Medicare payments ``in whole or in part'' under certain conditions. We believe the Medicare program would benefit because immediate complete payment suspension can be disruptive to providers and may negatively affect the care of Medicare patients. E. Summary of the November 2, 2001 Interim Final Rule with Comment Period On November 2, 2001, we published an interim final rule with comment period in the Federal Register (66 FR 55850) that set forth the criteria for establishing new categories of medical devices eligible for transitional pass-through payments under Medicare's hospital OPPS as required by section 1833(t)(6)(B)(ii) of the Act, as amended by BIPA. In the April 7, 2000 final rule with comment period (65 FR 18480), we defined new or innovative devices using eight criteria, three of which were revised in our August 3, 2000 interim final rule with comment period (65 FR 47673-74). These criteria remained applicable when defining a new category for devices, (that is, devices to be included in a category must meet all previously established applicable criteria for a device eligible for transitional pass-through payments) but we revised the definition of an eligible device to conform the requirements of amended section 1833(t)(6)(B)(ii) of the Act. We also clarified our criterion that states that a device must be approved or cleared by the Food and Drug Administration (FDA). In establishing the criteria for establishing additional categories, the Act mandates that new categories be established for devices that were not being paid for as an outpatient hospital service as of December 31, 1996 and for which no categories in effect (or previously in effect) are appropriate, in such a way that no device is described by more than one category and the average cost of devices to be included in the category is not insignificant in relation to the APC payment amount for the associated service. Based on these requirements, we used the following criteria to establish a category of devices: [sbull] Substantial clinical improvement. The category describes devices that demonstrate a substantial improvement in medical benefits for Medicare beneficiaries compared to the benefits obtained by devices in previously established categories or other available treatments, as described in regulations at new Sec. 419.66(c)(1). [sbull] Cost. We determine that the estimated cost to hospitals of the devices in a new category (including any candidate devices and the other devices that we believe will be included in the category) is ``not insignificant'' relative to the payment rate for the applicable procedures. We received five timely items of correspondence on the November 2, 2001 interim final rule with comment period. Summaries of the public comments and our responses to those comments are set forth below under the appropriate section heading of this final rule with comment period. F. Public Comments and Responses to the August 9, 2002 Proposed Rule We received approximately 1,000 timely items of correspondence containing multiple comments on the August 9, 2002 proposed rule. Of that total, we received eight comments relating to the payment suspension provision described in section I.D.2. Summaries of the public comments received on other provisions and our responses to those comments are provided below in section I.F.2 of this preamble. 1. OPPS We received comments from various sources including but not limited to health care facilities, physicians, drug and device manufacturers, and beneficiaries. Hospital associations and the Medicare Payment Advisory Commission (MedPAC) generally supported our proposed approach to revising the relative weights and incorporating the drugs and devices into payment for APCs. Pharmaceutial and medical device manufacturers and some individual hospitals that furnish particular devices or drugs were concerned with the proposed reductions in payment for medical devices and drugs. We received many thoughtful comments from a wide range of commenters with regard to methodological issues in OPPS. In addition, several comments provided data to support their assertions. The following are the major OPPS related issues addressed by the commenters: [sbull] Expiration of pass-through payment for most devices and drugs/biologicals. [sbull] Extent of reduction in payments for devices compared to payments in 2002. [sbull] Potential impact on access to care of proposed payments. [sbull] The proposal to package drugs with a per line cost less than $150 and to pay separately for others. [sbull] Assignment and reassignment of codes to APCs (including assignments to procedural APCs from new tech APCs). [sbull] Quality, quantity and content of claims data used to set payment weights. [sbull] Continuation of a list of procedures that are not paid under OPPS because we believe that they should be performed as inpatient services. [sbull] Policy on payment for outpatient observation care. [sbull] Creation of evaluation and management codes for OPPS use. Summaries of the public comments received and our responses to those comments are set forth below under the appropriate headings of this final rule with comment period. 2. Payment Suspension for Unfiled Cost Reports Comments and Responses Comment: All of the commenters stated that the rule provides for increased flexibility and a reduction in the financial impact of payment suspensions on providers. They indicated the increased flexibility would allow providers to receive partial payments from Medicare, which would lessen the financial impact of payment suspensions. Response: We appreciate the hospital associations supporting this change. Comment: One commenter suggested that payment suspension be limited to those payments directly determined by the cost report. Response: We believe that immediate suspension of all payments when a cost report is not filed timely may not always be the appropriate response. However, if we require a provider to file a cost report, it is important for the cost report to be filed in a timely manner regardless of the amount of payment that is determined based on the cost report. We need flexibility in determining the amount of a provider's payments to suspend if its cost report is not filed timely. This could include the potential suspension of payments that are not determined by the cost report. Thus, we will retain Sec. 405.371 of the regulation as set forth in the proposed rule. ----------------------------------------------------------------------- II. Changes to the Ambulatory Payment Classification (APC) Groups and Relative Weights Under the OPPS, we pay for hospital outpatient services on a rate- per-service basis that varies according to the APC group to which the service is assigned. Each APC weight represents the median [[Page 66722]] hospital cost of the services included in that APC relative to the median hospital cost of the services included in APC 601, Mid-Level Clinic Visits. The APC weights are scaled to APC 601 because a mid- level clinic visit is one of the most frequently performed services in the outpatient setting. Section 1833(t)(9)(A) of the Act requires the Secretary to review the components of the OPPS not less often than annually and to revise the groups and related payment adjustment factors to take into account changes in medical practice, changes in technology, and the addition of new services, new cost data, and other relevant information. Section 1833(t)(9)(A) of the Act requires the Secretary, beginning in 2001, to consult with an outside panel of experts when annually reviewing and updating the APC groups and the relative payment weights. Finally, section 1833(t)(2) of the Act provides that, subject to certain exceptions, the items and services within an APC group cannot be considered comparable with respect to the use of resources if the highest median or mean cost item or service in the group is more than 2 times greater than the lowest median cost item or service within the same group (referred to as the ``2 times rule''). We use the median cost of the item or service in implementing this provision. The statute authorizes the Secretary to make exceptions to the 2 times rule ``in unusual cases, such as low volume items and services.'' For purposes of the proposed rule and for this final rule with comment period, we analyzed the APC groups within this statutory framework. A. Recommendations of the Advisory Panel on APC Groups 1. Establishment of the Advisory Panel Section 1833(t)(9)(A) of the Act, requires that we consult with an outside panel of experts when annually reviewing and updating the APC groups and the relative weights. The Act specifies that the panel will act in an advisory capacity. The expert panel, which is to be composed of representatives of providers, is to review and advise us about the clinical integrity of the APC groups and their weights. The panel is not restricted to using our data and may use data collected or developed by organizations outside the Department in conducting its review. On November 21, 2000, the Secretary signed the charter establishing an ``Advisory Panel on APC Groups'' (the Panel). The Panel is technical in nature and is governed by the provisions of the Federal Advisory Committee Act (FACA) as amended (Pub. L. 92-463). To establish the Panel, we solicited members in a notice published in the Federal Register on December 5, 2000 (65 FR 75943). We received applications from more than 115 individuals nominating either themselves or a colleague. After carefully reviewing the applications, we chose 15 highly qualified individuals to serve on the Panel. The first APC Panel meeting was held on February 27, February 28, and March 1, 2001, to discuss the 2001 APCs in anticipation of the 2002 OPPS. We published a notice in the Federal Register on December 14, 2001, to announce the location and time of the second Panel meeting, a list of agenda items, and that the meeting was open to the public. We also provided additional information through a press release and on our Web site. We convened the second meeting of the Panel on January 22 through January 24, 2002. 