Federal Register, Volume 81 Issue 214 (Friday, November 4, 2016)

[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Rules and Regulations]
[Pages 77834-77969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26152]

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Vol. 81

Friday,

No. 214

November 4, 2016

Part III

Department of Health and Human Services

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Centers for Medicare & Medicaid Services

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42 CFR Parts 413, 414, and 494

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; Final Rule

Federal Register / Vol. 81 , No. 214 / Friday, November 4, 2016 /
Rules and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 413, 414, and 494

[CMS-1651-F]
RIN 0938-AS83

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

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

ACTION: Final rule.

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SUMMARY: This rule updates and makes revisions to the End-Stage Renal
Disease (ESRD) Prospective Payment System (PPS) for calendar year 2017.
It also finalizes policies for coverage and payment for renal dialysis
services furnished by an ESRD facility to individuals with acute kidney
injury. This rule also sets forth requirements for the ESRD Quality
Incentive Program, including the inclusion of new quality measures
beginning with payment year (PY) 2020 and provides updates to
programmatic policies for the PY 2018 and PY 2019 ESRD QIP.
This rule also implements statutory requirements for bid surety
bonds and state licensure for the Durable Medical Equipment,
Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive Bidding
Program (CBP). This rule also expands suppliers' appeal rights in the
event of a breach of contract action taken by CMS, by revising the
appeals regulation to extend the appeals process to all types of
actions taken by CMS for a supplier's breach of contract, rather than
limit an appeal for the termination of a competitive bidding contract.
The rule also finalizes changes to the methodologies for adjusting fee
schedule amounts for DMEPOS using information from CBPs and for
submitting bids and establishing single payment amounts under the CBPs
for certain groupings of similar items with different features to
address price inversions. Final changes also are made to the method for
establishing bid limits for items under the DMEPOS CBPs. In addition,
this rule summarizes comments on the impacts of coordinating Medicare
and Medicaid Durable Medical Equipment for dually eligible
beneficiaries. Finally, this rule also summarizes comments received in
response to a request for information related to the Comprehensive ESRD
Care Model and future payment models affecting renal care.

DATES: These regulations are effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT: ESRDPayment@cms.hhs.gov, for issues
related to the ESRD PPS and coverage and payment for renal dialysis
services furnished to individuals with AKI.
Stephanie Frilling, (410) 786-4597, for issues related to the ESRD
QIP.
Julia Howard, (410) 786-8645, for issues related to DMEPOS CBP and
bid surety bonds, state licensure, and the appeals process for breach
of DMEPOS CBP contract actions.
Anita Greenberg, (410) 786-4601, or Hafsa Vahora, (410) 786-7899,
for issues related to competitive bidding and payment for similar
DMEPOS items with different features and bid limits.
Kristen Zycherman, for issues related to DME access issues.
Tom Duvall, (410) 786-8887 or email tom.duvall@cms.hhs.gov, for
issues related to the Comprehensive ESRD Care Model.

SUPPLEMENTARY INFORMATION:

Addenda Are Only Available Through the Internet on the CMS Web Site

In the past, a majority of the Addenda referred to throughout the
preamble of our proposed and final rules were available in the Federal
Register. However, the Addenda of the annual proposed and final rules
will no longer be available in the Federal Register. Instead, these
Addenda to the annual proposed and final rules will be available only
through the Internet on the CMS Web site. The Addenda to the End-Stage
Renal Disease (ESRD) Prospective Payment System (PPS) rules are
available at: http://www.cms.gov/ESRDPayment/PAY/list.asp. Readers who
experience any problems accessing any of the Addenda to the proposed
and final rules of the ESRD PPS that are posted on the CMS Web site
identified above should contact ESRDPayment@cms.hhs.gov.

Table of Contents

To assist readers in referencing sections contained in this
preamble, we are providing a Table of Contents. Some of the issues
discussed in this preamble affect the payment policies, but do not
require changes to the regulations in the Code of Federal Regulations
(CFR).

I. Executive Summary
A. Purpose
1. End-Stage Renal Disease (ESRD) Prospective Payment System
(PPS)
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals With Acute Kidney Injury (AKI)
3. End-Stage Renal Disease (ESRD) Quality Incentive Program
(QIP)
4. Durable Medical Equipment, Prosthetics, Orthotics Supplies
(DMEPOS) Competitive Bidding Bid Surety Bonds, State Licensure and
Appeals Process for a Breach of DMEPOS Competitive Bidding Program
Contract Action
5. Durable Medical Equipment, Prosthetics, Orthotics Supplies
(DMEPOS) Competitive Bidding Program and Fee Schedule Adjustments
B. Summary of the Major Provisions
1. ESRD PPS
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals With AKI
3. ESRD QIP
4. DMEPOS Competitive Bidding Bid Surety Bonds, State Licensure
and Appeals Process for a Breach of DMEPOS Competitive Bidding
Program Contract Actions
5. DMEPOS Competitive Bidding Program and Fee Schedule
Adjustments
C. Summary of Cost and Benefits
1. Impacts of the Final ESRD PPS
2. Impact of the Final Coverage and Payment for Renal Dialysis
Services Furnished to Individuals With AKI
3. Impacts of the Final ESRD QIP
4. Impacts of the Final DMEPOS Competitive Bidding Bid Surety
Bonds, State Licensure and Appeals Process for a Breach of DMEPOS
Competitive Bidding Program Contract Action
5. Impacts of the Final DMEPOS Competitive Bidding Program and
Fee Schedule Adjustments
II. Calendar Year (CY) 2017 End-Stage Renal Disease (ESRD)
Prospective Payment System (PPS)
A. Background
1. Statutory Background
2. System for Payment of Renal Dialysis Services
3. Updates to the ESRD PPS
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the Calendar Year (CY) 2017 ESRD PPS
1. Payment for Hemodialysis When More Than 3 Treatments Are
Furnished per Week
a. Background
b. Payment Methodology for HD When More Than 3 Treatments Are
Furnished per Week
c. Applicability to Medically Justified Treatments

