83_FR_22004 83 FR 21912 - Medicare Program; Durable Medical Equipment Fee Schedule Adjustments To Resume the Transitional 50/50 Blended Rates To Provide Relief in Rural Areas and Non-Contiguous Areas

83 FR 21912 - Medicare Program; Durable Medical Equipment Fee Schedule Adjustments To Resume the Transitional 50/50 Blended Rates To Provide Relief in Rural Areas and Non-Contiguous Areas

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range21912-21925
FR Document2018-10084

This interim final rule with comment period makes technical amendments to the regulation to reflect the extension of the transition period from June 30, 2016 to December 31, 2016 that was mandated by the 21st Century Cures Act for phasing in fee schedule adjustments for certain durable medical equipment (DME) and enteral nutrition paid in areas not subject to the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP). In addition, this interim final rule with comment period amends the regulation to resume the transition period's blended fee schedule rates for items furnished in rural areas and non-contiguous areas (Alaska, Hawaii, and United States territories) not subject to the CBP from June 1, 2018 through December 31, 2018. This interim final rule with comment period also makes technical amendments to existing regulations for DMEPOS items and services to reflect the exclusion of infusion drugs used with DME from the DMEPOS CBP.

Federal Register, Volume 83 Issue 92 (Friday, May 11, 2018)
[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21912-21925]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-10084]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 414

[CMS-1687-IFC]
RIN 0938-AT21


Medicare Program; Durable Medical Equipment Fee Schedule 
Adjustments To Resume the Transitional 50/50 Blended Rates To Provide 
Relief in Rural Areas and Non-Contiguous Areas

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

ACTION: Interim final rule with comment period.

-----------------------------------------------------------------------

SUMMARY: This interim final rule with comment period makes technical 
amendments to the regulation to reflect the extension of the transition 
period from June 30, 2016 to December 31, 2016 that was mandated by the 
21st Century Cures Act for phasing in fee schedule adjustments for 
certain durable medical equipment (DME) and enteral nutrition paid in 
areas not subject to the Durable Medical Equipment, Prosthetics, 
Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP). In 
addition, this interim final rule with comment period amends the 
regulation to resume the transition period's blended fee schedule rates 
for items furnished in rural areas and non-contiguous areas (Alaska, 
Hawaii, and United States territories) not subject to the CBP from June 
1, 2018 through December 31, 2018. This interim final rule with comment 
period also makes technical amendments to existing regulations for 
DMEPOS items and services to reflect the exclusion of infusion drugs 
used with DME from the DMEPOS CBP.

DATES: 
    Effective date: The provisions of this interim final rule with 
comment period are effective on June 1, 2018.
    Comment date: To be assured consideration, comments must be 
received at one of the addresses provided below, no later than 5 p.m. 
on July 9, 2018.

ADDRESSES: In commenting, please refer to file code CMS-1687-IFC. 
Because of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    Comments, including mass comment submissions, must be submitted in 
one of the following three ways (please choose only one of the ways 
listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-1687-IFC, P.O. Box 8010, 
Baltimore, MD 21244-8010.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-1687-IFC, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Laurence Wilson, 410-786-4602 and 
[email protected].

SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments 
received before the close of the comment period are available for 
viewing by the public, including any personally identifiable or 
confidential business information that is included in a comment. We 
post all comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: http://regulations.gov. Follow the search instructions on 
that website to view public comments.

Table of Contents

I. Executive Summary
    A. Purpose
    B. Summary of the Major Provisions
    C. Summary of Costs and Benefits
II. Durable Medical Equipment, Prosthetics, Orthotics Supplies 
(DMEPOS) Fee Schedule and Competitive Bidding Program (CBP)
    A. Background for Payment Revisions for Durable Medical 
Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)
    1. Fee Schedule Payment Basis for Certain DMEPOS
    2. DMEPOS CBP
    a. Payment Basis
    b. Geographic Areas Designated Under the DMEPOS CBPs
    B. Background on the Methodology for Adjusting Payment Amounts 
for Certain DMEPOS Using Information From DMEPOS CBPs
    C. Transition Period for Phase-In of Fee Schedule Adjustments
    1. Statutory Mandate To Reconsider Fee Schedule Adjustments
    2. Fee Schedule Adjustment Impact Monitoring Data
    3. Restoring Transitional Blended Fee Schedule Rates in Rural 
Areas and Non-Contiguous Areas
    D. Fee Schedule Amounts for Accessories Used With Group 3 
Complex Rehabilitative Power Wheelchairs
    E. Technical Changes To Conform the Regulation to Section 
5004(b) of the 21st Century Cures Act (the Cures Act): Exclusion of 
DME Infusion Drugs Under CBPs
III. Provisions of the Interim Final Rule With Comment Period
    A. Transition Period for Phase-In of Fee Schedule Adjustments
    B. Technical Changes To Conform the Regulation to Section 
5004(b) of the Cures Act: Exclusion of DME Infusion Drugs Under CBPs
IV. Waiver of Proposed Rulemaking
V. Collection of Information Requirements
VI. Response to Comments
VII. Economic Analyses
    A. Regulatory Impact Analysis
    1. Introduction
    2. Statement of Need
    3. Overall Impact
    B. Detailed Economic Analysis
    a. Effects on the Medicare Program and Beneficiaries

[[Page 21913]]

    b. Impact on Beneficiaries and Other Payers
    c. Alternatives Considered
    d. Regulatory Familiarization Costs
    C. Accounting Statement
VIII. Regulatory Flexibility Act Analysis
IX. Unfunded Mandates Reform Act Analysis
X. Federalism Analysis
XI. Reducing Regulation and Controlling Regulatory Costs
XII. Congressional Review Act

I. Executive Summary

A. Purpose

    This interim final rule with comment period amends the regulation 
at 42 CFR 414.210(g)(9) to reflect the extension of the transition 
period for phasing in fee schedule adjustments for certain durable 
medical equipment (DME) and enteral nutrition paid in areas not subject 
to the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies 
(DMEPOS) Competitive Bidding Program (CBP) through December 31, 2016, 
mandated by section 16007(a) of the 21st Century Cures Act (the Cures 
Act) (Pub. L. 114-255). In addition, in light of information, the 
Centers for Medicare & Medicaid Services (CMS) has gathered in 
accordance with section 16008 of the Cures Act, this interim final rule 
with comment period resumes the transition period for phasing in 
adjusted fee schedule rates for DME items and services furnished in 
rural areas and non-contiguous areas (Alaska, Hawaii, and United States 
(U.S.) territories) not subject to the CBP from June 1, 2018 through 
December 31, 2018. It also makes technical amendments to existing 
regulations for DMEPOS items and services to reflect the exclusion of 
infusion drugs used with DME from the DMEPOS CBP, as required by 
section 5004(b) of the Cures Act.

B. Summary of the Major Provisions

     Transition Period for Phase in of Adjustments to Fee 
Schedule Amounts: We are amending Sec.  414.210(g)(9)(i) to reflect the 
extension of the transition period to December 31, 2016 for phasing in 
adjustments to the fee schedule amounts for certain items based on 
information from the DMEPOS CBP that was required by section 16007(a) 
of the Cures Act. In addition, we are adding Sec.  414.210(g)(9)(iii) 
to resume the fee schedule adjustment transition period in rural areas 
and non-contiguous areas effective June 1, 2018, in light of concerns 
regarding the impact of the full fee schedule adjustments in rural and 
non-contiguous areas, so that the 50/50 blended fee schedule rates will 
apply for certain items and services furnished in rural and non-
contiguous areas from June 1, 2018 through December 31, 2018. We are 
also amending Sec.  414.210(g)(9)(ii) to reflect that for items and 
services furnished with dates of service from January 1, 2017 to May 
31, 2018, and on or after January 1, 2019, the fee schedule amount for 
the area is equal to 100 percent of the adjusted payment amount. We are 
soliciting comments on the resumption of the transition period for the 
phase in of fee schedule adjustments.
     Technical Change Excluding DME Infusion Drugs From the 
DMEPOS CBP: Section 5004(b) of the Cures Act amends section 
1847(a)(2)(A) of the Social Security Act (the Act) to exclude drugs and 
biologicals described in section 1842(o)(1)(D) of the Act from the 
DMEPOS CBP. We are making conforming changes to the regulation to 
reflect the exclusion of infusion drugs, described in section 
1842(o)(1)(D) of Act, from items subject to the DMEPOS CBP.

C. Summary of Costs and Benefits

    This interim final rule with comment period resumes the blended 
adjusted Medicare fee schedule amounts during the transition period for 
certain items and services that are furnished in rural and non-
contiguous areas not subject to the CBP beginning June 1, 2018. It is 
estimated that these adjustments will cost $290 million in Medicare 
benefit payments and $70 million in Medicare beneficiary cost sharing 
for the period beginning June 1, 2018 and ending December 31, 2018.
    We are unable to quantify the benefits of this interim final rule 
with comment period at this time; however, the goal of this interim 
final rule is to preserve beneficiary access to DME items and services 
in rural and non-contiguous areas not subject to the CBP during a 
transition period in which CMS will continue to study the impact of the 
change in payment rates on access to items and services in these areas. 
The alternative to this interim final rule with comment period would 
have been to allow the full phase in of fee schedule adjustments based 
on competitive bidding prices to continue in all non-competitive 
bidding areas (non-CBAs). We believe that resuming the fee schedule 
adjustment transition period in rural and non-contiguous areas promotes 
stability in the DMEPOS market in these areas, and enables CMS to work 
with stakeholders to preserve beneficiary access to DMEPOS.

II. Durable Medical Equipment, Prosthetics, Orthotics Supplies (DMEPOS) 
Fee Schedule and Competitive Bidding Program (CBP)

A. Background for Payment Revisions for Durable Medical Equipment, 
Prosthetics, Orthotics, and Supplies (DMEPOS)

1. Fee Schedule Payment Basis for Certain DMEPOS
    Section 1834(a) of the Act governs payment for DME covered under 
Part B and under Part A for a home health agency and provides for the 
implementation of a fee schedule payment methodology for DME furnished 
on or after January 1, 1989. Sections 1834(a)(2) through (a)(7) of the 
Act set forth separate payment categories of DME and describe how the 
fee schedule for each of the following categories are established:
     Inexpensive or other routinely purchased items.
     Items requiring frequent and substantial servicing.
     Customized items.
     Oxygen and oxygen equipment.
     Other covered items (other than DME).
     Other items of DME (capped rental items).
    Section 1834(h) of the Act governs payment for prosthetic devices, 
prosthetics, and orthotics (P&O) and sets forth fee schedule payment 
rules for P&O. Effective for items furnished on or after January 1, 
2002, payment is also made on a national fee schedule basis for 
parenteral and enteral nutrition (PEN) in accordance with the authority 
under section 1842(s) of the Act. The term ``enteral nutrition'' will 
be used throughout this document to describe enteral nutrients, 
supplies and equipment covered under the Part B benefit for prosthetic 
devices defined at section 1861(s)(8) of the Act. The Medicare allowed 
amount for DMEPOS items and services paid on a fee schedule basis is 
equal to the lower of the supplier's actual charge or the fee schedule 
amount. We refer readers to the November 6, 2014 calendar year (CY) 
2015 ESRD PPS final rule entitled ``Medicare Program; End-Stage Renal 
Disease Prospective Payment System, Quality Incentive Program, and 
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies'' (79 
FR 66223 through 66233) for additional background discussion about 
DMEPOS items subject to section 1834 of the Act, rules for calculating 
reasonable charges, and fee schedule payment methodologies for PEN and 
for DME prosthetic devices, prosthetics, orthotics, and surgical 
dressings.

[[Page 21914]]

2. DMEPOS CBP
a. Payment Basis
    The DMEPOS CBP is mandated by section 1847(a) of the Act and 
requires the Secretary of the Department of Health and Human Services 
(the Secretary) to establish and implement CBPs in competitive bidding 
areas (CBAs) throughout the U.S for contract award purposes for the 
furnishing of certain competitively priced DMEPOS items and services. 
Section 1847(a)(2) of the Act describes the items and services subject 
to the DMEPOS CBP:
     Off-the-shelf (OTS) orthotics for which payment would 
otherwise be made under section 1834(h) of the Act.
     Enteral nutrients, equipment and supplies described in 
section 1842(s)(2)(D) of the Act.
     Certain DME and medical supplies, which are covered items 
(as defined in section 1834(a)(13) of the Act) for which payment would 
otherwise be made under section 1834(a) of the Act.
    The DME and medical supplies category includes items used in 
infusion and drugs (other than inhalation drugs) and supplies used in 
conjunction with DME, but excludes devices that have been classified in 
class III under the Federal Food, Drug, and Cosmetic Act and Group 3 or 
higher complex rehabilitative power wheelchairs and related accessories 
when furnished in connection with such wheelchairs. Although initially 
identified in section 1847(a)(2) of the Act, infusion drugs were 
excluded from the DMEPOS CBP by section 5004(b) of the Cures Act. 
Sections 1847(a) and (b) of the Act specify certain requirements and 
conditions for implementation of the Medicare DMEPOS CBP.
    Under the DMEPOS CBP, Medicare sets single payment amounts (SPAs) 
for selected DMEPOS items and services furnished to beneficiaries in 
CBAs based on the median of bids submitted by winning suppliers and 
accepted by Medicare for each individual item and service. For 
competitively bid items and services furnished in a CBA, the SPAs 
replace the Medicare allowed amounts established using the lower of the 
supplier's actual charge or the payment amount recognized under 
sections 1834(a)(2) through (7) of the Act. Section 1847(b)(5) of the 
Act provides that Medicare payment for competitively bid items and 
services is made on an assignment-related basis, and is equal to 80 
percent of the applicable SPA, less any unmet Part B deductible 
described in section 1833(b) of the Act.

B. Background on the Methodology for Adjusting Payment Amounts for 
Certain DMEPOS Using Information From DMEPOS CBPs

    For DME furnished on or after January 1, 2016, section 
1834(a)(1)(F)(ii) of the Act requires the Secretary to use information 
on the payment determined under the DMEPOS CBP to adjust the fee 
schedule amounts for DME items and services furnished in all non-CBAs. 
Section 1834(a)(1)(F)(iii) of the Act requires the Secretary to 
continue to make these adjustments as additional covered items are 
phased in or information is updated as new CBP contracts are awarded. 
Similarly, sections 1842(s)(3)(B) and 1834(h)(1)(H)(ii) of the Act 
authorize the Secretary to use payment information from the DMEPOS CBP 
to adjust the fee schedule amounts for enteral nutrition and OTS 
orthotics, respectively, furnished in all non-CBAs. Section 
1834(a)(1)(G) of the Act requires that in promulgating the methodology 
used in making these adjustments to the fee schedule amounts, the 
Secretary consider the costs of items and services in areas in which 
the adjustments would be applied compared to the payment rates for such 
items and services in the CBAs.
    On February 26, 2014, we published an Advance Notice of Proposed 
Rulemaking (ANPRM) in the Federal Register entitled, ``Medicare 
Program; Methodology for Adjusting Payment Amounts for Certain Durable 
Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Using 
Information from Competitive Bidding Programs'' (79 FR 10754). In that 
ANPRM, we solicited stakeholder input on several factors including 
whether the costs of furnishing various DMEPOS items and services vary 
based on the geographic area in which they are furnished in relation to 
developing a payment methodology to adjust DMEPOS fee schedule amounts 
or other payment amounts in non-CBAs based on DMEPOS competitive 
bidding payment information.
    We received approximately 185 comments from suppliers, 
manufacturers, professional, state and national trade associations, 
physicians, physical therapists, beneficiaries and their caregivers, 
and one state government office. Commenters generally stated that costs 
do vary by geographic region and that costs in rural and non-contiguous 
areas of the U.S. (Alaska, Hawaii, Puerto Rico, etc.) are significantly 
higher than costs in urban areas and contiguous areas of the U.S. One 
commenter representing many manufacturers and suppliers listed several 
key variables or factors that influence the cost of furnishing items 
and services in different areas that should be considered. This 
commenter stated that information on all bids submitted under the CBP 
should be considered and not just the bids of winning suppliers. Some 
commenters expressed concern that the SPAs assume a significant 
increase in volume to offset lower payment amounts. Commenters also 
recommended phasing in the adjusted fee schedule amounts, allowing for 
adjustments in fees if access issues arise, and annual inflation 
updates to adjusted fee schedule amounts.
    On July 11, 2014, we published the CY 2015 ESRD PPS proposed rule 
in the Federal Register entitled ``Medicare Program; End-Stage Renal 
Disease Prospective Payment System, Quality Incentive Program, and 
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies;'' (79 
FR 40208) as required by section 1834(a)(1)(G) of the Act, to establish 
methodologies for using information from the CBP to adjust the fee 
schedule amounts for items and services furnished in non-CBAs in 
accordance with sections 1834(a)(1)(F)(ii) and 1834(h)(1)(H)(ii) of the 
Act. We also proposed making adjustments to the payment amounts for 
enteral nutrition as authorized by section 1842(s)(3)(B) of the Act.
    We received 89 public comments on the proposed rule, including 
comments from patient organizations, patients, manufacturers, health 
care systems, and DME suppliers. We made changes to the proposed 
methodologies based on these comments and finalized a method for paying 
higher amounts for certain items furnished in areas defined as rural 
areas. In addition, we provided a 6-month fee schedule adjustment phase 
in period from January through June of 2016, during which the fee 
schedule amounts would be based on 50 percent of the unadjusted fees 
and 50 percent of the adjusted fees to allow time for suppliers to 
adjust to the new payment rates and to monitor the impact of the change 
in payment rates on access to items and services. On November 6, 2014, 
we published the CY 2015 ESRD PPS final rule (79 FR 66223 through 
66265) to finalize the methodologies at Sec.  414.210(g) based on 
public comments received on the CY 2015 ESRD PPS proposed rule (79 FR 
40208). A summary of the methodologies are provided below.
    In order to delineate geographic areas to which adjusted fee 
schedule amounts for certain DMEPOS items are applied, we set forth a 
methodology to identify geographic areas using zip codes into 3

[[Page 21915]]

categories of rural, non-rural, and non-contiguous. We promulgated 
Sec.  414.202 to define a rural area to mean, for the purpose of 
implementing Sec.  414.210(g), a geographic area represented by a 
postal zip code if at least 50 percent of the total geographic area of 
the area included in the zip code is estimated to be outside any 
Metropolitan Statistical Area (MSA) (79 FR 66228). A rural area also 
includes a geographic area represented by a postal zip code that is a 
low population density area excluded from a CBA in accordance with 
section 1847(a)(3)(A) of the Act at the time the rules in Sec.  
414.210(g) are applied.
    In accordance with Sec.  414.210(g)(1)(i) through (v), CMS first 
determines regional adjustments to the fee schedule amounts using the 8 
regions of the Bureau of Economic Analysis. Also, the regional prices 
are determined and limited by a national ceiling (110 percent of the 
average of regional prices) and floor (90 percent of the average of 
regional prices). In addition, adjusted fee schedules for non-
contiguous areas are based on the higher of the average of the SPAs for 
CBAs in areas outside the contiguous U.S. or the national ceiling 
amount in accordance with our regulations at Sec.  414.210(g)(2)(i) 
through (ii). Also, Sec.  414.210(g)(3) specifies adjustments for low 
volume items (that is, bid in only 10 or fewer competitive bidding 
programs) are based on 110 percent of the average of the SPAs. In 
addition, adjustments for items and services included in CBPs no longer 
in effect is set forth at Sec.  414.210(g)(4). In cases where the SPAs 
from the DMEPOS CBP that are no longer in effect are used to adjust fee 
schedule amounts, Sec.  414.210(g)(4) provides that the SPAs be updated 
by an inflation adjustment factor for each year from the last year when 
the SPAs were in effect to the year in which the adjustment would go 
into effect (for example, 2016) and for each subsequent year (for 
example, 2017 and 2018). Furthermore, Sec.  414.210(g)(5) establishes 
adjustments for accessories used with different types of base equipment 
in situations where a Healthcare Common Procedure Coding System (HCPCS) 
code describing an item used with different types of base equipment is 
included in more than one product category in a CBA under the CBP; a 
weighted average of the SPAs for the code is computed for each CBA 
prior to applying the other payment adjustment methodologies in Sec.  
414.210(g). Finally, in accordance with Sec.  414.210(g)(6), 
adjustments are made to the SPAs for certain items due to price 
inversions under the DMEPOS CBP (for example, the SPA for a walker 
without wheels is higher than the SPA for a walker with wheels) before 
the SPAs are used to adjust fee schedule amounts. For groupings of 
similar items (for example, walkers) where price inversions have 
occurred, the SPAs for the items in the grouping are all adjusted to 
equal the weighted average of the SPAs for all of the items in the 
grouping. Price inversions are situations where the higher weighted and 
higher priced item at the time of competition becomes the lower priced 
item in the CBP following the competition. For a discussion regarding 
adjustments to SPAs to address price inversions, see the CY 2017 ESRD 
PPS proposed rule published in the Federal Register on June 30, 2016 
entitled ``Medicare Program; End-Stage Renal Disease Prospective 
Payment System, Coverage and 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 Competitive Bidding Program Bid 
Surety Bonds, State Licensure and Appeals Process for Breach of 
Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics, 
and Supplies Competitive Bidding Program and Fee Schedule Adjustments, 
Access to Care Issues for Durable Medical Equipment, and the 
Comprehensive End-Stage Renal Disease Care Model'' (81 FR 42851).
    In order to update the adjusted fee schedule amounts based on new 
competitions and provide for a transitional phase-in period of the fee 
schedule adjustments, we established Sec.  414.210(g)(8) and (g)(9) in 
the CY 2015 ESRD PPS final rule (79 FR 66263). In Sec.  414.210(g)(8), 
the adjusted fee schedule amounts are updated when an SPA for an item 
or service is updated following one or more new DMEPOS CBP competitions 
and as other items are added to DMEPOS CBP. The fee schedule amounts 
that are adjusted using SPAs are not subject to the annual DMEPOS 
covered item update and are only updated when SPAs from the DMEPOS CBP 
are updated. Updates to the SPAs may occur as contracts are recompeted. 
Section 414.210(g)(9)(i), specifies that the fee schedule adjustments 
were phased in for items and services furnished with dates of service 
from January 1, 2016 through June 30, 2016, so that each fee schedule 
amount was adjusted based on a blend of 50 percent of the fee schedule 
amount if not adjusted based on information from the CBP, and 50 
percent of the adjusted fee schedule amount. Section 414.210(g)(9)(ii) 
specifies that for items and services furnished with dates of service 
on or after July 1, 2016, the fee schedule amounts would be equal to 
100 percent of the adjusted fee schedule amounts. Commenters 
recommended CMS phase in the fee schedule adjustments to give suppliers 
time to adjust to the change in payment amounts (79 FR 66228). Some 
commenters recommended a 4-year phase-in of the adjusted fees. CMS 
agreed that phasing in the adjustments to the fee schedule amounts 
would allow time for suppliers to adjust to the new payment rates and 
would allow time to monitor the impact of the change in payment rates 
on access to items and services. We decided 6 months was enough time to 
monitor access and health outcomes to determine if the fee schedule 
adjustments created a negative impact on access to items and services. 
Therefore, we finalized a 6-month phase-in period of the blended rates 
(79 FR 66228 through 66229).
    We finalized the 6-month transition period from January 1 through 
June 30, 2016 in the CY 2015 ESRD PPS final rule (79 FR 66223) that was 
published in the Federal Register on November 6, 2014. The Cures Act 
was enacted on December 13, 2016, and section 16007(a) of the Cures Act 
extended the transition period for the phase-in of fee schedule 
adjustments at Sec.  414.210(g)(9)(i) by 6 additional months so that 
fee schedule amounts were based on a blend of 50 percent of the 
adjusted fee schedule amount and 50 percent of the unadjusted fee 
schedule amount until December 31, 2016 (with full implementation of 
the fee schedule adjustments applying to items and services furnished 
with dates of service on or after January 1, 2017).