2. General Issues Considered by the Advisory Panel In the proposed rule, we summarized the Panel's discussion of a recommendation by the Panel's Research Subcommittee concerning the format of written submissions and oral presentations to the Panel and of several general OPPS payment issues. Content for Future Presentations to the Panel During the 2001 meeting, the Panel members felt that requiring consistency for all presentations with regard to format, data submission, and general information would assist them in analyzing the submissions and presentations and making recommendations. Therefore, upon the Panel's recommendation, the Research Subcommittee was established during the 2001 meeting. The Panel began its 2002 meeting by considering the Research Subcommittee's recommendation to the Panel on requirements for written submissions and oral presentations. The Research Subcommittee recommended that all future oral presentations and written submissions contain the following: [sbull] Name, address, and telephone number of the proposed presenter. [sbull] Financial relationship(s), if any, with any company whose products, services, or procedures are under consideration. [sbull] CPT codes involved. [sbull] APC(s) affected. [sbull] Description of the issue. [sbull] Clinical description of the service under discussion, with comparison to other services within the APC. [sbull] Description of the resource inputs associated with the service under discussion, with a comparison to resource inputs for other services within the APC. [sbull] Recommendations and rationale for change. [sbull] Expected outcome of change and potential consequences of no change. The Panel adopted the Subcommittee s recommendation. Presentations for the 2003 meeting must contain, at a minimum, this information. Inpatient Only List At its February 2001 meeting, the Panel discussed the existence of the inpatient list. The Panel favored its elimination. At the January 2002 meeting, Panel members noted that hospitals receive no payment for a service performed in an outpatient department that appears on the inpatient list, even though the physician performing that service will receive payment for his or her services. The Panel believes the physician should determine what procedure to perform and that both the hospital and the physician should receive payment for the procedure. We continue to disagree with the position taken by the Panel regarding the inpatient list for reasons that we discuss in detail in the April 7, 2000 final rule (65 FR 18456). Prior to the 2002 Panel meeting, we received requests from hospital and surgical associations and societies to remove certain procedures from the inpatient list. We reviewed those requests and presented to the Panel the requests for which we were unable to make a determination based on the information submitted with the request. The Panel considered removing the following procedures from the inpatient list: ------------------------------------------------------------------------ CPT Description ------------------------------------------------------------------------ 21390..................................... Treat eye socket fracture 27216..................................... Treat pelvic ring fracture 27235..................................... Treat thigh fracture [[Page 66723]] 32201..................................... Drain, precut, lung lesion 33967..................................... Insert a precut device 47490..................................... Incision of gallbladder 62351..................................... Implant spinal canal cath 64820..................................... Remove sympathetic nerves 92986..................................... Revision of aortic valve 92987..................................... Revision of mitral valve 92990..................................... Revision of pulmonary valve 92997..................................... Pul art balloon repr, precut 92998..................................... Pul art balloon repr, precut ------------------------------------------------------------------------ As the Panel recommended, we solicited comments and additional information from hospitals and medical specialty societies that have an interest in these procedures. At their 2003 meeting, the Panel also recommended that we present to them any such comments that we receive to assist in their evaluation of whether to recommend removing the codes from the inpatient list. The Panel did recommend that we remove from the inpatient list CPT code 47001, Biopsy of liver, needle; when done for indicated purpose at time of other major procedure. We agreed with the Panel's recommendation and we proposed to remove 47001 from the inpatient list. We further proposed to assign it status indicator ``N'' so that costs associated withCPT code 47001 would be packaged into the APC payment for the primary procedure performed during the same operative session. In section II.B.5 of the proposed rule, we discussed additional procedures, which were not considered by the Panel, that we proposed to remove from the inpatient list. We discussed in detail our reasons for proposing these additional changes, and we proposed two new criteria that we would adopt in the future when evaluating whether to make a procedure on the inpatient list payable under the OPPS. Table 6 in section II.B.5 of the proposed rule lists all the procedures we proposed to remove from the inpatient list, including those discussed by the Panel. We considered the removal of CPT code 33967, Insertion of intra-aortic balloon assist device, percutaneous from the inpatient list, but did not include it in Table 6. The Panel considered this code for removal from the inpatient list and had concerns about whether performing this procedure in an outpatient setting is appropriate. Further, we were not able to confirm that this procedure is being performed on Medicare beneficiaries in an outpatient setting. We solicited comments, including clinical data and specific case reports, which would support payment for CPT 33967 under the OPPS. Our discussion of the comments we received on this issue, our response and the statement of final action regarding what services to remove from the inpatient list is contained in section II.B.5. Multiple Bills During its February 2001 meeting, the Panel received oral testimony identifying CMS exclusive use of single procedure claims to set relative weights for APCs as a potential problem in setting appropriate payment rates for APCs. Therefore, the panel asked its Research Subcommittee to work with CMS staff, using the Endoscopic Retrograde Cholangiopancreatography (ERCP) code family as a case study, to explore the use of multiple procedure claims data for setting relative weights. The Subcommittee made the following recommendations to the Panel, which the Panel approved: [sbull] We should continue to explore the use of multiple procedure claims data for setting payment rates but should continue to use only single procedure claims data to determine relative payment weights for CY 2003. [sbull] We should work with the APC Panel to explore the use of multiple claims data drawn from OPPS claims for services such as radiation oncology in time for the next APC Panel meeting. [sbull] We should educate hospitals on appropriate coding and billing practices to ensure that claims with multiple procedures are properly coded and that costs are properly allocated to each procedure. One presenter to the panel suggested a method to increase the number of claims that could be considered as single claims. Currently, we consider any claim submitted with two or more primary codes (that is, a code assigned to an APC for separate payment) to be a multiple procedure claim. When these claims contain line items for revenue centers without an accompanying Healthcare Common Procedure Coding System (HCPCS) code there is no way to determine the appropriate primary code with which to package the revenue center. The presenter suggested that we consider all claims where every line contains a separately payable HCPCS code as a single procedure claim, reasoning that on such claims we do not have to determine how and where to ``package'' line items not identified by a separately payable HCPCS code. Where every line item contains a separately payable HCPCS code, every cost can easily be allocated to a separately payable HCPCS code on the line item and all costs for each HCPCS code can then be accurately and completely determined. We agreed with that suggestion. In section II.B.4 of the proposed rule, we described how we determined the number of single claims used to set the APC relative weights proposed for 2003 using this methodology. We requested comments on our methodology. Discussion of the comments we received on this issue, our responses, and the statement of final action are contained in section III.A. Packaging We sought the Panel's guidance on whether we should package the costs of HCPCS codes for radiologic guidance and radiologic supervision and interpretation services whose descriptors require that they only be performed in conjunction with a surgical procedure. In the proposed rule, we discussed why we package the costs of certain procedures. We specified for example, that ``add-on'' procedures and radiologic guidance procedures should never be billed on a claim without the code for an associated procedure. A facility should not submit a claim for ultrasound guidance for a biopsy unless the claim also includes the biopsy procedure, because the guidance is necessary only when a biopsy is performed. A claim for a packaged guidance procedure (or a supervision and interpretation procedure whose descriptor requires it be performed in association with a surgical procedure) [[Page 66724]] would be returned to the provider for correction and resubmission. Also, we explained that we use packaging because billing conventions allow hospitals to report costs for certain services using only revenue center codes (that is, hospitals are not required to specify HCPCS codes for certain services). Packaging allows these costs to be captured in the data used to calculate median costs for services with an APC. After hearing the requests of several presenters, (details discussed at 66 FR 52098 of the proposed rule) the Panel concluded that, even though we could be setting relative weights based on error claims, we should not package additional radiologic guidance and supervision and interpretation procedures and should continue to explore methodologies that would allow these procedures to be recognized for separate payment. The Panel also recommended that radiology guidance codes that were in APC 268 for CY 2001 but that were designated with status indicator ``N'' as packaged services in 2002, be restored as separately payable services for CY 2003. The Panel requested that this topic be placed on the agenda for the next Panel meeting. Our discussion of the comments we received on this issue, our responses and a statement of final action is contained in section III.B. Add-On Codes As discussed in the proposed rule (66 FR 52098), we presented for the Panel's consideration several options for payment of add-on codes, including assignment of status indicator ``N'' to package them into the payment for the base procedure. After thorough review, the Panel concluded that we should continue to pay for add-on codes separately, setting relative weights with the use of single procedure claims in spite of the fact that these were error claims. The Panel asked us to continue exploring ways to most appropriately pay for these services. They requested that this item also be placed on the agenda for the next Panel meeting. We proposed to accept the recommendations of the APC Panel both for packaging radiology guidance and supervision and interpretation codes and for payment of add-on codes. We proposed to pay separately in 2003 for radiology guidance codes that were paid in APC 268 in CY 2001 but that were packaged in 2002. 