[Federal Register Volume 88, Number 50 (Wednesday, March 15, 2023)]
[Rules and Regulations]
[Pages 15918-15921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04961]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 405, 410, 411, 414, 415, 423, 424, 425, and 455
[CMS-1770-F2]
RIN-0938-AU81
Medicare and Medicaid Programs, CY 2023 Payment Policies Under
the Physician Fee Schedule and Other Changes to Part B Payment and
Coverage Policies; Medicare Shared Savings Program Requirements;
Implementing Requirements for Manufacturers of Certain Single-Dose
Container or Single-Use Package Drugs To Provide Refunds With Respect
to Discarded Amounts; and COVID-19 Interim Final Rules; Corrections
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule; correction and correcting amendment.
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SUMMARY: In the November 18, 2022 issue of the Federal Register, we
published a final rule entitled ``Medicare and Medicaid Programs; CY
2023 Payment Policies Under the Physician Fee Schedule and Other
Changes to Part B Payment and Coverage Policies; Medicare Shared
Savings Program Requirements; Implementing Requirements for
Manufacturers of Certain Single-dose Container or Single-use Package
Drugs To Provide Refunds With Respect to Discarded Amounts; and COVID-
19 Interim Final Rules'' (referred to hereafter as the ``CY 2023 PFS
final rule''). The effective date was January 1, 2023. This document
corrects a limited number of technical and typographical errors
identified in the November 18, 2022 final rule.
DATES: This document is effective March 15, 2023, and is applicable
beginning January 1, 2023.
FOR FURTHER INFORMATION CONTACT: Terri Plumb, (410) 786-4481, Gaysha
[[Page 15919]]
Brooks (410) 786-9649 or Annette Brewer (410) 786-6580.
SUPPLEMENTARY INFORMATION:
I. Background
In FR Doc. 2022-23873 of November 18, 2022, the CY 2023 PFS final
rule (87 FR 69404), there were technical errors that are identified and
corrected in this correcting document. These corrections are applicable
as if they had been included in the CY 2023 PFS final rule, which was
effective January 1, 2023.
II. Summary of Errors
A. Summary of Errors in the Preamble
On page 69413, in the entry ``(6) Equipment Cost per Minute,'' we
made a typographical error in the equipment cost per minute formula.
On pages 69596 and 69597, due to technical errors in the
calculations of the time thresholds, there were errors in the
description of times for reporting prolonged inpatient/observation
services for code G0316.
On page 69614, in Table 24: Required Time Thresholds to Report
Other E/M Prolonged Services, due to technical errors in the
calculations of the time thresholds, there were errors in the
description of times for reporting prolonged inpatient/observation
services for code G0316.
On page 70032, the titles of two new neurological MVPs that read
``Optimal Care for Neurological Conditions'' and ``Supportive Care for
Cognitive-Based Neurological Conditions'' contain typographical errors.
On page 70037, the titles of two new neurological MVPs that read
``Optimal Care for Neurological Conditions'' and ``Supportive Care for
Cognitive-Based Neurological Conditions'' contain typographical errors.
On page 70083, Table 94: Exclusion Redistribution for Performance
Period in CY 2023, we inadvertently included a typographical error in
the number of measures.
On page 70204, we inadvertently omitted an appendix number and
included typographical errors in the titles of two new neurological
MVPs.
B. Summary of Errors in the Regulatory Text
On page 70227, we made a typographical error in the regulation text
of Sec. 414.940. We inadvertently labeled two paragraphs as paragraph
(e).
On page 70228, in amendatory instruction 31.b, we inadvertently
omitted language specifying that the revisions to Sec.
414.1380(e)(6)(v) were related to the introductory text only of that
section and not to paragraphs (e)(6)(v)(A) and (B) of that section.
C. Summary of Errors in the Appendix
On page 70653, we inadvertently included a reference to footnote
``7''.
III. Waiver of Proposed Rulemaking
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the
APA), the agency is required to publish a notice of the proposed rule
in the Federal Register before the provisions of a rule take effect.
Similarly, section 1871(b)(1) of the Social Security Act (the Act)
requires the Secretary to provide for notice of the proposed rule in
the Federal Register and provide a period of not less than 60 days for
public comment. In addition, section 553(d) of the APA and section
1871(e)(1)(B)(i) of the Act mandate a 30-day delay in the effective
date of a rule after issuance or publication. Sections 553(b)(B) and
553(d)(3) of the APA provide for exceptions to the APA notice and
comment requirement and the delay in the effective date requirement. In
cases in which these exceptions apply, sections 1871(b)(2)(C) and
1871(e)(1)(B)(ii) of the Act provide exceptions from the notice
requirement, the 60-day comment period requirement, and the delay in
effective date requirement of the Act as well. Section 553(b)(B) of the
APA and section 1871(b)(2)(C) of the Act authorize an agency to
dispense with normal notice and comment rulemaking procedures for good
cause if the agency makes a finding that the notice and comment process
is impracticable, unnecessary, or contrary to the public interest, and
includes a statement of the finding and the reasons for it in the rule.