C. Transition Period for Phase-In of Fee Schedule Adjustments

    We have determined that the transitional period for the phase-in of 
adjustments to fee schedule amounts should be resumed in non-CBA rural 
and non-contiguous areas in order to ensure access to necessary items 
and services in these areas. This interim final rule with comment 
period amends Sec.  414.210(g)(9) to change the end date for the 
initial transition period for the phase-in of adjustments to fee 
schedule amounts for certain items based on information from the DMEPOS 
CBP from June 30, 2016 to December 31, 2016, to reflect the extension 
that was mandated by section 16007(a) of the Cures Act. This interim 
final rule with comment period also amends Sec.  414.210(g)(9) to 
resume the transition period for the phase-in of adjustments to

[[Page 21916]]

fee schedule amounts for certain items furnished in non-CBA rural and 
non-contiguous areas from June 1, 2018 through December 31, 2018, for 
the reasons discussed in this preamble.
1. Statutory Mandate To Reconsider Fee Schedule Adjustments
    After we established the fee schedule adjustment methodology under 
Sec.  414.210(g), Congress amended section 1834(a)(1)(G) of the Act to 
require that CMS take certain steps and factors into consideration 
regarding the fee schedule adjustments for items and services furnished 
on or after January 1, 2019, to ensure that the rates take into account 
certain aspects of providing services in non-CBAs. Specifically, 
section 16008 of the Cures Act amended section 1834(a)(1)(G) of the Act 
to require in the case of items and services furnished on or after 
January 1, 2019, that in making any adjustments to the fee schedule 
amounts in accordance with sections 1834(a)(1)(F)(ii) and (iii) of the 
Act, the Secretary shall: (1) Solicit and take into account stakeholder 
input; and (2) take into account the highest bid by a winning supplier 
in a CBA and a comparison of each of the following factors with respect 
to non-CBAs and CBAs:
     The average travel distance and cost associated with 
furnishing items and services in the area.
     The average volume of items and services furnished by 
suppliers in the area.
     The number of suppliers in the area.
    On March 23, 2017, CMS hosted a national provider call to solicit 
stakeholder input regarding adjustments to fee schedule amounts using 
information from the DMEPOS CBP. The national provider call was 
announced on March 3, 2017, and we requested written comments by April 
6, 2017. We received 125 written comments from stakeholders. More than 
330 participants called into our national provider call, with 23 
participants providing oral comments during the call. In general, the 
commenters were mostly suppliers, but also included manufacturers, 
trade organizations, and healthcare providers such as physical and 
occupational therapists. These stakeholders expressed concerns that the 
level of the adjusted payment amounts constrains suppliers from 
furnishing items and services to rural areas. Stakeholders requested an 
increase to the adjusted payment amounts for these areas. The written 
comments generally echoed the oral comments from the call held on March 
23, 2017, whereby stakeholders claimed that the adjusted fees are not 
sufficient to cover the costs of furnishing items and services in rural 
and non-contiguous areas and that this is having an impact on access to 
items and services in these areas.
    The oral and written comments are organized into the following 
categories:
    Inadequacy of Adjusted Fee Schedule Amounts: Commenters claim the 
adjusted fee schedule amounts do not cover the cost of furnishing the 
items and are not sustainable. Many commenters opposed the current 
adjusted payment amounts as insufficient to sustain the current cost of 
doing business. Some commenters stated that current reimbursement 
levels are below the cost of doing business. Many commenters stated 
they were billing non-assigned for items, or were considering billing 
non-assigned in the future.
    Travel Distance: Commenters claim the average travel distance and 
cost for suppliers serving rural areas are greater than the average 
travel distance and cost for suppliers serving CBAs. Many commenters 
described farther travel distances in rural areas than in non-rural 
areas. For the purpose of implementing the fee schedule adjustment 
methodologies at Sec.  414.210(g), the term ``rural area'' is defined 
at Sec.  414.202 and essentially includes any areas outside an MSA or 
excluded from a CBA.
    Volume of Services: Many commenters asserted that the average 
volume of services furnished by suppliers, when serving non-CBAs, are 
lower than the average volume of services furnished by suppliers, when 
serving CBAs. Many commenters stated that they do not get the same 
increase in volume that suppliers who obtain competitive bidding 
contracts get, which does not allow them to have economies of scale and 
obtain products at lower costs. Claims data for 2016 and 2017 indicates 
that the average volume of allowed services for suppliers serving CBAs 
is significantly higher than the average volume of allowed services for 
suppliers serving non-CBAs, particularly rural and non-contiguous 
areas.
    Beneficiary Access: Many commenters stated that the adjusted fees 
have reduced the number of suppliers in the area, and that this has 
caused or will cause beneficiary access issues. Some commenters 
explained that they were the only supplier in the area. Claims data 
indicates that the number of supplier locations furnishing items and 
services subject to the fee schedule adjustments changed from 13,535 in 
2015 to 12,617 in 2016.
    Adverse Beneficiary Health Outcomes: Commenters stated that 
beneficiaries are going without items and this is causing adverse 
health outcomes. Commenters stated that hospital readmissions and 
lengths of stay, falls, and fractures are increasing as a result of the 
fee schedule reductions.
    Delivery Expenses: A few commenters provided an estimate of how 
much their delivery expenses cost, their estimated service radius, and 
the average distance traveled. Several commenters stated that they have 
reduced the size of their service area due to the level of 
reimbursement that they are receiving.
    Costs in Rural and Non-Contiguous Areas: Many commenters stated 
rural areas have unique costs, costs that are higher than non-rural 
areas. Similar to comments received on our CY 2015 ESRD PPS proposed 
rule (79 FR 40275 through 40315) and discussed in the CY 2015 ESRD PPS 
final rule (79 FR 66223 through 66265), some commenters stated that a 
10 percent payment increase in rural areas is not enough to cover costs 
in rural areas. One commenter stated that non-contiguous areas, such as 
Alaska and Hawaii, face unique and greater costs due to higher shipping 
costs, a smaller amount of suppliers, and more logistical challenges 
related to delivery. Some commenters stated specific costs, as well as 
data sources, that CMS should take into account when adjusting fees in 
non-CBAs. These included the following: Geographic wage index factors, 
gas, taxes, employee wages and benefits, wear and tear of vehicle, 
average per capita income, training, delivery, set up, historical 
Medicare home placement volume, proximity to nearby CBAs, employing a 
respiratory therapist, electricity charges, freight charges, 24/7 
service, documentation requirements, average per patient cost, 
licensing accreditation, surety bonds, audits, population density, 
miles and time between points of service, regulatory costs, vehicle 
insurance, and liability insurance.
    Two commenters pointed to the Ambulance Fee Schedule and one 
commenter pointed to the Bureau of Labor Statistic Consumer Expenditure 
Survey as evidence that health care costs in rural areas are higher 
than in urban areas. Another commenter mentioned the Internal Revenue 
Service Mileage Rate, the minimum wage, AAA Gallon of Gasoline prices, 
and the price of a loaf of white bread, to highlight how the prices of 
such items have increased over the years, while reimbursement for DME 
has not.

[[Page 21917]]

    Using the Highest Winning Bids for the Adjusted Fee Schedule 
Methodology: Five commenters suggested that the adjusted fee schedule 
amounts be based on maximum winning bids in CBAs rather than the median 
of winning bids in CBAs. One commenter suggested that the maximum 
winning bids should be the starting point for the adjustments and that 
additional payment should be added on to these amounts to pay for the 
higher costs of furnishing items and services in non-CBAs.
    One of the factors CMS must consider when making fee schedule 
adjustments for items and services furnished on or after January 1, 
2019, in accordance with section 16008 of the Cures Act, is the average 
volume of items and services furnished by suppliers in an area. A 
supplier recoups costs through the payments made for the items they 
furnish. In the case of overhead costs such as rent, utilities, 
salaries, and employee benefits, the more items a supplier furnishes, 
the more the supplier is able to recoup these overhead costs. Data for 
items furnished in 2016 and 2017 shows that the average volume of items 
furnished by suppliers in CBAs exceeds the average volume of items 
furnished by suppliers in rural and non-contiguous areas. The fact that 
the volume of items furnished per supplier in rural and non-contiguous 
areas is less than the volume furnished in CBAs indicates that the cost 
per item in rural and non-contiguous areas may be higher than the cost 
per item in CBAs. Because there are fewer suppliers in CBAs furnishing 
a higher volume of items and services, these suppliers likely have 
lower costs per item because they can make up their overhead costs over 
more items. In addition, the higher the volume of items a supplier 
furnishes, the larger the volume purchasing discount is likely to be 
when purchasing equipment from a manufacturer. This supports 
stakeholder input that the suppliers in rural and non-contiguous areas 
have an average volume of business less than that of their counterparts 
in CBAs, and that this difference may make it more difficult for 
suppliers in rural and non-contiguous areas to meet their expenses.
    In addition, the adjusted fee schedule amounts for stationary 
oxygen equipment in non-contiguous, non-CBAs are lower than the SPA for 
stationary oxygen equipment in the Honolulu, Hawaii, CBA and the 
adjusted fee schedule amounts for stationary oxygen equipment in some 
rural areas are lower than the SPAs in CBAs within the same state. This 
is due to the combination of the fee schedule adjustments and the 
budget neutrality offset that CMS applies to stationary oxygen 
equipment and contents due to the separate oxygen class for oxygen 
generating portable equipment (OGPE). In 2006, CMS established a 
separate payment class for OGPE (which are portable concentrators with 
transfilling equipment), through notice and comment rulemaking (71 FR 
65884). The authority to add this payment class, located at section 
1834(a)(9)(D) of the Act, only allows CMS to establish new classes of 
oxygen and oxygen equipment if such classes are budget neutral, which 
means that the establishment of new oxygen payment classes does not 
result in oxygen and oxygen equipment expenditures for any year that 
are more or less than the expenditures that would have been made had 
the new classes not been established. In accordance with Sec.  
414.226(c)(6), CMS reduces the fee schedule amounts for stationary 
oxygen equipment in non-CBAs in order to make the payment classes for 
oxygen and oxygen equipment budget neutral as required by section 
1834(a)(9)(D) of the Act. Due to the combination of the fee schedule 
adjustment and the budget neutrality offset, the adjusted fee schedule 
amounts for stationary oxygen equipment in non-contiguous non-CBAs and 
some rural areas are lower than the SPAs in Honolulu, Hawaii, and CBAs 
within the same state, respectively. This is significant because the 
current methodology at 42 CFR 414.210(g) attempts to ensure that the 
adjusted fee schedule amounts for items and services furnished in rural 
areas within a state are no lower than the adjusted fee schedule 
amounts for non-rural areas within the same state. CBAs are areas where 
payment for certain DME items and services is based on SPAs established 
under the CBP rather than adjusted fee schedule amounts. It is worth 
noting that CBAs tend to have higher population densities and typically 
correspond with urban census tracts.
    The establishment of the payment class for OGPE resulted in an 
increase in Medicare payments for these items and services. Therefore, 
each year, a budget neutrality offset is applied to the monthly payment 
amount for stationary oxygen equipment to ensure that the OGPE payment 
class does not result in oxygen and oxygen equipment expenditures that 
would be more or less than the expenditures that would have been made 
without the OGPE class. As more beneficiaries shift to using OGPE, the 
budget neutrality offset that is applied to the stationary oxygen 
equipment payment rate increases. The budget neutrality requirement 
does not apply under the DMEPOS CBP because under section 1847(a) of 
the Act, the payment amounts for oxygen and oxygen equipment are 
established based on bids submitted and accepted by winning suppliers 
under the program, and not based on the payment rules under section 
1834(a) of the Act. The budget neutrality offset has resulted in 
payment amounts for stationary oxygen equipment in CBAs being higher 
than the adjusted fee schedule amounts in some cases. Restoring the 
blended fee schedule rates paid in rural and non-contiguous non-CBAs 
during the transition period would result in fee schedule amounts for 
oxygen and oxygen equipment in these areas being higher than the SPAs 
paid in all of the CBAs. Therefore, payment at the blended rates would 
avoid situations where payment for furnishing oxygen in a rural or non-
contiguous, non-CBA is lower than payment for furnishing oxygen in a 
CBA.
2. Fee Schedule Adjustment Impact Monitoring Data
    Regarding adverse health beneficiary outcomes, we have been 
monitoring claims data from non-CBAs, some of which pre-dates the 
implementation of the fully adjusted fee schedule amounts. To the 
extent that this data pre-dates the implementation of the fully 
adjusted fees, it is less likely to demonstrate any adverse impacts. 
The data does not show any observable trends indicating an increase in 
adverse health outcomes such as mortality, hospital and nursing home 
admission rates, monthly hospital and nursing home days, physician 
visit rates, or emergency room visits in 2016 or 2017 compared to 2015 
in the non-CBAs, overall. In addition, we have been monitoring data on 
the rate of assignment in non-CBAs, which reflects when suppliers are 
accepting Medicare payment as payment in full and not balance billing 
beneficiaries for the cost of the DME. More importantly, the monitoring 
data does not indicate the extent to which suppliers that have not 
already exited the Medicare program are struggling to maintain current 
service levels or individual cases where access or health outcomes may 
have been affected. We are soliciting comments on ways to improve our 
fee schedule adjustment impact monitoring data.
3. Resuming Transitional Blended Fee Schedule Rates in Rural and Non-
Contiguous Areas
    The monitoring data described in section II.C.2 of this interim 
final rule with comment is retrospective claims data for payment of 
items already

[[Page 21918]]

furnished. Stakeholders state that this data is of limited utility in 
assessing the development of adverse trends in access to items and 
services, or that the health of beneficiaries is being negatively 
affected by the fully adjusted fee schedule amounts. Claims data does 
not capture all of the challenges experienced by beneficiaries and 
suppliers, such as suppliers going out of business or timely delivery 
of items. Further, this claims data is also limited to a retrospective 
view to address potential future problems. In other words, it does not 
serve as a tool that can guard against the negative outcomes raised by 
stakeholders, as discussed elsewhere in the preamble. In fact, the 
Government Accountability Office (GAO) acknowledged challenges 
associated with the monitoring of DMEPOS and the CBP in its review of 
the first year of the DMEPOS CBP Round 1 Rebid, stating that the 
monitoring methods used by CMS in assessing the impact of competitive 
bidding did not directly show whether beneficiaries received the DME 
they needed on time.\1\ We do note, however, that the Office of 
Inspector General (OIG) has found that the implementation of Round 2 
Competitive Bidding did not appear to disrupt beneficiary access to 
CPAP/RAD equipment.\2\
---------------------------------------------------------------------------

    \1\ U.S. Government Accountability Office. Medicare: Review of 
the First Year of CMS's Durable Medical Equipment Competitive 
Bidding Program's Round 1 Rebid, May 2012 (GAO-12-693), http://www.gao.gov/assets/600/590712.pdf (accessed 4 November 2015), page 
42.
    \2\ Office of Inspector General. U.S. Department of Health & 
Human Services. Round 2 Competitive Bidding for CPAP/RAD: Disrupted 
Access Unlikely for Devices, Inconclusive for Supplies, June 2017 
(OEI-01-15-00040).
---------------------------------------------------------------------------

    Approximately 85 percent of the DME industry are considered small 
businesses according to the Small Business Administration's size 
standards. According to Medicare claims data, the number of supplier 
locations furnishing DME items and services subject to the fee schedule 
adjustments decreased by 22 percent from 2013 to 2016. In 2016 alone 
there was a 7 percent decline from the previous year in the number of 
DME supplier locations furnishing items and services subject to the fee 
schedule adjustments. The magnitude of this decline in DME supplier 
locations, from 13,535 (2015) to 12,617 (2016),\3\ indicates that the 
number of DME supplier locations serving these areas continues to 
decline. Based on partial year data, there was a further reduction in 
supplier locations of 9 percent in 2017.\4\
---------------------------------------------------------------------------

    \3\ Medicare claims process through November 3, 2017
    \4\ There were 12,537 supplier locations furnishing items 
subject to the fee reductions in 2016, based on claims processed 
through April 6, 2017, and 11,384 supplier locations furnishing 
items subject to the fee reductions in 2017, based on claims 
processed through April 7, 2018.
---------------------------------------------------------------------------

    There are additional factors that section 16008 of the Cures Act 
requires us to take into account in making adjustments to the fee 
schedule amounts for items and services furnished beginning in 2019. We 
know that the average volume of items and services furnished per 
supplier in non-CBAs is significantly less than the average volume of 
items and services furnished per supplier in CBAs. Additionally, the 
number of suppliers in general has been steadily decreasing over time 
and this trend is not abating. As the number of suppliers serving non-
CBAs continues to decline, the volume of items and services furnished 
by the remaining suppliers is increasing. However, we do not know if 
the suppliers that remain will have the financial ability to continue 
expanding their businesses to continue to satisfy market demand. We 
also do not know if large suppliers serving both urban and rural areas 
will continue to serve the rural areas representing a much smaller 
percentage of their business than urban areas. We specifically address 
the stakeholder comments and concerns below.
    Based on the stakeholder comments and decrease in the number of 
supplier locations, there is an immediate need to resume the 
transitional, blended fee schedule amounts in rural and non-contiguous 
areas. Resuming these transitional blended rates will preserve 
beneficiary access to needed DME items and services in a contracting 
supplier marketplace, while allowing CMS to address the adequacy of the 
fee schedule adjustment methodology, as required by section 16008 of 
the Cures Act. We recognize that reduced access to DME may put 
beneficiaries at risk of poor health outcomes or increase the length of 
hospital stays.
    Suppliers have noted that they have struggled under the fully 
adjusted fee schedule and that they do not believe they can continue to 
furnish the items and services at the current rates. Stakeholders 
overwhelmingly have stated that the fully adjusted fee schedule amounts 
are not sufficient to cover supplier costs for furnishing items and 
services in rural and non-contiguous areas and the number of suppliers 
furnishing items in these areas continues to decline. Further, section 
16008 of the Cures Act mandates that we consider stakeholder input and 
additional information in making fee schedule adjustments based on 
information from the DMEPOS CBP for items and services furnished 
beginning in 2019. The information we have collected, however, includes 
input from many stakeholders indicating that the fully adjusted fee 
schedule amounts are too low and that this is having an adverse impact 
on beneficiary access to items and services, particularly in rural and 
non-contiguous areas. Given the strong stakeholder concern about the 
continued viability of many DMEPOS suppliers, coupled with the Cures 
Act mandate to consider additional information material to setting fee 
schedule adjustments, it would be unwise to continue with the fully 
adjusted fee schedule rates in the vulnerable rural and non-contiguous 
areas for 7 months. Any adverse impacts on beneficiary health outcomes, 
or on small businesses exiting the market, could be irreversible. It is 
in the best interest of the beneficiaries living in these areas to 
maintain a blend of the historic unadjusted fee schedule amounts and 
fee schedule amounts adjusted using SPAs established under the DMEPOS 
CBP to prevent suppliers that might be on the verge of closing from 
closing, as they may be the only option for beneficiaries in these 
areas. While our systematic monitoring in these areas has not shown 
problematic trends to this point, that monitoring by its nature looks 
backward and reflects other limitations, as discussed in section II.C.2 
of this interim final rule with comment. Given the rapid changes in 
health care delivery that may disproportionately impact rural and more 
isolated geographic areas, there is concern that the continued decline 
of the fees and the number of suppliers in such areas may impact 
beneficiary access to items and services. These adjustments would 
maintain a balance between the higher historic rates and rates adjusted 
based on bidding in larger metropolitan areas where suppliers furnish a 
much larger volume of DMEPOS items and services and support continued 
access to services. In order to safeguard beneficiaries' access to 
necessary items and services, we should immediately resume the 
transition period for the phase-in of fee schedule adjustments in these 
areas that was in place during CY 2016. Therefore, we are revising 
Sec.  414.210(g)(9) to resume the fee schedule adjustment transition 
rates for items and services furnished in rural and non-contiguous 
areas from June 1, 2018 through December 31, 2018, while we further 
analyze this issue. During this extended

[[Page 21919]]

transition period, CMS will take into account the information required 
by section 16008 of the Cures Act in determining whether changes to the 
methodology for adjusting fee schedule amounts for items furnished on 
or after January 1, 2019, are necessary.

