[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Rules and Regulations]
[Pages 41324-41331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10356]
[[Page 41324]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 410 and 414
[CMS-6095-N]
Medicare Program; Updates to the Master List of Items Potentially
Subject to Face-to-Face Encounter and Written Order Prior To Delivery
and/or Prior Authorization Requirements; Updates to the Required Face-
to-Face and Written Order Prior To Delivery List; and Updates to the
Required Prior Authorization List
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Updates to the Master List of Items Potentially Subject to
Face-To-Face Encounter and Written Order Prior to Delivery and/or Prior
Authorization Requirements (the ``Master List'') and updates to the
Required Face-to-Face and Written Order Prior to Delivery List and the
Required Prior Authorization List.
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SUMMARY: This document announces the updated Healthcare Common
Procedure Coding System (HCPCS) codes on the Master List. It also
announces updates to the HCPCS codes on the Required Face-to-Face and
Written Order Prior to Delivery List and the Required Prior
Authorization List.
DATES: Implementation of updates to the Master List and the Required
Face-to-Face and Written Order Prior to Delivery List are effective on
August 12, 2024. Required prior authorization of newly added lumbar-
sacral orthoses and lower limb orthoses is effective nationwide on
August 12, 2024. Prior authorization of newly added osteogenesis
stimulators will be implemented in two phases, with phase 1 including
one State per Durable Medical Equipment Medicare Administrative
Contractor (DME MAC) jurisdiction on August 12, 2024. The States
included in phase 1 are California, Florida, Ohio, and Pennsylvania.
Phase 2 will include all remaining U.S. States and territories not
included in phase 1, effective on November 12, 2024.
FOR FURTHER INFORMATION CONTACT:
For information related to the Master List or Required Prior
Authorization List, contact Susan Billet, (410) 786-1062; Emily
Calvert, (410) 786-4277; Justin Carlisle, (410) 786-4265; Stephanie
Collins, (410) 786-0959; or Jessica Martindale, (410) 786-1558.
For information related to the Required Face-to-Face Encounter and
Written Order Prior to Delivery List, contact Jennifer Phillips, (410)
786-1023; Misty Whitaker, (410) 786-4975; Olufemi Shodeke, (410) 786-
1649; or Cristine Egan, (410) 786-8088.
SUPPLEMENTARY INFORMATION:
I. Background
On November 8, 2019, the Centers for Medicare & Medicaid Services
(CMS) published a final rule titled, ``Medicare Program; End-Stage
Renal Disease Prospective Payment System, Payment for Renal Dialysis
Services Furnished to Individuals with Acute Kidney Injury, End-Stage
Renal Disease Quality Incentive Program, Durable Medical Equipment,
Prosthetics, Orthotics and Supplies (DMEPOS) Fee Schedule Amounts,
DMEPOS Competitive Bidding Program (CBP) Amendments, Standard Elements
for a DMEPOS Order, and Master List of DMEPOS Items Potentially Subject
to a Face-to-Face Encounter and Written Order Prior to Delivery and/or
Prior Authorization Requirements'' (the November 2019 final rule) (84
FR 60648). The rule became effective January 1, 2020, harmonizing the
lists of DMEPOS items created by former rules and establishing one
``Master List of DMEPOS Items Potentially Subject to Face-to-Face
Encounter and Written Orders Prior to Delivery and/or Prior
Authorization Requirements'' (the ``Master List'').
The Master List serves as a library of items, that have been
identified as potential vulnerabilities to the Trust Fund based on
criteria outlined in 42 CFR 414.234(b), from which items may be
selected to be placed on either the Required Face-to-Face Encounter and
Written Orders Prior to Delivery List (the ``F2F/WOPD List'') and/or
Required Prior Authorization List under the authority provided under
sections 1834(a)(1)(E)(iv), 1834(a)(11)(B), and 1834(a)(15) of the Act.
Only those items that are selected and announced via Federal Register
notice are subject to such regulatory conditions of payment. The
November 2019 final rule provided that the Federal Register notice
would be for a period of no less than 60 days. It also clarified that
certain items (that is, power mobility devices) require a face-to-face
encounter per statute and would remain on both the Master List and the
F2F/WOPD List, indefinitely.
The November 2019 final rule information related to face-to-face
encounters, written orders prior to delivery, and 5-element order/
prescription for specified DMEPOS items was codified in 42 CFR 410.38.
The information in the November 2019 final rule related to the creation
and maintenance of the Master List is codified at 42 CFR 414.234. The
November 2019 final rule also includes information related to the prior
authorization process, as initially outlined in the December 30, 2015
final rule titled ``Medicare Program; Prior Authorization Process for
Certain Durable Medical Equipment, Prosthetics, and Supplies'' (80 FR
81674).
The Master List was last updated in 2022 and currently includes 439
items.
In 2022 and 2023, CMS published the first and second iterations of
the Required Face-to-Face Encounter and Written Orders Prior to
Delivery List, respectively. There are currently 63 items on the list,
including 46 power mobility devices that were included per statute.
The Required Prior Authorization List was last updated in 2022 and
currently includes 62 items. All the lists discussed in this notice are
available on the cms.gov website.
II. Provisions of the Document
This document serves to update three separate lists. First, it
provides an update to the Master List. Next, this document updates the
items included on the Required Face-to-Face and Written Order Prior to
Delivery List. Finally, this document updates items included on the
Required Prior Authorization List.