3. Recommendations of the Advisory Panel and Our Responses In the proposed rule, we summarized the issues considered by the Panel, the Panel's APC recommendations and our subsequent action with regard to the Panel's recommendations. The most recent data available for the Panel to review in considering specific APC groupings were the 1999-2000 pre-OPPS claims data that were the basis of the CY 2002 relative payment weights. In the proposed rule, we provided a detailed summary of the Panel discussion and recommendations (67 FR 52098- 52102). See the proposed rule for more details regarding these discussions. The APC titles are shown in this discussion of the APC Panel recommendations as they existed when the APC Panel met in January 2002. In a few cases the APC titles were changed for the proposed 2003 OPPS and therefore some APCs do not have the same title in Addendum A as they have in this section. As discussed below, the Panel sometimes declined to recommend a change in an APC even though the APC violated the 2 times rule. In section II.B.1 of this preamble, we discuss our proposals regarding the 2 times rule based on the CY 2001 data we are using to recalibrate the 2003 APC relative weights. Section II.B.1 also details the criteria we use in deciding to make an exception to the 2 times rule. We asked the Panel to review many of the exceptions we implemented in 2001 and 2002. We refer to the exceptions as ``violations of the 2 times'' rule in the following discussion. APC 215: Level I Nerve and Muscle Tests APC 216: Level III Nerve and Muscle Tests APC 218: Level II Nerve and Muscle Tests We presented this agenda item because APC 215 appeared to violate the 2 times rule. In order to remedy this violation, we asked the Panel to consider the following changes: [sbull] Move CPT codes 95858, 95921, and 95922 from APC 215 to APC 218. [sbull] Move CPT code 95930 from APC 216 to APC 218. [sbull] Move CPT code 92275 from APC 216 to APC 231. [sbull] Move CPT code 95920 from APC 218 to APC 216. The Panel recommended that the changes we asked them to consider be made, that is, to move CPT codes 95921 and 95922 to APC 218. However, if the calendar year 2001 data support a move of 95921 to APC 216, the Panel recommended that we consider that move. APC 600: Low Level Clinic Visits APC 601: Mid Level Clinic Visits APC 602: High Level Clinic Visits APC 610: Low Level Emergency Visits APC 611: Mid Level Emergency Visits APC 612: High Level Emergency Visits We discussed the Panel's recommendations related to facility coding for clinic and emergency department visits are discussed below, in (section X.A of this rule). APC 296: Level I Therapeutic Radiologic Procedures APC 297: Level II Therapeutic Radiologic Procedures APC 263: Level I Miscellaneous Radiology Procedures APC 264: Level II Miscellaneous Radiology Procedures APCs 296, 263, and 264 appear to violate the 2 times rule. We asked the Panel to consider three options for reconfiguring these APCs so that they would conform with the 2 times rule. Option 1: Create a new APC, Level III Therapeutic Radiology Procedures, by moving CPT code 75984 from APC 296 and 74475 from APC 297. Also, move CPT codes 76101, 70390, and 71060 from APC 263 to APC 264 and move CPT code 75980 from APC 297 to APC 296. Option 2: Move CPT codes 76101, 703690, and 71060 from APC 263 to APC 264 and move CPT code 75984 from APC 296 to APC 264. Move CPT code 75980 from APC 297 to APC 296. Option 3: Create a new APC, Level III Miscellaneous Radiology Procedures, by moving CPT codes 76080, 7036736, 76101, 70390, 74190, and 71060 from APC 263. Move CPT code 74327 from APC 296 to APC 263 and move CPT code 75980 from APC 297 to APC 296. APC 264 remains unchanged. The Panel noted that none of the options that we presented resolve all of the 2 times violations. However, the Panel agreed that Option 2 would create more clinically coherent APCs without creating a new APC based on anticipated device costs that would be billed in 2002. In addition, the Panel invited the American College of Radiology and other interested parties to proposed further changes for the Panel's consideration next year. We proposed to accept the Panel's recommendations that option 2 be implemented. APC 230: Level I Eye Tests and Treatments APC 231: Level III Eye Tests and Treatments APC 232: Level I Anterior Segment Eye Procedures APC 233: Level II Anterior Segment Eye Procedures APC 234: Level III Anterior Segment Eye Procedures [[Page 66725]] APC 235: Level I Posterior Segment Eye Procedures APC 236: Level II Posterior Segment Eye Procedures APC 237: Level III Posterior Segment Eye Procedures APC 238: Level I Repair and Plastic Eye Procedures APC 239: Level II Repair and Plastic Eye Procedures APC 240: Level III Repair and Plastic Eye Procedures APC 241: Level IV Repair and Plastic Eye Procedures APC 242: Level V Repair and Plastic Eye Procedures APC 247: Laser Eye Procedures Except Retinal APC 248: Laser Retinal Procedures APC 698: Level II Eye Tests and Treatments APC 699: Level IV Eye Tests and Treatments We asked the Panel to review these APCs to address clinical inconsistencies and violations of the 2 times rule. We suggested creating a new level for posterior segment eye procedures and other changes in order to make the groups more clinically coherent, as follows: [sbull] Move CPT codes 65260 and 67218 from APC 237 to 236. [sbull] Create a new APC (Level IV Posterior Segment Eye Procedures) by moving CPT codes 67107, 67112, 67040, and 67108 from APC 237. [sbull] Move CPT codes 67145, 67105, and 67210 from APC 247 to APC 248. [sbull] Move CPT code 66999 from APC 247 to APC 232. [sbull] Move CPT code 67299 from APC 248 to APC 235. [sbull] Move CPT codes 65855, 66761, and 66821 from APC 248 to APC 247. [sbull] Move CPT code 67820 from APC 698 to APC 230. [sbull] Move CPT code 67208 from APC 231 to APC 235. [sbull] Move CPT codes 92226, 92284, 65205, 92140 from APC 231 to APC 698. [sbull] Move CPT code 92235 from APC 231 to APC 699. [sbull] Move CPT code 68100 from APC 233 to APC 232. [sbull] Move CPT code 65180 from APC 233 to APC 234. [sbull] Create a new APC (Level IV Anterior Segment Eye Procedures) by moving CPT codes 66172, 66185, 66180, 66225 from APC 234. [sbull] Move CPT code 92275 from APC 216 to APC 231. No presenters commented on these APCs, and, after brief discussion, the Panel recommended concurrence with our suggested changes. We proposed to accept the Panel's recommendations. We noted in the proposed rule that when we were able to use 2001 claims data to re- evaluate the changes recommended by the Panel for these APCs, we found violations of the 2 times rule in the reconfigured APCs. Nonetheless, we proposed to accept the Panel's recommendations because they result in more clinically coherent APCs. We solicited comments on further changes that would address the violations of the 2 times rule. APC 110: Transfusion APC 111: Blood Product Exchange APC 112: Apheresis, Photopheresis, and Plasmapheresis We presented these APCs to the Panel in 2001 because of their low payment rates and concern that our cost data were inaccurate. These APCs were on the 2002 agenda in order to obtain further comment on our cost data. We suggested no changes in the structure of these APCs. The Panel recommended that plasma derivatives be placed in their own APCs and classified in the same manner as whole blood products. In addition, the Panel observed that hospitals incur additional costs with each unit of blood product transfused and, therefore, recommended that APC 110 be revised to allow for the costs of additional units of blood product and clinical services. In section IV.D of this rule, we discussed our payment proposals for drugs and biologicals for which pass-through payments are scheduled to expire in 2003. Those proposals would affect payment for blood and blood products. We proposed not to accept the Panel's recommendation to change current OPPS payment policy for transfusions. Panel Recommendations to Defer Changes Pending Availability of 2001 Claims Data Regarding the remaining APC groups that are addressed below, the Panel recommended that we make no changes until data from claims billed in 2001 under the OPPS become available for analysis. The Panel further requested that we place the APC groups in this section on the agenda for consideration at its meeting in 2003. The changes that we proposed for the APCs in this section are based upon our review of the 2001 claims data, which did not become available until March 2002. APC 203: Level V Nerve Injections APC 204: Level VI Nerve Injections APC 206: Level III Nerve Injections APC 207: Level IV Nerve Injections Several presenters to the Panel suggested changes in the configuration of these APCs because of concerns that the current classifications result in payment rates that are too low relative to the resource costs associated with certain procedures in the APCs. Several of these APCs include procedures associated with drugs or with device categories for which pass-through payments are scheduled to expire in 2003. The Panel recommended that we not change the structure of these APCs at this time. Because the structure of these APCs was substantially changed for 2002, and 2002 cost data was not yet available, the Panel felt it would be appropriate to review 2002 cost data prior to making further structural changes to these APCs. We proposed to accept the Panel's recommendation. We will place these APCs on the Panel's agenda when 2002 cost data becomes available. APC 43: Closed Treatment Fracture Finger/Toe/Trunk APC 44: Closed Treatment Fracture/Dislocation, Except Finger/Toe/Trunk On the basis of 1999-2000 claims data, these APCs violate the 2 times rule. The Panel reviewed these APCs and recommended no changes. Our subsequent review of 2001 OPPS cost data shows continuing violations of the 2 times rule and that costs within these APCs are virtually identical. Therefore, we proposed to combine APCs 43 and 44 into APC 43. The procedures in the consolidated APC are clinically homogeneous. APC 58: Level I Strapping and Cast Application APC 59: Level II Strapping and Cast Application The Panel reviewed these APCs and recommended that no changes be made pending analysis of 2001 claims data. The Panel did recommend that billing instructions be developed on the appropriate use of the codes in these APCs. We agreed with the Panel's recommendation regarding the need for billing instructions, and we expect to develop such instructions for hospitals to use in 2003. Our subsequent review of 2001 claims data reveals that, in some cases, costs for short casts and splints are greater than costs for long casts and splints. Moreover, the proposed payments for these two APCs, based on 2001 OPPS data, would not differ significantly from each other. Therefore, we proposed to combine the codes in APC 58 and APC 59 into a single APC, APC 58. Combining these APCs does not compromise clinical homogeneity. The relative weight of the proposed single APC is virtually identical to the relative weight of each of the two current APCs. We proposed to continue to work with hospitals to develop appropriate coding [[Page 66726]] for these services and will review the appropriate APC structure for these services next year. APC 279: Level I Angiography and Venography Except Extremity APC 280: Level II Angiography and Venography Except Extremity Without the benefit of 2001 OPPS claims data, it was difficult for the Panel to determine whether the apparent violation of the 2 times rule in APCs 279 and 280 was attributable to underreporting of procedures or inaccurate coding. Therefore, the Panel recommended no changes pending the availability of the more recent claims data. After subsequently reviewing the 2001 