D. Fee Schedule Amounts for Accessories Used With Group 3 Complex 
Rehabilitative Power Wheelchairs

    In the CY 2010 final rule (75 FR 73390) published in the Federal 
Register on November 29, 2010, entitled ``Medicare Program; Payment 
Policies Under the Physician Fee Schedule and Other Revisions to Part B 
for CY 2011,'' we reviewed the HCPCS coding for power wheelchairs that 
were updated in 2006 in response to the release of the Power Mobility 
Device Coding Guidelines published by the DME Medicare Administrative 
Contractors. Codes were added to the HCPCS for various types of power 
wheelchair bases, differentiated based on level of performance, with 
group 1 being the lowest and group 3 being the highest level covered by 
Medicare, and the ability to accommodate complex rehabilitative power 
options such as power seating systems or a specialty interface, such as 
sip and puff controls. Codes were established at both the group 2 and 3 
performance level for ``complex rehabilitative'' power wheelchair 
bases.
    Section 154(a)(1)(B) of the Medicare Improvements for Patients and 
Providers Act (MIPPA) of 2008 (Pub. L. 110-275), amended section 
1847(a)(2)(A) of the Act to exclude group 3 or higher complex 
rehabilitative power wheelchairs and related accessories when furnished 
in connection with such wheelchairs from competitive bidding. At the 
same time, section 154(a)(1)(A) of MIPPA amended section 1847(a)(1) of 
the Act to add paragraph (D) which terminated Round 1 and required 
rebidding Round 1 for the same items and services and the same areas 
with some changes. Since we included group 2 complex rehabilitative 
power wheelchairs and related accessories (including seating systems) 
and seat and back cushions, under Round 1 of the DMEPOS CBP, we were 
required to include those wheelchairs and accessories in the Round 1 
Rebid of the DMEPOS CBP. The accessories (including seating systems) 
and cushions furnished in connection with group 2 complex 
rehabilitative power wheelchairs (HCPCS codes K0835 through K0843) are 
the same items furnished in connection with group 3 complex 
rehabilitative power wheelchairs (HCPCS codes K0848 through K0864).
    Single payment amounts were implemented on January 1, 2011, in the 
nine Round 1 Rebid areas, for group 1 and 2 standard power wheelchair 
bases, group 2 complex rehabilitative power wheelchair bases, and the 
interchangeable accessories used with the different bases (for example, 
batteries used with all power wheelchairs and power seating systems 
used with both group 2 and 3 complex rehabilitative power wheelchairs). 
As noted above, these items are competitively bid under section 1847 of 
the Act, and we did not competitively bid group 3 wheelchairs or use 
competitively bid prices for related accessories when used with a group 
3 wheelchair in the Round 1 Rebid of the DMEPOS CBP.
    Section 1834(a)(1)(F)(ii) of the Act mandates the adjustment of fee 
schedule amounts for items that are furnished in non-CBAs based on 
information from the CBPs beginning on January 1, 2016. We established 
a policy under Sec.  414.210(g)(5) for adjusting the fee schedule 
amounts for accessories used with different types of base equipment 
that are included in one or more product categories under competitive 
bidding in the CY 2015 ESRD PPS final rule (79 FR 66223 through 66233). 
In that rulemaking, we stated the Agency's belief that it would be 
unnecessarily burdensome to have different fee schedule amounts for the 
same item (HCPCS code) when it is used with similar, but different 
types of base equipment, and that the costs of furnishing the accessory 
should not vary significantly based on the type of base equipment it is 
used with (79 FR 66230). We finalized Sec.  414.210(g)(5) to adjust the 
fee schedule amount for a HCPCS code for an accessory for use with all 
types of base equipment using pricing information for the item when it 
is included in one or more product categories under competitive 
bidding. The adjusted fee schedule amounts for these common accessories 
became effective on January 1, 2016.
    Section 2 of the Patient Access and Medicare Protection Act of 2015 
(Pub. L. 114-115) delayed the adjustments to the fee schedule amounts 
for accessories (including seating systems) and seat and back cushions 
when furnished in connection with group 3 complex rehabilitative power 
wheelchairs until January 1, 2017. Subsequently, section 16005 of the 
Cures Act extended this delay in the DME fee schedule adjustments based 
on competitive bidding information for certain wheelchair accessories 
used with group 3 complex rehabilitative power wheelchairs from January 
1, 2017 until July 1, 2017. Since the Congress has acted twice to 
address the issue, these legislative actions highlight a general 
concern regarding access to this specialized equipment by the 
vulnerable patient population that depends on this equipment and 
technology.
    Complex rehabilitative power wheelchairs are used by patients 
needing functionality, such as head or sip and puff controls, power 
tilt or recline seating, or ventilators mounted to the wheelchair, 
which are not available on standard power wheelchairs. The ability and 
performance of the wheelchair in meeting the patients' specialized 
needs is critical, and most patients use wheelchair bases with group 3 
level performance to meet these needs. Far fewer use group 2 wheelchair 
bases, which are the bases that the accessories were included with 
under Round 1 of the DMEPOS CBP.
    Section 1847(a)(2)(A) of the Act provides the categories of items 
that are subject to the CBP and excludes certain complex rehabilitative 
power wheelchairs recognized by the Secretary as classified within 
group 3 or higher (and related accessories when furnished in connection 
with such wheelchairs). This statutory exclusion should inform our 
implementation of section 1834(a)(1)(F) of the Act such that the fee 
schedule amounts for wheelchair accessories and back and seat cushions 
used in conjunction with group 3 complex rehabilitative power 
wheelchairs should not be adjusted based on the methodologies set forth 
in Sec.  414.210(g)(5). Therefore, as we have announced in guidance 
available on the CMS website in June (located at: https://www.cms.gov/Center/Provider-Type/Durable-Medical-Equipment-DME-Center.html) the fee 
schedule amounts for wheelchair accessories and back and seat cushions 
used in conjunction with group 3 power wheelchairs continue to be based 
on the unadjusted fee schedule amounts updated by the covered item 
update specified in section 1834(a)(14) of the Act. The fee schedule 
amounts for all other accessories used with different types of base 
equipment continue to be calculated in accordance with the adjustment 
methodology set forth in Sec.  414.210(g)(5) of our regulations.

E. Technical Changes To Conform the Regulations to Section 5004(b) of 
the Cures Act: Exclusion of DME Infusion Drugs Under CBPs

    Section 5004(b) of the Cures Act amends section 1847(a)(2)(A) of 
the Act to exclude drugs and biologicals

[[Page 21920]]

described in section 1842(o)(1)(D) of the Act from the CBP. We are 
making conforming technical changes to the regulations text consistent 
with statutory requirements to exclude drugs and biologicals from the 
CBP. We are amending 42 CFR 414.402 to reflect that infusion drugs are 
not included in the CBP by revising the definition of ``Item'' in 
paragraph (2) to add the words ``and infusion'' after the words ``other 
than inhalation''. The sentence will read as follows: ``Supplies 
necessary for the effective use of DME other than inhalation and 
infusion drugs.'' We are also removing a reference to drugs being 
included in the CBP by deleting the phrase ``or subpart I'' in Sec.  
414.412(b)(2). The sentence will read as follows: ``The bids submitted 
for each item in a product category cannot exceed the payment amount 
that would otherwise apply to the item under subpart C of this part, 
without the application of Sec.  414.210(g), or subpart D of this part, 
without the application of Sec.  414.105. The bids submitted for items 
in accordance with paragraph (d)(2) of this section cannot exceed the 
weighted average, weighted by total nationwide allowed services, as 
defined in Sec.  414.202, of the payment amounts that would otherwise 
apply to the grouping of similar items under subpart C of this part, 
without the application of Sec.  414.210(g), or subpart D of this part, 
without the application of Sec.  414.105.'' Similarly, we are making a 
conforming technical change to Sec.  414.414(f) in the discussion of 
``expected savings'' so that infusion drugs are not taken into account 
by deleting the words ``or drug'' and the phrase ``or the same drug 
under subpart I'' from Sec.  414.414(f). The ``expected savings'' text 
will read as follows: ``A contract is not awarded under this subpart 
unless CMS determines that the amounts to be paid to contract suppliers 
for an item under a competitive bidding program are expected to be less 
than the amounts that would otherwise be paid for the same item under 
subpart C or subpart D.''

III. Provisions of the Interim Final Rule With Comment Period

A. Transition Period for Phase-In of Fee Schedule Adjustments

    We are amending Sec.  414.210(g)(9)(i) to change the end date for 
the initial transition period for the phase in of adjustments to fee 
schedule amounts for certain items based on information from the DMEPOS 
CBP from June 30, 2016 to December 31, 2016, as mandated by section 
16007(a) of the Cures Act. We are also amending Sec.  414.210(g)(9)(ii) 
to reflect that fully adjusted fee schedule amounts apply from January 
1, 2017 through May 31, 2018, and then on or after January 1, 2019. We 
are also adding Sec.  414.210(g)(9)(iii) to resume the transition 
period for the phase in of adjustments to fee schedule amounts for 
certain items furnished in rural and non-contiguous areas from June 1, 
2018 through December 31, 2018. Finally, we are adding Sec.  
414.210(g)(9)(iv) to reflect that fully adjusted fee schedule amounts 
apply for certain items furnished in non-CBA areas other than rural and 
non-contiguous areas from June 1, 2018 through December 31, 2018.
    As previously stated in section II.C.1 of this interim final rule 
with comment, stakeholders overwhelmingly have stated that the fully 
adjusted fee schedule amounts are not sufficient to cover supplier 
costs for furnishing items and services in rural and non-contiguous 
areas and are impacting beneficiary health outcomes. Section 16008 of 
the Cures Act requires CMS to consider certain factors in making fee 
schedule adjustments using information from the CBP for items and 
services furnished in non-CBAs on or after January 1, 2019. Given the 
limitations associated with our retrospective claims data prevent us 
from detecting rapidly developing beneficiary access issues, we believe 
we should immediately resume the blended fee schedule rates in rural 
and non-contiguous areas that were in place during CY 2016, while we 
further analyze this issue in order to safeguard beneficiaries' access 
to necessary items and services in rural and non-contiguous areas. 
Given that additional information and factors will be considered when 
addressing the fee schedule adjustments for items and services 
furnished on or after January 1, 2019, and that these factors include 
differences in costs (yet to be quantified) associated with furnishing 
items in heavier populated CBAs versus less populated or remote rural 
and non-contiguous areas, we have concluded that we should adjust fee 
schedule amounts based on competitive bidding information prior to 
2019. The volume of items furnished per supplier in rural and non-
contiguous areas is far less than the volume of items furnished per 
supplier in CBAs, indicating that the cost per item in these areas may 
be higher than the cost per item in CBAs. Also, as noted earlier, our 
systematic claims monitoring only looks backward in time and may not 
detect rapidly emerging trends, particularly in isolated or rural 
areas. We also referenced the GAO's acknowledgement that there are 
challenges associated with the monitoring CBP. In its report regarding 
the first year of the DMEPOS CBP Round 1 Rebid, the GAO stated that the 
monitoring methods used by CMS in assessing the impact of competitive 
bidding did not directly show whether beneficiaries received the DME 
needed on time or whether adverse health outcomes were caused by 
problems accessing DMEPOS. As the fee schedule amounts and the number 
of suppliers continue to decline, we are concerned that DME access in 
remote areas of the country may be negatively affected by significant 
payment reductions put in place prior to a full analysis of the factors 
affecting the cost of furnishing items and services in distinctly 
different market areas. We are also concerned that national chain 
suppliers may close locations in more remote areas if the rate they are 
paid for furnishing items in a market where the volume of services is 
low does not justify the overhead expenses of retaining the locations.
    Finally, because this IFC will result in a change to the 2018 fee 
schedule amounts for the various classes of oxygen and oxygen 
equipment, the annual budget neutrality adjustment for 2018, mandated 
by regulations at Sec.  414.226(c)(6), will need to be recomputed. This 
annual adjustment to the monthly payment amount for stationary oxygen 
equipment and oxygen contents is mandated by section 1834(a)(9)(D)(ii) 
of the Act as a condition for maintaining the higher portable oxygen 
equipment add-on payment for portable concentrators and transfilling 
equipment.

B. Technical Changes To Conform the Regulations to Section 5004(b) of 
the Cures Act: Exclusion of DME Infusion Drugs Under CBPs

    We are making conforming technical changes to the regulations text 
consistent with statutory requirements to exclude drugs and biologicals 
from the CBP. Specifically, we are amending Sec.  414.402 to reflect 
that infusion drugs are not included in the CBP by revising the 
definition of ``Item'' in paragraph (2) to add the words ``and 
infusion'' after the words ``other than inhalation''. We are also 
removing a reference to drugs being included in the CBP by deleting the 
phrase ``or subpart I'' in Sec.  414.412(b)(2). Similarly, we are 
making a conforming technical change to the regulations text on 
``expected savings'' so that infusion drugs are not taken into account 
in Sec.  414.414(f) by deleting the words ``or drug'' and the phrase 
``or the same drug under subpart I''.

[[Page 21921]]

IV. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register and invite public comment on the proposed rule before 
the provisions of the rule take effect in accordance with 5 U.S.C. 
553(b) of the Administrative Procedure Act (APA) and section 1871 of 
the Act. Specifically, section 553(b) of the APA requires the agency to 
publish a notice of the proposed rule in the Federal Register that 
includes a reference to the legal authority under which the rule is 
proposed, and the terms and substances of the proposed rule or a 
description of the subjects and issues involved. Section 553(c) of the 
APA further requires the agency to give interested parties the 
opportunity to participate in the rulemaking through public comment 
before the provisions of the rule take effect. Similarly, section 
1871(b)(1) of the Act requires the Secretary to provide for notice of 
the proposed rule in the Federal Register and provide a period of not 
less than 60 days for public comment. Section 553(b)(3)(B) of the APA 
and section 1871(b)(2)(C) of the Act authorize an agency to waive these 
procedures, however, if an agency finds good cause that a notice-and-
comment procedure is impracticable, unnecessary, or contrary to the 
public interest and incorporates a statement of the finding and its 
reasons in the rule issued. Section 553(d) of the APA ordinarily 
requires a 30-day delay in the effective date of a final rule from the 
date of its publication in the Federal Register. This 30-day delay in 
effective date can be waived, however, if an agency finds good cause to 
support an earlier effective date. Section 1871(e)(1)(B)(i) of the Act 
also prohibits a rule from taking effect before the end of the 30-day 
period that begins the date that the rule is issued or published. 
However, section 1871(e)(1)(B)(ii) of the Act permits a substantive 
rule to take effect before 30 days if the Secretary finds that a waiver 
of the 30-day period is necessary to comply with statutory requirements 
or that the 30-day delay would be contrary to the public interest. In 
addition, the Congressional Review Act (5 U.S.C. 801(a)(3)), requires a 
60-day delayed effective date for major rules. However, we can waive 
the delay in effective date of the rule if the Secretary finds, for 
good cause, that notice and public procedure is impracticable, 
unnecessary, or contrary to the public interest, and incorporates a 
statement of the finding and the reasons in the rule issued (5 U.S.C. 
808(2)).
    As discussed below, and for reasons cited throughout this interim 
final rule with comment period, we find good cause to waive notice-and-
comment rulemaking and issue this interim final rule with comment 
period to address fee schedule adjustments based on information from 
the CBP in rural and non-contiguous areas because we believe it is 
contrary to the public interest to go through notice-and-comment 
rulemaking for this provision. We also find good cause to waive the 30-
day delay in effective date of this interim final rule with comment 
period as a delay in effective date would also be contrary to the 
public interest. The full fee schedule adjustments took effect on 
January 1, 2017, and we understand from stakeholders that some DMEPOS 
suppliers cannot exist at the current fully adjusted fee levels and 
have already had to drop out of Medicare, and even close down. Delaying 
the effective date of this interim final rule with comment period by 30 
days could result in a further decline in the number of DMEPOS 
suppliers, and would pose an unnecessary risk of harm to beneficiaries 
in certain areas of the country that rely on one or a few suppliers to 
access to items and services and these suppliers are no longer able to 
furnish the items and services at the fully adjusted fee schedule 
amounts. We also note that in this interim final rule with comment 
period, CMS is reverting to a prior transitional payment policy that 
was in place from January 1, 2016 through December 31, 2016, to allow 
time for further engagement with stakeholders, through future notice 
and comment rulemaking, in the development of a long-term, more 
sustainable fee schedule adjustment methodology for items and services 
furnished in rural and non-contiguous areas.
    We also find it unnecessary to undertake notice-and-comment 
rulemaking to make technical changes to conform the regulations to the 
statutory requirement under section 5004(b) of the Cures Act that 
infusion drugs used with DME be excluded from the DMEPOS CBP. We also 
find good cause to waive the delay in the effective date for this 
interim final rule with comment period because it would be contrary to 
the public interest to further delay updating the regulations to be 
consistent with the statute and avoid possible confusion that infusion 
drugs are still subject to competitive bidding, particularly given that 
the statutory exclusion is self-implementing and already effective.
    Although we did not formally publish a notice of proposed 
rulemaking in the Federal Register, we have solicited stakeholder input 
regarding the impact of the fee schedule adjustments as required by 
section 16008 of the Cures Act, through a national provider call on 
March 23, 2017, as well as through an accompanying written comment 
period. We sought feedback on section 16008 of the Cures Act, which 
mandates stakeholder input on the methodology for using information 
from the DMEPOS CBP for adjusting Medicare fee schedule amounts paid in 
non-CBAs.
    We received numerous comments from stakeholders, such as comments 
that expressed how the current adjusted fee schedule is not enough to 
cover a DME supplier's costs of running a business and that many 
suppliers are not able to sustain reductions in payment of up to 60 
percent on average that resulted from the full fee schedule 
adjustments, resulting in a number of suppliers leaving the business 
and many more considering leaving the business in the near future. Such 
a result would negatively impact beneficiaries' access to critical 
items and services necessary for their care. Some stakeholders 
commented that some of the more remote, high cost areas are served by 
only one or a few suppliers. In 2016, there was a 7 percent decline in 
the number of supplier locations furnishing items and services subject 
to the fee schedule adjustments in non-CBAs. The magnitude of this 
decline in supplier locations from 13,535 to 12,617 indicates that the 
number of supplier locations serving these areas continues to decline 
at the same time that stakeholders are indicating their expectations of 
additional supplier exits. In situations where there may only be one 
supplier serving an area, if the supplier were to stop furnishing items 
(for example oxygen), the beneficiaries in this area could be harmed 
significantly if there are no suppliers left to deliver replacement of 
necessary oxygen. We are concerned that national chain suppliers of 
oxygen may close locations in more remote areas if the rate they are 
paid for furnishing items in a market where the volume of services is 
low does not justify the overhead expenses of retaining the locations. 
Due to the inherent limitation associated with using retrospective 
claims data, our systematic monitoring in these areas has not been able 
to reflect problematic trends identified by numerous stakeholders. As 
noted, the GAO has also acknowledged challenges associated with the 
monitoring of DMEPOS and the CBP, stating that the monitoring methods 
used by CMS in

[[Page 21922]]

assessing the impact of competitive bidding did not directly show 
whether beneficiaries received the DME they needed on time or whether 
adverse health outcomes were caused by problems accessing DMEPOS. Given 
the rapid changes in health care delivery that may disproportionately 
impact rural and more isolated geographic areas, we are concerned that 
the continued decline of the fees and the number of suppliers in such 
areas may exacerbate the already emergent access concerns faced by 
beneficiaries. In general, we are concerned that beneficiaries in 
certain areas of the country could lose access to items and services if 
they rely on one or a few suppliers to furnish these items and services 
and these suppliers are no longer able to furnish the items and 
services at the fully adjusted fee schedule amounts.
    Our monitoring data, by its very nature, would not alert us to the 
present and imminent threats to beneficiary access that stakeholders 
have raised in recent months. If CMS continues to pay the fully 
adjusted payment rates in rural and non-contiguous areas, it could 
further jeopardize the infrastructure of suppliers that beneficiaries 
rely on for access to necessary items and services in remote areas of 
the country. Smaller suppliers that serve remote areas may not be able 
to sustain larger reductions in payment because they have a limited 
number of ways to reduce costs. If they only have one location and a 
few employees to begin with, they cannot close locations or lay off 
employees to reduce costs. Larger suppliers that serve both remote, 
rural areas and urban areas may elect to close locations in the remote 
areas where volume of services are significantly lower because the 
overhead expense of maintaining the location may no longer justify 
retaining these locations. Therefore, we believe it is necessary to 
prevent future, potential access problems and adverse health outcomes 
for beneficiaries by resuming the fee schedule adjustment transition 
period in rural and non-contiguous areas. Immediately restoring the 
blended rates in rural and non-contiguous areas, which will cut the 
magnitude of the full adjustments in half, can prevent potential 
erosion of the supplier infrastructure that could potentially be on the 
verge of impacting access and health outcomes in rural and non-
contiguous areas. By restoring the transition period in rural and non-
contiguous areas effective June 1, 2018, this in essence extends the 
fee schedule adjustment phase in period by an additional 7 months and 
leaves a gap of 17 months from January 1, 2017 through May 31, 2018, 
during which suppliers have been subject to the full fee schedule 
adjustments in rural and non-contiguous areas. This extended phase-in 
period would end on December 31, 2018, since section 16008 of the Cures 
Act mandates that CMS consider certain factors and information in 
making fee schedule adjustments for items and services furnished on or 
after January 1, 2019. This gives suppliers serving rural and non-
contiguous areas more time to adjust their businesses and may prevent 
the imminent closure of some supplier locations, thereby safeguarding 
beneficiary access to necessary items and services in rural and non-
contiguous areas. It also prevents irreparable harm to businesses in 
rural and non-contiguous areas that would not be able to adjust to the 
full payment reductions, but might be able to adjust to smaller 
reductions in payments during an interim period until additional cost 
information is examined more closely by CMS to provide a more accurate 
reflection of the unique costs of furnishing items and services in 
market areas that are distinctly different from CBAs. This also allows 
time for CMS to receive supplier feedback and analyze the costs of 
furnishing DME items in rural and non-contiguous areas and other 
factors identified in section 16008 of the Cures Act. Resuming the fee 
schedule adjustment transition period for an additional 7 months in 
rural and non-contiguous areas seems reasonable during this interim 
period to allow for the more in depth analysis of the factors and 
information to be considered in accordance with section 16008 of the 
Cures Act.
    In light of these concerns, while we consider broader changes to 
the fee schedule adjustment methodology as required by section 16008 of 
the Cures Act, we believe there is good cause to issue this interim 
final rule with comment period to revise Sec.  414.210(g)(9) to 
immediately restore the fee schedule adjustment transition period in 
rural and non-contiguous areas. Resuming the transition period and 
blended rates based on adjusted and unadjusted fee schedule amounts for 
items and services furnished in rural and non-contiguous areas from 
June 1, 2018 through December 31, 2018, will allow additional time for 
suppliers serving rural and non-contiguous areas to adjust their 
businesses, prevent suppliers that beneficiaries may rely on for access 
to items and services in rural and non-contiguous areas from exiting 
the business, and allow additional time for CMS to monitor the impact 
of the blended rates. We believe it is contrary to the public interest 
to go through notice and comment rulemaking because of the stakeholder 
input we have already solicited that supports this change and because 
any further delay in implementation risks impeding beneficiary access 
to DME in rural and non-contiguous areas. To further delay restoring 
the transitional fee schedule rates in rural and non-contiguous areas 
for additional months raises the access concerns described earlier in 
the preamble. As such, in Sec.  414.210(g)(9)(iii), for items and 
services furnished in rural and non-contiguous areas on or after June 
1, 2018, the payment adjustments will be based on a blend of 50 percent 
of the unadjusted fee schedule amount and 50 percent of the adjusted 
payment amount established in accordance with the methodologies in 
Sec.  414.210(g)(1) through (8). We are also amending Sec.  
414.210(g)(9)(ii) to reflect that for items and services furnished with 
dates of service from January 1, 2017 to May 31, 2018, the fee schedule 
amount for the area is equal to 100 percent of the adjusted payment 
amount.
    We note that this rule is urgent to preserve beneficiary access to 
DME items and services in rural and non-contiguous areas during this 
transition period, that CMS is continuing to study the impact of the 
change in payment rates on access to items and services in these areas, 
and that we intend to undertake subsequent notice-and-comment 
rulemaking for CY 2019.
    Section 5004(b) of the Cures Act further amends section 
1847(a)(2)(A) of the Act to exclude drugs and biologicals described in 
section 1842(o)(1)(D) of the Act. We are finalizing conforming 
regulatory changes to reflect our interpretation of these statutory 
requirements to exclude infusion drugs, described in section 
1842(o)(1)(D) of the Act, as a covered item that could be subject to 
the DMEPOS CBPs. Because this is just a minor technical change to 
conform the language in the regulations to the statute, we believe that 
a notice and comment period for this change is unnecessary.
    Therefore, as noted above, we find good cause to waive the notice 
of proposed rulemaking to address fee schedule adjustments in rural and 
non-contiguous areas based on information from the CBP, and to make 
technical changes to the regulations so they conform to the statutory 
requirement under section 5004(b) of the Cures Act that infusion drugs 
used with DME be excluded from the DMEPOS CBP. We also find good cause 
to waive the delay in effective date and issue this interim

[[Page 21923]]

final rule with comment period with an effective date of June 1, 2018. 
We are providing a 60-day public comment period.