A. Master List
The Master List includes items that appear on the DMEPOS Fee
Schedule and meet one of the following criteria, as stated in 42 CFR
414.234(b)(1):
Have an average purchase fee of $500 or greater that is
adjusted annually for inflation, or an average monthly rental fee
schedule of $50 or greater that is adjusted annually for inflation, or
items identified as accounting for at least 1.5 percent of Medicare
expenditures for all DMEPOS items over a recent 12-month period, that
are also--
++ Identified in a Government Accountability Office (GAO) or
Department of Health and Human Services Office of Inspector General
(OIG) report that is national in scope and published in 2015 or later
as having a high rate of fraud or unnecessary utilization; or
++ Listed in the 2018 or subsequent year Comprehensive Error Rate
Testing (CERT) Medicare Fee-for-Service Supplemental Improper Payment
Data report as having a high improper payment rate.
[[Page 41325]]
Any items with at least 1,000 claims and $1 million in
payments during a recent 12-month period that are determined to have
aberrant billing patterns and lack explanatory contributing factors
(for example, new technology or coverage policies that may require time
for providers and suppliers to be educated on billing policies). Items
with aberrant billing patterns would be identified as those items with
payments during a 12-month timeframe that exceed payments made during
the preceding 12-months by the greater of--
++ Double the percent change of all DMEPOS claim payments for items
that meet the previous claim and payment criteria, from the preceding
12-month period; or
++ Exceeding a 30 percent increase in payments for the items from
the preceding 12-month period.
Any items statutorily requiring a face-to-face encounter,
a written order prior to delivery, or prior authorization.
In the regulation at Sec. 414.234 (b)(2) and the November 2019
final rule noted previously, the maintenance process of the Master List
is described as follows:
The Master List will be updated annually, and more
frequently as needed (for example, to address emerging billing trends),
and to reflect the thresholds specified in the regulations.
Items on the DMEPOS Fee Schedule that meet the payment
threshold criteria set forth in Sec. 414.234(b)(1) are added to the
list when the item is also listed in the CERT Medicare Fee-for-Service
Supplemental Improper Payment Data report published after 2020, or in
an OIG or GAO report published after 2020, and items not meeting the
cost thresholds (originally set at $500 for purchases and $50 for
rentals and adjusted for inflation) may still be added based on
findings of aberrant billing patterns.
Items are removed from the Master List 10 years after the
date the item was added, unless the item was identified in an OIG
report, GAO report, or having been identified in the CERT Medicare Fee
for Service Supplemental Improper Payment Data report as having a high
improper payment rate, within the 5-year period preceding the
anticipated date of expiration.
Items are removed from the list sooner than 10 years if
the purchase amount drops below the payment threshold.
Items already on the Master List that are identified on a
subsequent OIG, GAO, or CERT report will remain on the list for 10
years from the publication date of the new report.
Items on the Master List are updated when the HCPCS codes
representing an item have been discontinued and cross walked to an
equivalent item.
We will notify the public of any additions and deletions
from the Master List by posting a notification in the Federal Register
and on the CMS Prior Authorization website at http://go.cms.gov/DMEPOSPA.
This document provides the annual update to the Master List of
DMEPOS Items Potentially Subjected to a Face-to-Face Encounter and
Written Order Prior to Delivery and/or Prior Authorization Requirements
stated in the November 2019 final rule (84 FR 60648). As noted
previously, we adjust the ``payment threshold'' each year for
inflation. Specifically, in accordance with 42 CFR 414.234(b)(1)(i) the
$500 average purchase fee threshold and the $50 average monthly rental
fee threshold is adjusted using the consumer price index for all urban
consumers (CPI-U), reduced by the 10-year moving average of changes in
annual economy-wide private nonfarm business multifactor productivity
(MFP) as projected by the Secretary for the 10-year period ending with
the applicable FY, year, cost reporting period, or other annual period.
The DMEPOS fee schedule amounts are also updated every year to
account for inflation. For CY2021,\1\ the percentage increase in the
consumer price index for all urban consumers (United States city
average, CPI-U) for the 12-month period ending June 30, 2020 was 0.6
percent. The change in the economy wide productivity equal to the 10-
year moving average of changes in annual economy wide private non-farm
business multi-factor productivity (referred to as the productivity
adjustment) was 0.4 percent. Beginning with the November 18, 2021
release of productivity data, the Bureau of Labor Statistics replaced
the term multifactor productivity with total factor productivity
stating that this was a change in terminology only and will not affect
the data or methodology. Thus, for CY 2021, we applied an update factor
of 0.2 percent (reduce the 0.6 percentage increase in the CPI-U by the
productivity adjustment of 0.4 percentage point). Applying the 0.2
percent update factor to the CY 2020 average price threshold of $500
results in a CY 2021 adjusted payment threshold of $501 ($500 x 1.002)
and an updated rental payment threshold of $50.10 ($50 x 1.002), which
we round to $50.
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\1\ https://www.cms.gov/medicaremedicare-fee-service-paymentdmeposfeescheddmepos-fee-schedule/dme21.
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The DME Fee Schedule was updated for CY 2022 \2\ and CY 2023,\3\
however due to the Covid-19 Public Health Emergency (PHE), the Master
List was not updated.
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\2\ https://www.cms.gov/medicaremedicare-fee-service-paymentdmeposfeescheddmepos-fee-schedule/dme22.
\3\ https://www.cms.gov/medicaremedicare-fee-service-paymentdmeposfeescheddmepos-fee-schedule/dme23.
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For CY 2022, the CPI-U increase was 5.4 percent and the
productivity adjustment was 0.3 percentage points. Thus, for CY 2022,
we applied an update factor of 5.1 percent (5.4 percent reduced by 0.3
percentage points).