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d. Applicability to Home and Self-Dialysis Training Treatments
2. Home and Self-Dialysis Training Add-On Payment Adjustment
a. Background
b. Analysis of ESRD Facility Claims Data
c. Technical Correction of the Total Training Payment in the CY
2016 ESRD PPS Final Rule
d. Analysis of ESRD Cost Report Data
e. Final Increase to the Home and Self-Dialysis Training Add-On
Payment Adjustment
3. Final CY 2017 ESRD PPS Update
a. Final CY 2017 ESRD Market Basket Update, Productivity
Adjustment, and Labor-Related Share for the ESRD PPS
b. The Final CY 2017 ESRD PPS Wage Indices
i. Annual Update of the Wage Index
ii. Application of the Wage Index Under the ESRD PPS
c. CY 2017 Update to the Outlier Policy
i. CY 2017 Update to the Outlier Services MAP Amounts and Fixed-
Dollar Loss Amounts
ii. Outlier Percentage
d. Update of the ESRD PPS Base Rate for CY 2017
i. Background
ii. Payment Rate Update for CY 2017
4. Miscellaneous Comments
III. Final Coverage and Payment for Renal Dialysis Services
Furnished to Individuals With Acute Kidney Injury (AKI)
A. Background
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the Coverage and Payment for Renal Dialysis
Services Furnished to Individuals With Acute Kidney Injury (AKI)
C. Final Payment Policy for Renal Dialysis Services Furnished to
Individuals With AKI
1. Definition of ``Individual With Acute Kidney Injury''
2. The Payment Rate for AKI Dialysis
3. Geographic Adjustment Factor
4. Other Adjustments to the AKI Payment Rate
5. Renal Dialysis Services Included in the AKI Payment Rate
D. Applicability of ESRD PPS Policies to AKI Dialysis
1. Uncompleted Dialysis Treatment
2. Home and Self-Dialysis
3. Vaccines and Their Administration
E. Monitoring of Beneficiaries With AKI Receiving Dialysis in
ESRD Facilities
F. AKI and the ESRD Conditions for Coverage
G. ESRD Facility Billing for AKI Dialysis
H. Announcement of AKI Payment Rate in Future Years
IV. End-Stage Renal Disease (ESRD) Quality Incentive Program (QIP)
A. Background
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the End-Stage Renal Disease (ESRD) Quality
Incentive Program (QIP)
C. Requirements for the Payment Year (PY) 2018 ESRD QIP
1. Small Facility Adjuster (SFA) Policy for PY 2018
2. Changes to the Hypercalcemia Clinical Measure
D. Requirements for the PY 2019 ESRD QIP
1. New Measures for the PY 2019 ESRD QIP
a. Reintroduction of the Expanded NHSN Dialysis Event Reporting
Measure
b. Scoring the NHSN Dialysis Event Reporting Measure
2. New Measure Topic Beginning With the PY 2019 ESRD QIP--NHSN
BSI Measure Topic
3. New Safety Measure Domain
4. Scoring for the NHSN BSI Measure Topic
5. Performance Standards, Achievement Thresholds, and Benchmarks
for the Clinical Measures Finalized for the PY 2019 ESRD QIP
6. Weighting for the Safety Measure Domain and Clinical Measure
Domain for PY 2019
7. Example of the Final PY 2019 ESRD QIP Scoring Methodology
8. Payment Reductions for the PY 2019 ESRD QIP
9. Data Validation
E. Requirements for the PY 2020 ESRD QIP
1. Replacement of the Mineral Metabolism Reporting Measure
Beginning With the PY 2020 Program Year
2. Measures for the PY 2020 ESRD QIP
a. PY 2019 Measures Continuing for PY 2020 and Future Payment
Years
b. New Clinical Measures Beginning With the PY 2020 ESRD QIP
i. Standardized Hospitalization Ratio (SHR) Clinical Measure
c. New Reporting Measures Beginning With the PY 2020 ESRD QIP
i. Serum Phosphorus Reporting Measure
ii. Ultrafiltration Rate Reporting Measure
3. Performance Period for the PY 2020 ESRD QIP
4. Performance Standards, Achievement Thresholds, and Benchmarks
for the PY 2020 ESRD QIP
a. Performance Standards, Achievement Thresholds, and Benchmarks
for the Clinical Measures in the PY 2020 ESRD QIP
4. Performance Standards, Achievement Thresholds, and Benchmarks
for the PY 2020 ESRD QIP
a. Performance Standards, Achievement Thresholds, and Benchmarks
for the Clinical Measures in the PY 2020 ESRD QIP
b. Estimated Performance Standards, Achievement Thresholds, and
Benchmarks for the Clinical Measures Proposed for the PY 2020 ESRD
QIP
c. Performance Standards for the PY 2020 Reporting Measures
5. Scoring the PY 2020 ESRD QIP
a. Scoring Facility Performance on Clinical Measures Based on
Achievement
b. Scoring Facility Performance on Clinical Measures Based on
Improvement
c. Scoring the ICH CAHPS Clinical Measure
d. Calculating Facility Performance on Reporting Measures
6. Weighting the Clinical Measure Domain, and Weighting the
Total Performance Score
a. Weighting of the Clinical Measure Domain for PY 2020
b. Weighting the Total Performance Score
7. Example of the PY 2020 ESRD QIP Scoring Methodology
8. Minimum Data for Scoring Measures for the PY 2020 ESRD QIP
9. Payment Reductions for the PY 2020 ESRD QIP
F. Future Policies and Measures Under Consideration
V. Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) Competitive Bidding Program (CBP)
A. Background
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the DMEPOS CBP
1. Bid Surety Bond Requirement
2. State Licensure Requirement
3. Appeals Process for a DMEPOS Competitive Bidding Breach of
Contract Action
VI. Method for Adjusting DMEPOS Fee Schedule Amounts for Similar
Items With Different Features Using Information From Competitive
Bidding Programs (CBPs)
A. Background
1. Fee Schedule Payment Basis for Certain DMEPOS
2. DMEPOS Competitive Bidding Programs Payment Rules
3. Methodologies for Adjusting Payment Amounts Using Information
From the DMEPOS Competitive Bidding Program
a. Adjusted Fee Schedule Amounts for Areas Within the Contiguous
United States
b. Adjusted Fee Schedule Amounts for Areas Outside the
Contiguous United States
c. Adjusted Fee Schedule Amounts for Items Included in 10 or
Fewer CBAs
d. Updating Adjusted Fee Schedule Amounts
e. Method for Avoiding HCPCS Price Inversions When Adjusting Fee
Schedule Amounts Using Information From the DMEPOS Competitive
Bidding Program
B. Summary of the Proposed Provisions on the Method for
Adjusting DMEPOS Fee Schedule Amounts for Similar Items With
Different Features Using Information From Competitive Bidding
Programs
C. Response to Comments on the Method for Adjusting DMEPOS Fee
Schedule Amounts for Similar Items With Different Features Using
Information From Competitive Bidding Programs
VII. Submitting Bids and Determining Single Payment Amounts for
Certain Groupings of Similar Items With Different Features Under the
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) Competitive Bidding Program (CBP)
A. Background on the DMEPOS CBPs
B. Summary of the Proposed Provisions on Submitting Bids and
Determining Single Payment Amounts for Certain Groupings of Similar
Items With Different Features

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Under the DMEPOS Competitive Bidding Program
C. Response to Comments on Submitting Bids and Determining
Single Payment Amounts for Certain Groupings of Similar Items With
Different Features Under the DMEPOS Competitive Bidding Program
VIII. Bid Limits for Individual Items Under the Durable Medical
Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive
Bidding Program (CBP)
A. Background
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the Bid Limits for Individual Items Under
the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) Competitive Bidding Program (CBP)
C. Response to Comments on Bid Limits for Individual Items Under
the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) Competitive Bidding Program (CBP)
IX. Access to Care Issues for DME
A. Background
B. Summary of Public Comments, and Responses to Comments on
Access to Care Issues for DME
C. Provisions of Request for Information
X. Comprehensive End-Stage Renal Disease Care Model and Future
Payment Models
A. Background
B. Summary of the Proposed Provisions, Public Comments, and
Responses to Comments on the Comprehensive End-Stage Renal Disease
Care Model and Future Payment Models
C. Provisions of the Notice
XI. Technical Correction for 42 CFR 413.194 and 413.215
XII. Waiver of Proposed Rulemaking
XIII. Advancing Health Information Exchange
XV. Collection of Information Requirements
A. Legislative Requirement for the Solicitation of Comments
B. Requirement in Regulation Text
C. Additional Information Collection Requirements
1. ESRD QIP
a. Wage Estimates
b. Time Required To Submit Data Based on Reporting Requirements
c. Data Validation Requirements for the PY 2019 ESRD QIP
d. Ultrafiltration Rate Reporting Measure
XVI. Economic Analyses
A. Regulatory Impact Analysis
1. Introduction
2. Statement of Need
3. Overall Impact
B. Detailed Economic Analysis
1. CY 2017 End-Stage Renal Disease Prospective Payment System
a. Effects on ESRD Facilities
b. Effects on Other Providers
c. Effects on the Medicare Program
d. Effects on Medicare Beneficiaries
e. Alternatives Considered
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals With AKI
a. Effects on ESRD Facilities
b. Effects on Other Providers
c. Effects on the Medicare Program
d. Effects on Medicare Beneficiaries
e. Alternatives Considered
3. End-Stage Renal Disease Quality Incentive Program
a. Effects of the PY 2020 QIP
4. DMEPOS Competitive Bidding Bid Surety Bonds, State Licensure
and Appeals Process for a Breach of DMEPOS Competitive Bidding
Program Contract Action
a. Effects on Competitive Bidding Program Suppliers
b. Effects on the Medicare Program
c. Effects on Medicare Beneficiaries
d. Alternatives Considers
5. Other DMEPOS Provisions
a. Effects of the Method for Adjusting DMEPOS Fee Schedule
Amounts for Similar Items With Different Features Using Information
From the DMEPOS Competitive Bidding Programs
b. Effects of the Final Rules Determining Single Payment Amounts
for Similar Items With Different Features Under the DMEPOS
Competitive Bidding Program
c. Effects of the Revisions to the Bid Limits Under the DMEPOS
Competitive Bidding Program
C. Accounting Statement
XVII. Regulatory Flexibility Act Analysis
XVIII. Unfunded Mandates Reform Act Analysis
XIX. Federalism Analysis
XX. Congressional Review Act
Regulations Text

Acronyms

Because of the many terms to which we refer by acronym in this
final rule, we are listing the acronyms used and their corresponding
meanings in alphabetical order below:

AAPM Advanced Alternative Payment Model
ABLE The Achieving a Better Life Experience Act of 2014
AHRQ Agency for Healthcare Research and Quality
AKI Acute Kidney Injury
ANOVA Analysis of Variance
APM Alternative Payment Model
ARM Adjusted Ranking Metric
ASP Average Sales Price
ATRA The American Taxpayer Relief Act of 2012
BEA Bureau of Economic Analysis
BLS Bureau of Labor Statistics
BMI Body Mass Index
BSA Body Surface Area
BSI Bloodstream Infection
CB Consolidated Billing
CBA Competitive Bidding Area
CBP Competitive Bidding Program
CBSA Core Based Statistical Area
CCN CMS Certification Number
CDC Centers for Disease Control and Prevention
CEC Comprehensive ESRD Care
CFR Code of Federal Regulations
CHIP The Children's Health Insurance Program
CIP Core Indicators Project
CKD Chronic Kidney Disease
CLABSI Central Line Access Bloodstream Infections
CMS Centers for Medicare & Medicaid Services
CPM Clinical Performance Measure
CPT Current Procedural Terminology
CROWNWeb Consolidated Renal Operations in a Web-Enabled Network
CY Calendar Year
DMEPOS Durable Medical Equipment, Prosthetics, Orthotics Supplies
DFR Dialysis Facility Report
EOD Every Other Day
ESA Erythropoiesis stimulating agent
ESCO End-Stage Renal Disease Seamless Care Organization
ESRD End-Stage Renal Disease
ESRDB End-Stage Renal Disease Bundled
ESRD PPS End-Stage Renal Disease Prospective Payment System
ESRD QIP End-Stage Renal Disease Quality Incentive Program
FDA Food and Drug Administration
HAIs Healthcare-Acquired Infections
HCFA Health Care Financing Administration
HCPCS Healthcare Common Procedure Coding System
HD Hemodialysis
HHD Home Hemodialysis
HHS Department of Health and Human Services
HCC Hierarchical Comorbidity Conditions
HRQOL Health-Related Quality of Life
ICD International Classification of Diseases
ICD-9-CM International Classification of Disease, 9th Revision,
Clinical Modification
ICD-10-CM International Classification of Disease, 10th Revision,
Clinical Modification
ICH CAHPS In-Center Hemodialysis Consumer Assessment of Healthcare
Providers and Systems
IGI IHS Global Insight
IIC Inflation-Indexed Charge
IPPS Inpatient Prospective Payment System
IUR Inter-Unit Reliability
KDIGO Kidney Disease: Improving Global Outcomes
KDOQI Kidney Disease Outcome Quality Initiative
KDQOL Kidney Disease Quality of Life
Kt/V A measure of dialysis adequacy where K is dialyzer clearance, t
is dialysis time, and V is total body water volume
LCD Local Coverage Determination
LDO Large Dialysis Organization
MAC Medicare Administrative Contractor
MAP Medicare Allowable Payment
MCP Monthly Capitation Payment
MDO Medium Dialysis Organization
MFP Multifactor Productivity
MIPPA Medicare Improvements for Patients and Providers Act of 2008
(Pub. L. 110-275)
MLR Minimum Lifetime Requirement
MMA Medicare Prescription Drug, Improvement and Modernization Act of
2003
MMEA Medicare and Medicaid Extenders Act of 2010 Public Law 111-309
MSA Metropolitan Statistical Areas
NHSN National Healthcare Safety Network
NQF National Quality Forum
NQS National Quality Strategy
NAMES National Association of Medical Equipment Suppliers

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OBRA Omnibus Budget Reconciliation Act
OMB Office of Management and Budget
PAMA Protecting Access to Medicare Act of 2014
PC Product Category
PD Peritoneal Dialysis
PEN Parenteral and Enteral Nutrition
PFS Physician Fee Schedule
PPI Producer Price Index
PPS Prospective Payment System
PSR Performance Score Report
PY Payment Year
QIP Quality Incentive Program
REMIS Renal Management Information System
RFA Regulatory Flexibility Act
RN Registered Nurse
SBA Small Business Administration
SFA Small Facility Adjuster
SPA Single Payment Amount
SRR Standardized Readmission Ratio
SSA Social Security Administration
STrR Standardized Transfusion Ratio
The Act Social Security Act
The Affordable Care Act The Patient Protection and Affordable Care
Act
The Secretary Secretary of the Department of Health and Human
Services
TPEA Trade Preferences Extension Act of 2015
TPS Total Performance Score
URR Urea Reduction Ratio
VAT Vascular Access Type
VBP Value Based Purchasing

I. Executive Summary

A. Purpose

1. End-Stage Renal Disease (ESRD) Prospective Payment System (PPS)
On January 1, 2011, we implemented the ESRD PPS, a case-mix
adjusted, bundled prospective payment (PPS) system for renal dialysis
services furnished by ESRD facilities. This rule updates and makes
revisions to the End-Stage Renal Disease (ESRD) (PPS) for calendar year
(CY) 2017. Section 1881(b)(14) of the Social Security Act (the Act), as
added by section 153(b) of the Medicare Improvements for Patients and
Providers Act of 2008 (MIPPA) (Pub. L. 110-275), and section
1881(b)(14)(F) of the Act, as added by section 153(b) of MIPPA and
amended by section 3401(h) of the Affordable Care Act (Pub. L. 111-
148), established that beginning CY 2012, and each subsequent year, the
Secretary shall annually increase payment amounts by an ESRD market
basket increase factor, reduced by the productivity adjustment
described in section 1886(b)(3)(B)(xi)(II) of the Act.
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals With Acute Kidney Injury (AKI)
On June 29, 2015, the President signed the Trade Preferences
Extension Act of 2015 (TPEA) (Pub. L. 114-27). Section 808(a) of TPEA
amended section 1861(s)(2)(F) of the Act to provide coverage for renal
dialysis services furnished on or after January 1, 2017, by a renal
dialysis facility or a provider of services paid under section
1881(b)(14) to an individual with AKI. Section 808(b) of TPEA amended
section 1834 of the Act by adding a new paragraph (r) of the Act that
provides for payment for renal dialysis services furnished by renal
dialysis facilities or providers of services paid under section
1881(b)(14) to individuals with AKI at the ESRD PPS base rate beginning
January 1, 2017.
3. End-Stage Renal Disease (ESRD) Quality Incentive Program (QIP)
This rule also sets forth requirements for the ESRD QIP, including
for payment years (PYs) 2018, 2019, and 2020. The program is authorized
under section 1881(h) of the Social Security Act (the Act). The ESRD
QIP is the most recent step in fostering improved patient outcomes by
establishing incentives for dialysis facilities to meet or exceed
performance standards established by CMS.
4. Durable Medical Equipment, Prosthetics, Orthotics Supplies (DMEPOS)
Competitive Bidding Bid Surety Bonds, State Licensure and Appeals
Process for Breach of DMEPOS Competitive Bidding Program Contract
Action
This rule implements statutory requirements for Bid Surety Bonds
and State Licensure. We are revising the appeals regulation to expand
suppliers' appeal rights in the event of a breach of contract
determination to allow suppliers to appeal any breach of contract
action CMS takes, rather than just a termination action.
5. Durable Medical Equipment, Prosthetics, Orthotics and Supplies
(DMEPOS) Competitive Bidding Program and Fee Schedule Adjustments
This rule adjusts the method for adjusting DMEPOS fee schedule
amounts for certain groupings of similar items with different features
using information from DMEPOS competitive bidding programs (CBPs),
submitting bids and determining single payment amounts for certain
groupings of similar items with different features under the DMEPOS
CBPs, and establishing bid limits for individual items under the DMEPOS
CBP.

B. Summary of the Major Provisions

1. ESRD PPS
Update to the ESRD PPS base rate for CY 2017: For CY 2017,
the ESRD PPS base rate is $231.55. This amount reflects a final market
basket increase (0.55 percent), and application of the wage index
budget-neutrality adjustment factor (0.999781) as well as the
application of the training budget-neutrality adjustment factor
(0.999737).
Annual update to the wage index and wage index floor: We
adjust wage indices on an annual basis using the most current hospital
wage data and the latest core-based statistical area (CBSA)
delineations to account for differing wage levels in areas in which
ESRD facilities are located. For CY 2017, we did not propose any
changes to the application of the wage index floor and we will continue
to apply the current wage index floor (0.400) to areas with wage index
values below the floor.
Update to the outlier policy: Consistent with our policy
to annually update the outlier policy using the most current data, we
are updating the outlier services fixed dollar loss amounts for adult
and pediatric patients and Medicare Allowable Payments (MAPs) for adult
and pediatric patients for CY 2017 using 2015 claims data. Based on the
use of more current data, the fixed-dollar loss amount for pediatric
beneficiaries will increase from $62.19 to $68.49 and the MAP amount
will decrease from $39.20 to $38.29, as compared to CY 2016 values. For
adult beneficiaries, the fixed-dollar loss amount will decrease from
$86.97 to $82.92 and the MAP amount will decrease from $50.81 to
$45.00. The 1 percent target for outlier payments was not achieved in
CY 2015. We believe using CY 2015 claims data to update the outlier MAP
and fixed-dollar loss amounts for CY 2017 will increase payments for
ESRD beneficiaries requiring higher resource utilization in accordance
with a 1 percent outlier percentage.
Payment for hemodialysis when more than 3 treatments are
furnished per week: We are not finalizing an equivalency payment for
hemodialysis (HD) when more than 3 treatments are furnished in a week,
similar to what is applied to peritoneal dialysis (PD). In response to
comments received from stakeholders, we have determined that the burden
placed on providers would be substantial and we are exploring alternate
avenues for collecting these data.
The home and self-dialysis training add-on payment
adjustment: We are finalizing an increase in the total number of hours
of training by an RN (registered nurse) for PD and HD that is accounted
for by the home and self-dialysis training add-on payment adjustment
(hereinafter referred to as