V. Collection of Information Requirements

    This document does not impose information collection 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.).

VI. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
and, when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.

VII. Economic Analyses

A. Regulatory Impact Analysis

1. Introduction
    We have examined the impacts of this interim final rule with 
comment period 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), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
section 1102(b) of the Social Security 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), the Congressional Review 
Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation 
and Controlling Regulatory Costs (January 30, 2017).
    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). Section 
3(f) of Executive Order 12866 defines a ``significant regulatory 
action'' as an action that is likely to result in a rule: (1) Having an 
annual effect on the economy of $100 million or more in any 1 year, or 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating a serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    A regulatory impact analysis (RIA) must be prepared for major rules 
with economically significant effects ($100 million or more in any 1 
year). We estimate that this rulemaking is ``economically significant'' 
as measured by the $100 million threshold, and hence also a major rule 
under the Congressional Review Act. In addition, the Office of 
Management and Budget (OMB) has determined that the actions are 
significant within the meaning of section 3(f)(4) of the Executive 
Order. Accordingly, we have prepared a Regulatory Impact Analysis that 
to the best of our ability presents the costs and benefits of the 
rulemaking. Therefore, OMB has reviewed this interim final rule with 
comment period, and the Departments have provided the following 
assessment of their impact. We solicit comments on the regulatory 
impact analysis provided.
2. Statement of Need
    This interim final rule with comment period amends the regulation 
to revise the date that the initial fee schedule adjustment transition 
period ended and resumes the fee schedule adjustment transition period 
for certain DME items and services and enteral nutrition furnished in 
rural and non-contiguous areas not subject to the DMEPOS CBP from June 
1, 2018 through December 31, 2018. This interim final rule with comment 
period also makes technical amendments to existing regulations for 
DMEPOS items and services to note the exclusion of infusion drugs used 
with DME from the DMEPOS CBP.
3. Overall Impact
    The interim final rule with comment period resumes the transitional 
adjusted Medicare fee schedule amounts for certain items and services 
that are furnished in rural and non-contiguous areas beginning June 1, 
2018 until December 31, 2018. It is estimated that these fee schedule 
adjustments will cost over $290 million in Medicare Part B benefit 
payments and $70 million in Medicare beneficiary cost sharing. For dual 
eligible beneficiaries Medicaid pays the cost sharing. The Medicaid 
payment is split between a Federal portion and the states' portion, 
which for this rule is $10 million and $10 million, respectively.

B. Detailed Economic Analysis

a. Effects on the Medicare Program and Beneficiaries
    This interim final rule with comment period resumes transitional 
adjusted Medicare fee schedule amounts for certain items and services 
furnished in rural and non-contiguous areas beginning June 1, 2018 
until December 31, 2018. It is estimated that these adjustments will 
cost over $290 million in Medicare Part B benefit payments and $70 
million in beneficiary cost sharing. The suppliers will get increased 
revenue from the increased fee schedule amounts. See Table 1.

                                          Table 1--Cash Impact of Resuming the Adjusted Fee Schedule Transition
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Impact on the benefit payments      Impact on beneficiary cost
                       FY                           in dollars (to the nearer 10       sharing in dollars (to the     Federal share of  States' share of
                                                            million) \1\                 nearer 10 million) \2\         Medicaid \3\      Medicaid \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018............................................                              170                                40                 5                 5
2019............................................                              120                                30                 5                 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Does not include premium offset.
\2\ Includes Medicaid payments.
\3\ Copayments made for dual eligible Medicare beneficiaries.


[[Page 21924]]

b. Impact on Beneficiaries and Other Payers
    In order to preserve beneficiary access to DME items and services, 
this rule, as indicated above, will result in a $70 million dollar 
Medicare cost sharing increase to the beneficiaries. For those 
beneficiaries who have supplemental insurance, this increase may be 
covered by supplemental insurance programs (for example, Medigap). This 
is a temporary time-limited extension of the fee schedule adjustment 
transition period.
    For dual eligible beneficiaries, Medicaid pays the cost sharing. 
The Medicaid payment is split between a Federal portion and the states' 
portion, which for this rule is $10 million and $10 million, 
respectively.
    Beneficiaries who do not have supplemental insurance or who are not 
dual eligible will have increased cost sharing as a result of this 
interim final rule with comment period.
c. Alternatives Considered
    One alternative considered to address concerns about access to 
items and services in non-CBAs would be to apply the 50/50 blended 
rates in all non-CBAs, since stakeholders commented regarding problems 
related to access to necessary items and services in all non-CBAs. This 
would cost $570 million in Medicare Part B benefit payments and $140 
million in beneficiary cost sharing. Of the $140 million in beneficiary 
cost sharing, $45 million is the Medicaid impact for dual eligibles, of 
which $25 million is the Federal portion, and $20 million is the state 
portion. A second alternative would be to apply the blended rates in 
all non-CBAs, but change the blend from 50 percent unadjusted fee and 
50 percent adjusted fee to 25 percent unadjusted fee and 75 percent 
adjusted fee. This would cost $290 million in Medicare Part B benefit 
payments and $70 million in beneficiary cost sharing. Of the $70 
million in beneficiary cost sharing, $20 million is the Medicaid impact 
for dual eligibles, of which $10 million is the Federal portion, and 
$10 million is the state portion. Table 2 compared the annual costs of 
these alternative rules to the annual costs of the interim final rule 
with comment period.

      Table 2--Comparison of the Costs of Alternative Rules With the Interim Final Rule With Comment Period
----------------------------------------------------------------------------------------------------------------
                                                                          50/50 Blend in all  25/75 Blend in all
                         FY                           Interim final rule       non-CBAs            non-CBAs
----------------------------------------------------------------------------------------------------------------
2018................................................                170                 330                 170
2019................................................                120                 240                 120
----------------------------------------------------------------------------------------------------------------

    We did not elect either of these alternatives and chose to apply 
the 50/50 blended rates in rural and non-contiguous areas only to 
ensure access to items and services for Medicare beneficiaries in these 
areas.
    Public comments are requested on these and any other related 
alternatives.
d. Regulatory Familiarization Costs
    If regulations impose administrative costs on private entities, 
such as the time needed to read and interpret this interim final rule 
with comment period, we should estimate the cost associated with 
regulatory review. Due to the uncertainty involved with accurately 
quantifying the number of entities that will review the rule, we assume 
that the number of reviewers of this final rule is about the same 
number of commenters on similar, past rules. We acknowledge that this 
assumption may understate or overstate the costs of reviewing this 
interim final rule with comment period. Using the wage information from 
the Bureau of Labor Statistics (BLS) for medical and health service 
managers (Code 11-9111), we estimate that the cost of reviewing this 
interim final rule with comment period is $105.16 per hour, including 
overhead and fringe benefits (https://www.bls.gov/oes/current/oes_nat.htm). Assuming an average reading speed, we estimate that it 
will take approximately 2 hours for the staff to review this interim 
final rule with comment period. For each entity that reviews this 
interim final rule with comment period, the estimated cost is $210.32 
(2 hours x $105.16). Therefore, we estimate that the total cost of 
reviewing this interim final rule with comment period is $21,320 
($210.32 x 100 reviewers).

C. Accounting Statement

    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars_a004_a-4), in Table 3, we have 
prepared an accounting statement showing the classification of the 
transfers and costs associated with the various provisions of this 
interim final rule with comment period.

Table 3--Accounting Statement: Classification of Estimated Transfers and
           Costs/Savings, With Annualization Period 2018-2019
------------------------------------------------------------------------
                             DME provisions
-------------------------------------------------------------------------
                Category                            Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers.........  $146 million (7%) or $145
                                          million (3%).
From Whom to Whom......................  Federal government to Medicare
                                          providers.
Increased Beneficiary Co-insurance       $35 million (7%) or 35 million
 Payments.                                (3%).
From Whom to Whom......................  Beneficiaries to Medicare
                                          providers.
------------------------------------------------------------------------

    In accordance with the provisions of Executive Order 12866, this 
rule was reviewed by the Office of Management and Budget.

VIII. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (September 19, 1980, Pub. L. 96-354) 
(RFA) requires agencies to analyze options for regulatory relief of 
small entities, if a rule has a significant impact on a substantial 
number of small entities. For purposes of the RFA, small entities 
include small businesses, nonprofit organizations, and small 
governmental jurisdictions.

[[Page 21925]]

Approximately 85 percent of the DME industry are considered small 
businesses according to the Small Business Administration's size 
standards with total revenues of $6.5 million or less in any 1 year and 
a small percentage are nonprofit organizations. Individuals and states 
are not included in the definition of a small entity. We expect the 
interim final rule with comment period DME provisions will have a 
significant impact on small suppliers. A substantial number of small 
suppliers will benefit from the increased fee schedule amounts. 
Although not legally required, this interim final rule with comment 
period will increase payments to small suppliers such that the 
beneficiaries should have improved access to items.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis 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 and has fewer than 100 beds. Our data indicates that 
only around 6.9 percent of small rural hospitals are organizationally 
linked to a DME supplier with paid claims in 2017. Thus, we do not 
believe this interim final rule with comment period will have a 
significant impact on operations of a substantial number of small rural 
hospitals.

IX. Unfunded Mandates Reform Act Analysis

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 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 2018, that 
threshold is approximately $150 million. The Secretary has determined 
that UMRA does not apply to this rule in that this rule does not 
contain mandates that impose spending costs on state, local, or tribal 
governments in the aggregate.

X. Federalism Analysis

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on state 
and local governments, preempts state law, or otherwise has Federalism 
implications. The Secretary has determined that this rule does not 
impose substantial direct requirement costs on state or local 
governments, preempt states, or otherwise have a Federalism 
implication.

XI. Reducing Regulation and Controlling Regulatory Costs

    Executive Order 13771, titled Reducing Regulation and Controlling 
Regulatory Costs, was issued on January 30, 2017. This interim final 
rule with comment period is not subject to the requirements of 
Executive Order 13771 because it is estimated to result in no more than 
de minimis costs.

XII. Congressional Review Act

    This rule is subject to the Congressional Review Act provisions of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801 et seq.) and has been transmitted to the Congress and the 
Comptroller General for review.

List of Subjects in 42 CFR Part 414

    Administrative practice and procedure, Health facilities, Health 
professions, Kidney diseases, Medicare, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 42 CFR Chapter IV as set forth below:

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:  Secs. 1102, 1871, and 1881(b)(l) of the Social 
Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(l)).


0
2. Section 414.210 is amended by revising paragraph (g)(9) to read as 
follows.


Sec.  414.210  General payment rules.

* * * * *
    (g) * * *
    (9) Transition rules. The payment adjustments described above are 
phased in as follows:
    (i) For applicable items and services furnished with dates of 
service from January 1, 2016 through December 31, 2016, based on the 
fee schedule amount for the area is equal to 50 percent of the adjusted 
payment amount established under this section and 50 percent of the 
unadjusted fee schedule amount.
    (ii) For items and services furnished with dates of service from 
January 1, 2017, through May 31, 2018, and on or after January 1, 2019, 
the fee schedule amount for the area is equal to 100 percent of the 
adjusted payment amount established under this section.
    (iii) For items and services furnished in rural areas and non-
contiguous areas (Alaska, Hawaii, and U.S. territories) with dates of 
service from June 1, 2018 through December 31, 2018, based on the fee 
schedule amount for the area is equal to 50 percent of the adjusted 
payment amount established under this section and 50 percent of the 
unadjusted fee schedule amount.
    (iv) For items and services furnished in areas other than rural or 
non-contiguous areas with dates of service from June 1, 2018 through 
December 31, 2018, based on the fee schedule amount for the area is 
equal to 100 percent of the adjusted payment amount established under 
this section.


Sec.  414.402  [Amended]

0
3. Section 414.402 is amended in paragraph (2) of the definition of 
``Item'' by removing the words ``inhalation drugs'' and by adding in 
their place ``inhalation and infusion drugs''.


Sec.  414.412   [Amended]

0
4. Section 414.412(b)(2) is amended by removing the phrase ``, or 
subpart I of this part''.


Sec.  414.414  [Amended]

0
5. Section 414.414(f) is amended by removing the words ``or drug'' and 
the phrase ``or the same drug under subpart I''.

    Dated: May 7, 2018.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
    Dated: May 7, 2018.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2018-10084 Filed 5-9-18; 4:15 pm]
 BILLING CODE 4120-01-P



                                              21912                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              L. Congressional Review Act (CRA)                       schedule adjustments for certain                      SUPPLEMENTARY INFORMATION:     Inspection
                                                 This action is subject to the CRA, and               durable medical equipment (DME) and                   of Public Comments: All comments
                                              the EPA will submit a rule report to                    enteral nutrition paid in areas not                   received before the close of the
                                              each House of the Congress and to the                   subject to the Durable Medical                        comment period are available for
                                              Comptroller General of the United                       Equipment, Prosthetics, Orthotics, and                viewing by the public, including any
                                              States. The CRA allows the issuing                      Supplies (DMEPOS) Competitive                         personally identifiable or confidential
                                              agency to make a rule effective sooner                  Bidding Program (CBP). In addition, this              business information that is included in
                                              than otherwise provided by the CRA if                   interim final rule with comment period                a comment. We post all comments
                                              the agency makes a good cause finding                   amends the regulation to resume the                   received before the close of the
                                              that notice-and-comment rulemaking                      transition period’s blended fee schedule              comment period on the following
                                              procedures are impracticable,                           rates for items furnished in rural areas              website as soon as possible after they
                                              unnecessary or contrary to the public                   and non-contiguous areas (Alaska,                     have been received: http://
                                              interest (5 U.S.C. 808(2)). The EPA has                 Hawaii, and United States territories)                regulations.gov. Follow the search
                                              made a good cause finding for this rule                 not subject to the CBP from June 1, 2018              instructions on that website to view
                                              as discussed in Section II.B of this                    through December 31, 2018. This                       public comments.
                                              document, including the basis for that                  interim final rule with comment period
                                                                                                                                                            Table of Contents
                                              finding.                                                also makes technical amendments to
                                                                                                      existing regulations for DMEPOS items                 I. Executive Summary
                                              IV. Statutory Authority                                 and services to reflect the exclusion of                 A. Purpose
                                                                                                      infusion drugs used with DME from the                    B. Summary of the Major Provisions
                                                 The statutory authority for this action                                                                       C. Summary of Costs and Benefits
                                              is provided by sections 110, 126 and                    DMEPOS CBP.                                           II. Durable Medical Equipment, Prosthetics,
                                              307 of the CAA as amended (42 U.S.C.                    DATES:                                                      Orthotics Supplies (DMEPOS) Fee
                                              7410, 7426 and 7607).                                      Effective date: The provisions of this                   Schedule and Competitive Bidding
                                                                                                      interim final rule with comment period                      Program (CBP)
                                              List of Subjects in 40 CFR Part 52                                                                               A. Background for Payment Revisions for
                                                                                                      are effective on June 1, 2018.
                                                Environmental protection,                                                                                         Durable Medical Equipment, Prosthetics,
                                                                                                         Comment date: To be assured                              Orthotics, and Supplies (DMEPOS)
                                              Administrative practices and                            consideration, comments must be                          1. Fee Schedule Payment Basis for Certain
                                              procedures, Air pollution control,                      received at one of the addresses                            DMEPOS
                                              Incorporation by reference,                             provided below, no later than 5 p.m. on                  2. DMEPOS CBP
                                              Intergovernmental relations, Nitrogen                   July 9, 2018.                                            a. Payment Basis
                                              oxides, Ozone.                                          ADDRESSES: In commenting, please refer                   b. Geographic Areas Designated Under the
                                                Dated: May 3, 2018.                                                                                               DMEPOS CBPs
                                                                                                      to file code CMS–1687–IFC. Because of
                                                                                                                                                               B. Background on the Methodology for
                                              E. Scott Pruitt,                                        staff and resource limitations, we cannot                   Adjusting Payment Amounts for Certain
                                              Administrator.                                          accept comments by facsimile (FAX)                          DMEPOS Using Information From
                                              [FR Doc. 2018–09892 Filed 5–8–18; 8:45 am]              transmission.                                               DMEPOS CBPs
                                              BILLING CODE 6560–50–P                                     Comments, including mass comment                      C. Transition Period for Phase-In of Fee
                                                                                                      submissions, must be submitted in one                       Schedule Adjustments
                                                                                                      of the following three ways (please                      1. Statutory Mandate To Reconsider Fee
                                                                                                      choose only one of the ways listed):                        Schedule Adjustments
                                              DEPARTMENT OF HEALTH AND                                                                                         2. Fee Schedule Adjustment Impact
                                              HUMAN SERVICES                                             1. Electronically. You may submit                        Monitoring Data
                                                                                                      electronic comments on this regulation                   3. Restoring Transitional Blended Fee
                                              Centers for Medicare & Medicaid                         to http://www.regulations.gov. Follow                       Schedule Rates in Rural Areas and Non-
                                              Services                                                the ‘‘Submit a comment’’ instructions.                      Contiguous Areas
                                                                                                         2. By regular mail. You may mail                      D. Fee Schedule Amounts for Accessories
                                              42 CFR Part 414                                         written comments to the following                           Used With Group 3 Complex
                                                                                                      address ONLY: Centers for Medicare &                        Rehabilitative Power Wheelchairs
                                              [CMS–1687–IFC]                                                                                                   E. Technical Changes To Conform the
                                                                                                      Medicaid Services, Department of
                                                                                                                                                                  Regulation to Section 5004(b) of the 21st
                                              RIN 0938–AT21                                           Health and Human Services, Attention:
                                                                                                                                                                  Century Cures Act (the Cures Act):
                                                                                                      CMS–1687–IFC, P.O. Box 8010,                                Exclusion of DME Infusion Drugs Under
                                              Medicare Program; Durable Medical                       Baltimore, MD 21244–8010.                                   CBPs
                                              Equipment Fee Schedule Adjustments                         Please allow sufficient time for mailed            III. Provisions of the Interim Final Rule With
                                              To Resume the Transitional 50/50                        comments to be received before the                          Comment Period
                                              Blended Rates To Provide Relief in                      close of the comment period.                             A. Transition Period for Phase-In of Fee
                                              Rural Areas and Non-Contiguous                             3. By express or overnight mail. You                     Schedule Adjustments
                                              Areas                                                   may send written comments to the                         B. Technical Changes To Conform the
                                                                                                                                                                  Regulation to Section 5004(b) of the
                                              AGENCY:  Centers for Medicare &                         following address ONLY: Centers for
                                                                                                                                                                  Cures Act: Exclusion of DME Infusion
                                              Medicaid Services (CMS), HHS.                           Medicare & Medicaid Services,                               Drugs Under CBPs
                                                                                                      Department of Health and Human                        IV. Waiver of Proposed Rulemaking
                                              ACTION: Interim final rule with comment
                                                                                                      Services, Attention: CMS–1687–IFC,                    V. Collection of Information Requirements
                                              period.                                                 Mail Stop C4–26–05, 7500 Security                     VI. Response to Comments
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                                              SUMMARY:  This interim final rule with                  Boulevard, Baltimore, MD 21244–1850.                  VII. Economic Analyses
                                                                                                         For information on viewing public                     A. Regulatory Impact Analysis
                                              comment period makes technical
                                                                                                      comments, see the beginning of the                       1. Introduction
                                              amendments to the regulation to reflect                                                                          2. Statement of Need
                                              the extension of the transition period                  SUPPLEMENTARY INFORMATION section.
                                                                                                                                                               3. Overall Impact
                                              from June 30, 2016 to December 31,                      FOR FURTHER INFORMATION CONTACT:                         B. Detailed Economic Analysis
                                              2016 that was mandated by the 21st                      Laurence Wilson, 410–786–4602 and                        a. Effects on the Medicare Program and
                                              Century Cures Act for phasing in fee                    DMEPOS@cms.hhs.gov.                                         Beneficiaries



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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                        21913