For CY 2022, the adjusted purchase price threshold was $527 and the
adjusted monthly rental fee threshold was $53. We calculated this by
applying the 5.1 percent update factor to the CY 2021 average price
threshold of $501, resulting in a CY 2022 adjusted payment threshold of
$526.55 ($501 x 1.051), and to the CY 2021 average monthly rental fee
of $50, resulting in an adjusted payment threshold of $52.55 ($50 x
1.051). Rounded to the nearest whole dollars results in thresholds of
$527 and $53.
For CY 2023, the CPI-U increase was 9.1 percent and the
productivity adjustment was 0.4 percentage points. Thus, for CY 2023,
we applied an update factor of 8.7 percent (9.1 percent reduced by 0.4
percentage points).
For CY 2023 the adjusted purchase price threshold was $573 and the
adjusted monthly rental fee threshold of $58. We calculated this by
applying the 8.7 percent update factor to the CY 2022 average price
threshold of $527, resulting in a CY 2023 adjusted payment threshold of
$572.85 ($527 x 1.087), and to the CY 2022 average monthly rental fee
of $53, resulting in an adjusted payment threshold of $57.61 ($53 x
1.087). Rounded to the nearest whole dollar, these figures are $573 and
$58.
For CY 2024, the CPI-U increase was 3.0 percent and the
productivity adjustment was 0.4 percentage points. Thus, for CY 2024,
we applied an update factor of 2.6 percent (3.0 percent reduced by 0.4
percentage points).
For CY 2024, the adjusted purchase price threshold is $588 and the
adjusted monthly rental fee threshold is $60. We calculated this by
applying the 2.6 percent update factor to the CY 2023 average price
threshold of $573, resulting in a CY 2024 adjusted payment threshold of
$587.89 ($573 x 1.026), and to the CY 2023 average monthly rental fee
of $58, resulting in an adjusted payment threshold of $59.51 ($58 x
[[Page 41326]]
1.026). Rounding to the nearest whole dollar, these figures are $588
and $60.
We are adding a total of 76 HCPCS codes (see Table 1) meeting the
criteria outlined previously to the Master List. Of these 76 HCPCS
codes, 56 are added because these items meet the updated payment
threshold and are listed in an OIG or GAO report of a national scope or
a CERT Medicare Fee-for-Service Supplemental Improper Payment Data
report, or both; and 20 are being added for aberrant billing patterns.
The codes added due to aberrant billing patterns represent items for
which data show suppliers submitted at least 1,000 claims and received
at least $1 million in payments during the two 12-month periods from
July 2021 to June 2022 and July 2022 to June 2023. There was more than
a 30 percent increase in payments for each item from the preceding 12-
month period. CMS did not identify explanatory contributing factors for
the aberrant billing.
Table 1--Additions to the Master List
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HCPCS Description
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A4342.................... Accessories for patient inserted indwelling
intraurethral drainage device with valve,
replacement only, each.
A4353.................... Intermittent urinary catheter, with insertion
supplies.
A4393.................... Ostomy pouch, urinary, with extended wear
barrier attached, with built-in convexity (1
piece), each.
A4408.................... Ostomy skin barrier, with flange (solid,
flexible or accordion), extended wear, with
built-in convexity, larger than 4 x 4
inches, each.
A4410.................... Ostomy skin barrier, with flange (solid,
flexible or accordion), extended wear,
without built-in convexity, larger than 4 x
4 inches, each.
A5056.................... Ostomy pouch, drainable, with extended wear
barrier attached, with filter, (1 piece),
each.
A5057.................... Ostomy pouch, drainable, with extended wear
barrier attached, with built in convexity,
with filter, (1 piece), each.
A6021.................... Collagen dressing, sterile, size 16 sq. in.
or less.
A6023.................... Collagen dressing, sterile, size more than 48
sq. in.
A6238.................... Hydrocolloid dressing, wound cover, sterile,
pad size more than 16 sq. in. but less than
or equal to 48 sq. in.
A6251.................... Specialty absorptive dressing, wound cover,
sterile, pad size 16 sq. in. or less,
without adhesive border, each dressing.
A6266.................... Gauze, impregnated, other than water, normal
saline, or zinc paste, sterile, any width,
per linear yard.
E0482.................... Cough stimulating device, alternating
positive and negative airway pressure.
E0490.................... Power source and control electronics unit for
oral device/appliance for neuromuscular
electical stimulation of the tongue muscle,
controlled by hardware remote.
E0500.................... Intermittent Positive Pressure Breathing
machine, all types, with built-in
nebulizations; manual ot automatic valves;
internal or ecternal power source.
E0562.................... Humidifier, heated, used with positive airway
pressure device.
E0618.................... Apnea monitor, without recording feature.
E0677.................... Non-pneumatic sequential compression garment,
trunk.
E0680.................... Non-pneumatic compression controller with
sequential calibrated gradient pressure.
E0681.................... Non-pneumatic compression controller without
calibrated gradient pressure.
E0693.................... Ultraviolet light therapy system panel,
includes bulbs/lamps, timer and eye
protection, 6 foot panel.
E0749.................... Osteogenesis stimulator, electrical,
surgically implanted.
E0782.................... Infusion pump, implantable, non-programmable
(includes all components, e.g., pump,
catheter, connectors, etc.).
E0783.................... Infusion pump system, implantable,
programmable (includes all components, e.g.,
pump, catheter, connectors, etc.).
E0785.................... Implantable intraspinal (epidural/
intrathecal) catheter used with implantable
infusion pump, replacement.
E0786.................... Implantable programmable infusion pump,
replacement (excludes implantable
intraspinal catheter).
E0984.................... Manual wheelchair accessory, power add-on to
convert manual wheelchair to motorized
wheelchair, tiller control.