claims data, we proposed to move CPT codes 75978, Transluminal balloon angioplasty, venous, radiological supervision and interpretation, and 75774, Angiography, selective, each additional vessel studied after basic examination, radiological supervision and interpretation, to new APC 0668. This would resolve violations of the 2 times rule and result in clinically coherent APCs. APC 115: Cannula/Access Device Procedures We proposed to move CPT code 36860, External Cannula Declotting; without balloon catheter, to APC 103, Miscellaneous Vascular Procedures. We believe this makes both APC 115 and APC 103 more clinically homogeneous and it resolves a violation of the 2 times rule in APC 115 that was caused by the presence of CPT code 36860. APC 93: Vascular Repair/Fistula Construction APC 140: Esophageal Dilation without Endoscopy APC 141: Upper GI Procedures APC 142: Small Intestine Endoscopy APC 143: Lower GI Endoscopy APC 144: Diagnostic Anoscopy APC 145: Therapeutic Anoscopy APC 146: Level I Sigmoidoscopy APC 147: Level II Sigmoidoscopy APC 148: Level I Anal/Rectal Procedure APC 149: Level II Anal/Rectal Procedure Our subsequent review of 2001 claims data suggests that the cost data for APCs 144 and 145 are aberrant. The cost data for these APCs yield relative weights and payments that are significantly higher than the relative weights for APCs 146 and 147, which consist of similar procedures performed through a sigmoidoscope rather than an anoscope. As currently arranged, the APC configuration for these services could provide a financial incentive for hospitals to perform unnecessary anoscopic procedures, either alone or with a sigmoidoscopy. To rectify this problem, we proposed to move the procedures in APCs 144 and 145 to APC 147 with the exception of CPT code 46600, Anoscopy; diagnostic, which we proposed to assign to APC 340, Minor Ancillary procedures. We believe these changes would result in clinically coherent APCs with appropriate relative weights and payment rates. APC 363: Otorhinolaryngologic Function Tests Based on 2001 claims data, we proposed to move CPT codes 92543, 92588, 92520, 92546, 92516, 92548, and 92584 to new APC 0660 (Level III Otorhinolaryngolgic Function Tests). This change would resolve a 2 times rule violation and create clinically coherent APCs. APC 96: Non-Invasive Vascular Studies APC 265: Level I Diagnostic Ultrasound Except Vascular APC 266: Level II Diagnostic Ultrasound Except Vascular APC 267: Vascular Ultrasound APC 269: Level I Echocardiogram Except Transesophageal APC 270: Transesophageal Echocardiogram The APC Panel recommended making no changes in the configuration of these APCs. Based on 2001 claims data, we proposed to make several changes in order to resolve 2 times rule violations and to make these APCs more clinically coherent. Specifically, we proposed to move CPT code 43499 from APC 0140 to APC 141; CPT code 93721 from APC 0096 to APC 368; CPT code 93740 from APC 0096 to APC 367; CPT code 93888 from APC 0267 to APC 266; and CPT code 93931 from APC 0267 to APC 266. We also proposed to move CPT codes 78627, 76825, and 93320 from APC 0269 to new APC 0671 to achieve more clinical coherence. We also proposed to create new APC 0670 for intravascular ultrasound and intracardiac echocardiography consisting of CPT codes 37250, 37251, 92978, 92979, and 93662. APC 291: Level I Diagnostic Nuclear Medicine Excluding Myocardial Scans APC 292: Level II Diagnostic Nuclear Medicine Excluding Myocardial Scans Subsequent to the APC Panel meeting, we received comments on these APCs from the Nuclear Medicine Task Force. After a thorough review of that proposal within the context of the 2001 claims data, we proposed to accept the recommendations of the Nuclear Medicine Task Force, which would result in a complete reconfiguration of APCs 290, 291, and 292. Although the reconfiguration would create violations of the 2 times rule, we agree with the Task Force that the reconfigured APCs are more clinically coherent. We note that APCs 290, 291, and 292 as currently configured would also violate the 2 times rule. Therefore, we solicited comments on the proposed reconfiguration of APCs 290, 291, and 292 and on alternative groupings that would achieve clinical coherence without violating the 2 times rule. APC 274: Myleography APC 179: Urinary Incontinence Procedures APC 182: Insertion of Penile Prosthesis APC 19: Level I Excision/Biopsy APC 20: Level II Excision/Biopsy APC 21: Level IV Excision/Biopsy APC 22: Level V Excision/Biopsy PC 694: Level III Excision/Biopsy Based on 2001 claims data, we proposed to move several codes from APC 19 to APC 20 and several codes from ACP 20 to APC 21. Additionally, we proposed to move CPT codes 11770, 54105, and 60512 to APC 22. We also proposed to move CPT code 58999 to APC 191 and CPT code 37799 to APC 35. These changes would result in clinically coherent APCs that do not violate the 2 times rule. APC 24: Level I Skin Repair APC 25: Level II Skin Repair APC 26: Level III Skin Repair APC 27: Level IV Skin Repair APC 686: Level V Skin Repair Based on 2001 claims data, we proposed to move CPT code 43870 from APC 0025 to APC 141; and CPT codes with high costs from APC 26 to APC 27. We also proposed to move the codes remaining in APC 26 to APC 25. APC 26 would then be deleted. These changes would result in a more compact APC structure without compromising the clinical homogeneity of the reconfigured APCs and without violating the 2 times rule. See Table 1 for the final list of codes to be moved from APC 26 to APC 25 or APC 27. Table 1.--HCPCS Codes to be Moved From APC 26 Into APC 25 or APC 27 ------------------------------------------------------------------------ 2003 2003 2002 APC 26 APC 25 APC 27 ------------------------------------------------------------------------ 11960................................................... ...... 11960 11970................................................... ...... 11970 12037................................................... 12037 ...... 12047................................................... 12047 ...... 12057................................................... 12057 ...... 13150................................................... 13150 ...... 13160................................................... ...... 13160 14000................................................... ...... 14000 14001................................................... ...... 14001 [[Page 66727]] 14020................................................... ...... 14020 14021................................................... ...... 14021 14040................................................... ...... 14040 14041................................................... ...... 14041 14060................................................... ...... 14060 14061................................................... ...... 14061 14300................................................... ...... 14300 14350................................................... ...... 14350 15000................................................... 15000 ...... 15001................................................... 15001 ...... 15050................................................... 15050 ...... 15101................................................... ...... 15101 15120................................................... ...... 15120 15121................................................... ...... 15121 15200................................................... ...... 15200 15201................................................... 15201 ...... 15220................................................... ...... 15220 15221................................................... 15221 ...... 15240................................................... ...... 15240 15241................................................... 15241 ...... 15260................................................... ...... 15260 15261................................................... 15261 ...... 15351................................................... ...... 15351 15400................................................... 15400 ...... 15401................................................... 15401 ...... 15570................................................... ...... 15570 15572................................................... ...... 15572 15574................................................... ...... 15574 15576................................................... ...... 15576 15600................................................... ...... 15600 15610................................................... ...... 15610 15620................................................... ...... 15620 15630................................................... ...... 15630 15650................................................... ...... 15650 15775................................................... 15775 ...... 15776................................................... 15776 ...... 15819................................................... 15819 ...... 15820................................................... ...... 15820 15821................................................... ...... 15821 15822................................................... ...... 15822 15823................................................... ...... 15823 15825................................................... ...... 15825 15826................................................... ...... 15826 15829................................................... ...... 15829 15835................................................... 15835 ...... 20101................................................... ...... 20101 20102................................................... ...... 20102 20910................................................... ...... 20910 20912................................................... ...... 20912 20920................................................... ...... 20920 20922................................................... ...... 20922 20926................................................... ...... 20926 23921................................................... 23921 ...... 25929................................................... ...... 25929 33222................................................... ...... 33222 33223................................................... ...... 33223 44312................................................... ...... 44312 44340................................................... ...... 44340 15580--Code Deleted ...... ...... 