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the home dialysis training add-on). The current amount of the home
dialysis training add-on is $50.16, which reflects 1.5 hours of
training by a nurse per treatment. We calculated the increase based on
the average treatment times and weights based on utilization for each
modality. We used treatment times as proxies for the total time spent
by nurses training beneficiaries for home or self-dialysis in
calculating the increase to the home dialysis training add-on. Based on
these proxies, for CY 2017, we have increased the hours of per-
treatment training time provided by a nurse that is accounted for by
the home dialysis training add-on to 2.66 hours. We also updated the
national hourly wage for a nurse providing dialysis training for 2017
to $35.94, resulting in a home and self-dialysis training add-on
payment adjustment amount of $95.60.
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals With AKI
We are implementing the TPEA amendments to sections 1834(r) and
1861(s)(2)(F) by finalizing coverage of renal dialysis services
furnished by renal dialysis facilities paid under section 1881(b)(14)
of the Act to individuals with AKI. We will pay ESRD facilities for
renal dialysis services furnished to individuals with AKI at the amount
of the ESRD PPS base rate, as adjusted by the ESRD PPS wage index. In
addition, drugs, biologicals, and laboratory services that ESRD
facilities are certified to furnish, but that are not renal dialysis
services, may be paid for separately when furnished by ESRD facilities
to individuals with AKI. In addition, because AKI patients are often
under the care of a hospital, physician, or other practitioner, these
providers and practitioners may continue to bill Medicare for services
in the same manner as they did before the payment rate for renal
dialysis services furnished by dialysis facilities to individuals with
AKI was adopted.
3. ESRD QIP
This rule sets forth requirements for the ESRD QIP for payment
years (PYs) 2018, 2019 and 2020.
Hypercalcemia Clinical Measure: We proposed to make two substantive
updates to the technical specifications for the Hypercalcemia clinical
measure beginning with PY 2018, as recommended during the measure
maintenance process at the National Quality Forum (NQF). In response to
comments received, we are finalizing these changes but are delaying
their implementation until PY 2019. First, we are adding plasma as an
acceptable substrate in addition to serum calcium. Second, we are
amending the denominator definition to include patients regardless of
whether any serum calcium values were reported at the facility during
the 3-month study period. These changes will ensure that, beginning in
PY 2019, the measure aligns with the NQF-endorsed measure and will
continue to satisfy the requirements of the Protecting Access to
Medicare Act of 2014 (PAMA), which requires that the ESRD QIP include
in its measure set, measures (outcomes-based, to the extent feasible),
that are specific to the conditions treated with oral-only drugs.
New Requirements for PY 2019: Beginning with PY 2019, we are
reintroducing the National Healthcare Safety Network (NHSN) Dialysis
Event Reporting Measure back into the ESRD QIP measure set.
Additionally, beginning with PY 2019, we are creating a new NHSN
Bloodstream Infection (BSI) Measure Topic which will consist of the
proposed NHSN Dialysis Event Reporting Measure and the existing NHSN
BSI Clinical Measure. We are also establishing a new Safety Measure
Domain, which will be separate from, and in addition to, the existing
Clinical Measure and Reporting Measure Domains for the purposes of
scoring in the ESRD QIP. The Safety Measure Domain will initially
consist of the proposed NHSN BSI Measure Topic.
PY 2020 Measure Set: Beginning with PY 2020, we are replacing the
Mineral Metabolism Reporting Measure with the newly finalized Serum
Phosphorus Reporting Measure because replacing this measure is
consistent with our intention to increasingly rely on CROWNWeb as the
data source used to calculate measures in the ESRD QIP. Additionally,
we are adopting two new measures: (1) The Standardized Hospitalization
Ratio (SHR) Clinical Measure and (2) the Ultrafiltration Rate Reporting
Measure.
Weighting for the Clinical Measure Domain, the Reporting Measure
Domain and the Safety Measure Domain: With the addition of the Safety
Measure Domain into the ESRD QIP, we are making changes to the
weighting of the Clinical Measure Domain and the Reporting Measure
Domain, and we are establishing weights for the Safety Measure Domain
for PY 2019 and for PY 2020.
Specifically, for PY 2019, we are assigning 15 percent of a
facility's total performance score (TPS) to the Safety Measure Domain,
75 percent of the TPS to the Clinical Measure Domain and 10 percent to
the Reporting Measure Domain. To accommodate the removal of the Safety
Subdomain from the Clinical Measure Domain, we are adjusting individual
measure weights for the measures that remain in the Clinical Measure
Domain. In response to comments received, for PY 2020, we are
maintaining the weight of the Safety Measure Domain at 15 percent of a
facility's TPS rather than at 10 percent as proposed.
Data Validation: In section IV.C.9 of this final rule, we set forth
the updates to the data validation program in the ESRD QIP. For PY
2019, we are continuing the pilot validation study for validation of
CROWNWeb data. Under this continued validation study, we are continuing
to use the same methodology used for the PY 2017 and PY 2018 ESRD QIP.
We will sample the same number of records (approximately 10 per
facility) from the same number of facilities (that is, 300) during CY
2017. Once we have developed and adopted a methodology for validating
the CROWNWeb data, we intend to consider whether payment reductions
under the ESRD QIP should be based, in part, on whether a facility has
met our standards for data validation.
For PY 2019, we are increasing the size of the NHSN BSI Data
Validation study. Specifically, we will randomly select 35 facilities
to participate in an NHSN dialysis event validation study for two
quarters of data reported in CY 2017. A CMS contractor will send these
facilities requests for medical records for all patients with
``candidate events'' during the evaluation period, as well as randomly
selected patient records. Each facility selected will be required to
submit 10 records total to the validation contractor. The CMS
contractor will utilize a methodology for reviewing and validating the
candidate events and will analyze those records to determine whether
the facility reported dialysis events for those patients in accordance
with the NHSN Dialysis Event Protocol. Information from the validation
study may be used to develop a methodology to score facilities based on
the accuracy of their reporting of the NHSN BSI measure.
4. DMEPOS Competitive Bidding Bid Surety Bonds, State Licensure and
Appeals Process for a Breach of DMEPOS Competitive Bidding Program
Contract Action
This final rule implements statutory requirements for the DMEPOS
CBP for bid surety bonds and state licensure. In addition, we are
finalizing a definition for the term ``bidding entity'' for purposes of
the DMEPOS CBP. We also are finalizing revisions to the appeals
regulations to expand suppliers' appeal

[[Page 77839]]