E1050.................... Fully-reclining wheelchair, fixed full length
arms, swing away detachable elevating leg
rests.
E1060.................... Fully-reclining wheelchair, detachable arms,
desk or full length, swing away detachable
elevating legrests.
E1070.................... Fully-reclining wheelchair, detachable arms
(desk or full length) swing away detachable
footrest.
E1083.................... Hemi-wheelchair, fixed full length arms,
swing away detachable elevating leg rest.
E1084.................... Hemi-wheelchair, detachable arms desk or full
length arms, swing away detachable elevating
leg rests.
E1087.................... High strength lightweight wheelchair, fixed
full length arms, swing away detachable
elevating leg rests.
E1088.................... High strength lightweight wheelchair,
detachable arms desk or full length, swing
away detachable elevating leg rests.
E1092.................... Wide heavy duty wheelchair, detachable arms
(desk or full length), swing away detachable
elevating leg rests.
E1093.................... Wide heavy duty wheelchair, detachable arms
desk or full length arms, swing away
detachable footrests.
E1100.................... Semi-reclining wheelchair, fixed full length
arms, swing away detachable elevating leg
rests.
E1110.................... Semi-reclining wheelchair, detachable arms
(desk or full length) elevating leg rest.
E1150.................... Wheelchair, detachable arms, desk or full
length swing away detachable elevating
legrests.
E1160.................... Wheelchair, fixed full length arms, swing
away detachable elevating legrests.
E1170.................... Amputee wheelchair, fixed full length arms,
swing away detachable elevating legrests.
E1171.................... Amputee wheelchair, fixed full length arms,
without footrests or legrest.
E1172.................... Amputee wheelchair, detachable arms (desk or
full length) without footrests or legrest.
E1180.................... Amputee wheelchair, detachable arms (desk or
full length) swing away detachable
footrests.
E1190.................... Amputee wheelchair, detachable arms (desk or
full length) swing away detachable elevating
legrests.
E1195.................... Heavy duty wheelchair, fixed full length
arms, swing away detachable elevating
legrests.
E1200.................... Amputee wheelchair, fixed full length arms,
swing away detachable footrest.
E1221.................... Wheelchair with fixed arm, footrests.
E1222.................... Wheelchair with fixed arm, elevating
legrests.
E1223.................... Wheelchair with detachable arms, footrests.
E1224.................... Wheelchair with detachable arms, elevating
legrests.
E1240.................... Lightweight wheelchair, detachable arms,
(desk or full length) swing away detachable,
elevating legrest.
E1270.................... Lightweight wheelchair, fixed full length
arms, swing away detachable elevating
legrests.
E1280.................... Heavy duty wheelchair, detachable arms (desk
or full length) elevating legrests.
E1295.................... Heavy duty wheelchair, fixed full length
arms, elevating legrest.
E1296.................... Special wheelchair seat height from floor.
E2341.................... Power wheelchair accessory, nonstandard seat
frame width, 24-27 inches.
[[Page 41327]]
E2342.................... Power wheelchair accessory, nonstandard seat
frame depth, 20 or 21 inches.
E2343.................... Power wheelchair accessory, nonstandard seat
frame depth, 22-25 inches.
E2510.................... Speech generating device, synthesized speech,
permitting multiple methods of message
formulation and multiple methods of device
access.
E2606.................... Positioning wheelchair seat cushion, width 22
inches or greater, any depth.
E2631.................... Wheelchair accessory, addition to mobile arm
support, elevating proximal arm.
K0010.................... Standard--weight frame motorized/power
wheelchair.
K0011.................... Standard--weight frame motorized/power
wheelchair with programmable control
parameters for speed adjustment, tremor
dampening, acceleration control and braking.
K0012.................... Lightweight portable motorized/power
wheelchair.
L0457.................... TLSO, flexible, provides trunk support,
thoracic region, rigid posterior panel and
soft anterior apron, extends from the
sacrococcygeal junction and terminates just
inferior to the scapular spine, restricts
gross trunk motion in the sagittal plane,
produces intracavitary pressure to reduce
load on the intervertebral disks, includes
straps and closures, prefabricated, off-the-
shelf.
L1681.................... Hip orthosis, bilateral hip joints and thigh
cuffs, adjustable flexion, extension,
abduction control of hip joint,
postoperative hip abduction type,
prefabricated item that has been trimmed,
bent, molded, assembled, or otherwise
customized to fit a specific patient by an
individual with expertise.
L2006.................... Knee ankle foot device, any material, single
or double upright, swing and stance phase
microprocessor control with adjustability,
includes all components (e.g., sensors,
batteries, charger), any type activation,
with or without ankle joint(s), custom
fabricated.
L2280.................... Addition to lower extremity, molded inner
boot.
L3761.................... Elbow orthosis (EO), with adjustable position
locking joint(s), prefabricated, off-the-
shelf.
L4000.................... Replace girdle for spinal orthosis (cervical-
thoracic-lumbar-sacral orthosis or shoulder
orthosis.
L5615.................... Addition, endoskeletal knee-shin system, 4
bar linkage or multiaxial, fluid swing and
stance phase control.
L5926.................... Addition to lower extremity prosthesis,
endoskeletal, knee disarticulation, above
knee, hip disarticulation, positional
rotation unit, any type.
L5991.................... Addition to lower extremity prostheses,
osseointegrated external prosthetic
connector.
L6026.................... Transcarpal/metacarpal or partial hand
disarticulation prosthesis, external power,
self-suspended, inner socket with removable
forearm section, electrodes and cables, two
batteries, charger, myoelectric control of
terminal device, excludes terminal devices.