15625--Code Deleted ...... ...... ------------------------------------------------------------------------ APC 77: Level I Pulmonary Treatment APC 78: Level II Pulmonary Treatment APC 251: Level I ENT Procedures APC 252: Level II ENT Procedures APC 253: Level III ENT Procedures APC 254: Level IV ENT Procedures APC 256: Level V ENT Procedures Based on 2001 claims data, we proposed to address violations of the 2 times rule by moving CPT codes 40812, 42330, and 21015 from APC 0252 to APC 253 and by moving CPT codes 41120 and 30520 to APC 254. We are adopting the changes discussed in the proposed rule as final except as noted in our discussion of specific APC changes in section II.B, below. B. Other Changes Affecting Ambulatory Payment Classification (APC) Assignments 1. Limit on Variation of Costs of Services Classified Within a Group Section 1833(t)(2) of the Act provides that the items and services within an APC group cannot be considered comparable with respect to the use of resources if the highest cost item or service within a group is more than 2 times greater than the lowest cost item or service within the same group. However, the statute authorizes the Secretary to make exceptions to this limit on the variation of costs within each group in unusual cases such as low-volume items and services. No exception may be made, however, in the case of a drug or biological that has been designated as an orphan drug under section 526 of the Federal Food, Drug, and Cosmetic Act. Taking into account the APC changes discussed in relation to the APC panel recommendations in this section of this preamble and the use of 2001 claims data to calculate the median cost of procedures classified to APCs, we reviewed all APCs to determine which of them would not meet the 2 times limit. We use the following criteria when deciding whether to make exceptions to the 2 times rule for affected APCs: [sbull] Resource homogeneity. [sbull] Clinical homogeneity. [sbull] Hospital concentration. [sbull] Frequency of service (volume). [sbull] Opportunity for upcoding and code fragmentation. For a detailed discussion of these criteria, refer to the April 7, 2000, final rule (65 FR 18457). We received several comments on this proposal. A summary of these comments and our responses are provided below. Comment: One commenter recommended that we move CPT code 47556 (Biliary endoscopy with dilation of biliary stricture with stent) from APC 0152 to APC 0153 because its placement in APC 0152 violated the 2 times rule. Response: We will not make any changes at this time, but we will present this issue to the APC Advisory Panel. We do not use low-volume procedures in determining whether an APC violates the 2 times rule because there is a high potential for miscoding of such procedures and because our cost data is less reliable. The cost data that we do have for CPT 47556 indicates that APC 0152 is appropriate. Comment: Several commenters thanked us for creating a separate APC for Computed Tomographic Angiography (CTA) but requested that we not use claims data to develop a payment rate. These commenters asserted that our claims data was faulty because hospitals had not developed specific charges for CTA and were using charges for other Computed Tomography (CT) when billing for CTA. They recommended that we use either the relative ratio of charges from hospitals that billed CTA at a higher rate than CT and use that ratio to determine a payment rate for CTA, or use a proxy model that the commenter had developed. Response: Our payment rates for CT and CTA are different and our claims data indicates that CTA costs more than CT. Using claims data only from hospitals that charge more for CTA than CT is inappropriate, and the proxy model has not been validated. Therefore, we will update our payment for CTA next year based on 2002 claims data. Table 2 contains the final list of APCs that we exempt from the 2 times rule based on the criteria cited above. In cases in which compliance with the 2 times rule appeared to conflict with a recommendation of the APC Advisory Panel, we generally accepted the Panel recommendation. This was because Panel recommendations were based on explicit consideration of resource use, clinical homogeneity, hospital specialization, and the quality of the data used to determine payment rates. The median cost for hospital outpatient services for these and all other APCs can be found at Web site: http://www.cms.hhs.gov. Table 2.--Table of APCs Exempted From 2 Times Rule ------------------------------------------------------------------------ APC Description ------------------------------------------------------------------------ 0012................................... Level I Debridement & Destruction 0019................................... Level I Excision/ Biopsy 0020................................... Level II Excision/ Biopsy 0025................................... Level II Skin Repair 0032................................... Insertion of Central Venous/ Arterial Catheter 0043................................... Closed Treatment Fracture Finger/Toe/Trunk 0046................................... Open/Percutaneous Treatment Fracture or Dislocation [[Page 66728]] 0058................................... Level I Strapping and Cast Application 0074................................... Level IV Endoscopy Upper Airway 0080................................... Diagnostic Cardiac Catheterization 0081................................... Non-Coronary Angioplasty or Atherectomy 0093................................... Vascular Repair/Fistula Construction 0097................................... Cardiac and Ambulatory Blood Pressure Monitoring 0099................................... Electrocardiograms 0103................................... Miscellaneous Vascular Procedures 0105................................... Revision/Removal of Pacemakers, AICD, or Vascular 0121................................... Level I Tube changes and Repositioning 0140................................... Esophageal Dilation without Endoscopy 0147................................... Level II Sigmoidoscopy 0148................................... Level I Anal/Rectal Procedure 0155................................... Level II Anal/Rectal Procedure 0165................................... Level III Urinary and Anal Procedures 0170................................... Dialysis 0179................................... Urinary Incontinence Procedures 0191................................... Level I Female Reproductive Proc 0192................................... Level IV Female Reproductive Proc 0203................................... Level VI Nerve Injections 0204................................... Level I Nerve Injections 0207................................... Level III Nerve Injection 0218................................... Level II Nerve and Muscle Tests 0225................................... Implantation of Neurostimulator Electrodes 0230................................... Level I Eye Tests & Treatments 0231................................... Level III Eye Tests & Treatments 0233................................... Level II Anterior Segment Eye Procedures 0235................................... Level I Posterior Segment Eye Procedures 0238................................... Level I Repair and Plastic Eye Procedures 0239................................... Level II Repair and Plastic Eye Procedures 0252................................... Level II ENT Procedures 0260................................... Level I Plain Film Except Teeth 0274................................... Myelography 0286................................... Myocardial Scans 0290................................... Level I Diagnostic Nuclear Medicine Excluding Myocardial Scans 0291................................... Level II Diagnostic Nuclear Medicine Excluding Myocardial Scans 0294................................... Level I Therapeutic Nuclear Medicine 0297................................... Level II Therapeutic Radiologic Procedures 0303................................... Treatment Device Construction 0304................................... Level I Therapeutic Radiation Treatment Preparation 0330................................... Dental Procedures 0345................................... Level I Transfusion Laboratory Procedures 0354................................... Administration of Influenza/ Pneumonia Vaccine 0356................................... Level II Immunizations 0367................................... Level I Pulmonary Test 0368................................... Level II Pulmonary Tests 0370................................... Allergy Tests 0373................................... Neuropsychological Testing 0600................................... Low Level Clinic Visits 0602................................... High Level Clinic Visits 0660................................... Level III Otorhinolaryngologic Function Tests 0692................................... Electronic Analysis of Neurostimulator Pulse Generators 0694................................... Mohs Surgery 0698................................... Level II Eye Tests & Treatments ------------------------------------------------------------------------ 2. Procedures Moved From New Technology APCs to Clinically Appropriate APCs In the November 30, 2001 final rule, we made final our proposal to change the period of time during which a service may be paid under a new technology APC (66 FR 59903), initially established in the April 7, 2000 final rule. That is, beginning in 2002, we will retain a service within a new technology APC group until we have acquired adequate data that allow us to assign the service to a clinically appropriate APC. This policy allows us to move a service from a new technology APC in less than 2 years if sufficient data are available, and it also allows us to retain a service in a new technology APC for more than 3 years if sufficient data upon which to base a decision for reassignment have not been collected. Effective in 2003, we will move several procedures from new technology APCs to clinical APCs. Those procedures and the clinical APCs to which we are assigning the procedures for payment in 2003 are identified in Table 3. Based upon our review of the 2001 outpatient prospective payment system (OPPS) claims data, we believe that we have sufficient information upon which to base assignment of these procedures to clinical APCs. In making this determination, we reviewed both single and multiple procedure claims. In the proposed rule at 67 FR 52103, we discuss the procedures that we followed to make this determination. In some cases we proposed classification of a new technology procedure in an APC with procedures that are similar both clinically and in terms of resource consumption. In other cases, we proposed to create a new APC for a new technology procedure because we do not believe any of the existing APCs contain procedures that are clinically similar and similar in terms of resource consumption. We solicited comments on our proposed reassignment of the new technology procedures listed in Table 3 of the proposed rule (67 FR 52103-52104). We received several comments on this proposal which are summarized below. Comment: Several commenters brought to our attention that, as a result of moving codes for proton beam radiation therapy out of APC 0710 and APC 0712 (new technology codes) and into APC 0664 (Proton beam radiation therapy), simple treatments would receive a higher payment while intermediate and complex treatments would receive a lower payment. Commenters requested that these codes remain in APCs 0710 and 0712 or be split into separate APCs. Response: We thank the commenters for bringing this to our attention, and we agree that codes for simple proton beam radiation therapy (CPT 77522 and CPT 77520) should be placed in a different APC than codes for intermediate (CPT 77523) and complex (CPT 77525) radiation therapy. However, it would be inappropriate to return these codes to their previous new technology APCs (0712 and 0712) due to our having sufficient