rights in the event of a breach of contract determination to allow
suppliers to appeal any breach of contract action CMS takes, rather
than just a termination action. The final rule establishes the
following:
A bidding entity must obtain a bid surety bond from an
authorized surety on the Department of the Treasury's Listing of
Certified Companies, submit proof of the surety bond by the deadline
for bid submission, and the bond must meet certain specifications. We
define the term ``bidding entity'' to mean the entity whose legal
business name is identified in the ``Form A: Business Organization
Information'' section of the bid.
If the bidding entity is offered a contract for any
product category for a competitive acquisition area (herein referred to
as a ``Competitive Bidding Area'' or ``CBA''), and its composite bid
for such product category and area is at or below the median composite
bid rate for all bidding entities included in the calculation of the
single payment amounts for the product category/CBA combination (herein
also referred to as ``competition''), and the entity does not accept
the contract offered, the entity's bid surety bond for the applicable
CBA will be forfeited and CMS will collect on the bid surety bond via
Electronic Funds Transfer from the respective authorized surety. If the
forfeiture conditions are not met, the bond liability will be returned
to the bidding entity. Bidding entities that provide a falsified bid
surety bond will be prohibited from participation in the DMEPOS CBP for
the current round of the CBP in which they submitted a bid and also
from bidding in the next round of the CBP. Bidding entities that
provide a falsified bid surety bond will also be referred to the Office
of Inspector General and Department of Justice for further
investigation.
We are conforming the language of our regulation at 42 CFR
414.414(b)(3) to the language of section 1847(b)(2)(A)(v) of the Act,
as added by section 522 of MACRA, which requires bidding entities to
meet applicable State licensure requirements in order to be eligible
for a DMEPOS CBP contract. We note, however, that this does not reflect
a change in policy as CMS already has a regulation in place that
requires suppliers to meet applicable State licensure requirements.
We are finalizing changes to Sec. 414.423 to extend the
appeals process to all breach of contract actions taken by CMS
specified in Sec. 414.422(g)(2). We are finalizing revisions to Sec.
414.422(g)(2) to eliminate certain breach of contract actions. We also
are finalizing revisions to Sec. 414.423(l) to describe the effects of
certain breach of contract actions that CMS takes.
5. DMEPOS Competitive Bidding Program and Fee Schedule Adjustments
This final rule sets forth requirements for the CBP and Fee
Schedule Adjustments.
Methodologies for Adjusting DMEPOS Fee Schedule Amounts
for Certain Groupings of Similar Items with Different Features using
Information from Competitive Bidding Programs: Within the Healthcare
Common Procedure Coding System (HCPCS), there are many instances where
there are multiple codes for an item that are distinguished by the
addition of a feature (for example, non-powered versus powered
mattress, Group 1 versus Group 2 power wheelchair, pump without alarm
versus pump with alarm, walker without wheels versus walker with
wheels, etc.) Under CBPs, the code with the higher utilization
(typically the item with additional features and higher fee schedule
amounts) receives a higher weight and the bid for this item has a
greater impact on the supplier's composite bid than the bids for the
less frequently used codes. This is resulting in price inversions where
the single payment amounts (SPAs) for the item without the feature are
higher than the SPAs for the item with the feature. This could lead to
program vulnerability by shifting beneficiaries from products with
features to less appropriate products without the features because the
product without the features receives higher payment under competitive
bidding. We are finalizing provisions of Sec. 414.210 to limit SPAs
for certain items without a feature to the weighted average of the SPAs
for the items both with and without the feature prior to using the SPAs
to adjust the fee schedule amounts for certain groupings of similar
items specified below. The item weights will be the same weights used
in calculating the composite bids under the CBP.
Submitting Bids and Determining Single Payment Amounts for
Certain Groupings of Similar Items with Different Features under the
DMEPOS CBP: This rule addresses the price inversions under competitive
bidding to prevent situations where beneficiaries receive items with
fewer features at a higher price than items with more features. In
addition to affecting the appropriateness of items supplied to
beneficiaries, these price inversions also undermine the CBP and
diminish the savings intended from implementation of the program. We
are finalizing provisions of Sec. 414.412 to add a lead item bidding
method where all of the HCPCS codes for similar items with different
features will be grouped together and will be priced relative to the
bid for the lead item in order to prevent price inversions under the
DMEPOS CBPs. We are applying this as an alternative to the current
bidding method so that CMS will be able to apply this method to
situations where groupings of similar items have resulted in price
inversions based on past experience. This alternative method will only
replace the current method of bidding for select groupings of similar
items within product categories.
Bid Limits for Individual Items under the DMEPOS CBP:
Current regulations require that bids submitted by suppliers under the
CBP be lower than the amount that would otherwise apply (that is, the
fee schedule amount). This ensures that total payments expected to be
made to contract suppliers in a CBA are less than the total amounts
that would otherwise be paid, as required by section 1847(b)(2)A)(iii)
of the Act for awarding contracts under the program in an area.
Beginning in 2016, the fee schedule amounts for DMEPOS items and
services are adjusted based on information from the CBPs. We indicated
in the final rule (79 FR 66232), which was published in the Federal
Register on November 6, 2014, that these adjusted fee schedule amounts
become the bid limits for future competitions (79 FR 66232). We have
heard concerns that as the amounts paid under CBPs decline, this may
ultimately make it difficult for suppliers to bid below the adjusted
fee schedule amounts and accept contract offers at the median bid
level. To avoid this situation and enhance the long term viability of
the CBPs, we are finalizing revisions to the regulations to limit bids
for future competitions to the fee schedule amounts that would
otherwise apply if CBPs had not been implemented, prior to making
adjustments to the fee schedule amounts using information from CBPs.
This will allow suppliers to take into account both decreases and
increases in costs in determining their bids, while ensuring that
payments under the CBPs do not exceed the amounts that would otherwise
be paid had the DMEPOS CBP not been implemented.

C. Summary of Costs and Benefits

In section XV.A of this final rule, we set forth a detailed
analysis of the impacts of the finalized changes for affected entities
and beneficiaries. The impacts include the following:

[[Page 77840]]

1. Impacts of the Final ESRD PPS
The impact chart in section XV.B.1 of this final rule displays the
estimated change in payments to ESRD facilities in CY 2017 compared to
estimated payments in CY 2016. The overall impact of the CY 2017
changes is projected to be a 0.73 percent increase in payments.
Hospital-based ESRD facilities have an estimated 0.9 percent increase
in payments compared with freestanding facilities with an estimated 0.7
percent increase.
We estimate that the aggregate ESRD PPS expenditures will increase
by approximately $80 million from CY 2016 to CY 2017. This reflects a
$60 million increase from the payment rate update and a $20 million
increase due to the updates to the outlier threshold amounts. As a
result of the projected 0.73 percent overall payment increase, we
estimate that there will be an increase in beneficiary co-insurance
payments of 4.2 percent in CY 2017, which translates to approximately
$10 million.
2. Impact of the Final Coverage and Payment for Renal Dialysis Services
Furnished to Individuals With AKI
We anticipate an estimated $2 million being redirected from
hospital outpatient departments to ESRD facilities in CY 2017 as a
result of some AKI patients receiving renal dialysis services in the
ESRD facility at the lower ESRD PPS base rate versus continuing to
receive those services in the hospital outpatient setting.
3. Impacts of the Final ESRD QIP
The impact chart in section XVI.B.3.a of this final rule displays
estimated QIP impacts for payment year (PY) 2020. The overall impact is
an expected reduction in payment to all facilities of $31 million, with
an estimated total facility burden for the collection of data of $91
million.
4. Impacts of the Final DMEPOS Competitive Bidding Bid Surety Bonds,
State Licensure and Appeals Process for a Breach of DMEPOS Competitive
Bidding Program Contract Actions
The DMEPOS CBP bidding entities will be impacted by the bid surety
bond requirement as they will be required to purchase a bid surety bond
for each CBA in which they are submitting a bid. The state licensure
requirement will have no new impact on the supplier community because
this is already a Medicare DMEPOS supplier requirement and the appeals
process for a breach of a DMEPOS CBP contract actions expected to have
a beneficial, positive impact on suppliers.
Overall, the bid surety bond requirement may have a positive
financial impact on the program as CMS anticipates that the requirement
will encourage all bidding entities to submit substantiated bids.
However, there will be an administrative burden for implementation of
the bid surety bond requirement for CMS. The final state licensure and
appeals process for breach of DMEPOS CBP contract actions regulations
will have minimal administrative costs.
We do not anticipate that the final DMEPOS CBP regulations for bid
surety bonds, state licensure, and the appeals process for breach of
DMEPOS CBP contract actions will have an impact on Medicare
beneficiaries.
5. Impacts of the Final DMEPOS Competitive Bidding Program and Fee
Schedule Adjustments
The overall economic impact for the final changes to the DMEPOS
CBPs and Fee Schedule Adjustments would be about $20 million dollars in
savings to the Part B Trust Fund over 5 years beginning January 1,
2017. The savings are a result of avoiding price inversions. This final
rule should have a minor impact on the suppliers of CBAs and in the
non-competitive bidding areas (non-CBAs). Beneficiaries would have
lower coinsurance payments and receive the most appropriate items as a
result of this final rule.