L7366.................... Battery charger, twelve volt, each.
------------------------------------------------------------------------
Items are removed from the Master List 10 years after the date the
item was added, unless the item was identified in an OIG report, GAO
report, or has been identified in the CERT Medicare Fee-for-Service
Supplemental Improper Payment Data report as having a high improper
payment rate, within the 5-year period preceding the anticipated date
of expiration. Additionally, items are removed from the list sooner
than 10-year timeframe if the purchase or monthly rental amount drops
below the payment threshold. There are three (See Table 2) HCPCS codes
being removed from the Master List for the CY 2024 update, as they no
longer meet the criteria for inclusion.
Table 2--Deletions From the Master List
------------------------------------------------------------------------
HCPCS Description
------------------------------------------------------------------------
A7025.................... High frequency chest wall oscillation system
vest, replacement for use with patient owned
equipment.
E0565.................... Compressor air power source.
L1833.................... Knee orthosis (KO), adjustable knee joints
(unicentric or polycentric), positional
orthosis, rigid support, prefabricated, off-
the shelf.
------------------------------------------------------------------------
The full updated Master List is available in the Downloads & Links
section of the following CMS website: http://go.cms.gov/DMEPOSPA
B. Items Subject to Face-to-Face Encounter and Written Order Prior to
Delivery Requirements
As previously stated, PMDs are included on the F2F/WOPD List per
statutory obligation. For the other DMEPOS items, we consider factors
such as operational limitations, item utilization, cost-benefit
analysis (for example, comparing the cost of review versus the
anticipated amount of improper payment identified), emerging trends
(for example, billing patterns, medical review findings),
vulnerabilities identified in official agency reports, or other
analysis.
When selecting these items, we balance our program integrity goals
with the needs of beneficiaries to ensure the appropriate application
and oversight of the face-to-face encounter requirements. In
consideration of access issues, we note that the regulation 42 CFR
410.38 allows for use of telehealth, as defined in 42 CFR 410.78 and
414.65, when appropriate to meet our coverage requirements for
beneficiaries.
We believe transparency and education will aid in compliance with
these payment requirements and continued access. As such, we will make
information widely available to the public at appropriate literacy
levels regarding face-to-face encounter requirements, and necessary
documentation for items on the F2F/WOPD List.
Consistent with Sec. 410.38(d), the face-to-face encounter must be
documented in the pertinent portion of the medical record (for example,
history, physical examination, diagnostic tests, summary of findings,
progress notes, treatment plans or other sources of information that
may be appropriate). The supporting documentation must include
subjective and objective beneficiary specific information used for
diagnosing, treating, or managing a
[[Page 41328]]
clinical condition for which the DMEPOS item(s) is ordered. Upon
request by CMS or its review contractors, a supplier must submit
additional documentation to support and substantiate the medical
necessity for the DMEPOS item.
Prior to publication of this Federal Register notice, 63 items have
been included on the F2F/WOPD List. We have not been notified of any
issues related to beneficiary access, and billing trends have been
consistent with anticipated volumes.
Based on our regulatory authority at 42 CFR 410.38, this Federal
Register notice is adding the following 13 additional HCPCS codes to
the F2F/WOPD List (See Table 3).
We have selected codes for three hospital beds, two osteogenesis
stimulators, six lumbar sacral orthoses, and two knee orthoses. We note
that such items were selected based on our analysis of the CERT
improper payment information, practitioner encounter information,
jurisdictionally identified billing vulnerabilities, policy analysis,
and in coordination with the prior authorization program.
We continue to believe additional practitioner oversight of
beneficiaries in need of items included on the F2F/WOPD List will help
further our program integrity goals of reducing fraud, waste, and
abuse. It helps ensure beneficiary receipt of items specific to their
medical needs, as the written order/prescription must be communicated
to the supplier prior to delivery. For such items, we continue to
require the treating practitioner to have a face-to-face encounter with
the beneficiary within the 6 months preceding the date of the written
order/prescription.
Table 3--Additions to the F2F/WOPD List--New Non-Statutorily Required
Items
------------------------------------------------------------------------
HCPCS Description
------------------------------------------------------------------------
E0290.................... Hospital bed, fixed height, without side
rails, with mattress.
E0301.................... Hospital bed, heavy duty, extra wide, with
weight capacity greater than 350 pounds, but
less than or equal to 600 pounds, with any
type side rails, without mattress.
E0304.................... Hospital bed, extra heavy duty, extra wide,
with weight capacity greater than 600
pounds, with any type side rails, with
mattress.
E0760.................... Osteogenesis stimulator, low intensity
ultrasound, non-invasive.
E0747.................... Osteogenesis stimulator, electrical, non-
invasive, other than spinal applications.
L0635.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, lumbar flexion, rigid
posterior frame/panel(s), lateral
articulating design to flex the lumbar
spine, posterior extends from sacrococcygeal
junction to T-9 vertebra, lateral strength
provided by rigid lateral frame/panel(s),
produces intracavitary pressure to reduce
load on intervertebral discs, includes
straps, closures, may include padding,
anterior panel, pendulous abdomen design,
prefabricated, includes fitting and
adjustment.
L0636.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, lumbar flexion, rigid
posterior frame/panels, lateral articulating
design to flex the lumbar spine, posterior
extends from sacrococcygeal junction to T-9
vertebra, lateral strength provided by rigid
lateral frame/panels, produces intracavitary
pressure to reduce load on intervertebral
discs, includes straps, closures, may
include padding, anterior panel, pendulous
abdomen design, custom fabricated.