                                                b. Impact on Beneficiaries and Other                  June 1, 2018 through December 31,                     II. Durable Medical Equipment,
                                                   Payers                                             2018. We are also amending                            Prosthetics, Orthotics Supplies
                                                c. Alternatives Considered                            § 414.210(g)(9)(ii) to reflect that for               (DMEPOS) Fee Schedule and
                                                d. Regulatory Familiarization Costs                                                                         Competitive Bidding Program (CBP)
                                                C. Accounting Statement                               items and services furnished with dates
                                              VIII. Regulatory Flexibility Act Analysis               of service from January 1, 2017 to May                A. Background for Payment Revisions
                                              IX. Unfunded Mandates Reform Act Analysis               31, 2018, and on or after January 1,                  for Durable Medical Equipment,
                                              X. Federalism Analysis                                  2019, the fee schedule amount for the                 Prosthetics, Orthotics, and Supplies
                                              XI. Reducing Regulation and Controlling                 area is equal to 100 percent of the                   (DMEPOS)
                                                   Regulatory Costs                                   adjusted payment amount. We are
                                              XII. Congressional Review Act
                                                                                                      soliciting comments on the resumption                 1. Fee Schedule Payment Basis for
                                                                                                                                                            Certain DMEPOS
                                              I. Executive Summary                                    of the transition period for the phase in
                                                                                                      of fee schedule adjustments.                             Section 1834(a) of the Act governs
                                              A. Purpose                                                                                                    payment for DME covered under Part B
                                                                                                         • Technical Change Excluding DME                   and under Part A for a home health
                                                This interim final rule with comment
                                                                                                      Infusion Drugs From the DMEPOS CBP:                   agency and provides for the
                                              period amends the regulation at 42 CFR
                                                                                                      Section 5004(b) of the Cures Act amends               implementation of a fee schedule
                                              414.210(g)(9) to reflect the extension of
                                              the transition period for phasing in fee                section 1847(a)(2)(A) of the Social                   payment methodology for DME
                                              schedule adjustments for certain                        Security Act (the Act) to exclude drugs               furnished on or after January 1, 1989.
                                              durable medical equipment (DME) and                     and biologicals described in section                  Sections 1834(a)(2) through (a)(7) of the
                                              enteral nutrition paid in areas not                     1842(o)(1)(D) of the Act from the                     Act set forth separate payment
                                              subject to the Durable Medical                          DMEPOS CBP. We are making                             categories of DME and describe how the
                                              Equipment, Prosthetics, Orthotics, and                  conforming changes to the regulation to               fee schedule for each of the following
                                              Supplies (DMEPOS) Competitive                           reflect the exclusion of infusion drugs,              categories are established:
                                              Bidding Program (CBP) through                           described in section 1842(o)(1)(D) of                    • Inexpensive or other routinely
                                              December 31, 2016, mandated by                          Act, from items subject to the DMEPOS                 purchased items.
                                              section 16007(a) of the 21st Century                    CBP.                                                     • Items requiring frequent and
                                              Cures Act (the Cures Act) (Pub. L. 114–                                                                       substantial servicing.
                                              255). In addition, in light of
                                                                                                      C. Summary of Costs and Benefits                         • Customized items.
                                                                                                                                                               • Oxygen and oxygen equipment.
                                              information, the Centers for Medicare &                    This interim final rule with comment                  • Other covered items (other than
                                              Medicaid Services (CMS) has gathered                    period resumes the blended adjusted                   DME).
                                              in accordance with section 16008 of the                 Medicare fee schedule amounts during                     • Other items of DME (capped rental
                                              Cures Act, this interim final rule with                 the transition period for certain items               items).
                                              comment period resumes the transition                   and services that are furnished in rural                 Section 1834(h) of the Act governs
                                              period for phasing in adjusted fee                      and non-contiguous areas not subject to               payment for prosthetic devices,
                                              schedule rates for DME items and                                                                              prosthetics, and orthotics (P&O) and sets
                                                                                                      the CBP beginning June 1, 2018. It is
                                              services furnished in rural areas and                                                                         forth fee schedule payment rules for
                                                                                                      estimated that these adjustments will
                                              non-contiguous areas (Alaska, Hawaii,                                                                         P&O. Effective for items furnished on or
                                              and United States (U.S.) territories) not               cost $290 million in Medicare benefit
                                                                                                      payments and $70 million in Medicare                  after January 1, 2002, payment is also
                                              subject to the CBP from June 1, 2018                                                                          made on a national fee schedule basis
                                              through December 31, 2018. It also                      beneficiary cost sharing for the period
                                                                                                                                                            for parenteral and enteral nutrition
                                              makes technical amendments to existing                  beginning June 1, 2018 and ending                     (PEN) in accordance with the authority
                                              regulations for DMEPOS items and                        December 31, 2018.                                    under section 1842(s) of the Act. The
                                              services to reflect the exclusion of                       We are unable to quantify the benefits             term ‘‘enteral nutrition’’ will be used
                                              infusion drugs used with DME from the                   of this interim final rule with comment               throughout this document to describe
                                              DMEPOS CBP, as required by section                      period at this time; however, the goal of             enteral nutrients, supplies and
                                              5004(b) of the Cures Act.                               this interim final rule is to preserve                equipment covered under the Part B
                                              B. Summary of the Major Provisions                      beneficiary access to DME items and                   benefit for prosthetic devices defined at
                                                                                                      services in rural and non-contiguous                  section 1861(s)(8) of the Act. The
                                                 • Transition Period for Phase in of                  areas not subject to the CBP during a                 Medicare allowed amount for DMEPOS
                                              Adjustments to Fee Schedule Amounts:                    transition period in which CMS will                   items and services paid on a fee
                                              We are amending § 414.210(g)(9)(i) to                                                                         schedule basis is equal to the lower of
                                                                                                      continue to study the impact of the
                                              reflect the extension of the transition                                                                       the supplier’s actual charge or the fee
                                                                                                      change in payment rates on access to
                                              period to December 31, 2016 for phasing                                                                       schedule amount. We refer readers to
                                              in adjustments to the fee schedule                      items and services in these areas. The
                                                                                                                                                            the November 6, 2014 calendar year
                                              amounts for certain items based on                      alternative to this interim final rule with
                                                                                                                                                            (CY) 2015 ESRD PPS final rule entitled
                                              information from the DMEPOS CBP that                    comment period would have been to
                                                                                                                                                            ‘‘Medicare Program; End-Stage Renal
                                              was required by section 16007(a) of the                 allow the full phase in of fee schedule               Disease Prospective Payment System,
                                              Cures Act. In addition, we are adding                   adjustments based on competitive                      Quality Incentive Program, and Durable
                                              § 414.210(g)(9)(iii) to resume the fee                  bidding prices to continue in all non-                Medical Equipment, Prosthetics,
                                              schedule adjustment transition period                   competitive bidding areas (non-CBAs).                 Orthotics, and Supplies’’ (79 FR 66223
                                              in rural areas and non-contiguous areas                 We believe that resuming the fee                      through 66233) for additional
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                                              effective June 1, 2018, in light of                     schedule adjustment transition period                 background discussion about DMEPOS
                                              concerns regarding the impact of the full               in rural and non-contiguous areas                     items subject to section 1834 of the Act,
                                              fee schedule adjustments in rural and                   promotes stability in the DMEPOS                      rules for calculating reasonable charges,
                                              non-contiguous areas, so that the 50/50                 market in these areas, and enables CMS                and fee schedule payment
                                              blended fee schedule rates will apply                   to work with stakeholders to preserve                 methodologies for PEN and for DME
                                              for certain items and services furnished                beneficiary access to DMEPOS.                         prosthetic devices, prosthetics,
                                              in rural and non-contiguous areas from                                                                        orthotics, and surgical dressings.


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                                              21914                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              2. DMEPOS CBP                                           B. Background on the Methodology for                  manufacturers and suppliers listed
                                              a. Payment Basis                                        Adjusting Payment Amounts for Certain                 several key variables or factors that
                                                                                                      DMEPOS Using Information From                         influence the cost of furnishing items
                                                 The DMEPOS CBP is mandated by                        DMEPOS CBPs                                           and services in different areas that
                                              section 1847(a) of the Act and requires                    For DME furnished on or after January              should be considered. This commenter
                                              the Secretary of the Department of                      1, 2016, section 1834(a)(1)(F)(ii) of the             stated that information on all bids
                                              Health and Human Services (the                          Act requires the Secretary to use                     submitted under the CBP should be
                                              Secretary) to establish and implement                   information on the payment determined                 considered and not just the bids of
                                              CBPs in competitive bidding areas                       under the DMEPOS CBP to adjust the                    winning suppliers. Some commenters
                                              (CBAs) throughout the U.S for contract                  fee schedule amounts for DME items                    expressed concern that the SPAs assume
                                              award purposes for the furnishing of                    and services furnished in all non-CBAs.               a significant increase in volume to offset
                                              certain competitively priced DMEPOS                     Section 1834(a)(1)(F)(iii) of the Act                 lower payment amounts. Commenters
                                              items and services. Section 1847(a)(2) of                                                                     also recommended phasing in the
                                                                                                      requires the Secretary to continue to
                                              the Act describes the items and services                                                                      adjusted fee schedule amounts, allowing
                                                                                                      make these adjustments as additional
                                              subject to the DMEPOS CBP:                                                                                    for adjustments in fees if access issues
                                                                                                      covered items are phased in or
                                                 • Off-the-shelf (OTS) orthotics for                                                                        arise, and annual inflation updates to
                                                                                                      information is updated as new CBP
                                                                                                                                                            adjusted fee schedule amounts.
                                              which payment would otherwise be                        contracts are awarded. Similarly,                        On July 11, 2014, we published the
                                              made under section 1834(h) of the Act.                  sections 1842(s)(3)(B) and                            CY 2015 ESRD PPS proposed rule in the
                                                 • Enteral nutrients, equipment and                   1834(h)(1)(H)(ii) of the Act authorize the            Federal Register entitled ‘‘Medicare
                                              supplies described in section                           Secretary to use payment information                  Program; End-Stage Renal Disease
                                              1842(s)(2)(D) of the Act.                               from the DMEPOS CBP to adjust the fee                 Prospective Payment System, Quality
                                                 • Certain DME and medical supplies,                  schedule amounts for enteral nutrition                Incentive Program, and Durable Medical
                                              which are covered items (as defined in                  and OTS orthotics, respectively,                      Equipment, Prosthetics, Orthotics, and
                                              section 1834(a)(13) of the Act) for which               furnished in all non-CBAs. Section                    Supplies;’’ (79 FR 40208) as required by
                                              payment would otherwise be made                         1834(a)(1)(G) of the Act requires that in             section 1834(a)(1)(G) of the Act, to
                                              under section 1834(a) of the Act.                       promulgating the methodology used in                  establish methodologies for using
                                                                                                      making these adjustments to the fee                   information from the CBP to adjust the
                                                 The DME and medical supplies                         schedule amounts, the Secretary
                                              category includes items used in infusion                                                                      fee schedule amounts for items and
                                                                                                      consider the costs of items and services              services furnished in non-CBAs in
                                              and drugs (other than inhalation drugs)                 in areas in which the adjustments
                                              and supplies used in conjunction with                                                                         accordance with sections
                                                                                                      would be applied compared to the                      1834(a)(1)(F)(ii) and 1834(h)(1)(H)(ii) of
                                              DME, but excludes devices that have                     payment rates for such items and
                                              been classified in class III under the                                                                        the Act. We also proposed making
                                                                                                      services in the CBAs.                                 adjustments to the payment amounts for
                                              Federal Food, Drug, and Cosmetic Act                       On February 26, 2014, we published
                                              and Group 3 or higher complex                                                                                 enteral nutrition as authorized by
                                                                                                      an Advance Notice of Proposed                         section 1842(s)(3)(B) of the Act.
                                              rehabilitative power wheelchairs and                    Rulemaking (ANPRM) in the Federal                        We received 89 public comments on
                                              related accessories when furnished in                   Register entitled, ‘‘Medicare Program;                the proposed rule, including comments
                                              connection with such wheelchairs.                       Methodology for Adjusting Payment                     from patient organizations, patients,
                                              Although initially identified in section                Amounts for Certain Durable Medical                   manufacturers, health care systems, and
                                              1847(a)(2) of the Act, infusion drugs                   Equipment, Prosthetics, Orthotics, and                DME suppliers. We made changes to the
                                              were excluded from the DMEPOS CBP                       Supplies (DMEPOS) Using Information                   proposed methodologies based on these
                                              by section 5004(b) of the Cures Act.                    from Competitive Bidding Programs’’                   comments and finalized a method for
                                              Sections 1847(a) and (b) of the Act                     (79 FR 10754). In that ANPRM, we                      paying higher amounts for certain items
                                              specify certain requirements and                        solicited stakeholder input on several                furnished in areas defined as rural areas.
                                              conditions for implementation of the                    factors including whether the costs of                In addition, we provided a 6-month fee
                                              Medicare DMEPOS CBP.                                    furnishing various DMEPOS items and                   schedule adjustment phase in period
                                                 Under the DMEPOS CBP, Medicare                       services vary based on the geographic                 from January through June of 2016,
                                              sets single payment amounts (SPAs) for                  area in which they are furnished in                   during which the fee schedule amounts
                                              selected DMEPOS items and services                      relation to developing a payment                      would be based on 50 percent of the
                                              furnished to beneficiaries in CBAs based                methodology to adjust DMEPOS fee                      unadjusted fees and 50 percent of the
                                              on the median of bids submitted by                      schedule amounts or other payment                     adjusted fees to allow time for suppliers
                                              winning suppliers and accepted by                       amounts in non-CBAs based on                          to adjust to the new payment rates and
                                              Medicare for each individual item and                   DMEPOS competitive bidding payment                    to monitor the impact of the change in
                                              service. For competitively bid items and                information.                                          payment rates on access to items and
                                              services furnished in a CBA, the SPAs                      We received approximately 185                      services. On November 6, 2014, we
                                              replace the Medicare allowed amounts                    comments from suppliers,                              published the CY 2015 ESRD PPS final
                                              established using the lower of the                      manufacturers, professional, state and                rule (79 FR 66223 through 66265) to
                                              supplier’s actual charge or the payment                 national trade associations, physicians,              finalize the methodologies at
                                              amount recognized under sections                        physical therapists, beneficiaries and                § 414.210(g) based on public comments
                                              1834(a)(2) through (7) of the Act.                      their caregivers, and one state                       received on the CY 2015 ESRD PPS
                                              Section 1847(b)(5) of the Act provides                  government office. Commenters                         proposed rule (79 FR 40208). A
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                                              that Medicare payment for                               generally stated that costs do vary by                summary of the methodologies are
                                              competitively bid items and services is                 geographic region and that costs in rural             provided below.
                                              made on an assignment-related basis,                    and non-contiguous areas of the U.S.                     In order to delineate geographic areas
                                              and is equal to 80 percent of the                       (Alaska, Hawaii, Puerto Rico, etc.) are               to which adjusted fee schedule amounts
                                              applicable SPA, less any unmet Part B                   significantly higher than costs in urban              for certain DMEPOS items are applied,
                                              deductible described in section 1833(b)                 areas and contiguous areas of the U.S.                we set forth a methodology to identify
                                              of the Act.                                             One commenter representing many                       geographic areas using zip codes into 3


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                        21915

                                              categories of rural, non-rural, and non-                wheels is higher than the SPA for a                   and services furnished with dates of
                                              contiguous. We promulgated § 414.202                    walker with wheels) before the SPAs are               service on or after July 1, 2016, the fee
                                              to define a rural area to mean, for the                 used to adjust fee schedule amounts.                  schedule amounts would be equal to
                                              purpose of implementing § 414.210(g), a                 For groupings of similar items (for                   100 percent of the adjusted fee schedule
                                              geographic area represented by a postal                 example, walkers) where price                         amounts. Commenters recommended
                                              zip code if at least 50 percent of the total            inversions have occurred, the SPAs for                CMS phase in the fee schedule
                                              geographic area of the area included in                 the items in the grouping are all                     adjustments to give suppliers time to
                                              the zip code is estimated to be outside                 adjusted to equal the weighted average                adjust to the change in payment
                                              any Metropolitan Statistical Area (MSA)                 of the SPAs for all of the items in the               amounts (79 FR 66228). Some
                                              (79 FR 66228). A rural area also                        grouping. Price inversions are situations             commenters recommended a 4-year
                                              includes a geographic area represented                  where the higher weighted and higher                  phase-in of the adjusted fees. CMS
                                              by a postal zip code that is a low                      priced item at the time of competition                agreed that phasing in the adjustments
                                              population density area excluded from                   becomes the lower priced item in the                  to the fee schedule amounts would
                                              a CBA in accordance with section                        CBP following the competition. For a                  allow time for suppliers to adjust to the
                                              1847(a)(3)(A) of the Act at the time the                discussion regarding adjustments to                   new payment rates and would allow
                                              rules in § 414.210(g) are applied.                      SPAs to address price inversions, see                 time to monitor the impact of the
                                                 In accordance with § 414.210(g)(1)(i)                the CY 2017 ESRD PPS proposed rule                    change in payment rates on access to
                                              through (v), CMS first determines                       published in the Federal Register on                  items and services. We decided 6
                                              regional adjustments to the fee schedule                June 30, 2016 entitled ‘‘Medicare                     months was enough time to monitor
                                              amounts using the 8 regions of the                      Program; End-Stage Renal Disease                      access and health outcomes to
                                              Bureau of Economic Analysis. Also, the                  Prospective Payment System, Coverage                  determine if the fee schedule
                                              regional prices are determined and                      and Payment for Renal Dialysis Services               adjustments created a negative impact
                                              limited by a national ceiling (110                      Furnished to Individuals with Acute                   on access to items and services.
                                              percent of the average of regional prices)              Kidney Injury, End-Stage Renal Disease                Therefore, we finalized a 6-month
                                                                                                      Quality Incentive Program, Durable                    phase-in period of the blended rates (79
                                              and floor (90 percent of the average of
                                                                                                      Medical Equipment, Prosthetics,                       FR 66228 through 66229).
                                              regional prices). In addition, adjusted
                                                                                                      Orthotics, and Supplies Competitive                      We finalized the 6-month transition
                                              fee schedules for non-contiguous areas                                                                        period from January 1 through June 30,
                                              are based on the higher of the average                  Bidding Program Bid Surety Bonds,
                                                                                                      State Licensure and Appeals Process for               2016 in the CY 2015 ESRD PPS final
                                              of the SPAs for CBAs in areas outside                                                                         rule (79 FR 66223) that was published
                                              the contiguous U.S. or the national                     Breach of Contract Actions, Durable
                                                                                                      Medical Equipment, Prosthetics,                       in the Federal Register on November 6,
                                              ceiling amount in accordance with our                                                                         2014. The Cures Act was enacted on
                                              regulations at § 414.210(g)(2)(i) through               Orthotics, and Supplies Competitive
                                                                                                      Bidding Program and Fee Schedule                      December 13, 2016, and section
                                              (ii). Also, § 414.210(g)(3) specifies                                                                         16007(a) of the Cures Act extended the
                                              adjustments for low volume items (that                  Adjustments, Access to Care Issues for
                                                                                                      Durable Medical Equipment, and the                    transition period for the phase-in of fee
                                              is, bid in only 10 or fewer competitive                                                                       schedule adjustments at
                                              bidding programs) are based on 110                      Comprehensive End-Stage Renal Disease
                                                                                                      Care Model’’ (81 FR 42851).                           § 414.210(g)(9)(i) by 6 additional months
                                              percent of the average of the SPAs. In                                                                        so that fee schedule amounts were based
                                              addition, adjustments for items and                        In order to update the adjusted fee                on a blend of 50 percent of the adjusted
                                              services included in CBPs no longer in                  schedule amounts based on new                         fee schedule amount and 50 percent of
                                              effect is set forth at § 414.210(g)(4). In              competitions and provide for a                        the unadjusted fee schedule amount
                                              cases where the SPAs from the DMEPOS                    transitional phase-in period of the fee               until December 31, 2016 (with full
                                              CBP that are no longer in effect are used               schedule adjustments, we established                  implementation of the fee schedule
                                              to adjust fee schedule amounts,                         § 414.210(g)(8) and (g)(9) in the CY 2015             adjustments applying to items and
                                              § 414.210(g)(4) provides that the SPAs                  ESRD PPS final rule (79 FR 66263). In                 services furnished with dates of service
                                              be updated by an inflation adjustment                   § 414.210(g)(8), the adjusted fee                     on or after January 1, 2017).
                                              factor for each year from the last year                 schedule amounts are updated when an
                                              when the SPAs were in effect to the year                SPA for an item or service is updated                 C. Transition Period for Phase-In of Fee
                                              in which the adjustment would go into                   following one or more new DMEPOS                      Schedule Adjustments
                                              effect (for example, 2016) and for each                 CBP competitions and as other items are                  We have determined that the
                                              subsequent year (for example, 2017 and                  added to DMEPOS CBP. The fee                          transitional period for the phase-in of
                                              2018). Furthermore, § 414.210(g)(5)                     schedule amounts that are adjusted                    adjustments to fee schedule amounts
                                              establishes adjustments for accessories                 using SPAs are not subject to the annual              should be resumed in non-CBA rural
                                              used with different types of base                       DMEPOS covered item update and are                    and non-contiguous areas in order to
                                              equipment in situations where a                         only updated when SPAs from the                       ensure access to necessary items and
                                              Healthcare Common Procedure Coding                      DMEPOS CBP are updated. Updates to                    services in these areas. This interim
                                              System (HCPCS) code describing an                       the SPAs may occur as contracts are                   final rule with comment period amends
                                              item used with different types of base                  recompeted. Section 414.210(g)(9)(i),                 § 414.210(g)(9) to change the end date
                                              equipment is included in more than one                  specifies that the fee schedule                       for the initial transition period for the
                                              product category in a CBA under the                     adjustments were phased in for items                  phase-in of adjustments to fee schedule
                                              CBP; a weighted average of the SPAs for                 and services furnished with dates of                  amounts for certain items based on
                                              the code is computed for each CBA                       service from January 1, 2016 through                  information from the DMEPOS CBP
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                                              prior to applying the other payment                     June 30, 2016, so that each fee schedule              from June 30, 2016 to December 31,
                                              adjustment methodologies in                             amount was adjusted based on a blend                  2016, to reflect the extension that was
                                              § 414.210(g). Finally, in accordance with               of 50 percent of the fee schedule amount              mandated by section 16007(a) of the
                                              § 414.210(g)(6), adjustments are made to                if not adjusted based on information                  Cures Act. This interim final rule with
                                              the SPAs for certain items due to price                 from the CBP, and 50 percent of the                   comment period also amends
                                              inversions under the DMEPOS CBP (for                    adjusted fee schedule amount. Section                 § 414.210(g)(9) to resume the transition
                                              example, the SPA for a walker without                   414.210(g)(9)(ii) specifies that for items            period for the phase-in of adjustments to