II. Calendar Year (CY) 2017 End-Stage Renal Disease (ESRD) Prospective
Payment System (PPS)

A. Background

1. Statutory Background
On January 1, 2011, we implemented the End-Stage Renal Disease
(ESRD) Prospective Payment System (PPS), a case-mix adjusted bundled
PPS for renal dialysis services furnished by ESRD facilities as
required by section 1881(b)(14) of the Social Security Act (the Act),
as added by section 153(b) of the Medicare Improvements for Patients
and Providers Act of 2008 (MIPPA) (Pub. L. 110-275). Section
1881(b)(14)(F) of the Act, as added by section 153(b) of MIPPA and
amended by section 3401(h) of the Patient Protection and Affordable
Care Act (the Affordable Care Act) (Pub. L. 111-148), established that
beginning with calendar year (CY) 2012, and each subsequent year, the
Secretary of the Department of Health and Human Services (the
Secretary) shall annually increase payment amounts by an ESRD market
basket increase factor, reduced by the productivity adjustment
described in section 1886(b)(3)(B)(xi)(II) of the Act.
Section 632 of the American Taxpayer Relief Act of 2012 (ATRA)
(Pub. L. 112-240) included several provisions that apply to the ESRD
PPS. Section 632(a) of ATRA added section 1881(b)(14)(I) to the Act,
which required the Secretary, by comparing per patient utilization data
from 2007 with such data from 2012, to reduce the single payment for
renal dialysis services furnished on or after January 1, 2014 to
reflect the Secretary's estimate of the change in the utilization of
ESRD-related drugs and biologicals (excluding oral-only ESRD-related
drugs). Consistent with this requirement, in the CY 2014 ESRD PPS final
rule we finalized $29.93 as the total drug utilization reduction and
finalized a policy to implement the amount over a 3- to 4-year
transition period (78 FR 72161 through 72170).
Section 632(b) of ATRA prohibited the Secretary from paying for
oral-only ESRD-related drugs and biologicals under the ESRD PPS prior
to January 1, 2016. And section 632(c) of ATRA required the Secretary,
by no later than January 1, 2016, to analyze the case-mix payment
adjustments under section 1881(b)(14)(D)(i) of the Act and make
appropriate revisions to those adjustments.
On April 1, 2014, Congress enacted the Protecting Access to
Medicare Act of 2014 (PAMA) (Pub. L. 113-93). Section 217 of PAMA
included several provisions that apply to the ESRD PPS. Specifically,
sections 217(b)(1) and (2) of PAMA amended sections 1881(b)(14)(F) and
(I) of the Act and replaced the drug utilization adjustment that was
finalized in the CY 2014 ESRD PPS final rule (78 FR 72161 through
72170) with specific provisions that dictated the market basket update
for CY 2015 (0.0 percent) and how the market basket should be reduced
in CYs 2016 through CY 2018.
Section 217(a)(1) of PAMA amended section 632(b)(1) of ATRA to
provide that the Secretary may not pay for oral-only ESRD-related drugs
under the ESRD PPS prior to January 1, 2024. Section 217(a)(2) further
amended section 632(b)(1) of ATRA by requiring that in establishing
payment for oral-only drugs under the ESRD PPS, the Secretary must use
data from the most recent year available. Section 217(c) of PAMA
provided that as part of the CY 2016 ESRD PPS rulemaking, the Secretary
shall establish a process for (1) determining when a product is no
longer an oral-only drug; and (2) including new injectable and
intravenous products into the ESRD PPS bundled payment.
Finally, on December 19, 2014, the President signed the Stephen
Beck, Jr.,

[[Page 77841]]

Achieving a Better Life Experience Act of 2014 (ABLE) (Pub. L. 113-
295). Section 204 of ABLE amended section 632(b)(1) of ATRA, as amended
by section 217(a)(1) of PAMA, to provide that payment for oral-only
renal dialysis services cannot be made under the ESRD PPS bundled
payment prior to January 1, 2025.
2. System for Payment of Renal Dialysis Services
Under the ESRD PPS, a single, per-treatment payment is made to an
ESRD facility for all of the renal dialysis services defined in section
1881(b)(14)(B) of the Act and furnished to individuals for the
treatment of ESRD in the ESRD facility or in a patient's home. We have
codified our definitions of renal dialysis services at 42 CFR 413.171
and our other payment policies are included in regulations in subpart H
to 42 CFR part 413. The ESRD PPS base rate is adjusted for
characteristics of both adult and pediatric patients and accounts for
patient case-mix variability. The adult case-mix adjusters include five
categories of age, body surface area (BSA), low body mass index (BMI),
onset of dialysis, four comorbidity categories, and pediatric patient-
level adjusters consisting of two age categories and two dialysis
modalities (42 CFR 413.235(a) and (b)).
In addition, the ESRD PPS provides for three facility-level
adjustments. The first payment adjustment accounts for ESRD facilities
furnishing a low volume of dialysis treatments (42 CFR 413.232). The
second adjustment reflects differences in area wage levels developed
from Core Based Statistical Areas (CBSAs) (42 CFR 413.231). The third
payment adjustment accounts for ESRD facilities furnishing renal
dialysis services in a rural area (42 CFR 413.233).
The ESRD PPS allows for a training add-on for home and self-
dialysis modalities (42 CFR 413.235(c)). Lastly, the ESRD PPS provides
additional payment for high cost outliers due to unusual variations in
the type or amount of medically necessary care when applicable (42 CFR
413.237).
3. Updates to the ESRD PPS
Policy changes to the ESRD PPS are proposed and finalized annually
in the Federal Register. The CY 2011 ESRD PPS final rule was published
on August 12, 2010 in the Federal Register (75 FR 49030 through 49214).
That rule implemented the ESRD PPS beginning on January 1, 2011 in
accordance with section 1881(b)(14) of the Act, as added by section
153(b) of MIPPA, over a 4-year transition period. Since the
implementation of the ESRD PPS, we have published annual rules to make
routine updates, policy changes, and clarifications.
On November 6, 2015, we published in the Federal Register a final
rule (80 FR 68968 through 69077) titled, ``Medicare Program; End-Stage
Renal Disease Prospective Payment System, and Quality Incentive
Program; Final Rule'' (hereinafter referred to as the CY 2016 ESRD PPS
final rule). In that final rule, we made a number of routine updates to
the ESRD PPS for CY 2016, refined the ESRD PPS case-mix adjustments,
implemented a drug designation process, updated the outlier policy, and
made additional policy changes and clarifications. For a summary of the
provisions in that final rule, we refer readers to the CY 2017 ESRD PPS
proposed rule (81 FR 42809 through 42810).

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the Calendar Year (CY) 2017 ESRD PPS

[[Page 77842]]

and be paid for every treatment furnished when more than 3 treatments
are furnished per week (for example, how they bill daily for PD), we
apply edits to the monthly claim so that in total for the month (as
described above) Medicare does not make payment for more than 3 weekly
HD treatments. In the situation where an ESRD facility bills for more
than 3 weekly HD treatments (or more than 13 or 14 for the month,
depending on the days in the month) without medical justification, we
deny payment for the additional HD treatments. We calculate HD-
equivalent payments for PD so that the amount we pay for dialysis is
modality-neutral. As we explained in the CY 2011 ESRD PPS final rule
(75 FR 49115), we chose not to use dialysis modality as a payment
variable when we developed the ESRD PPS because utilizing one dialysis-
neutral payment resulted in a slightly higher payment for PD than a
modality-specific payment, which we believed would encourage home
dialysis, which is typically PD.
In recent years, ESRD facilities have increasingly begun to offer
HD where the standard treatment regimen exceeds 3 treatments per week.
At the same time, we observed variation in how Medicare Administrative
Contractors (MACs) processed claims for HD treatments exceeding three
treatments per week, resulting in payment of more than 13 or 14
treatments per month. As a result, in the CY 2015 ESRD PPS final rule
(79 FR 66145 through 66147), we reminded ESRD facilities and MACs that
the Medicare ESRD benefit allows for the payment of 3 weekly dialysis
treatments, and that additional weekly dialysis treatments may be paid
only if there is documented medical justification. Additional
conventional HD treatments are reimbursed at the full ESRD PPS payment
if the facility's MAC determines the treatments are medically justified
based on a patient condition, such as congestive heart failure or
pregnancy. MACs have developed Local Coverage Determinations (LCDs) and
automated processes to pay for all the treatments reported on the claim
if the ESRD facility reports diagnoses determined by the MAC to
medically justify treatments beyond 3 times per week.
The option to furnish more than 3 HD treatments per week is the
result of evolving technology. We believe that, in some cases, use of
this treatment option provides a level of toxin clearance on a weekly
basis similar to that achieved through 3-times weekly conventional in-
center HD. However, HD treatments exceeding 3 times per week are
generally shorter and afford patients greater flexibility in managing
their ESRD and other activities. As stated above, under the ESRD PPS,
we currently do not have a payment mechanism that could apply a 3
treatments-per week equivalency to claims for patients with
prescriptions for more than 3 HD treatments per week that do not have
medical justification (see paragraph (c) of this section). As a result,
the additional payments for treatments beyond 3 per week are denied,
except where medically justified. Payment for HD treatments that exceed
3 treatments per week occurs when those treatments are medically
justified, as indicated by diagnosis codes. There are specific
conditions that require more medical attention, documentation in the
medical record, and the results of the higher frequency treatments can
be objectively measured through the collection of testing data and are
therefore justified as necessary. In cases where the HD exceeds 3
treatments per week for reasons other than medical justification, there
is a lack of objective data to justify additional payment for HD
treatments beyond 3 treatments per week.
ESRD facilities have expressed concern that due to the monthly
payment limit of 13 or 14 treatments, they are unable to report all
dialysis treatments on their monthly claim, and therefore, they are not
appropriately paid for each treatment furnished. We understand ESRD
facilities' concerns and also would like to ensure that facilities are
able to accurately report all of the treatments they furnish.
Therefore, we analyzed 2015 ESRD facility claims data and found that
there is a discrepancy between treatments furnished and treatments
billed and paid for HD patients. The data indicate that HD patients are
receiving HD treatments in excess of 3 per week, but facilities are
usually only being paid for 3 treatments per week. The creation of an
equivalency payment mechanism serves multiple purposes. First, it
allows for payment for situations in which more than 3 HD treatments
are furnished in a week that complies with the 3 treatment per week
payment limit. Second, it encourages facilities to report all
treatments furnished. This, in turn, would provide us with the
information necessary to determine exactly how many treatments are
being furnished. Finally, it would allocate the total amount of payment
based on 3 HD sessions per week in accordance with the number of
treatments actually furnished. For these reasons, we proposed a payment
equivalency for HD treatment regimens when more than 3 treatments are
furnished per week, similar to the HD-equivalency payment that has been
used for PD since the composite rate payment system was implemented in
1983. While the policy would be effective January 1, 2017, we proposed
not to implement the HD equivalency payments until July 1, 2017, to
allow time to make operational changes to accommodate this new payment
mechanism.
b. Payment Methodology for HD When More Than 3 Treatments Are Furnished
per Week
For CY 2017, for adult patients, we proposed to calculate a per
treatment payment amount that would be based upon the number of
treatments prescribed by the physician and would be composed of the
ESRD PPS base rate as adjusted by applicable patient and facility-level
adjustments, the home dialysis training add-on (if applicable), and the
outlier payment adjustment (if applicable). To calculate the
equivalency payment where more than 3 HD treatments are furnished per
week, we would first adjust the ESRD PPS base rate by the applicable
patient-level adjustments (patient age, body surface area, low body
mass index, comorbidities, and onset of dialysis) and facility-level
adjustments (wage index, rural facility, and low-volume facility).
Second, we would multiply the adjusted ESRD PPS base rate by 3 to
develop the weekly treatment amount and then we would divide this
number by the number of treatments prescribed to determine the per
treatment amount. Third, we would multiply the calculated outlier
payment amount by 3 and divide this number by the number of treatments
prescribed to determine the per treatment outlier amount. Finally, we
would add the per-treatment ESRD PPS base rate and the per treatment
outlier amount together to determine the final per treatment payment
amount. For example, a beneficiary whose prescription indicates 5
treatments per week would be paid as follows: (Adjusted Base Rate * 3/
5) + (Outlier Payment * 3/5) = per treatment payment amount.
While we proposed an equivalency payment based on 3 HD treatments
per week, ESRD facilities submit bills monthly and, as a result, the
monthly maximums presented below are the treatment limits that would be
applied to 30-day and 31-day months:

[[Page 77843]]

------------------------------------------------------------------------
Maximum number Maximum number
of monthly of monthly
Prescribed weekly treatments treatments--30- treatments--31-
day month day month
------------------------------------------------------------------------
4..................................... 18 19
5..................................... 23 24
6..................................... 26 27
7..................................... 30 31
------------------------------------------------------------------------

For pediatric patients, the calculation would be the same as that
proposed for adult patients, except that the ESRD PPS payment amount
for pediatric patients would be based on the pediatric case mix
adjustments and would not include the rural or low-volume facility-
level adjustments.
In order to accommodate this policy change, we would establish new
claim processing guidelines and edits that would allow facilities to
report the prescribed number of HD treatments for each patient. There
would be individual claims processing system identifiers established
for treatments provided 4 times per week, 5 times per week, 6 times per
week, and 7 times per week. These identifiers would allow the claims
processing system to adjust the payment calculation and allow the
appropriate payment for each treatment. The comments and our responses
to the comments for these proposals are set forth in section II.B.1.d
below.
c. Applicability to Medically Justified Treatments
While the majority of ESRD patients are prescribed conventional 3-
times-per-week HD, we have always recognized that some patient
conditions benefit from more than 3 HD sessions per week and as such,
we developed a policy for payment of medically necessary dialysis
treatments beyond the 3-treatments-per-week payment limit. Under this
policy, the MACs determine whether additional treatments furnished
during a month are medically necessary and when the MACs determine that
the additional treatments are medically justified, we pay the full base
rate for the additional treatments. While Medicare does not define
specific patient conditions that meet the requirements of medical
necessity, the MACs consider appropriate patient conditions that would
result in a patient's medical need for additional dialysis treatments
(for example, excess fluid). When such patient conditions are indicated
on the claim, we instruct MACs to consider medical justification and
the appropriateness of payment for the additional sessions.
The medical necessity for additional dialysis sessions must be
documented in the patient's medical record at the dialysis facility and
available for review upon request. The documentation should include the
physician's progress notes, the dialysis records and the results of
pertinent laboratory tests. The submitted medical record must support
the use of the diagnosis code(s) reported on the claim and the medical
record documentation must support the medical necessity of the
services. This documentation would need to be available to the
contractor upon request.
In section 50.A of the Medicare Benefit Policy Manual (Pub. 100-
02), we explain our policy regarding payment for HD-equivalent PD and
payment for more than 3 dialysis treatments per week under the ESRD
PPS. This proposal does not affect our policy to pay the full ESRD PPS
base rate for medically justified treatments beyond 3 treatments per
week. Rather, the intent is to provide a payment mechanism for patients
with more than 3 HD treatments per week that do not have medical
justification. In the event that a beneficiary receives traditional HD
treatments in excess of 3 per week without medical justification for
the additional treatments, these additional treatments will not be
paid. The comments and our responses to the comments for these
proposals are set forth in section II.B.1.d below.
d. Applicability to Home and Self-Dialysis Training Treatments
Beneficiary training is crucial for the long-term efficacy of home
dialysis. Under our current policy for PD training, we pay the full
ESRD PPS base rate, not the daily HD-equivalent payment amount, for
each PD training treatment a beneficiary receives up to the limit of 15
training treatments for PD. As we discussed in section II.B.2 of the
proposed rule (81 FR 42812) and in section II.B.2 below, we are
investigating payments and costs related to training and plan to refine
training payments in the future. Until that time, we believe that
paying the full base rate during training continues to support home
dialysis modalities. When training accompanies HD treatments exceeding
3 per week, the training would continue to be limited to 25 total
sessions, in accordance with our policy for training for conventional
HD.
Because the home dialysis training add-on under the ESRD PPS is
applied to each treatment on training claims up to the applicable
limits for HD or PD, we anticipate that ESRD facilities will appreciate
the ability to receive payment for each training treatment when more
than 3 HD treatments are furnished per week and training is furnished
with each of those treatments. We believe this effect of our proposed
policy would be beneficial to facilities and beneficiaries receiving HD
treatment more than 3 times per week because, as mentioned above, under
our current policy, our claim edits only allow payment for 13 or 14 HD
treatments in a monthly billing cycle. This means that ESRD facilities
can only bill for 13 or 14 treatments for the month and may not receive
the full number of home dialysis training add-on for the treatments
that would otherwise be billable because of these payment limits. We
believe that permitting facilities to bill for training treatments that
are furnished to beneficiaries receiving more than 3 HD treatments per
week will allow these facilities to receive payment for training more
consistently with how they are furnishing these treatments. We expect
ESRD facilities to engage patients in the decision making process for
determining the best candidates for additional weekly hemodialysis
beyond 3 treatments per week and thoroughly discuss with the patient
the potential benefits and adverse effects associated with more
frequent dialysis. For example, while there could be potential quality
of life and physiological benefits there is also risk of a possible
increase in vascular access procedures and the potential for
hypotension during dialysis.
In the CY 2017 ESRD PPS proposed rule (81 FR 42812), we explained
that we believe this payment mechanism would provide several benefits.
Facilities would be able to bill for treatments accurately and be paid
appropriately for the treatments they furnish. This policy would
provide clarity for the MACs and providers on billing and payment for
HD regimens that exceed 3 treatments per week and assist MACs in
determining which HD treatments should be paid at the equivalency
payment rate and which HD treatments should be paid at the full base
rate because the facility has provided adequate evidence of medical
justification. Beneficiaries and facilities would have more flexibility
to request and furnish patient-centered treatment options. Finally, the
proposal would increase the accuracy of payments and data and would
provide CMS the ability to monitor outcomes for beneficiaries utilizing
various treatment frequencies.
The comments and our responses to the comments for the proposals
related to payment for HD when more than 3 treatments are furnished per
week are set forth below.
Comment: The majority of comments were from individual patients and
their care partners describing their dialysis