claims data to place them in their own APCs. Therefore, we will place codes for simple radiation therapy (CPTs 77522 and 77520) in APC 0664 and codes for intermediate (CPT 77523) and complex (CPT 77525) therapy in the newly created APC 0650. Comment: Numerous commenters expressed concern over the movement of HCPC G0173 (Stereo radiosurgery, complete) from APC 0721 (New Technology Level XV $5,000-$6,000) to APC 0663 (Stereotactic radiosurgery), resulting in lower payment. Commenters requested that HCPCS G0173 be returned to APC 0721 (New Technology Level XV $5,000- $6,000) because our current data includes both linear accelerator and multi source treatments. Response: We agree with commenters and have returned HCPC G0173 (Stereotactic radiosurgery, complete) to APC 0721 (New Technology Level XV $5,000-$6,000). We will review our claims data for next year's proposed rule to determine appropriate placement for all stereotactic radiosurgery procedures. Comment: Many commenters brought to our attention that G0251 (Stereotactic radiotherapy, multisession) was erroneously omitted from the proposed rule. Commenters asserted that G0251 differs substantially from G0173 and G0243, and they requested that G0251 be reinstated and placed in an APC that pays more than APC 0721 (New Technology Level XV $5,000-$6,000). Response: We thank the commenters for bringing this to our attention, and we agree that the elimination of G0251 in the proposed rule was in error. However, we do not agree with the [[Page 66729]] placement of G0251 in an APC that pays more than APC 0721 (New Technology Level XV $5,000-$6,000). Although there are significant fixed costs for all stereotactic radiosurgery procedures, our review of cost data does not show that our current APC assignment for G0251 (APC 713) is inappropriate. We will review the APC assignments for all stereotactic radiosurgery procedures next year when we have 2002 claims data available. Comment: A commenter expressed concern over the bundling of payments for CPT 77370 (Special medical radiation physics consultation) and CPT 77336 (Continuing medical physics consultation) into code G0242 (Multisource photon stereotactic plan) based on the understanding that G0242 is unrelated to CPT 77370 and CPT 77336. The commenter requested that CPT 77370 and CPT 77336 be unbundled from G0242. Response: We want hospitals to bill all resources associated with G0242 in one code. G0242 includes the work of a physicist and other staff, therefore it is appropriate that the resources used for CPT 77370 and CPT 77336 remain bundled with G0242. Separate payment for 77370 and 77336 would result in duplicate payment. Comment: Many commenters expressed concern that FDG PET procedures are moving to a new clinical APC 0667 (Nonmyocardial positron emission tomography) with a payment of $971--a reduction of $404. The commenters asserted that although the proposed rule would continue separate pass- through payment for FDG (in APC 1775), the proposed new payment would not cover the cost of the PET procedure and would undermine access to care. Response: We agree that our claims data may not accurately reflect the cost of FDG PET procedures. On June 29, 2001, CMS announced its intention to issue a national coverage determination (NCD) limiting the type of technology that can be used to perform Medicare-covered PET scans. This NCD became effective January 1, 2002. We believe that our claims data includes a significant number of PET scans performed on coincidence cameras that are no longer covered by Medicare. This could have the effect of lowering the median cost as compared to our future claims data that will reflect (due to the NCD) only the use of full-ring or partial-ring PET scanners. For this reason, until we are confident that our claims data reflects the predominant use of dedicated PET scanners, we will continue to pay for FDG PET in APC 714 (New Technology--Level IX $1250- $1500) until further review of claims data for the 2004 final rule. Comment: A commenter expressed concern about our proposal to reassign digital mammography from New Technology APC 0707 to a clinical APC (0699). Commenters recommended that we retain the assignment to New Technology APC 0707 for 1 more year until further data analysis can be performed. Response: We disagree with the commenter. Hospitals billed for approximately 7,000 occurrences of digital mammography in 2001, providing us with sufficient data upon which to calculate a median cost. New Technology APC Issues Comment: A manufacturer was pleased that we designated endometrial cryoablation as eligible for new technology service APC payment, but was displeased at the delay in reaching our decision as well as the specific new technology service APC in which the service was placed. We proposed to place endometrial cryoablation into new technology service APC 980, which has a payment rate of $1,875. The commenter contended that endometrial cryoablation has similar resource costs as cryoablation of the prostate and should be assigned to new technology service APC 984, at $4,250, which would cover the cost of a cryoablation probe also. It provided a brief cost analysis from a single major medical center. Response: We assigned endometrial cryoablation into new technology service APC 980 based on cost data submitted. New Technology APC for Preview Planning Software Comment: A manufacturer commented on our proposal to reassign the procedure related to Preview Treatment Planning Software (C9708) from its current APC 975, which pays $625, to APC 973, which pays $250. The manufacturer of Preview asserted that its sales records, which it provided, demonstrate that the cost to hospitals of providing Preview support the assignment of APC 975. It contended that we must have based the new APC assignment on faulty claims data. Response: For the final rule, we had access to a larger number of claims for C9708, and we have moved it back to APC 975. Comment: A manufacturer was pleased that we designated endometrial cryoablation as eligible for new technology service APC payment, but was displeased at the delay in reaching our decision as well as the specific new technology service APC in which the service was placed. We proposed to place endometrial cryoablation into new technology service APC 980, which has a payment rate of $1,875. The commenter contended that endometrial cryoablation has similar resource costs as cryoablation of the prostate and should be assigned to new technology service APC 984, at $4,250, which would cover the cost of a cryoablation probe also. It provided a brief cost analysis from a single major medical center. Response: We assigned endometrial cryoablation into new technology service APC 980 based on cost data submitted. Table 3 below is the final list of Healthcare Common Procedure Coding System (HCPCS) reassignments of new technology procedures. Table 3.--Changes in HCPCS Assignments From New Technology APCs to Procedure APCs for 2003 ---------------------------------------------------------------------------------------------------------------- HCPCS Description 2002 SI 2003 SI 2002 APC 2003 APC ---------------------------------------------------------------------------------------------------------------- 19103............................ Bx breast precut w/device S T 0710 0658 33282............................ Implant pat-active ht S S 0710 0680 record. 36550............................ Declot vascular device... T T 0972 0677 53850............................ Prostatic microwave T T 0982 0675 thermotx. 53852............................ Prostatic rf thermotx.... T T 0982 0675 55873............................ Cryoablate prostate...... T T 0982 0674 76075............................ Dual energy x-ray study.. S S 0707 0288 76076............................ Dual energy x-ray study.. S S 0707 0665 77520............................ Proton trmt, simple w/o S S 0710 0664 comp. 77522............................ Proton trmt, simple w/ S S 0710 0664 comp. [[Page 66730]] 77523............................ Proton trmt, intermediate S S 0712 0664 77525............................ Proton treatment, complex S S 0712 0664 92586............................ Auditor evoke potent, S S 0707 0218 limit. 95965............................ Meg, spontaneous......... T S 0972 0717 95966............................ Meg, evoked, single...... T S 0972 0714 95967............................ Meg, evoked, each addl... T S 0972 0712 C1300............................ Hyperbaric oxygen........ S S 0707 0659 C9708............................ Preview Tx Planning T T 0975 0973 Software. G0125............................ PET img WhBD sgl pulm T S 0976 0667 ring. G0166............................ Extrnl counterpulse, per T T 0972 0678 tx. G0168............................ Wound closure by adhesive T X 0970 0340 G0173............................ Stereo radoisurgery, S S 0721 0663 complete. G0204............................ Diagnostic mammography S S 0707 0669 digital. G0206............................ Diagnostic mammography S S 0707 0669 digital. G0210............................ PET img whbd ring dxlung S S 0714 0667 ca. G0211............................ PET img whbd ring init S S 0714 0667 lung. G0212............................ PET img whbd ring restag S S 0714 0667 lun. G0213............................ PET img whbd ring dx S S 0714 0667 colorec. G0214............................ PET img whbd ring init S S 0714 0667 colre. G0215............................ PET img whbd restag col.. S S 0714 0667 G0216............................ PET img whbd ring dx S S 0714 0667 melanom. G0217............................ PET img whbd ring init S S 0714 0667 melan. G0218............................ PET img whbd ring restag S S 0714 0667 mel. G0220............................ PET img whbd ring dx S S 0714 0667 lymphom. G0221............................ PET img whbd ring init S S 0714 0667 lymph. G0222............................ PET img whbd ring resta S S 0714 0667 lymp. G0223............................ PET img whbd reg ring dx S S 0714 0667 hea. G0224............................ PET img whbd reg ring ini S S 0714 0667 hea. G0225............................ PET img whbd ring restag S S 0714 0667 hea. G0226............................ PET img whbd dx esophag.. S S 0714 0667 G0227............................ PET img whbd ring ini S S 0714 0667 esopha. G0228............................ PET img whbd ring restg S S 0714 0667 esop. G0229............................ PET img metabolic brain S S 0714 0667 ring. G0230............................ PET myocard viability S S 0714 0667 ring. G0231............................ PET WhBD colorec; gamma S S 0714 0667 cam. G0232............................ PET WhBD lymphoma; gamma S S 0714 0667 cam. G0233............................ PET WhBD melanoma; gamma S S 0714 0667 cam. G0234............................ PET WhBD pulm nod, gamma S S 0714 0667 cam. ---------------------------------------------------------------------------------------------------------------- 3. APC Assignment for New Codes Created During Calendar Year (CY) 2002 and Selected Codes and APC Assignments for 2003 During CY 2002, we created several HCPCS codes to describe services newly covered by Medicare and payable under the hospital OPPS. While we have assigned these services to APCs for CY 2002, we opened the assignments to public comment in the proposed rule. In addition, in the proposed rule, we proposed to create several new HCPCS codes and APC assignments with an effective date of January 1, 2003 and we solicited comments on these proposed codes and proposed APC assignments. Table 4 below includes new procedural HCPCS codes either created for implementation in July 2002, which we intend to implement in October 2002, or which we will implement in January 2003. Table 4 does not include new codes for drugs and devices for which we established or intend to establish pass-through payment eligibility in July or October 2002. Table 4.--New G Codes for 2002 and 2003 for Which There Are Final APC Assignments ---------------------------------------------------------------------------------------------------------------- Code Long descriptor Effective Final APC SI ---------------------------------------------------------------------------------------------------------------- G0245......................... Initial physician evaluation and 7/1/2002 0600 V management of a diabetic patient with diabetic sensory neuropathy resulting in a loss of protective sensation (LOPS) which must include: 1. The diagnosis of LOPS, 2. A patient history, 3. A physical examination that consists of at least the following elements: (a) Visual inspection of the forefoot, hindfoot, and toe web spaces, (b) Evaluation of a protective sensation, (c) Evaluation of foot structure and biomechanics, (d) Evaluation of vascular status and skin integrity, and (e) Evaluation and recommendation of footwear. 4. Patient education. [[Page 66731]] G0246......................... Follow-up physician evaluation and 7/1/2002 0600 V management of a diabetic patient with diabetic sensory neuropathy resulting in a LOPS to include at least the following: 1. A patient history. 2. A physical examination that includes: (a) Visual inspection of the forefoot, hindfoot, and toe web spaces, (b) Evaluation of protective sensation, (c) Evaluation of foot structure and biomechanics, (d) Evaluation of vascular status and skin integrity, and (e) Evaluation and recommendation of footwear. 3. Patient education. G0247......................... Routine foot care by a physician of a 7/1/2002 0009 T diabetic patient with diabetic sensory neuropathy resulting in a loss of protective sensation (LOPS) to include if present, at least the following: (1) local care of superficial wounds, (2) debridement of corns and calluses, and (3) trimming and debridement of nails. G0248......................... Demonstration, at initial use, of home INR 7/1/2002 0708 S monitoring for patient with mechanical heart valve(s) who meets Medicare coverage criteria, under the direction of a physician; includes: demonstrating use and care of the INR monitor, obtaining at least one blood sample, provision of instructions for reporting home INR test results, and documentation of patient ability to perform testing. G0249......................... Provision of test materials and equipment 7/1/2002 0708 S for home INR monitoring to patient with mechanical heart valve(s) who meets Medicare coverage criteria. Includes provision of materials for use in the home and reporting of test results to physician; per 4 tests. G0250......................... Physician review, interpretation and 7/1/2002 N/A E patient management of home INR testing for a patient with mechanical heart valve(s) who meets other coverage criteria; per 4 tests (does not require face-to-face service). G0252......................... PET imaging, full and partial-ring PET 10/1/2002 0714 S scanners only, for initial diagnosis of breast cancer and/or surgical planning for breast cancer (e.g., initial staging of axillary lymph nodes). G0253......................... PET imaging for breast cancer, full and 10/1/2002 0714 S partial-ring PET scanners only, staging/ restaging of local regional recurrence or distant metastases (i.e., staging/ restaging after or prior to course of treatment). G0254......................... PET imaging for breast cancer, full and 10/1/2002 0714 S partial-ring PET scanners only, evaluation of response to treatment, performed during course of treatment. G0255......................... Current perception threshold/sensory nerve 10/1/2002 N/A E conduction test, (sNCT) per limb, any nerve. G0258......................... Intravenous infusion during separately 1/1/2003 0340 Deleted X payable observation stay, per observation with 90-day stay (must be reported with G0244). grace period G0257......................... Unscheduled or emergency dialysis 1/1/2003 0170 S treatment for an ESRD patient in a hospital outpatient department that is not certified as an ESRD facility. G0259......................... Injection procedure for sacroiliac joint; 1/1/2003 N/A N arthrography. G0260......................... Injection procedure for sacroiliac joint; 1/1/2003 0204 T provision of anesthetic, steroid and/or other therapeutic agent and arthrography. G0256......................... Prostate brachytherapy using permanently 1/1/2003 0649 T implanted palladium seeds, including transperitoneal placement of needles or catheters into the prostate, cystoscopy and application of permanent interstitial radiation source. G0261......................... Prostate brachytherapy using permanently 1/1/2003 684 T implanted iodine seeds, including transperitoneal placement of needles or catheters into the prostate, cystoscopy and application of permanent interstitial radiation source. G0263......................... Direct admission of patient with diagnosis 1/1/2003 N/A N of congestive heart failure, chest pain or asthma for observation. G0264......................... Initial nursing assessment of patient 1/1/2003 0600 S directly admitted to observation with diagnosis other than congestive heart failure, chest pain, or asthma. G0290......................... Transcatheter placement of a drug eluting 1/1/2003 0656 E intracoronary stent(s), percutaneous, with or without other therapeutic intervention, any method; single vessel. G0291......................... Transcatheter placement of a drug eluting 1/1/2003 0656 E intracoronary stent(s), percutaneous, with or without other therapeutic intervention, any method; each additional vessel. ---------------------------------------------------------------------------------------------------------------- HCPCS Codes Created During CY 2002 The G codes G0245 through G0250 were created to implement payment for newly covered Medicare services due to national coverage determinations. The G codes G0252-G0255 were established October 1, 2002, as a result of national coverage policies that became effective October 1, 2002. These codes were created to accurately describe the services covered, to ensure that they were reported correctly, to track their utilization, and to establish payment. We solicited comments on the APC assignment of these services. The codes describing evaluation and management services were assigned to clinic visit APCs containing similar services, and the codes describing procedural services were assigned to new technology APCs or to APCs containing procedures requiring similar resource consumption. Because G0250 is a professional service furnished by a physician, it is not payable under OPPS. We did not receive any comments on the codes or APC assignments for G0245, G0246, G0247, G0248, G0249, G0250, or G0255. Therefore, we are finalizing them as shown. We are also finalizing APC assignments for G0252, G0253, and G0254. The comments and responses for these services are discussed elsewhere in this preamble. We implemented HCPCS code G0258 (Intravenous Infusion(s) During Separately Payable Observation Stay) [[Page 66732]] effective October 1, 2002, to describe infusion therapy given during a separately payable observation stay. We assigned it to APC 0340 because we believed APC 0340 appropriately accounts for the resources used for infusion during observation. As discussed in section X.B, we received many comments opposing creation of this code. Therefore, we will delete it effective January 1, 2003. New HCPCS Codes for January 1, 2003, for Which We Proposed APC Assignments in the August 9, 2002 Proposed Rule In the August 9, 2002, proposed rule, we proposed to create several new HCPCS codes for 2003 to address issues that have come to our attention, to describe new technology procedures, to implement policy proposals discussed in the rule, and to allow more appropriate reporting of procedures currently described by (physician's) current procedural terminology (CPT) (HCPCS Level I) codes. The codes we proposed are as follows: (1) G0FFF--Bone Marrow Aspiration and Biopsy Services--we proposed to create this code to describe bone marrow aspiration and biopsy performed through the same incision. We proposed to place this code in APC 0003. This code also appears in the proposed rule for the physician fee schedule, published in the June 28, 2002, issue of the Federal Register (67 FR 43846). This code would facilitate proper reporting of this procedure. As discussed under general comments and responses below, we received many comments that objected to the proliferation of G codes for the services for which the CPT or HCPCS level II process could be used to create a code. After review of the comments, we agree that this code should go through the CPT process. Therefore, we have not implemented the G code we proposed. We will instead, submit a code for ``Bone Marrow Biopsy and Aspiration Performed in the Same Bone'' to CPT in time for the 2004 CPT code cycle. (2) G0257--Unscheduled and Emergency Treatment for ESRD Patients-- we proposed this code to facilitate payment for dialysis provided to ESRD patients in the outpatient department of a hospital that does not have a certified ESRD facility. The comments, responses, and final action regarding these services are discussed in section X.F of this rule. (3) G0259 and G0260--Sacroiliac Joint Injections--we proposed to create these two codes to replace CPT code 27096, Injection procedure for sacroiliac joint, arthrography and/or anesthetic steroid. CPT code 27096 describes two distinct procedures requiring different resource consumption. Moreover, our policy of packaging injection procedures for imaging required packaging of this procedure even when it was used to report injection of a steroid or anesthetic. In these cases, it was appropriately billed without another procedure and should have been payable. Therefore, in order to facilitate appropriate reporting and payment for the procedures described by CPT code 27096, we proposed to create G0259, Injection procedure for sacroiliac joint, arthrography, and G0260, Injection procedure for sacroiliac joint, provision of anesthetic and/or steroid. We proposed to give G0259 status indicator N, and we proposed to assign G0260 to APC 0204. Comment: Many commenters raised concern over nonpayment for sacroiliac joint injections. The commenter brings to our attention that when a sacroiliac joint injection, CPT code 27096 (Injection procedure for sacroiliac joint, arthrography and/or anesthetic steroid), is performed for anesthetic/steroid purposes, the procedure is not being paid since the costs are only packaged into the arthrography