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                                              21916                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              fee schedule amounts for certain items                  that the adjusted fees are not sufficient                Adverse Beneficiary Health
                                              furnished in non-CBA rural and non-                     to cover the costs of furnishing items                Outcomes: Commenters stated that
                                              contiguous areas from June 1, 2018                      and services in rural and non-                        beneficiaries are going without items
                                              through December 31, 2018, for the                      contiguous areas and that this is having              and this is causing adverse health
                                              reasons discussed in this preamble.                     an impact on access to items and                      outcomes. Commenters stated that
                                                                                                      services in these areas.                              hospital readmissions and lengths of
                                              1. Statutory Mandate To Reconsider Fee                     The oral and written comments are
                                              Schedule Adjustments                                                                                          stay, falls, and fractures are increasing
                                                                                                      organized into the following categories:              as a result of the fee schedule
                                                 After we established the fee schedule                   Inadequacy of Adjusted Fee Schedule                reductions.
                                              adjustment methodology under                            Amounts: Commenters claim the                            Delivery Expenses: A few commenters
                                              § 414.210(g), Congress amended section                  adjusted fee schedule amounts do not                  provided an estimate of how much their
                                              1834(a)(1)(G) of the Act to require that                cover the cost of furnishing the items                delivery expenses cost, their estimated
                                              CMS take certain steps and factors into                 and are not sustainable. Many                         service radius, and the average distance
                                              consideration regarding the fee schedule                commenters opposed the current                        traveled. Several commenters stated that
                                              adjustments for items and services                      adjusted payment amounts as                           they have reduced the size of their
                                              furnished on or after January 1, 2019, to               insufficient to sustain the current cost of           service area due to the level of
                                              ensure that the rates take into account                 doing business. Some commenters                       reimbursement that they are receiving.
                                              certain aspects of providing services in                stated that current reimbursement levels                 Costs in Rural and Non-Contiguous
                                              non-CBAs. Specifically, section 16008                   are below the cost of doing business.
                                                                                                                                                            Areas: Many commenters stated rural
                                              of the Cures Act amended section                        Many commenters stated they were
                                                                                                                                                            areas have unique costs, costs that are
                                              1834(a)(1)(G) of the Act to require in the              billing non-assigned for items, or were
                                                                                                                                                            higher than non-rural areas. Similar to
                                              case of items and services furnished on                 considering billing non-assigned in the
                                                                                                                                                            comments received on our CY 2015
                                              or after January 1, 2019, that in making                future.
                                                                                                         Travel Distance: Commenters claim                  ESRD PPS proposed rule (79 FR 40275
                                              any adjustments to the fee schedule
                                                                                                      the average travel distance and cost for              through 40315) and discussed in the CY
                                              amounts in accordance with sections
                                              1834(a)(1)(F)(ii) and (iii) of the Act, the             suppliers serving rural areas are greater             2015 ESRD PPS final rule (79 FR 66223
                                              Secretary shall: (1) Solicit and take into              than the average travel distance and cost             through 66265), some commenters
                                              account stakeholder input; and (2) take                 for suppliers serving CBAs. Many                      stated that a 10 percent payment
                                              into account the highest bid by a                       commenters described farther travel                   increase in rural areas is not enough to
                                              winning supplier in a CBA and a                         distances in rural areas than in non-                 cover costs in rural areas. One
                                              comparison of each of the following                     rural areas. For the purpose of                       commenter stated that non-contiguous
                                              factors with respect to non-CBAs and                    implementing the fee schedule                         areas, such as Alaska and Hawaii, face
                                              CBAs:                                                   adjustment methodologies at                           unique and greater costs due to higher
                                                 • The average travel distance and cost               § 414.210(g), the term ‘‘rural area’’ is              shipping costs, a smaller amount of
                                              associated with furnishing items and                    defined at § 414.202 and essentially                  suppliers, and more logistical
                                              services in the area.                                   includes any areas outside an MSA or                  challenges related to delivery. Some
                                                 • The average volume of items and                    excluded from a CBA.                                  commenters stated specific costs, as
                                              services furnished by suppliers in the                     Volume of Services: Many                           well as data sources, that CMS should
                                              area.                                                   commenters asserted that the average                  take into account when adjusting fees in
                                                 • The number of suppliers in the                     volume of services furnished by                       non-CBAs. These included the
                                              area.                                                   suppliers, when serving non-CBAs, are                 following: Geographic wage index
                                                 On March 23, 2017, CMS hosted a                      lower than the average volume of                      factors, gas, taxes, employee wages and
                                              national provider call to solicit                       services furnished by suppliers, when                 benefits, wear and tear of vehicle,
                                              stakeholder input regarding adjustments                 serving CBAs. Many commenters stated                  average per capita income, training,
                                              to fee schedule amounts using                           that they do not get the same increase                delivery, set up, historical Medicare
                                              information from the DMEPOS CBP.                        in volume that suppliers who obtain                   home placement volume, proximity to
                                              The national provider call was                          competitive bidding contracts get,                    nearby CBAs, employing a respiratory
                                              announced on March 3, 2017, and we                      which does not allow them to have                     therapist, electricity charges, freight
                                              requested written comments by April 6,                  economies of scale and obtain products                charges, 24/7 service, documentation
                                              2017. We received 125 written                           at lower costs. Claims data for 2016 and              requirements, average per patient cost,
                                              comments from stakeholders. More than                   2017 indicates that the average volume                licensing accreditation, surety bonds,
                                              330 participants called into our national               of allowed services for suppliers serving             audits, population density, miles and
                                              provider call, with 23 participants                     CBAs is significantly higher than the                 time between points of service,
                                              providing oral comments during the                      average volume of allowed services for                regulatory costs, vehicle insurance, and
                                              call. In general, the commenters were                   suppliers serving non-CBAs,                           liability insurance.
                                              mostly suppliers, but also included                     particularly rural and non-contiguous                    Two commenters pointed to the
                                              manufacturers, trade organizations, and                 areas.                                                Ambulance Fee Schedule and one
                                              healthcare providers such as physical                      Beneficiary Access: Many commenters                commenter pointed to the Bureau of
                                              and occupational therapists. These                      stated that the adjusted fees have                    Labor Statistic Consumer Expenditure
                                              stakeholders expressed concerns that                    reduced the number of suppliers in the                Survey as evidence that health care
                                              the level of the adjusted payment                       area, and that this has caused or will                costs in rural areas are higher than in
                                              amounts constrains suppliers from                       cause beneficiary access issues. Some                 urban areas. Another commenter
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                                              furnishing items and services to rural                  commenters explained that they were                   mentioned the Internal Revenue Service
                                              areas. Stakeholders requested an                        the only supplier in the area. Claims                 Mileage Rate, the minimum wage, AAA
                                              increase to the adjusted payment                        data indicates that the number of                     Gallon of Gasoline prices, and the price
                                              amounts for these areas. The written                    supplier locations furnishing items and               of a loaf of white bread, to highlight
                                              comments generally echoed the oral                      services subject to the fee schedule                  how the prices of such items have
                                              comments from the call held on March                    adjustments changed from 13,535 in                    increased over the years, while
                                              23, 2017, whereby stakeholders claimed                  2015 to 12,617 in 2016.                               reimbursement for DME has not.


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                          21917

                                                 Using the Highest Winning Bids for                   adjustments and the budget neutrality                 budget neutrality requirement does not
                                              the Adjusted Fee Schedule                               offset that CMS applies to stationary                 apply under the DMEPOS CBP because
                                              Methodology: Five commenters                            oxygen equipment and contents due to                  under section 1847(a) of the Act, the
                                              suggested that the adjusted fee schedule                the separate oxygen class for oxygen                  payment amounts for oxygen and
                                              amounts be based on maximum winning                     generating portable equipment (OGPE).                 oxygen equipment are established based
                                              bids in CBAs rather than the median of                  In 2006, CMS established a separate                   on bids submitted and accepted by
                                              winning bids in CBAs. One commenter                     payment class for OGPE (which are                     winning suppliers under the program,
                                              suggested that the maximum winning                      portable concentrators with transfilling              and not based on the payment rules
                                              bids should be the starting point for the               equipment), through notice and                        under section 1834(a) of the Act. The
                                              adjustments and that additional                         comment rulemaking (71 FR 65884).                     budget neutrality offset has resulted in
                                              payment should be added on to these                     The authority to add this payment class,              payment amounts for stationary oxygen
                                              amounts to pay for the higher costs of                  located at section 1834(a)(9)(D) of the               equipment in CBAs being higher than
                                              furnishing items and services in non-                   Act, only allows CMS to establish new                 the adjusted fee schedule amounts in
                                              CBAs.                                                   classes of oxygen and oxygen equipment                some cases. Restoring the blended fee
                                                 One of the factors CMS must consider                 if such classes are budget neutral, which             schedule rates paid in rural and non-
                                              when making fee schedule adjustments                    means that the establishment of new                   contiguous non-CBAs during the
                                              for items and services furnished on or                  oxygen payment classes does not result                transition period would result in fee
                                              after January 1, 2019, in accordance                    in oxygen and oxygen equipment                        schedule amounts for oxygen and
                                              with section 16008 of the Cures Act, is                 expenditures for any year that are more               oxygen equipment in these areas being
                                              the average volume of items and                         or less than the expenditures that would              higher than the SPAs paid in all of the
                                              services furnished by suppliers in an                   have been made had the new classes not                CBAs. Therefore, payment at the
                                              area. A supplier recoups costs through                  been established. In accordance with                  blended rates would avoid situations
                                              the payments made for the items they                    § 414.226(c)(6), CMS reduces the fee                  where payment for furnishing oxygen in
                                              furnish. In the case of overhead costs                  schedule amounts for stationary oxygen                a rural or non-contiguous, non-CBA is
                                              such as rent, utilities, salaries, and                  equipment in non-CBAs in order to                     lower than payment for furnishing
                                              employee benefits, the more items a                     make the payment classes for oxygen                   oxygen in a CBA.
                                              supplier furnishes, the more the                        and oxygen equipment budget neutral as
                                              supplier is able to recoup these                                                                              2. Fee Schedule Adjustment Impact
                                                                                                      required by section 1834(a)(9)(D) of the              Monitoring Data
                                              overhead costs. Data for items furnished                Act. Due to the combination of the fee
                                              in 2016 and 2017 shows that the average                                                                          Regarding adverse health beneficiary
                                                                                                      schedule adjustment and the budget
                                              volume of items furnished by suppliers                                                                        outcomes, we have been monitoring
                                                                                                      neutrality offset, the adjusted fee
                                              in CBAs exceeds the average volume of                                                                         claims data from non-CBAs, some of
                                                                                                      schedule amounts for stationary oxygen
                                              items furnished by suppliers in rural                                                                         which pre-dates the implementation of
                                                                                                      equipment in non-contiguous non-CBAs
                                              and non-contiguous areas. The fact that                                                                       the fully adjusted fee schedule amounts.
                                                                                                      and some rural areas are lower than the
                                              the volume of items furnished per                                                                             To the extent that this data pre-dates the
                                                                                                      SPAs in Honolulu, Hawaii, and CBAs
                                              supplier in rural and non-contiguous                                                                          implementation of the fully adjusted
                                                                                                      within the same state, respectively. This
                                              areas is less than the volume furnished                                                                       fees, it is less likely to demonstrate any
                                                                                                      is significant because the current
                                              in CBAs indicates that the cost per item                                                                      adverse impacts. The data does not
                                                                                                      methodology at 42 CFR 414.210(g)                      show any observable trends indicating
                                              in rural and non-contiguous areas may                   attempts to ensure that the adjusted fee
                                              be higher than the cost per item in                                                                           an increase in adverse health outcomes
                                                                                                      schedule amounts for items and services               such as mortality, hospital and nursing
                                              CBAs. Because there are fewer suppliers
                                                                                                      furnished in rural areas within a state               home admission rates, monthly hospital
                                              in CBAs furnishing a higher volume of
                                                                                                      are no lower than the adjusted fee                    and nursing home days, physician visit
                                              items and services, these suppliers
                                                                                                      schedule amounts for non-rural areas                  rates, or emergency room visits in 2016
                                              likely have lower costs per item because
                                                                                                      within the same state. CBAs are areas                 or 2017 compared to 2015 in the non-
                                              they can make up their overhead costs
                                                                                                      where payment for certain DME items                   CBAs, overall. In addition, we have
                                              over more items. In addition, the higher
                                                                                                      and services is based on SPAs                         been monitoring data on the rate of
                                              the volume of items a supplier
                                                                                                      established under the CBP rather than                 assignment in non-CBAs, which reflects
                                              furnishes, the larger the volume
                                                                                                      adjusted fee schedule amounts. It is                  when suppliers are accepting Medicare
                                              purchasing discount is likely to be when
                                              purchasing equipment from a                             worth noting that CBAs tend to have                   payment as payment in full and not
                                              manufacturer. This supports stakeholder                 higher population densities and                       balance billing beneficiaries for the cost
                                              input that the suppliers in rural and                   typically correspond with urban census                of the DME. More importantly, the
                                              non-contiguous areas have an average                    tracts.                                               monitoring data does not indicate the
                                              volume of business less than that of                       The establishment of the payment                   extent to which suppliers that have not
                                              their counterparts in CBAs, and that this               class for OGPE resulted in an increase                already exited the Medicare program are
                                              difference may make it more difficult for               in Medicare payments for these items                  struggling to maintain current service
                                              suppliers in rural and non-contiguous                   and services. Therefore, each year, a                 levels or individual cases where access
                                              areas to meet their expenses.                           budget neutrality offset is applied to the            or health outcomes may have been
                                                 In addition, the adjusted fee schedule               monthly payment amount for stationary                 affected. We are soliciting comments on
                                              amounts for stationary oxygen                           oxygen equipment to ensure that the                   ways to improve our fee schedule
                                              equipment in non-contiguous, non-                       OGPE payment class does not result in                 adjustment impact monitoring data.
                                              CBAs are lower than the SPA for                         oxygen and oxygen equipment
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                                              stationary oxygen equipment in the                      expenditures that would be more or less               3. Resuming Transitional Blended Fee
                                              Honolulu, Hawaii, CBA and the                           than the expenditures that would have                 Schedule Rates in Rural and Non-
                                              adjusted fee schedule amounts for                       been made without the OGPE class. As                  Contiguous Areas
                                              stationary oxygen equipment in some                     more beneficiaries shift to using OGPE,                  The monitoring data described in
                                              rural areas are lower than the SPAs in                  the budget neutrality offset that is                  section II.C.2 of this interim final rule
                                              CBAs within the same state. This is due                 applied to the stationary oxygen                      with comment is retrospective claims
                                              to the combination of the fee schedule                  equipment payment rate increases. The                 data for payment of items already


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                                              21918                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              furnished. Stakeholders state that this                 in supplier locations of 9 percent in                  additional information in making fee
                                              data is of limited utility in assessing the             2017.4                                                 schedule adjustments based on
                                              development of adverse trends in access                    There are additional factors that                   information from the DMEPOS CBP for
                                              to items and services, or that the health               section 16008 of the Cures Act requires                items and services furnished beginning
                                              of beneficiaries is being negatively                    us to take into account in making                      in 2019. The information we have
                                              affected by the fully adjusted fee                      adjustments to the fee schedule amounts                collected, however, includes input from
                                              schedule amounts. Claims data does not                  for items and services furnished                       many stakeholders indicating that the
                                              capture all of the challenges                           beginning in 2019. We know that the                    fully adjusted fee schedule amounts are
                                              experienced by beneficiaries and                        average volume of items and services                   too low and that this is having an
                                              suppliers, such as suppliers going out of               furnished per supplier in non-CBAs is                  adverse impact on beneficiary access to
                                              business or timely delivery of items.                   significantly less than the average                    items and services, particularly in rural
                                              Further, this claims data is also limited               volume of items and services furnished                 and non-contiguous areas. Given the
                                              to a retrospective view to address                      per supplier in CBAs. Additionally, the                strong stakeholder concern about the
                                              potential future problems. In other                     number of suppliers in general has been                continued viability of many DMEPOS
                                              words, it does not serve as a tool that                 steadily decreasing over time and this                 suppliers, coupled with the Cures Act
                                              can guard against the negative outcomes                 trend is not abating. As the number of                 mandate to consider additional
                                              raised by stakeholders, as discussed                    suppliers serving non-CBAs continues                   information material to setting fee
                                              elsewhere in the preamble. In fact, the                 to decline, the volume of items and                    schedule adjustments, it would be
                                              Government Accountability Office                        services furnished by the remaining                    unwise to continue with the fully
                                              (GAO) acknowledged challenges                           suppliers is increasing. However, we do                adjusted fee schedule rates in the
                                              associated with the monitoring of                       not know if the suppliers that remain
                                                                                                                                                             vulnerable rural and non-contiguous
                                              DMEPOS and the CBP in its review of                     will have the financial ability to
                                                                                                                                                             areas for 7 months. Any adverse impacts
                                              the first year of the DMEPOS CBP                        continue expanding their businesses to
                                                                                                                                                             on beneficiary health outcomes, or on
                                              Round 1 Rebid, stating that the                         continue to satisfy market demand. We
                                                                                                                                                             small businesses exiting the market,
                                              monitoring methods used by CMS in                       also do not know if large suppliers
                                                                                                                                                             could be irreversible. It is in the best
                                              assessing the impact of competitive                     serving both urban and rural areas will
                                                                                                                                                             interest of the beneficiaries living in
                                              bidding did not directly show whether                   continue to serve the rural areas
                                                                                                                                                             these areas to maintain a blend of the
                                              beneficiaries received the DME they                     representing a much smaller percentage
                                                                                                                                                             historic unadjusted fee schedule
                                              needed on time.1 We do note, however,                   of their business than urban areas. We
                                                                                                      specifically address the stakeholder                   amounts and fee schedule amounts
                                              that the Office of Inspector General                                                                           adjusted using SPAs established under
                                              (OIG) has found that the                                comments and concerns below.
                                                                                                         Based on the stakeholder comments                   the DMEPOS CBP to prevent suppliers
                                              implementation of Round 2 Competitive                                                                          that might be on the verge of closing
                                                                                                      and decrease in the number of supplier
                                              Bidding did not appear to disrupt                                                                              from closing, as they may be the only
                                                                                                      locations, there is an immediate need to
                                              beneficiary access to CPAP/RAD                                                                                 option for beneficiaries in these areas.
                                                                                                      resume the transitional, blended fee
                                              equipment.2                                                                                                    While our systematic monitoring in
                                                                                                      schedule amounts in rural and non-
                                                 Approximately 85 percent of the DME                  contiguous areas. Resuming these                       these areas has not shown problematic
                                              industry are considered small                           transitional blended rates will preserve               trends to this point, that monitoring by
                                              businesses according to the Small                       beneficiary access to needed DME items                 its nature looks backward and reflects
                                              Business Administration’s size                          and services in a contracting supplier                 other limitations, as discussed in
                                              standards. According to Medicare                        marketplace, while allowing CMS to                     section II.C.2 of this interim final rule
                                              claims data, the number of supplier                     address the adequacy of the fee                        with comment. Given the rapid changes
                                              locations furnishing DME items and                      schedule adjustment methodology, as                    in health care delivery that may
                                              services subject to the fee schedule                    required by section 16008 of the Cures                 disproportionately impact rural and
                                              adjustments decreased by 22 percent                     Act. We recognize that reduced access                  more isolated geographic areas, there is
                                              from 2013 to 2016. In 2016 alone there                  to DME may put beneficiaries at risk of                concern that the continued decline of
                                              was a 7 percent decline from the                        poor health outcomes or increase the                   the fees and the number of suppliers in
                                              previous year in the number of DME                      length of hospital stays.                              such areas may impact beneficiary
                                              supplier locations furnishing items and                    Suppliers have noted that they have                 access to items and services. These
                                              services subject to the fee schedule                    struggled under the fully adjusted fee                 adjustments would maintain a balance
                                              adjustments. The magnitude of this                      schedule and that they do not believe                  between the higher historic rates and
                                              decline in DME supplier locations, from                 they can continue to furnish the items                 rates adjusted based on bidding in larger
                                              13,535 (2015) to 12,617 (2016),3                        and services at the current rates.                     metropolitan areas where suppliers
                                              indicates that the number of DME                        Stakeholders overwhelmingly have                       furnish a much larger volume of
                                              supplier locations serving these areas                  stated that the fully adjusted fee                     DMEPOS items and services and
                                              continues to decline. Based on partial                  schedule amounts are not sufficient to                 support continued access to services. In
                                              year data, there was a further reduction                cover supplier costs for furnishing items              order to safeguard beneficiaries’ access
                                                                                                      and services in rural and non-                         to necessary items and services, we
                                                1 U.S. Government Accountability Office.              contiguous areas and the number of                     should immediately resume the
                                              Medicare: Review of the First Year of CMS’s             suppliers furnishing items in these areas              transition period for the phase-in of fee
                                              Durable Medical Equipment Competitive Bidding           continues to decline. Further, section                 schedule adjustments in these areas that
                                              Program’s Round 1 Rebid, May 2012 (GAO–12–
                                              693), http://www.gao.gov/assets/600/590712.pdf          16008 of the Cures Act mandates that                   was in place during CY 2016. Therefore,
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                                              (accessed 4 November 2015), page 42.                    we consider stakeholder input and                      we are revising § 414.210(g)(9) to
                                                2 Office of Inspector General. U.S. Department of                                                            resume the fee schedule adjustment
                                              Health & Human Services. Round 2 Competitive               4 There were 12,537 supplier locations furnishing   transition rates for items and services
                                              Bidding for CPAP/RAD: Disrupted Access Unlikely         items subject to the fee reductions in 2016, based     furnished in rural and non-contiguous
                                              for Devices, Inconclusive for Supplies, June 2017       on claims processed through April 6, 2017, and
                                              (OEI–01–15–00040).                                      11,384 supplier locations furnishing items subject
                                                                                                                                                             areas from June 1, 2018 through
                                                3 Medicare claims process through November 3,         to the fee reductions in 2017, based on claims         December 31, 2018, while we further
                                              2017                                                    processed through April 7, 2018.                       analyze this issue. During this extended


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                         21919