L0638.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, with rigid anterior and
posterior frame/panels, posterior extends
from sacrococcygeal junction to T-9
vertebra, lateral strength provided by rigid
lateral frame/panels, produces intracavitary
pressure to reduce load on intervertebral
discs, includes straps, closures, may
include padding, shoulder straps, pendulous
abdomen design, custom fabricated.
L0639.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, rigid shell(s)/panel(s),
posterior extends from sacrococcygeal
junction to T-9 vertebra, anterior extends
from symphysis pubis to xyphoid, produces
intracavitary pressure to reduce load on the
intervertebral discs, overall strength is
provided by overlapping rigid material and
stabilizing closures, includes straps,
closures, may include soft interface,
pendulous abdomen design, prefabricated item
that has been trimmed, bent, molded,
assembled, or otherwise customized to fit a
specific patient by an individual with
expertise.
L0640.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, rigid shell(s)/panel(s),
posterior extends from sacrococcygeal
junction to T-9 vertebra, anterior extends
from symphysis pubis to xiphoid, produces
intracavitary pressure to reduce load on the
intervertebral discs, overall strength is
provided by overlapping rigid material and
stabilizing closures, includes straps,
closures, may include soft interface,
pendulous abdomen design, custom fabricated.
L0651.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, rigid shell(s)/panel(s),
posterior extends from sacrococcygeal
junction to T-9 vertebra, anterior extends
from symphysis pubis to xyphoid, produces
intracavitary pressure to reduce load on the
intervertebral discs, overall strength is
provided by overlapping rigid material and
stabilizing closures, includes straps,
closures, may include soft interface,
pendulous abdomen design, prefabricated, off-
the-shelf.
L1845.................... Knee orthosis (KO), double upright, thigh and
calf, with adjustable flexion and extension
joint (unicentric or polycentric), medial-
lateral and rotation control, with or
without varus/valgus adjustment,
prefabricated item that has been trimmed,
bent, molded, assembled, or otherwise
customized to fit a specific patient by an
individual with expertise.
L1852.................... Knee orthosis (KO), double upright, thigh and
calf, with adjustable flexion and extension
joint (unicentric or polycentric), medial-
lateral and rotation control, with or
without varus/valgus adjustment,
prefabricated, off-the-shelf.
------------------------------------------------------------------------
Per the regulatory guidelines established at Sec. 414.234(b), and
as previously discussed, items may be removed from the Master List. If
items are removed from the Master List, they are no longer eligible for
inclusion on the F2F/WOPD List. As such, as of the effective date of
this Federal Register notice, HCPCS L1833 is removed from the Master
List and is likewise removed from the Required F2F/WOPD List.
Table 4--Deletions From the F2F/WOPD List
------------------------------------------------------------------------
HCPCS Description
------------------------------------------------------------------------
L1833.................... Knee orthosis (KO), adjustable knee joints
(unicentric or polycentric), positional
orthosis, rigid support, prefabricated, off-
the shelf.
------------------------------------------------------------------------
[[Page 41329]]
The F2F/WOPD List is available on the following CMS website: F2F/
WOPD List.
C. Items Subject to Prior Authorization Requirements
The Required Prior Authorization List specified in Sec.
414.234(c)(1) is selected from the Master List (as described in Sec.
414.234(b)), and those selected items require prior authorization as a
condition of payment. As stated in Sec. 414.234(c), we inform the
public of those DMEPOS items on the Required Prior Authorization List
in the Federal Register with no less than 60 days' notice before
implementation, and post notification on the CMS website. Additionally,
Sec. 414.234(c)(1)(ii) states that CMS may elect to limit the prior
authorization requirement to a particular region of the country if
claims data analysis shows that unnecessary utilization of the selected
item(s) is concentrated in a particular region.
We are updating the Required Prior Authorization List to include
the addition of nine HCPCS codes and removal of one HCPCS code. HCPCS
code L1833 is being removed from the Required Prior Authorization List
as the item no longer meets the criteria to be maintained on the Master
List and is no longer eligible for inclusion. The remaining 61 HCPCS
codes currently on the Required Prior Authorization List remain on the
List without interruption. To assist stakeholders in preparing for
implementation of the prior authorization program, we are providing 90
days' notice.
Table 5--Deletions From The Required Prior Authorization List
------------------------------------------------------------------------
HCPCS Description
------------------------------------------------------------------------
L1833.................... Knee orthosis (KO), adjustable knee joints
(unicentric or polycentric), positional
orthosis, rigid support, prefabricated, off-
the shelf.
------------------------------------------------------------------------
The following three HCPCS codes for osteogenesis stimulators, three
HCPCS codes for lumbar-sacral orthoses (LSO), and three HCPCS codes for
lower limb orthoses (LLO) are added to the Required Prior Authorization
List:
Table 6--Additions to the Required Prior Authorization List
------------------------------------------------------------------------
HCPCS Description
------------------------------------------------------------------------
E0747.................... Osteogenesis stimulator, electrical, non-
invasive, other than spinal applications.
E0748.................... Osteogenesis stimulator, electrical, non-
invasive, spinal applications.
E0760.................... Osteogenesis stimulator, low intensity
ultrasound, non-invasive.
L0631.................... Lumbar-sacral orthosis (LSO), sagittal
control, with rigid anterior and posterior
panels, posterior extends from
sacrococcygeal junction to T-9 vertebra,
produces intracavitary pressure to reduce
load on the intervertebral discs, includes
straps, closures, may include padding,
shoulder straps, pendulous abdomen design,
prefabricated item that has been trimmed,
bent, molded, assembled, or otherwise
customized to fit a specific patient by an
individual with expertise.