imaging component. Response: We appreciate this concern and agree with the commenter that payment should be made for sacroiliac joint injections when administered for anesthetic/steroid purposes. Therefore, in order to facilitate appropriate reporting and payment for the procedures described by CPT code 27096 (Injection procedure for sacroiliac joint, arthrography and/or anesthetic steroid), we have created the following new G-codes to replace CPT code 27096: G0259 (Injection procedure for sacroiliac joint, arthrography) and G0260 (Injection procedure for sacroiliac joint, provision of anesthetic and/or steroid). G0259 has been given status indicator N, and G0260 has been assigned to APC 0204. (4) G0KKK--Prostate Brachytherapy--we proposed this code to implement our policy decision discussed in section III.C.3 of the proposed rule (section IV.E of this rule). As a result of comments we created two new codes G0256 and G0261. See section IV.E. for the discussion of prostate brachytherapy. (5) G0263 and G0264--Observation Care--we proposed to create these codes to describe observation care provided to a patient who is directly admitted from a physician's office to a hospital for observation care. We discussed these codes in detail in section VIII.B of the proposed rule. Our discussion of the final action, comments, and responses is contained in section X.B of this rule. (6) G0290, G0291; Drug Eluting Stents--We discuss these codes in the immediately following section. Drug-Eluting Stents In the August 9, 2002 proposed rule, we discussed the exceptional circumstances that led us to propose a departure from our standard OPPS payment methodology as we have done under the inpatient PPS for Federal fiscal year (FY) 2003 (67 FR 50003-50005). We made this unusual proposal to ensure consistent payment for drug-eluting stents in both the inpatient and outpatient settings; to ensure that hospital resources are not negatively affected by a sudden surge in demand for this new technology if FDA approval is received; and to ensure that Medicare payment does not impede beneficiary access to what appears to be a potentially landmark advance in the treatment of coronary disease. Consistent with the special approach we implemented in the inpatient PPS final rule, we proposed to create two new HCPCS codes and a new APC that may be used to pay for the insertion of coronary artery drug- eluting stents under the OPPS to be effective if these stents receive FDA approval for general use. Of course, as with other new procedures, FDA approval does not mean that Medicare will always cover the approved item. Medicare coverage depends upon whether an item or service is medically necessary to treat an illness or injury as determined by Medicare contractors based on the specifics of individual cases. The new HCPCS codes that we proposed are as follows: G0290--Transcatheter placement of a drug eluting intracoronary stent(s), percutaneous, with or without other therapeutic intervention, any method; single vessel G0291--Transcatheter placement of a drug eluting intracoronary stent(s), percutaneous, with or without other therapeutic intervention, any method; each additional vessel We proposed to assign G0290 and G0291 to new APC 0656, Transcatheter Placement of Drug-Eluting Coronary Stents, with a status indicator of T. To establish a payment amount for the proposed new APC, we proposed to apply the same assumptions that we used in establishing the weights for diagnosis-related group (DRG) 526 (Percutaneous Cardiovascular Procedure with Drug-Eluting Stent with AMI) and DRG 527 (Percutaneous Cardiovascular Procedure With Drug-Eluting Stent Without AMI) as described in the final [[Page 66733]] rule implementing the FY 2003 inpatient PPS. That is, we assume a price differential of approximately $1,200 when drug-eluting stents are used. We assumed an average of 1.5 stents per procedure, and we proposed to add $1,200 to the median costs established for APC 0104 based on 2001 claims data to determine the payment rate for APC 656. We proposed to calculate a relative payment weight and payment rate for APC 0656 in accordance with the methodology that we discuss in section III.B. of this preamble. We proposed to implement payment under APC 0656 effective April 1, 2003, consistent with the effective date for implementation of the drug-eluting DRGs under the OPPS and contingent upon FDA approval by that date. If the FDA grants approval prior to April 1, 2003, hospitals would be paid for insertion of coronary artery drug-eluting stents under APC 104. Such claims may qualify for outlier payments. We proposed to establish the new HCPCS codes and APC group for coronary artery drug-eluting stents to allow close tracking of the utilization and costs associated with these services. In the proposed rule, we invited comments on this proposed methodology for recognizing the additional costs of drug-eluting stents under the OPPS. Comment: All of the commenters who addressed our payment proposal for drug-eluting stents supported our taking proactive steps to create an APC for this new technology in anticipation of FDA approval by April 2003. However, most of the commenters expressed concern about the level of payment proposed for APC 656, stating that $1,200 significantly understates the added cost of the drug-eluting stents. One commenter suggested that indications from the market are projecting a cost of $2,000 per stent. Another commenter cited vendors who indicate that drug-eluting stents will cost 3 times the cost of the current stent for an approximate cost of $3,360 each. Several commenters stated that the incremental cost between a bare metal and a drug-eluting stent is expected to be $2,000. Two commenters urged us to set the rate for APC 656 based on the actual price difference between the current and drug- eluting stents, and one commenter recommended setting the initial payment amount at a level that is 60 percent above the probable hospital acquisition cost. One commenter asked why we added $1,200 to APC 656 rather than $1,800. The basis for this request was that the incremental payment for inpatient care was $1,800 for an average of 1.5 stents per procedure. Response: To establish a payment rate for APC 656, we proposed to add $1,200 to the median cost of stent insertion procedures in APC 104, based on assumptions that we applied to establish the weights for DRGs involving drug-eluting stents under the inpatient PPS. Based on the median cost established for APC 104 using the 2001 claims data that were reflected in the August 9, 2002 proposed rates, we determined that an additional $1,200 would offset the incremental cost of an average of 1.5 drug-eluting stents per procedure. We do not agree that the incremental payment should be $1,800. Although it is true that 1.5 stents are typically placed per procedure, it is rare for two stents to be placed in one coronary artery in an outpatient setting. Furthermore, hospitals can bill under the OPPS a separate code for each vessel in which a stent is placed, unlike the inpatient PPS. Because hospitals will in most cases be able to report each stent placement separately in the outpatient setting, making an incremental payment of $1800 would significantly overpay for each stent. As we explain elsewhere in this preamble, the payment rates that this final rule implements are based on more current data than those that were available when we set the rates proposed in the August 9, 2002 rule. The rates in this final rule also reflect adjustments intended to level the transition from rates based on pre-OPPS data and estimated pass-through device and drug costs to rates based entirely on OPPS data that reflect actual device and drug costs reported by hospitals. Comment: One commenter expressed concern about our expectation that a new technology must ``transform'' medical care and be the object of substantial demand in order to justify making an exception to our standard OPPS payment methodology. The commenter believes that our rationale for making an exception for drug-eluting stents establishes an almost unattainable threshold for other technologies to reach in order to receive similar treatment in the future. Conversely, another commenter expressed concern that by establishing codes and payment rates for drug-eluting stents, we are setting a precedent that will likely increase the pressure to create new temporary codes for non- breakthrough technologies. This commenter encouraged us to maintain highly selective criteria when creating new codes for new technologies in the future. Response: As we explain at length in the August 9, 2002 proposed rule, we believe that drug-eluting stents are potentially a revolutionary approach to the treatment of coronary disease. Ordinarily, we would expect a new technology like the drug-eluting stent to qualify for a pass-through payment or for payment under a new technology APC. However, because the drug-eluting stent does not meet the criteria established for these two methods of payment for new technology under the OPPS, we were compelled to seek an alternative approach in order to ensure beneficiary access to this extraordinary new treatment, once it receives FDA approval, without placing an extraordinary burden on hospital resources. We expect that either a pass-through payment or assignment to a new technology APC will, in the overwhelming preponderance of cases, provide adequate and timely payment under the OPPS for new technology. We agree with the commenter who supported maintaining highly selective standards when establishing codes for new technology. The threshold for such an approach must be exceptionally high and applicable only in the most extraordinary and unusual cases. Comment: One commenter asked that we clarify how we will adjust the 2003 OPPS payment rates if FDA approval is not given for drug-eluting stents by April 1, 2003. The commenter is concerned about the adverse effect on the rates for other services that would result from our having recalibrated and scaled the relative payment weights for all services, taking into account additional payment for drug-eluting stents that turns out not to be an expenditure. Response: We have reviewed the impact of the drug-eluting stents on the total recalibration exercise and determined that excluding the additional allowance for the drug-eluting stents would not result in a significant redistribution of funds for other services if FDA approval were not issued by April 1, 2003, triggering payment under the OPPS. We estimated that slightly fewer than one-third of the cases paid under APC 104 (approximately 5,400 procedures) would be performed using drug- eluting stents during the three quarters of 2003 when payment would be made for APC 656, assuming FDA approval is issued by April 1, 2003. Payment for the use of drug-eluting stents represents approximately 0.17 percent of the total APC weights. Restoration of these payments to the pool of weights for other services would not measurably [[Page 66734]] change the weights of the other APCs. Therefore, we would not revise the 2003 APC weights if payment for drug-eluting stents were not allowed beginning April 1, 2003. Comment: One commenter expressed concern that the general use of data from other countries to set the nati