                                              transition period, CMS will take into                   wheelchairs (HCPCS codes K0848                        3 complex rehabilitative power
                                              account the information required by                     through K0864).                                       wheelchairs from January 1, 2017 until
                                              section 16008 of the Cures Act in                          Single payment amounts were                        July 1, 2017. Since the Congress has
                                              determining whether changes to the                      implemented on January 1, 2011, in the                acted twice to address the issue, these
                                              methodology for adjusting fee schedule                  nine Round 1 Rebid areas, for group 1                 legislative actions highlight a general
                                              amounts for items furnished on or after                 and 2 standard power wheelchair bases,                concern regarding access to this
                                              January 1, 2019, are necessary.                         group 2 complex rehabilitative power                  specialized equipment by the vulnerable
                                                                                                      wheelchair bases, and the                             patient population that depends on this
                                              D. Fee Schedule Amounts for                             interchangeable accessories used with                 equipment and technology.
                                              Accessories Used With Group 3                           the different bases (for example,                        Complex rehabilitative power
                                              Complex Rehabilitative Power                            batteries used with all power                         wheelchairs are used by patients
                                              Wheelchairs                                             wheelchairs and power seating systems                 needing functionality, such as head or
                                                 In the CY 2010 final rule (75 FR                     used with both group 2 and 3 complex                  sip and puff controls, power tilt or
                                              73390) published in the Federal                         rehabilitative power wheelchairs). As                 recline seating, or ventilators mounted
                                              Register on November 29, 2010, entitled                 noted above, these items are                          to the wheelchair, which are not
                                              ‘‘Medicare Program; Payment Policies                    competitively bid under section 1847 of               available on standard power
                                              Under the Physician Fee Schedule and                    the Act, and we did not competitively                 wheelchairs. The ability and
                                              Other Revisions to Part B for CY 2011,’’                bid group 3 wheelchairs or use                        performance of the wheelchair in
                                              we reviewed the HCPCS coding for                        competitively bid prices for related                  meeting the patients’ specialized needs
                                              power wheelchairs that were updated in                  accessories when used with a group 3                  is critical, and most patients use
                                              2006 in response to the release of the                  wheelchair in the Round 1 Rebid of the                wheelchair bases with group 3 level
                                              Power Mobility Device Coding                            DMEPOS CBP.                                           performance to meet these needs. Far
                                              Guidelines published by the DME                            Section 1834(a)(1)(F)(ii) of the Act               fewer use group 2 wheelchair bases,
                                              Medicare Administrative Contractors.                    mandates the adjustment of fee schedule               which are the bases that the accessories
                                              Codes were added to the HCPCS for                       amounts for items that are furnished in               were included with under Round 1 of
                                              various types of power wheelchair                       non-CBAs based on information from                    the DMEPOS CBP.
                                              bases, differentiated based on level of                 the CBPs beginning on January 1, 2016.                   Section 1847(a)(2)(A) of the Act
                                              performance, with group 1 being the                     We established a policy under                         provides the categories of items that are
                                              lowest and group 3 being the highest                    § 414.210(g)(5) for adjusting the fee                 subject to the CBP and excludes certain
                                              level covered by Medicare, and the                      schedule amounts for accessories used                 complex rehabilitative power
                                              ability to accommodate complex                          with different types of base equipment                wheelchairs recognized by the Secretary
                                              rehabilitative power options such as                    that are included in one or more                      as classified within group 3 or higher
                                              power seating systems or a specialty                    product categories under competitive                  (and related accessories when furnished
                                              interface, such as sip and puff controls.               bidding in the CY 2015 ESRD PPS final                 in connection with such wheelchairs).
                                              Codes were established at both the                      rule (79 FR 66223 through 66233). In                  This statutory exclusion should inform
                                              group 2 and 3 performance level for                     that rulemaking, we stated the Agency’s               our implementation of section
                                              ‘‘complex rehabilitative’’ power                        belief that it would be unnecessarily                 1834(a)(1)(F) of the Act such that the fee
                                              wheelchair bases.                                       burdensome to have different fee                      schedule amounts for wheelchair
                                                 Section 154(a)(1)(B) of the Medicare                 schedule amounts for the same item                    accessories and back and seat cushions
                                              Improvements for Patients and                           (HCPCS code) when it is used with                     used in conjunction with group 3
                                              Providers Act (MIPPA) of 2008 (Pub. L.                  similar, but different types of base                  complex rehabilitative power
                                              110–275), amended section                               equipment, and that the costs of                      wheelchairs should not be adjusted
                                              1847(a)(2)(A) of the Act to exclude                     furnishing the accessory should not vary              based on the methodologies set forth in
                                              group 3 or higher complex rehabilitative                significantly based on the type of base               § 414.210(g)(5). Therefore, as we have
                                              power wheelchairs and related                           equipment it is used with (79 FR                      announced in guidance available on the
                                              accessories when furnished in                           66230). We finalized § 414.210(g)(5) to               CMS website in June (located at: https://
                                              connection with such wheelchairs from                   adjust the fee schedule amount for a                  www.cms.gov/Center/Provider-Type/
                                              competitive bidding. At the same time,                  HCPCS code for an accessory for use                   Durable-Medical-Equipment-DME-
                                              section 154(a)(1)(A) of MIPPA amended                   with all types of base equipment using                Center.html) the fee schedule amounts
                                              section 1847(a)(1) of the Act to add                    pricing information for the item when it              for wheelchair accessories and back and
                                              paragraph (D) which terminated Round                    is included in one or more product                    seat cushions used in conjunction with
                                              1 and required rebidding Round 1 for                    categories under competitive bidding.                 group 3 power wheelchairs continue to
                                              the same items and services and the                     The adjusted fee schedule amounts for                 be based on the unadjusted fee schedule
                                              same areas with some changes. Since we                  these common accessories became                       amounts updated by the covered item
                                              included group 2 complex rehabilitative                 effective on January 1, 2016.                         update specified in section 1834(a)(14)
                                              power wheelchairs and related                              Section 2 of the Patient Access and                of the Act. The fee schedule amounts for
                                              accessories (including seating systems)                 Medicare Protection Act of 2015 (Pub. L.              all other accessories used with different
                                              and seat and back cushions, under                       114–115) delayed the adjustments to the               types of base equipment continue to be
                                              Round 1 of the DMEPOS CBP, we were                      fee schedule amounts for accessories                  calculated in accordance with the
                                              required to include those wheelchairs                   (including seating systems) and seat and              adjustment methodology set forth in
                                              and accessories in the Round 1 Rebid of                 back cushions when furnished in                       § 414.210(g)(5) of our regulations.
                                              the DMEPOS CBP. The accessories                         connection with group 3 complex
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                                              (including seating systems) and                         rehabilitative power wheelchairs until                E. Technical Changes To Conform the
                                              cushions furnished in connection with                   January 1, 2017. Subsequently, section                Regulations to Section 5004(b) of the
                                              group 2 complex rehabilitative power                    16005 of the Cures Act extended this                  Cures Act: Exclusion of DME Infusion
                                              wheelchairs (HCPCS codes K0835                          delay in the DME fee schedule                         Drugs Under CBPs
                                              through K0843) are the same items                       adjustments based on competitive                        Section 5004(b) of the Cures Act
                                              furnished in connection with group 3                    bidding information for certain                       amends section 1847(a)(2)(A) of the Act
                                              complex rehabilitative power                            wheelchair accessories used with group                to exclude drugs and biologicals


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                                              21920                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              described in section 1842(o)(1)(D) of the               reflect that fully adjusted fee schedule              monitoring CBP. In its report regarding
                                              Act from the CBP. We are making                         amounts apply from January 1, 2017                    the first year of the DMEPOS CBP
                                              conforming technical changes to the                     through May 31, 2018, and then on or                  Round 1 Rebid, the GAO stated that the
                                              regulations text consistent with                        after January 1, 2019. We are also                    monitoring methods used by CMS in
                                              statutory requirements to exclude drugs                 adding § 414.210(g)(9)(iii) to resume the             assessing the impact of competitive
                                              and biologicals from the CBP. We are                    transition period for the phase in of                 bidding did not directly show whether
                                              amending 42 CFR 414.402 to reflect that                 adjustments to fee schedule amounts for               beneficiaries received the DME needed
                                              infusion drugs are not included in the                  certain items furnished in rural and                  on time or whether adverse health
                                              CBP by revising the definition of ‘‘Item’’              non-contiguous areas from June 1, 2018                outcomes were caused by problems
                                              in paragraph (2) to add the words ‘‘and                 through December 31, 2018. Finally, we                accessing DMEPOS. As the fee schedule
                                              infusion’’ after the words ‘‘other than                 are adding § 414.210(g)(9)(iv) to reflect             amounts and the number of suppliers
                                              inhalation’’. The sentence will read as                 that fully adjusted fee schedule amounts              continue to decline, we are concerned
                                              follows: ‘‘Supplies necessary for the                   apply for certain items furnished in                  that DME access in remote areas of the
                                              effective use of DME other than                         non-CBA areas other than rural and                    country may be negatively affected by
                                              inhalation and infusion drugs.’’ We are                 non-contiguous areas from June 1, 2018                significant payment reductions put in
                                              also removing a reference to drugs being                through December 31, 2018.                            place prior to a full analysis of the
                                              included in the CBP by deleting the                        As previously stated in section II.C.1             factors affecting the cost of furnishing
                                              phrase ‘‘or subpart I’’ in § 414.412(b)(2).             of this interim final rule with comment,              items and services in distinctly different
                                              The sentence will read as follows: ‘‘The                stakeholders overwhelmingly have                      market areas. We are also concerned
                                              bids submitted for each item in a                       stated that the fully adjusted fee                    that national chain suppliers may close
                                              product category cannot exceed the                      schedule amounts are not sufficient to                locations in more remote areas if the
                                              payment amount that would otherwise                     cover supplier costs for furnishing items             rate they are paid for furnishing items
                                              apply to the item under subpart C of this               and services in rural and non-                        in a market where the volume of
                                              part, without the application of                        contiguous areas and are impacting                    services is low does not justify the
                                              § 414.210(g), or subpart D of this part,                beneficiary health outcomes. Section                  overhead expenses of retaining the
                                              without the application of § 414.105.                   16008 of the Cures Act requires CMS to                locations.
                                              The bids submitted for items in                         consider certain factors in making fee                   Finally, because this IFC will result in
                                              accordance with paragraph (d)(2) of this                schedule adjustments using information                a change to the 2018 fee schedule
                                              section cannot exceed the weighted                      from the CBP for items and services                   amounts for the various classes of
                                              average, weighted by total nationwide                   furnished in non-CBAs on or after                     oxygen and oxygen equipment, the
                                              allowed services, as defined in                         January 1, 2019. Given the limitations                annual budget neutrality adjustment for
                                              § 414.202, of the payment amounts that                  associated with our retrospective claims              2018, mandated by regulations at
                                              would otherwise apply to the grouping                   data prevent us from detecting rapidly                § 414.226(c)(6), will need to be
                                              of similar items under subpart C of this                developing beneficiary access issues, we              recomputed. This annual adjustment to
                                              part, without the application of                        believe we should immediately resume                  the monthly payment amount for
                                              § 414.210(g), or subpart D of this part,                the blended fee schedule rates in rural               stationary oxygen equipment and
                                              without the application of § 414.105.’’                 and non-contiguous areas that were in                 oxygen contents is mandated by section
                                              Similarly, we are making a conforming                   place during CY 2016, while we further                1834(a)(9)(D)(ii) of the Act as a
                                              technical change to § 414.414(f) in the                 analyze this issue in order to safeguard              condition for maintaining the higher
                                              discussion of ‘‘expected savings’’ so that              beneficiaries’ access to necessary items              portable oxygen equipment add-on
                                              infusion drugs are not taken into                       and services in rural and non-                        payment for portable concentrators and
                                              account by deleting the words ‘‘or drug’’               contiguous areas. Given that additional               transfilling equipment.
                                              and the phrase ‘‘or the same drug under                 information and factors will be
                                              subpart I’’ from § 414.414(f). The                                                                            B. Technical Changes To Conform the
                                                                                                      considered when addressing the fee                    Regulations to Section 5004(b) of the
                                              ‘‘expected savings’’ text will read as                  schedule adjustments for items and
                                              follows: ‘‘A contract is not awarded                                                                          Cures Act: Exclusion of DME Infusion
                                                                                                      services furnished on or after January 1,             Drugs Under CBPs
                                              under this subpart unless CMS                           2019, and that these factors include
                                              determines that the amounts to be paid                  differences in costs (yet to be quantified)              We are making conforming technical
                                              to contract suppliers for an item under                 associated with furnishing items in                   changes to the regulations text
                                              a competitive bidding program are                       heavier populated CBAs versus less                    consistent with statutory requirements
                                              expected to be less than the amounts                    populated or remote rural and non-                    to exclude drugs and biologicals from
                                              that would otherwise be paid for the                    contiguous areas, we have concluded                   the CBP. Specifically, we are amending
                                              same item under subpart C or subpart                    that we should adjust fee schedule                    § 414.402 to reflect that infusion drugs
                                              D.’’                                                    amounts based on competitive bidding                  are not included in the CBP by revising
                                              III. Provisions of the Interim Final Rule               information prior to 2019. The volume                 the definition of ‘‘Item’’ in paragraph (2)
                                              With Comment Period                                     of items furnished per supplier in rural              to add the words ‘‘and infusion’’ after
                                                                                                      and non-contiguous areas is far less than             the words ‘‘other than inhalation’’. We
                                              A. Transition Period for Phase-In of Fee                the volume of items furnished per                     are also removing a reference to drugs
                                              Schedule Adjustments                                    supplier in CBAs, indicating that the                 being included in the CBP by deleting
                                                 We are amending § 414.210(g)(9)(i) to                cost per item in these areas may be                   the phrase ‘‘or subpart I’’ in
                                              change the end date for the initial                     higher than the cost per item in CBAs.                § 414.412(b)(2). Similarly, we are
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                                              transition period for the phase in of                   Also, as noted earlier, our systematic                making a conforming technical change
                                              adjustments to fee schedule amounts for                 claims monitoring only looks backward                 to the regulations text on ‘‘expected
                                              certain items based on information from                 in time and may not detect rapidly                    savings’’ so that infusion drugs are not
                                              the DMEPOS CBP from June 30, 2016 to                    emerging trends, particularly in isolated             taken into account in § 414.414(f) by
                                              December 31, 2016, as mandated by                       or rural areas. We also referenced the                deleting the words ‘‘or drug’’ and the
                                              section 16007(a) of the Cures Act. We                   GAO’s acknowledgement that there are                  phrase ‘‘or the same drug under subpart
                                              are also amending § 414.210(g)(9)(ii) to                challenges associated with the                        I’’.


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                       21921

                                              IV. Waiver of Proposed Rulemaking                          As discussed below, and for reasons                Federal Register, we have solicited
                                                                                                      cited throughout this interim final rule              stakeholder input regarding the impact
                                                 We ordinarily publish a notice of                    with comment period, we find good                     of the fee schedule adjustments as
                                              proposed rulemaking in the Federal                      cause to waive notice-and-comment                     required by section 16008 of the Cures
                                              Register and invite public comment on                   rulemaking and issue this interim final               Act, through a national provider call on
                                              the proposed rule before the provisions                 rule with comment period to address fee               March 23, 2017, as well as through an
                                              of the rule take effect in accordance                   schedule adjustments based on                         accompanying written comment period.
                                              with 5 U.S.C. 553(b) of the                             information from the CBP in rural and                 We sought feedback on section 16008 of
                                              Administrative Procedure Act (APA)                      non-contiguous areas because we                       the Cures Act, which mandates
                                              and section 1871 of the Act.                            believe it is contrary to the public                  stakeholder input on the methodology
                                              Specifically, section 553(b) of the APA                 interest to go through notice-and-                    for using information from the DMEPOS
                                              requires the agency to publish a notice                 comment rulemaking for this provision.                CBP for adjusting Medicare fee schedule
                                              of the proposed rule in the Federal                     We also find good cause to waive the                  amounts paid in non-CBAs.
                                              Register that includes a reference to the               30-day delay in effective date of this                   We received numerous comments
                                              legal authority under which the rule is                 interim final rule with comment period                from stakeholders, such as comments
                                              proposed, and the terms and substances                  as a delay in effective date would also               that expressed how the current adjusted
                                              of the proposed rule or a description of                be contrary to the public interest. The               fee schedule is not enough to cover a
                                              the subjects and issues involved.                       full fee schedule adjustments took effect             DME supplier’s costs of running a
                                              Section 553(c) of the APA further                       on January 1, 2017, and we understand                 business and that many suppliers are
                                              requires the agency to give interested                  from stakeholders that some DMEPOS                    not able to sustain reductions in
                                              parties the opportunity to participate in               suppliers cannot exist at the current                 payment of up to 60 percent on average
                                              the rulemaking through public comment                   fully adjusted fee levels and have                    that resulted from the full fee schedule
                                              before the provisions of the rule take                  already had to drop out of Medicare,                  adjustments, resulting in a number of
                                              effect. Similarly, section 1871(b)(1) of                and even close down. Delaying the                     suppliers leaving the business and many
                                              the Act requires the Secretary to provide               effective date of this interim final rule             more considering leaving the business
                                              for notice of the proposed rule in the                  with comment period by 30 days could                  in the near future. Such a result would
                                              Federal Register and provide a period of                result in a further decline in the number
                                                                                                                                                            negatively impact beneficiaries’ access
                                              not less than 60 days for public                        of DMEPOS suppliers, and would pose
                                                                                                                                                            to critical items and services necessary
                                              comment. Section 553(b)(3)(B) of the                    an unnecessary risk of harm to
                                                                                                                                                            for their care. Some stakeholders
                                              APA and section 1871(b)(2)(C) of the                    beneficiaries in certain areas of the
                                                                                                                                                            commented that some of the more
                                              Act authorize an agency to waive these                  country that rely on one or a few
                                                                                                                                                            remote, high cost areas are served by
                                              procedures, however, if an agency finds                 suppliers to access to items and services
                                                                                                                                                            only one or a few suppliers. In 2016,
                                              good cause that a notice-and-comment                    and these suppliers are no longer able
                                                                                                                                                            there was a 7 percent decline in the
                                              procedure is impracticable,                             to furnish the items and services at the
                                                                                                                                                            number of supplier locations furnishing
                                              unnecessary, or contrary to the public                  fully adjusted fee schedule amounts. We
                                                                                                                                                            items and services subject to the fee
                                              interest and incorporates a statement of                also note that in this interim final rule
                                                                                                      with comment period, CMS is reverting                 schedule adjustments in non-CBAs. The
                                              the finding and its reasons in the rule                                                                       magnitude of this decline in supplier
                                              issued. Section 553(d) of the APA                       to a prior transitional payment policy
                                                                                                      that was in place from January 1, 2016                locations from 13,535 to 12,617
                                              ordinarily requires a 30-day delay in the                                                                     indicates that the number of supplier
                                                                                                      through December 31, 2016, to allow
                                              effective date of a final rule from the                                                                       locations serving these areas continues
                                                                                                      time for further engagement with
                                              date of its publication in the Federal                                                                        to decline at the same time that
                                                                                                      stakeholders, through future notice and
                                              Register. This 30-day delay in effective                                                                      stakeholders are indicating their
                                                                                                      comment rulemaking, in the
                                              date can be waived, however, if an                      development of a long-term, more                      expectations of additional supplier
                                              agency finds good cause to support an                   sustainable fee schedule adjustment                   exits. In situations where there may
                                              earlier effective date. Section                         methodology for items and services                    only be one supplier serving an area, if
                                              1871(e)(1)(B)(i) of the Act also prohibits              furnished in rural and non-contiguous                 the supplier were to stop furnishing
                                              a rule from taking effect before the end                areas.                                                items (for example oxygen), the
                                              of the 30-day period that begins the date                  We also find it unnecessary to                     beneficiaries in this area could be
                                              that the rule is issued or published.                   undertake notice-and-comment                          harmed significantly if there are no
                                              However, section 1871(e)(1)(B)(ii) of the               rulemaking to make technical changes                  suppliers left to deliver replacement of
                                              Act permits a substantive rule to take                  to conform the regulations to the                     necessary oxygen. We are concerned
                                              effect before 30 days if the Secretary                  statutory requirement under section                   that national chain suppliers of oxygen
                                              finds that a waiver of the 30-day period                5004(b) of the Cures Act that infusion                may close locations in more remote
                                              is necessary to comply with statutory                   drugs used with DME be excluded from                  areas if the rate they are paid for
                                              requirements or that the 30-day delay                   the DMEPOS CBP. We also find good                     furnishing items in a market where the
                                              would be contrary to the public interest.               cause to waive the delay in the effective             volume of services is low does not
                                              In addition, the Congressional Review                   date for this interim final rule with                 justify the overhead expenses of
                                              Act (5 U.S.C. 801(a)(3)), requires a 60-                comment period because it would be                    retaining the locations. Due to the
                                              day delayed effective date for major                    contrary to the public interest to further            inherent limitation associated with
                                              rules. However, we can waive the delay                  delay updating the regulations to be                  using retrospective claims data, our
                                              in effective date of the rule if the                    consistent with the statute and avoid                 systematic monitoring in these areas has
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                                              Secretary finds, for good cause, that                   possible confusion that infusion drugs                not been able to reflect problematic
                                              notice and public procedure is                          are still subject to competitive bidding,             trends identified by numerous
                                              impracticable, unnecessary, or contrary                 particularly given that the statutory                 stakeholders. As noted, the GAO has
                                              to the public interest, and incorporates                exclusion is self-implementing and                    also acknowledged challenges
                                              a statement of the finding and the                      already effective.                                    associated with the monitoring of
                                              reasons in the rule issued (5 U.S.C.                       Although we did not formally publish               DMEPOS and the CBP, stating that the
                                              808(2)).                                                a notice of proposed rulemaking in the                monitoring methods used by CMS in


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                                              21922                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              assessing the impact of competitive                     17 months from January 1, 2017 through                blended rates. We believe it is contrary
                                              bidding did not directly show whether                   May 31, 2018, during which suppliers                  to the public interest to go through
                                              beneficiaries received the DME they                     have been subject to the full fee                     notice and comment rulemaking
                                              needed on time or whether adverse                       schedule adjustments in rural and non-                because of the stakeholder input we
                                              health outcomes were caused by                          contiguous areas. This extended phase-                have already solicited that supports this
                                              problems accessing DMEPOS. Given the                    in period would end on December 31,                   change and because any further delay in
                                              rapid changes in health care delivery                   2018, since section 16008 of the Cures                implementation risks impeding
                                              that may disproportionately impact                      Act mandates that CMS consider certain                beneficiary access to DME in rural and
                                              rural and more isolated geographic                      factors and information in making fee                 non-contiguous areas. To further delay
                                              areas, we are concerned that the                        schedule adjustments for items and                    restoring the transitional fee schedule
                                              continued decline of the fees and the                   services furnished on or after January 1,             rates in rural and non-contiguous areas
                                              number of suppliers in such areas may                   2019. This gives suppliers serving rural              for additional months raises the access
                                              exacerbate the already emergent access                  and non-contiguous areas more time to                 concerns described earlier in the
                                              concerns faced by beneficiaries. In                     adjust their businesses and may prevent               preamble. As such, in
                                              general, we are concerned that                          the imminent closure of some supplier                 § 414.210(g)(9)(iii), for items and
                                              beneficiaries in certain areas of the                   locations, thereby safeguarding                       services furnished in rural and non-
                                              country could lose access to items and                  beneficiary access to necessary items                 contiguous areas on or after June 1,
                                              services if they rely on one or a few                   and services in rural and non-                        2018, the payment adjustments will be
                                              suppliers to furnish these items and                    contiguous areas. It also prevents                    based on a blend of 50 percent of the
                                              services and these suppliers are no                     irreparable harm to businesses in rural               unadjusted fee schedule amount and 50
                                              longer able to furnish the items and                    and non-contiguous areas that would                   percent of the adjusted payment amount
                                              services at the fully adjusted fee                      not be able to adjust to the full payment             established in accordance with the
                                              schedule amounts.                                       reductions, but might be able to adjust               methodologies in § 414.210(g)(1)
                                                 Our monitoring data, by its very                     to smaller reductions in payments                     through (8). We are also amending
                                                                                                      during an interim period until                        § 414.210(g)(9)(ii) to reflect that for
                                              nature, would not alert us to the present
                                                                                                      additional cost information is examined               items and services furnished with dates
                                              and imminent threats to beneficiary
                                                                                                      more closely by CMS to provide a more                 of service from January 1, 2017 to May
                                              access that stakeholders have raised in
                                                                                                      accurate reflection of the unique costs of            31, 2018, the fee schedule amount for
                                              recent months. If CMS continues to pay
                                                                                                      furnishing items and services in market               the area is equal to 100 percent of the
                                              the fully adjusted payment rates in rural
                                                                                                      areas that are distinctly different from              adjusted payment amount.
                                              and non-contiguous areas, it could                                                                               We note that this rule is urgent to
                                              further jeopardize the infrastructure of                CBAs. This also allows time for CMS to
                                                                                                      receive supplier feedback and analyze                 preserve beneficiary access to DME
                                              suppliers that beneficiaries rely on for                                                                      items and services in rural and non-
                                              access to necessary items and services                  the costs of furnishing DME items in
                                                                                                      rural and non-contiguous areas and                    contiguous areas during this transition
                                              in remote areas of the country. Smaller                                                                       period, that CMS is continuing to study
                                              suppliers that serve remote areas may                   other factors identified in section 16008
                                                                                                      of the Cures Act. Resuming the fee                    the impact of the change in payment
                                              not be able to sustain larger reductions                                                                      rates on access to items and services in
                                              in payment because they have a limited                  schedule adjustment transition period
                                                                                                      for an additional 7 months in rural and               these areas, and that we intend to
                                              number of ways to reduce costs. If they                                                                       undertake subsequent notice-and-
                                              only have one location and a few                        non-contiguous areas seems reasonable
                                                                                                                                                            comment rulemaking for CY 2019.
                                              employees to begin with, they cannot                    during this interim period to allow for
                                                                                                                                                               Section 5004(b) of the Cures Act
                                              close locations or lay off employees to                 the more in depth analysis of the factors             further amends section 1847(a)(2)(A) of
                                              reduce costs. Larger suppliers that serve               and information to be considered in                   the Act to exclude drugs and biologicals
                                              both remote, rural areas and urban areas                accordance with section 16008 of the                  described in section 1842(o)(1)(D) of the
                                              may elect to close locations in the                     Cures Act.                                            Act. We are finalizing conforming
                                              remote areas where volume of services                      In light of these concerns, while we               regulatory changes to reflect our
                                              are significantly lower because the                     consider broader changes to the fee                   interpretation of these statutory
                                              overhead expense of maintaining the                     schedule adjustment methodology as                    requirements to exclude infusion drugs,
                                              location may no longer justify retaining                required by section 16008 of the Cures                described in section 1842(o)(1)(D) of the
                                              these locations. Therefore, we believe it               Act, we believe there is good cause to                Act, as a covered item that could be
                                              is necessary to prevent future, potential               issue this interim final rule with                    subject to the DMEPOS CBPs. Because
                                              access problems and adverse health                      comment period to revise                              this is just a minor technical change to
                                              outcomes for beneficiaries by resuming                  § 414.210(g)(9) to immediately restore                conform the language in the regulations
                                              the fee schedule adjustment transition                  the fee schedule adjustment transition                to the statute, we believe that a notice
                                              period in rural and non-contiguous                      period in rural and non-contiguous                    and comment period for this change is
                                              areas. Immediately restoring the                        areas. Resuming the transition period                 unnecessary.
                                              blended rates in rural and non-                         and blended rates based on adjusted and                  Therefore, as noted above, we find
                                              contiguous areas, which will cut the                    unadjusted fee schedule amounts for                   good cause to waive the notice of
                                              magnitude of the full adjustments in                    items and services furnished in rural                 proposed rulemaking to address fee
                                              half, can prevent potential erosion of the              and non-contiguous areas from June 1,                 schedule adjustments in rural and non-
                                              supplier infrastructure that could                      2018 through December 31, 2018, will                  contiguous areas based on information
                                              potentially be on the verge of impacting                allow additional time for suppliers                   from the CBP, and to make technical
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                                              access and health outcomes in rural and                 serving rural and non-contiguous areas                changes to the regulations so they
                                              non-contiguous areas. By restoring the                  to adjust their businesses, prevent                   conform to the statutory requirement
                                              transition period in rural and non-                     suppliers that beneficiaries may rely on              under section 5004(b) of the Cures Act
                                              contiguous areas effective June 1, 2018,                for access to items and services in rural             that infusion drugs used with DME be
                                              this in essence extends the fee schedule                and non-contiguous areas from exiting                 excluded from the DMEPOS CBP. We
                                              adjustment phase in period by an                        the business, and allow additional time               also find good cause to waive the delay
                                              additional 7 months and leaves a gap of                 for CMS to monitor the impact of the                  in effective date and issue this interim