L0637.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, with rigid anterior and
posterior frame/panels, posterior extends
from sacrococcygeal junction to T-9
vertebra, lateral strength provided by rigid
lateral frame/panels, produces intracavitary
pressure to reduce load on intervertebral
discs, includes straps, closures, may
include padding, shoulder straps, pendulous
abdomen design, prefabricated item that has
been trimmed, bent, molded, assembled, or
otherwise customized to fit a specific
patient by an individual with expertise.
L0639.................... Lumbar-sacral orthosis (LSO), sagittal-
coronal control, rigid shell(s)/panel(s),
posterior extends from sacrococcygeal
junction to T-9 vertebra, anterior extends
from symphysis pubis to xyphoid, produces
intracavitary pressure to reduce load on the
intervertebral discs, overall strength is
provided by overlapping rigid material and
stabilizing closures, includes straps,
closures, may include soft interface,
pendulous abdomen design, prefabricated item
that has been trimmed, bent, molded,
assembled, or otherwise customized to fit a
specific patient by an individual with
expertise.
L1843.................... Knee orthosis (KO), single upright, thigh and
calf, with adjustable flexion and extension
joint (unicentric or polycentric), medial-
lateral and rotation control, with or
without varus/valgus adjustment,
prefabricated item that has been trimmed,
bent, molded, assembled, or otherwise
customized to fit a specific patient by an
individual with expertise.
L1845.................... Knee orthosis (KO), double upright, thigh and
calf, with adjustable flexion and extension
joint (unicentric or polycentric), medial-
lateral and rotation control, with or
without varus/valgus adjustment,
prefabricated item that has been trimmed,
bent, molded, assembled, or otherwise
customized to fit a specific patient by an
individual with expertise.
L1951.................... Ankle foot orthosis (AFO), spiral, (institute
of rehabilitative medicine type), plastic or
other material, prefabricated, includes
fitting and adjustment.
------------------------------------------------------------------------
We believe prior authorization of these nine additional HCPCS codes
will help further our program integrity goals of reducing fraud, waste,
and abuse, while also protecting access to care.
In recent years, osteogenesis stimulators have been a concern due
to continually high improper payment rates, having been identified in
CMS' CERT Medicare Fee-for-Service Supplemental Improper Payment Data
reports (2017-2020) as having improper payment rates ranging from 8.5
to 40.9 percent.
LSOs and LLOs have been identified by the CERT program as two of
the top 20 DMEPOS service types with improper payments over the past
several years. Since 2020, LLOs have had an improper payment rate
ranging from 44 to 66 percent, with projected improper payments ranging
between $76 and $187 million. Similarly, LSOs have had an improper
payment ranging from 35 to 58 percent, with projected improper payments
ranging between $78 and $178 million since 2020. In 2019, the
Department of Justice (DOJ) announced Federal indictments and law
enforcement actions stemming from fraudulent claims submitted for
medically unnecessary back, shoulder, wrist, and knee braces.
Administrative actions were taken against 130 DMEPOS companies that
were enticing Medicare beneficiaries with offers of low or no-cost
orthotic braces. The investigation found that some DMEPOS companies and
licensed medical professionals allegedly participated in health care
fraud schemes involving more than $1.2
[[Page 41330]]
billion in loss.\4\ In 2022, CMS added several LSOs and LLOs to the
Required Prior Authorization list (87 FR 2051); however, additional
program integrity action in this space is warranted.\5\
---------------------------------------------------------------------------
\4\ https://www.justice.gov/opa/pr/federal-indictments-and-law-enforcement-actions-one-largest-health-care-fraud-schemes.
\5\ Due to the need for certain patients to receive an orthoses
item that may otherwise be subject to PA when the 2-day expedited
review would delay care and risk the health or life of the
beneficiary, we suspended prior authorization requirements for
certain codes in these limited circumstances, effective April 13,
2022. This suspension remains in effect. https://www.federalregister.gov/documents/2022/08/10/2022-17187/medicare-program-suspension-of-required-prior-authorization-for-certain-durable-medical-equipment.
---------------------------------------------------------------------------
These codes will be subject to the requirements of the prior
authorization program for certain DMEPOS items as outlined in Sec.
414.234. We will implement a prior authorization program for the three
newly added LSO and the three newly added LLO codes nationwide,
beginning on the date specified in the in the DATES section. We will
implement prior authorization for the three newly added osteogenesis
stimulator codes in two phases beginning on the dates specified in the
in the DATES section. This phased-in approach will allow us to identify
and resolve any unforeseen issues by using a smaller claim volume in
phase 1 before implementing phase 2. We selected States for the two
phases based on utilization data.
For phase 1, which begins on the date specified in the DATES
section, we selected the State in each DME MAC jurisdiction with the
highest utilization of the newly added osteogenesis stimulators:
California, Florida, Ohio, and Pennsylvania.
For phase 2, which begins on the date specified in the DATES
section, prior authorization expands to all remaining States and
territories not captured in phase 1.
The prior authorization program for the remaining 61 HCPCS codes
currently subject to the DMEPOS prior authorization requirement will
continue uninterrupted. Prior to providing an item on the Required
Prior Authorization List to the beneficiary and submitting the claim
for processing, a requester must submit a prior authorization request.
The request must include evidence that the item complies with all
applicable Medicare coverage, coding, and payment rules. Consistent
with Sec. 414.234(d), such evidence must include the written order/
prescription, relevant information from the beneficiary's medical
record, and relevant supplier-produced documentation. After receipt of
all applicable required Medicare documentation, CMS or one of its
review contractors will conduct a medical review and communicate a
decision that provisionally affirms or non-affirms the request.