In addition, section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii)
of the Act allow the agency to avoid the 30-day delay in the effective
date of a rule where such delay is contrary to the public interest and
the agency includes in the rule a statement of the finding and the
reasons for it.
In our view, this correcting document does not constitute a
rulemaking that would be subject to these requirements. This document
merely corrects technical errors in the CY 2023 PFS final rule. The
corrections contained in this document are consistent with, and do not
make substantive changes to, the policies and payment methodologies
that were proposed, subject to notice and comment procedures, and
adopted in the CY 2023 PFS final rule. As a result, the corrections
made through this correcting document are intended to resolve
inadvertent errors so that the rule accurately reflects the policies
adopted in the final rule. Even if this were a rulemaking to which the
notice and comment and delayed effective date requirements applied, we
find that there is good cause to waive such requirements. Undertaking
further notice and comment procedures to incorporate the corrections in
this document into the CY 2023 PFS final rule or delaying the effective
date of the corrections would be contrary to the public interest
because it is in the public interest to ensure that the rule accurately
reflects our policies as of the date they take effect. Further, such
procedures would be unnecessary because we are not making any
substantive revisions to the final rule, but rather, we are simply
correcting the Federal Register document to reflect the policies that
we previously proposed, received public comment on, and subsequently
finalized in the final rule. For these reasons, we believe there would
be good cause to waive the requirements for notice and comment and
delay in effective date, if notice and comment procedures and the delay
in effective date were required at all.
IV. Correction of Errors
A. Correction of Errors in the Preamble
1. On page 69413, third full column, first paragraph, line 5, the
line that reads ``((interest rate/(1 (1/((1 + interest'' is corrected
to read ((interest rate/(1-(1/((1 + interest''.
2. On page 69596, third column, the last line that reads ``for base
code CPT code 99223 when 105'' is corrected to read ``for base code CPT
code 99223 when 90''.
3. On page 69596, last column, last paragraph and continuing
through the first column, second full paragraph on page 69597, the
language that reads: ``Thus, a practitioner could bill G0316 for base
code CPT code 99223 when 105 minutes is reached for an initial visit on
the date of encounter. For the purposes of applying the proposed
prolonged code, the CPT code 99223 total time is rounded to 75 minutes
on the date of encounter. The prolonged service period would begin at
90 minutes, 15 minutes beyond 75 minutes. A practitioner would bill
HCPCS code G0316 once the 15-minute increment for G0316 is completed,
at minute 105.
A practitioner could bill G0316 for the base code CPT code 99233
when 80 minutes is reached for a subsequent visit on the date of
encounter. For the purposes of applying the prolonged code, the CPT
code 99233 total time is rounded to 50 minutes on the date of
encounter. The prolonged service period would begin at 65 minutes, 15
minutes beyond 50 minutes. A practitioner would bill HCPCS code G0316
once the
[[Page 15920]]
15-mimute increment for G0316 is completed, at minute 80.
A practitioner could bill HCPCS code G0316 for base code CPT code
99236 at 125 minutes for same-day discharge. For the purposes of
applying the prolonged code, the CPT code 99236 total time is rounded
to 95 minutes completed within 3 calendar days of the encounter. The
prolonged service period would begin at 110 minutes, 15 minutes beyond
95 minutes. A practitioner could bill HCPCS code G0316 once the 15-
minute increment for G0316 is completed, at minute 125,'' is corrected
to read: ``Thus, a practitioner could bill G0316 for base code CPT code
99223 when 90 minutes is furnished for an initial visit on the date of
encounter. For the purposes of applying the proposed prolonged code,
the CPT code 99223 total time is rounded to 75 minutes on the date of
encounter. A single prolonged service period would end after 90
minutes, 15 minutes beyond 75 minutes. A practitioner would bill HCPCS
code G0316 once the 15-minute increment for G0316 is completed, when 90
minutes has been furnished.
A practitioner could bill G0316 for the base code CPT code 99233
when 65 minutes is furnished for a subsequent visit on the date of
encounter. For the purposes of applying the prolonged code, the CPT
code 99233 total time is rounded to 50 minutes on the date of
encounter. A single prolonged service period would end after 65
minutes, 15 minutes beyond 50 minutes. A practitioner would bill HCPCS
code G0316 once the 15-minute increment for G0316 is completed, when 65
minutes has been furnished.