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                                                                           Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                                21923

                                              final rule with comment period with an                               benefits of available regulatory                     2. Statement of Need
                                              effective date of June 1, 2018. We are                               alternatives and, if regulation is
                                              providing a 60-day public comment                                    necessary, to select regulatory                         This interim final rule with comment
                                              period.                                                              approaches that maximize net benefits                period amends the regulation to revise
                                                                                                                   (including potential economic,                       the date that the initial fee schedule
                                              V. Collection of Information                                                                                              adjustment transition period ended and
                                                                                                                   environmental, public health and safety
                                              Requirements                                                                                                              resumes the fee schedule adjustment
                                                                                                                   effects, distributive impacts, and
                                                This document does not impose                                      equity). Section 3(f) of Executive Order             transition period for certain DME items
                                              information collection requirements,                                 12866 defines a ‘‘significant regulatory             and services and enteral nutrition
                                              that is, reporting, recordkeeping or                                 action’’ as an action that is likely to              furnished in rural and non-contiguous
                                              third-party disclosure requirements.                                 result in a rule: (1) Having an annual               areas not subject to the DMEPOS CBP
                                              Consequently, there is no need for                                   effect on the economy of $100 million                from June 1, 2018 through December 31,
                                              review by the Office of Management and                               or more in any 1 year, or adversely and              2018. This interim final rule with
                                              Budget under the authority of the                                    materially affecting a sector of the                 comment period also makes technical
                                              Paperwork Reduction Act of 1995 (44                                  economy, productivity, competition,                  amendments to existing regulations for
                                              U.S.C. 3501 et seq.).                                                jobs, the environment, public health or              DMEPOS items and services to note the
                                                                                                                   safety, or state, local or tribal                    exclusion of infusion drugs used with
                                              VI. Response to Comments                                                                                                  DME from the DMEPOS CBP.
                                                                                                                   governments or communities (also
                                                Because of the large number of public                              referred to as ‘‘economically                        3. Overall Impact
                                              comments we normally receive on                                      significant’’); (2) creating a serious
                                              Federal Register documents, we are not                               inconsistency or otherwise interfering                 The interim final rule with comment
                                              able to acknowledge or respond to them                               with an action taken or planned by                   period resumes the transitional adjusted
                                              individually. We will consider all                                   another agency; (3) materially altering              Medicare fee schedule amounts for
                                              comments we receive by the date and                                  the budgetary impacts of entitlement                 certain items and services that are
                                              time specified in the DATES section of                               grants, user fees, or loan programs or the           furnished in rural and non-contiguous
                                              this preamble, and, when we proceed                                  rights and obligations of recipients                 areas beginning June 1, 2018 until
                                              with a subsequent document, we will                                  thereof; or (4) raising novel legal or               December 31, 2018. It is estimated that
                                              respond to the comments in the                                       policy issues arising out of legal                   these fee schedule adjustments will cost
                                              preamble to that document.                                           mandates, the President’s priorities, or             over $290 million in Medicare Part B
                                              VII. Economic Analyses                                               the principles set forth in the Executive            benefit payments and $70 million in
                                                                                                                   Order.                                               Medicare beneficiary cost sharing. For
                                              A. Regulatory Impact Analysis                                                                                             dual eligible beneficiaries Medicaid
                                                                                                                      A regulatory impact analysis (RIA)                pays the cost sharing. The Medicaid
                                              1. Introduction                                                      must be prepared for major rules with                payment is split between a Federal
                                                 We have examined the impacts of this                              economically significant effects ($100               portion and the states’ portion, which
                                              interim final rule with comment period                               million or more in any 1 year). We                   for this rule is $10 million and $10
                                              as required by Executive Order 12866                                 estimate that this rulemaking is                     million, respectively.
                                              on Regulatory Planning and Review                                    ‘‘economically significant’’ as measured
                                              (September 30, 1993), Executive Order                                by the $100 million threshold, and                   B. Detailed Economic Analysis
                                              13563 on Improving Regulation and                                    hence also a major rule under the                    a. Effects on the Medicare Program and
                                              Regulatory Review (January 18, 2011),                                Congressional Review Act. In addition,               Beneficiaries
                                              the Regulatory Flexibility Act (RFA)                                 the Office of Management and Budget
                                              (September 19, 1980, Pub. L. 96–354),                                (OMB) has determined that the actions                  This interim final rule with comment
                                              section 1102(b) of the Social Security                               are significant within the meaning of                period resumes transitional adjusted
                                              Act, section 202 of the Unfunded                                     section 3(f)(4) of the Executive Order.              Medicare fee schedule amounts for
                                              Mandates Reform Act of 1995 (March                                   Accordingly, we have prepared a                      certain items and services furnished in
                                              22, 1995; Pub. L. 104–4), Executive                                  Regulatory Impact Analysis that to the               rural and non-contiguous areas
                                              Order 13132 on Federalism (August 4,                                 best of our ability presents the costs and           beginning June 1, 2018 until December
                                              1999), the Congressional Review Act (5                               benefits of the rulemaking. Therefore,               31, 2018. It is estimated that these
                                              U.S.C. 804(2)), and Executive Order                                  OMB has reviewed this interim final                  adjustments will cost over $290 million
                                              13771 on Reducing Regulation and                                     rule with comment period, and the                    in Medicare Part B benefit payments
                                              Controlling Regulatory Costs (January                                Departments have provided the                        and $70 million in beneficiary cost
                                              30, 2017).                                                           following assessment of their impact.                sharing. The suppliers will get increased
                                                 Executive Orders 12866 and 13563                                  We solicit comments on the regulatory                revenue from the increased fee schedule
                                              direct agencies to assess all costs and                              impact analysis provided.                            amounts. See Table 1.

                                                                                TABLE 1—CASH IMPACT OF RESUMING THE ADJUSTED FEE SCHEDULE TRANSITION
                                                                                                               Impact on the benefit                  Impact on beneficiary
                                                                      FY                                        payments in dollars                   cost sharing in dollars         Federal share   States’ share
                                                                                                            (to the nearer 10 million) 1           (to the nearer 10 million) 2       of Medicaid 3   of Medicaid 3

                                              2018 .................................................                    170                                     40                         5               5
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                                              2019 .................................................                    120                                     30                         5               5
                                                 1 Does    not include premium offset.
                                                 2 Includes   Medicaid payments.
                                                 3 Copayments      made for dual eligible Medicare beneficiaries.




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                                              21924                          Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              b. Impact on Beneficiaries and Other                                          Beneficiaries who do not have                                         million is the Federal portion, and $20
                                              Payers                                                                      supplemental insurance or who are not                                   million is the state portion. A second
                                                 In order to preserve beneficiary access                                  dual eligible will have increased cost                                  alternative would be to apply the
                                              to DME items and services, this rule, as                                    sharing as a result of this interim final                               blended rates in all non-CBAs, but
                                              indicated above, will result in a $70                                       rule with comment period.                                               change the blend from 50 percent
                                              million dollar Medicare cost sharing                                        c. Alternatives Considered                                              unadjusted fee and 50 percent adjusted
                                              increase to the beneficiaries. For those                                                                                                            fee to 25 percent unadjusted fee and 75
                                              beneficiaries who have supplemental                                           One alternative considered to address                                 percent adjusted fee. This would cost
                                              insurance, this increase may be covered                                     concerns about access to items and                                      $290 million in Medicare Part B benefit
                                              by supplemental insurance programs                                          services in non-CBAs would be to apply                                  payments and $70 million in beneficiary
                                              (for example, Medigap). This is a                                           the 50/50 blended rates in all non-CBAs,                                cost sharing. Of the $70 million in
                                              temporary time-limited extension of the                                     since stakeholders commented                                            beneficiary cost sharing, $20 million is
                                              fee schedule adjustment transition                                          regarding problems related to access to                                 the Medicaid impact for dual eligibles,
                                              period.                                                                     necessary items and services in all non-                                of which $10 million is the Federal
                                                 For dual eligible beneficiaries,                                         CBAs. This would cost $570 million in                                   portion, and $10 million is the state
                                              Medicaid pays the cost sharing. The                                         Medicare Part B benefit payments and
                                                                                                                                                                                                  portion. Table 2 compared the annual
                                              Medicaid payment is split between a                                         $140 million in beneficiary cost sharing.
                                                                                                                                                                                                  costs of these alternative rules to the
                                              Federal portion and the states’ portion,                                    Of the $140 million in beneficiary cost
                                              which for this rule is $10 million and                                      sharing, $45 million is the Medicaid                                    annual costs of the interim final rule
                                              $10 million, respectively.                                                  impact for dual eligibles, of which $25                                 with comment period.

                                               TABLE 2—COMPARISON OF THE COSTS OF ALTERNATIVE RULES WITH THE INTERIM FINAL RULE WITH COMMENT PERIOD
                                                                                                                                                                                      Interim             50/50 Blend in      25/75 Blend in
                                                                                                           FY                                                                        final rule            all non-CBAs        all non-CBAs

                                              2018 ...........................................................................................................................          170                    330                 170
                                              2019 ...........................................................................................................................          120                    240                 120



                                                 We did not elect either of these                                         number of reviewers of this final rule is                               that reviews this interim final rule with
                                              alternatives and chose to apply the 50/                                     about the same number of commenters                                     comment period, the estimated cost is
                                              50 blended rates in rural and non-                                          on similar, past rules. We acknowledge                                  $210.32 (2 hours × $105.16). Therefore,
                                              contiguous areas only to ensure access                                      that this assumption may understate or                                  we estimate that the total cost of
                                              to items and services for Medicare                                          overstate the costs of reviewing this                                   reviewing this interim final rule with
                                              beneficiaries in these areas.                                               interim final rule with comment period.                                 comment period is $21,320 ($210.32 ×
                                                 Public comments are requested on                                         Using the wage information from the                                     100 reviewers).
                                              these and any other related alternatives.                                   Bureau of Labor Statistics (BLS) for
                                                                                                                          medical and health service managers                                     C. Accounting Statement
                                              d. Regulatory Familiarization Costs                                         (Code 11–9111), we estimate that the
                                                If regulations impose administrative                                      cost of reviewing this interim final rule                                 As required by OMB Circular A–4
                                              costs on private entities, such as the                                      with comment period is $105.16 per                                      (available at http://
                                              time needed to read and interpret this                                      hour, including overhead and fringe                                     www.whitehouse.gov/omb/circulars_
                                              interim final rule with comment period,                                     benefits (https://www.bls.gov/oes/                                      a004_a-4), in Table 3, we have prepared
                                              we should estimate the cost associated                                      current/oes_nat.htm). Assuming an                                       an accounting statement showing the
                                              with regulatory review. Due to the                                          average reading speed, we estimate that                                 classification of the transfers and costs
                                              uncertainty involved with accurately                                        it will take approximately 2 hours for                                  associated with the various provisions
                                              quantifying the number of entities that                                     the staff to review this interim final rule                             of this interim final rule with comment
                                              will review the rule, we assume that the                                    with comment period. For each entity                                    period.
                                                          TABLE 3—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED TRANSFERS AND COSTS/SAVINGS, WITH
                                                                                       ANNUALIZATION PERIOD 2018–2019
                                                                                                                                                 DME provisions

                                                                                              Category                                                                                                 Transfers

                                              Annualized Monetized Transfers ..............................................................                      $146 million (7%) or $145 million (3%).
                                              From Whom to Whom ..............................................................................                   Federal government to Medicare providers.
                                              Increased Beneficiary Co-insurance Payments .......................................                                $35 million (7%) or 35 million (3%).
                                              From Whom to Whom ..............................................................................                   Beneficiaries to Medicare providers.
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                                                In accordance with the provisions of                                      VIII. Regulatory Flexibility Act                                        entities, if a rule has a significant impact
                                              Executive Order 12866, this rule was                                        Analysis                                                                on a substantial number of small
                                              reviewed by the Office of Management                                                                                                                entities. For purposes of the RFA, small
                                              and Budget.                                                                   The Regulatory Flexibility Act                                        entities include small businesses,
                                                                                                                          (September 19, 1980, Pub. L. 96–354)
                                                                                                                                                                                                  nonprofit organizations, and small
                                                                                                                          (RFA) requires agencies to analyze
                                                                                                                                                                                                  governmental jurisdictions.
                                                                                                                          options for regulatory relief of small


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                              21925

                                              Approximately 85 percent of the DME                     rule does not impose substantial direct               percent of the adjusted payment amount
                                              industry are considered small                           requirement costs on state or local                   established under this section.
                                              businesses according to the Small                       governments, preempt states, or                          (iii) For items and services furnished
                                              Business Administration’s size                          otherwise have a Federalism                           in rural areas and non-contiguous areas
                                              standards with total revenues of $6.5                   implication.                                          (Alaska, Hawaii, and U.S. territories)
                                              million or less in any 1 year and a small                                                                     with dates of service from June 1, 2018
                                              percentage are nonprofit organizations.                 XI. Reducing Regulation and
                                                                                                                                                            through December 31, 2018, based on
                                              Individuals and states are not included                 Controlling Regulatory Costs
                                                                                                                                                            the fee schedule amount for the area is
                                              in the definition of a small entity. We                   Executive Order 13771, titled                       equal to 50 percent of the adjusted
                                              expect the interim final rule with                      Reducing Regulation and Controlling                   payment amount established under this
                                              comment period DME provisions will                      Regulatory Costs, was issued on January               section and 50 percent of the unadjusted
                                              have a significant impact on small                      30, 2017. This interim final rule with                fee schedule amount.
                                              suppliers. A substantial number of small                comment period is not subject to the                     (iv) For items and services furnished
                                              suppliers will benefit from the increased               requirements of Executive Order 13771                 in areas other than rural or non-
                                              fee schedule amounts. Although not                      because it is estimated to result in no               contiguous areas with dates of service
                                              legally required, this interim final rule               more than de minimis costs.                           from June 1, 2018 through December 31,
                                              with comment period will increase                                                                             2018, based on the fee schedule amount
                                                                                                      XII. Congressional Review Act
                                              payments to small suppliers such that                                                                         for the area is equal to 100 percent of
                                              the beneficiaries should have improved                     This rule is subject to the                        the adjusted payment amount
                                              access to items.                                        Congressional Review Act provisions of                established under this section.
                                                 In addition, section 1102(b) of the Act              the Small Business Regulatory
                                              requires us to prepare a regulatory                     Enforcement Fairness Act of 1996 (5                   § 414.402   [Amended]
                                              impact analysis if a rule may have a                    U.S.C. 801 et seq.) and has been                      ■  3. Section 414.402 is amended in
                                              significant impact on the operations of                 transmitted to the Congress and the                   paragraph (2) of the definition of ‘‘Item’’
                                              a substantial number of small rural                     Comptroller General for review.                       by removing the words ‘‘inhalation
                                              hospitals. This analysis must conform to                                                                      drugs’’ and by adding in their place
                                                                                                      List of Subjects in 42 CFR Part 414
                                              the provisions of section 604 of the                                                                          ‘‘inhalation and infusion drugs’’.
                                              RFA. For purposes of section 1102(b) of                   Administrative practice and
                                              the Act, we define a small rural hospital               procedure, Health facilities, Health                  § 414.412   [Amended]
                                              as a hospital that is located outside of                professions, Kidney diseases, Medicare,
                                                                                                                                                            ■ 4. Section 414.412(b)(2) is amended
                                              a metropolitan statistical area and has                 Reporting and recordkeeping
                                                                                                                                                            by removing the phrase ‘‘, or subpart I
                                              fewer than 100 beds. Our data indicates                 requirements.
                                                                                                                                                            of this part’’.
                                              that only around 6.9 percent of small                     For the reasons set forth in the
                                              rural hospitals are organizationally                    preamble, the Centers for Medicare &                  § 414.414   [Amended]
                                              linked to a DME supplier with paid                      Medicaid Services amends 42 CFR                       ■  5. Section 414.414(f) is amended by
                                              claims in 2017. Thus, we do not believe                 Chapter IV as set forth below:                        removing the words ‘‘or drug’’ and the
                                              this interim final rule with comment                                                                          phrase ‘‘or the same drug under subpart
                                              period will have a significant impact on                PART 414—PAYMENT FOR PART B
                                                                                                                                                            I’’.
                                              operations of a substantial number of                   MEDICAL AND OTHER HEALTH
                                              small rural hospitals.                                  SERVICES                                                Dated: May 7, 2018.
                                                                                                                                                            Seema Verma,
                                              IX. Unfunded Mandates Reform Act                        ■ 1. The authority citation for part 414              Administrator, Centers for Medicare &
                                              Analysis                                                continues to read as follows:                         Medicaid Services.
                                                 Section 202 of the Unfunded                            Authority: Secs. 1102, 1871, and 1881(b)(l)           Dated: May 7, 2018.
                                              Mandates Reform Act of 1995 (UMRA)                      of the Social Security Act (42 U.S.C. 1302,           Alex M. Azar II,
                                              also requires that agencies assess                      1395hh, and 1395rr(b)(l)).                            Secretary, Department of Health and Human
                                              anticipated costs and benefits before                   ■ 2. Section 414.210 is amended by                    Services.
                                              issuing any rule whose mandates                         revising paragraph (g)(9) to read as                  [FR Doc. 2018–10084 Filed 5–9–18; 4:15 pm]
                                              require spending in any 1 year of $100                  follows.                                              BILLING CODE 4120–01–P
                                              million in 1995 dollars, updated
                                              annually for inflation. In 2018, that                   § 414.210    General payment rules.
                                              threshold is approximately $150                         *       *     *    *     *
                                              million. The Secretary has determined                      (g) * * *                                          DEPARTMENT OF HEALTH AND
                                              that UMRA does not apply to this rule                      (9) Transition rules. The payment                  HUMAN SERVICES
                                              in that this rule does not contain                      adjustments described above are phased
                                                                                                                                                            45 CFR Parts 147, 153, 154, 155, 156,
                                              mandates that impose spending costs on                  in as follows:
                                                                                                         (i) For applicable items and services              157, and 158
                                              state, local, or tribal governments in the
                                              aggregate.                                              furnished with dates of service from                  [CMS–9930–F]
                                                                                                      January 1, 2016 through December 31,
                                              X. Federalism Analysis                                  2016, based on the fee schedule amount                RIN 0938–AT12
                                                Executive Order 13132 establishes                     for the area is equal to 50 percent of the
                                              certain requirements that an agency                     adjusted payment amount established                   Patient Protection and Affordable Care
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                                              must meet when it promulgates a                         under this section and 50 percent of the              Act; HHS Notice of Benefit and
                                              proposed rule (and subsequent final                     unadjusted fee schedule amount.                       Payment Parameters for 2019;
                                              rule) that imposes substantial direct                      (ii) For items and services furnished              Correction
                                              requirement costs on state and local                    with dates of service from January 1,                 AGENCY:  Centers for Medicare &
                                              governments, preempts state law, or                     2017, through May 31, 2018, and on or                 Medicaid Services (CMS), HHS.
                                              otherwise has Federalism implications.                  after January 1, 2019, the fee schedule
                                                                                                                                                            ACTION: Final rule; correction.
                                              The Secretary has determined that this                  amount for the area is equal to 100


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Document Created: 2018-11-02 09:50:01
Document Modified: 2018-11-02 09:50:01
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule with comment period.
DatesEffective date: The provisions of this interim final rule with comment period are effective on June 1, 2018.
ContactLaurence Wilson, 410-786-4602 and [email protected]
FR Citation83 FR 21912 
RIN Number0938-AT21
CFR AssociatedAdministrative Practice and Procedure; Health Facilities; Health Professions; Kidney Diseases; Medicare and Reporting and Recordkeeping Requirements

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