We will issue specific prior authorization guidance for these
additional items in sub regulatory communications, final timelines
customized for the DMEPOS item subject to prior authorization and for
communicating a provisionally affirmed or non-affirmed decision to the
requester. In the December 30, 2015 final rule (80 FR 81674), we stated
that this approach to final timelines provides flexibility to develop a
process that involves fewer days, as may be appropriate, and allows us
to safeguard beneficiary access to care. If at any time we become aware
that the prior authorization process is creating barriers to care, we
can suspend the program. For example, we will review questions and
complaints from consumers and providers that come through regular
sources such as 1-800-Medicare.
The updated Required Prior Authorization List is available in the
Downloads & Links section of the following CMS website: http://go.cms.gov/DMEPOSPA.
III. Collection of Information Requirements
This document provides updates to the Master List, the F2F/WOPD
List, and the Required Prior Authorization List.
A total of 76 HCPCS codes (see Table 1) meeting the criteria
outlined previously are added to the Master List. Of these 76 HCPCS
codes, 56 are added because these items meet the updated payment
threshold and are listed in an OIG or GAO report of a national scope, a
CERT Medicare Fee-for-Service Supplemental Improper Payment Data
report, or both; and 20 are being added for aberrant billing patterns.
There are three HCPCS codes (see Table 2) being removed from the Master
List for the CY 2024 update, as these no longer meet the criteria for
inclusion, as outlined previously.
Thirteen HCPCS are being added to the F2F/WOPD List. Of these 13
codes, three are hospital beds, two are osteogenesis stimulators, six
are lumbar sacral orthoses, and two are knee orthoses. This notice
removes one knee orthosis code from the F2F/WOPD List.
The updates to the F2F/WOPD List do not constitute information
collections requirements, that is, reporting, recordkeeping or third-
party disclosure requirements. Consequently, there is no need for
review by the Office of Management and Budget under the authority of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
This notice removes one HCPCS code from the Required Prior
Authorization List, as it no longer meets the requirements for
inclusion (see Table 5). A total of nine HCPCS codes (see Table 6) are
selected for addition to the Required Prior Authorization List. Of
these nine HCPCS codes, three are osteogenesis stimulators, three are
LSOs, and three are LLOs. The remaining 61 HCPCS codes currently
subject to the DMEPOS prior authorization requirement will continue
uninterrupted.
There is an information collection burden associated with this
program that is currently approved under OMB control number 0938-1293,
which expires August 31, 2025. This package accounts for burdens
associated with the addition of items to the Required Prior
Authorization Lists and assumes a burden for 2024 of approximately $8.4
million for providers to comply with the required information
collection. The burden associated with the additions to the Required
Prior Authorization List has been assessed in the PRA package
referenced previously and is included in this Federal Register notice
as required under the Paperwork Reduction Act of 1995.
IV. Regulatory Impact Statement
We have examined the impact of this regulatory document as required
by Executive Order 12866 on Regulatory Planning and Review (September
30, 1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), Executive Order 14094 entitled ``Modernizing
Regulatory Review'' (April 6, 2023), the Regulatory Flexibility Act
(RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22,
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4,
1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
Regulatory Impact Analysis (RIA) must be prepared for major rules with
significant regulatory action/s and/or with significant effects ($200
million or more in any 1 year). This regulatory
[[Page 41331]]
document is not significant and does not reach the economic threshold
and thus is not considered a major regulatory document. Per our
analysis, the additional items being added to the prior authorization
program have an estimated net savings of $32.1 million. Gross savings
is based upon a 20 percent reduction in the total amount paid for
claims in CY 2022. We deducted from the gross savings the anticipated
cost for performing the prior authorization reviews to estimate the net
savings. Our gross savings estimate of 20 percent is based on previous
results from other prior authorization programs, including prior
authorization of other DMEPOS items.
The RFA requires agencies to analyze options for regulatory relief
of small entities. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and small governmental
jurisdictions. Most hospitals and most other providers and suppliers
are small entities, either by nonprofit status or by having revenues of
less than $9.0 million to $47.0 million in any one year. Individuals
and States are not included in the definition of a small entity. We are
not preparing an analysis for the RFA because we have determined, and
the Secretary certifies, that this regulatory document will not have a
significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare an
RIA if a rule may have a significant impact on the operations of a
substantial number of small rural hospitals. This analysis must conform
to the provisions of section 604 of the RFA. For purposes of section
1102(b) of the Act, we define a small rural hospital as a hospital that
is located outside of a Metropolitan Statistical Area for Medicare
payment regulations and has fewer than 100 beds. We are not preparing
an analysis for section 1102(b) of the Act because we have determined,
and the Secretary certifies, that this regulatory document will not
have a significant impact on the operations of a substantial number of
small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2024, that
threshold is approximately $183 million. This regulatory document will
have no consequential effect on State, local, or tribal governments or
on the private sector.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule or other regulatory document) that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has Federalism implications. Since this regulatory
document does not impose any costs on State or local governments, the
requirements of Executive Order 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, this
document was reviewed by the Office of Management and Budget.
The Administrator of the Centers for Medicare & Medicaid Services
(CMS), Chiquita Brooks-LaSure, having reviewed and approved this
document, authorizes Chyana Woodyard who is the Federal Register
Liaison, to electronically sign this document for purposes of
publication in the Federal Register.
Chyana Woodyard,
Federal Register Liaison, Centers for Medicare & Medicaid Services.
[FR Doc. 2024-10356 Filed 5-10-24; 8:45 am]
BILLING CODE 4120-01-P