A practitioner could bill HCPCS code G0316 for base code CPT code
99236 at 110 minutes for same-day discharge. For the purposes of
applying the prolonged code, the CPT code 99236 total time is rounded
to 95 minutes completed within 3 calendar days of the encounter. A
single prolonged service period would end after 110 minutes, 15 minutes
beyond 95 minutes. A practitioner could bill HCPCS code G0316 once the
15-minute increment for G0316 is completed, when 110 minutes has been
furnished.''
4. On page 69614, in Table 24: Required Time Thresholds to Report
Other E/M Prolonged Services, the third column, rows 2, 3, and 4 that
read:
----------------------------------------------------------------------------------------------------------------
Time threshold to Count physician/NPP time spent
Primary E/M service Prolonged code report prolonged within this timeframe
* (minutes) (surveyed timeframe)
----------------------------------------------------------------------------------------------------------------
Initial IP/Obs. Visit (99223)............... G0316 105 Date of visit.
Subsequent IP/Obs. Visit (99233)............ G0316 80 Date of visit.
IP/Obs. Same-Day Admission/Discharge (99236) G0316 125 Date of visit to 3 days after.
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are corrected to read:
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Time threshold to Count physician/NPP time spent
Primary E/M service Prolonged code report prolonged within this timeframe
* (minutes) (surveyed timeframe)
----------------------------------------------------------------------------------------------------------------
Initial IP/Obs. Visit (99223)............... G0316 90 Date of visit.
Subsequent IP/Obs. Visit (99233)............ G0316 65 Date of visit.
IP/Obs. Same-Day Admission/Discharge (99236) G0316 110 Date of visit to 3 days after.
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5. On page 70032, third column, third full paragraph:
a. Lines 15 and 16, the bullet that reads ``Optimal Care for
Neurological Conditions'' is corrected to read ``Optimal Care for
Patients with Episodic Neurological Conditions''.
b. Lines 17 and 18, the bullet that reads ``Supportive Care for
Cognitive-Based Neurological Conditions'' is corrected to read
``Supportive Care for Neurodegenerative Conditions''.
6. On page 70037, third column, third full paragraph:
a. Lines 11 and 12, the bullet that reads ``Optimal Care for
Neurological Conditions'' is corrected to read ``Optimal Care for
Patients with Episodic Neurological Conditions''.
b. Lines 13 and 14, the bullet that reads ``Supportive Care for
Cognitive-Based Neurological Conditions'' is corrected to read
``Supportive Care for Neurodegenerative Conditions''.
7. On page 70083, Table 94: Exclusion Redistribution for
Performance Period in CY 2023, second column; last row, that reads
``Report the following five measures:'' is corrected to read ``Report
the following two measures:''
8. On page 70204:
a. Second column, last full paragraph, line 5 that reads ``the new
MVPS in Appendix X of this'' is corrected to read ``the new MVPS in
Appendix 3 of this''.
b. Third column, lines 2 and 3, the bullet that reads ``Optimal
Care for Neurological Conditions'' is corrected to read ``Optimal Care
for Patients with Episodic Neurological Conditions''.
c. Third column, lines 4 and 5, the bullet that reads ``Supportive
Care for Cognitive-Based Neurological Conditions'' is corrected to read
``Supportive Care for Neurodegenerative Conditions.''
B. Correction of Errors in the Appendix
On page 70653, first full paragraph, line 2, the reference to
footnote ``7'' is removed and replaced with the following link added in
its place: https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/02/fact-sheet-president-biden-reignites-cancer-moonshot-to-end-cancer-as-we-know-it/.
List of Subjects in 42 CFR Part 414
Administrative practice and procedure, Biologics, Diseases, Drugs,
Health facilities, Health professions, Medicare, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, CMS corrects 42 CFR part
414 by making the following correcting amendments:
PART 414--PAYMENT FOR PART B MEDICAL AND OTHER HEALTH SERVICES
0
1. The authority citation for part 414 continues to read as follows:
Authority: 42 U.S.C. 1302, 1395hh, and 1395rr(b)(l).
0
2. Amend Sec. 414.940 by redesignating the second paragraph ``(e)'' as
paragraph ``(f)''.
[[Page 15921]]
0
3. Amend Sec. 414.1380 by adding paragraphs (e)(6)(v)(A) and (B) to
read as follows:
Sec. 414.1380 Scoring.
* * * * *
(e) * * *
(6) * * *
(v) * * *
(A) Other cost measures. MIPS eligible clinicians who are scored
under facility-based measurement are not scored on cost measures
described in paragraph (b)(2) of this section.
(B) [Reserved]
* * * * *
Elizabeth J. Gramling,
Executive Secretary to the Department, Department of Health and Human
Services.
[FR Doc. 2023-04961 Filed 3-14-23; 8:45 am]
BILLING CODE 4120-01-P