[[Page 77844]]

experience from onset, through PD, transplant, return to in-center 3
times weekly and finally to more frequent home HD. The commenters
describe significant improvement in their health status, including
better blood pressure, cardiac status, and phosphorus levels, fewer
dietary restrictions, less fatigue after dialysis, and the ability to
schedule dialysis around work and family activities. Many commenters
strongly encouraged CMS to review the clinical literature related to
dialysis frequency because based on the literature and their own
clinical experience, more frequent dialysis has many benefits. They
believe CMS payment policy should be modified to more closely align
with evidence-based research. They urged CMS to take steps to
facilitate access to home HD, such as routinely paying for more than 3
treatments per week for any patient who agrees to have more, so that
more patients can receive the same benefits.
Other commenters indicated that their more frequent home dialysis
resulted in more hours of dialysis treatment than is typically
furnished in-center. One commenter pointed out that typically patients
on more frequent dialysis generally treat 30-40 percent longer than
patients receiving 3 times per week therapy in-center. Commenters also
described the health advantages of nocturnal dialysis and other
dialysis schedules that provide a similar level of toxin and fluid
removal to in-center dialysis, but spread out the treatments over 4 or
more days. Another commenter pointed out that with the same weekly
volume of fluid to be removed it is clearly demonstrable that removal
in five treatments is safer, protects vital organs and is far more
stable for patients. This does not mean that all patients must be
treated 5 times per week or that all patients receiving that frequency
are necessarily fully dialyzed. Therefore, some flexibility in approach
is necessary. The commenter concluded that dialysis patients are in
general intolerant of fluid removal. Elderly nursing home patients are
at greater risk of problems that can be alleviated substantially by
more frequent dialysis.
Many other commenters urged CMS to provide payment for customizing
the dialysis treatment to the patient. One commenter indicated that
unlike in-center dialysis, which is one size fits all, they are able to
tailor each treatment to their physical needs; for example, if the
beneficiary has too much fluid after travelling, then a few extra,
longer, slower treatments could be done to gently remove the fluid. The
commenter stated that a diabetic controls their treatment by regulating
their blood sugar, and a patient on dialysis should be allowed the same
freedom to treat accordingly. More frequent treatments, as needed, are
a must for maintaining maximum health. There must not be a one size
fits all dialysis treatment mentality.
Several commenters objected to the proposed update to home HD
payment policies because they believed that it locks in the 3-times-
per-week schedule. The comments indicated that there is no research
that supports capping the dialysis dose in such an unsafe way. A 3-day
a week schedule requires a nearly 3-day ``dialysis weekend'' every
week, which is a risky choice. Another commenter stated that 3-times-
per-week dialysis (Monday, Wednesday, Friday and Tuesday, Thursday,
Saturday schedules) was not based on clinical research, but rather was
a way to dialyze two groups of patients and allow the nurses to have
Sunday off. Another commenter believes the 3-times-per-week scheduling
reflects the shortage of dialysis machines and supplies in the 1960s
when HD began. Other commenters pointed out that alternative schedules
are unavailable in-center, other than in very narrow circumstance where
there is medical justification, and thus are generally furnished at
home.
Response: We believe that the choice of modality and frequency of
treatments for a patient are decisions that are made by the physician
and the patient. We continue to believe that patients should have
access to various treatment options and schedules and facilities should
offer various treatment options to meet the needs of its patients.
Comments recommending that we facilitate access to home HD by routinely
paying for more than 3 treatments per week are beyond the scope of the
proposed rule. However, we believe that routinely paying ESRD
facilities the full ESRD PPS payment for up to 6 or even 7 treatments
per week for home HD patients would overpay facilities relative to
their resources and cost. Patients on more frequent schedules have
indicated in public comments that they no longer need to take many of
the medications routinely provided to in-center patients and have
limited involvement with their ESRD facility, two significant
components of the ESRD PPS base rate.
We acknowledge that the proposed HD equivalency would have
maintained the current policy which limits monthly payment to 13 or 14
treatments, which reflects the number of treatments received by the
vast majority of ESRD patients; but our intention was to provide more
flexibility for patients, not to increase the overall amount of
payment. Patients with certain medical conditions reportedly benefit
from shorter and/or longer and more frequent HD and, as a result, MACs
can approve additional treatments. While we have reviewed the studies
regarding more frequent HD that have been conducted, many of the
studies are too small in scope and do not provide a sufficient basis
for a national payment policy change of this magnitude. In particular,
in a literature review reported November 2015 in the American Journal
of Kidney Diseases, titled ``Timing of Dialysis Initiation, Duration
and Frequency of Hemodialysis Sessions, and Membrane Flux: A Systematic
Review for a KDOQI Clinical Practice Guideline'', Slinin et al,
reported that more than thrice-weekly hemodialysis and extended-length
hemodialysis did not improve clinical outcomes compared to conventional
hemodialysis and resulted in a greater number of vascular access
procedures. The authors concluded that the limited data available
indicate that more frequent and longer hemodialysis did not improve
clinical outcomes compared to conventional hemodialysis. As a result,
we believe that payment for additional treatments should remain
individualized to the patient as medically necessary and that the
determination continue to be made on a case-by-case basis by the MACs.
Comment: While many commenters expressed support for CMS' efforts
to obtain a reliable source of data for the number of HD treatments
patients receive each week, most of the comments from individual
facilities and dialysis organizations of all sizes, physicians, and
patient advocacy organizations strongly objected to the HD equivalency
proposal because they believe it is unnecessary, would increase
providers' burden, would be administratively complex, and would
discourage growth of home HD. Although we developed the proposal based
on provider feedback about their inability to report all dialysis
treatments on a monthly claim, many commenters indicated that this
concern is unfounded because current claims processes allow providers
to report all dialysis treatments delivered either in-center or at
home. They suggested that modifiers could be used to distinguish
medically justified additional treatments from those that do not meet
their MAC's LCD for medically justified treatments.
Dialysis organizations pointed out that use of the prescribed
number of treatments as the basis of payment increases the burden. An
LDO pointed

[[Page 77845]]

out that the number of prescribed treatments can change weekly based on
a patient's condition. For other various reasons (for example,
hospitalization), a patient may not receive a prescribed treatment,
making the proposal administratively challenging for facilities and
providers. In addition, the HD equivalency proposal only achieves CMS'
goal of allocating the total amount of payment based on three HD
sessions per week in accordance with the number of treatments actually
furnished when the actual and prescribed treatments are equal.
An MDO agreed and expressed serious reservations about substituting
prescribed treatments for delivered treatments in the calculation of
payments, as the proposal contemplates. The commenter indicated the
proposed HD equivalency policy would increase the reporting burden in
order to correct claims for patients who do not attend the prescribed
number of treatments. The line item billing requirements would impose
further burden in billing for patients treated on schedules, such as
every other day treatments. Moreover, months ending in the middle of a
week would pose additional complexity, since it would be necessary to
use 2 monthly claims to determine whether there had been more than
three treatments during the week.
The commenters stated these additional burdens would represent
additional administrative cost for every dialysis provider, for every
vendor supplying dialysis billing software, for every MAC receiving
these claims, and for CMS itself. They stated that this will be
particularly burdensome for smaller organizations and independent
providers which are not highly automated and tightly integrated with
clinical systems. Another organization representing nonprofit
facilities pointed out that with all the other requirements being
placed on providers, particularly smaller providers, they do not see
how CMS' need for better data outweighs the additional burden at this
time and strongly opposed CMS finalizing the proposal.
Many other commenters objected to the proposal to pay for shorter,
more frequent HD in a similar manner as PD, pointing out that PD and
home HD are vastly different therapies and should not be compared to
one another clinically or paid as if they are equivalent therapies. The
comments indicated that PD is currently paid as the equivalent to 3
treatments per week HD because it requires multiple exchanges per day
to achieve the same basic outcomes for patients.
Many commenters recommended that CMS issue simple billing
clarifications to ESRD facilities to encourage reporting of all
treatments and remind the MACs that their LCD or similar policies
should include criteria for additional, medically justified dialysis
treatments. Otherwise, the commenters indicated that CMS' current
policies are sufficient to meet the needs of beneficiaries, providers,
and Medicare, and the HD equivalency is not necessary.
Response: After careful consideration of the public comments, we
agree with commenters and believe that implementing HD-equivalent
payment for shorter, more frequent HD could be burdensome. Following
publication of the proposed rule, we learned that ESRD facilities in
certain MAC areas have the ability to report all treatments furnished,
whether paid or not. We are exploring claim reporting mechanisms, such
as modifiers, to meet our data needs and reflect patient treatments
provided while minimizing burden on facilities. Once we decide on the
mechanism for reporting treatments that are medically justified and
those that do not meet the MAC's LCD for medically justified additional
treatments, we will issue billing clarifications to MACs and ESRD
facilities.
Comment: Although many commenters requested that CMS withdraw the
equivalency proposal, a few commenters believe that the status quo
should not remain in place and that CMS is on the right track with the
HD equivalency proposal. One commenter expressed concern that the
proposal could produce a perverse unintended consequence of rewarding
facilities that provide more frequent dialysis but less in the
aggregate than is necessary to give patients high-quality care. We are
unsure exactly what the commenter meant by this comment and the
commenter did not elaborate on this point.
Another commenter pointed out that current reimbursement for more
frequent home HD creates for this one particular therapy a
reimbursement level that can be double that of conventional 3-times-
per-week HD if all the HD treatments are paid as medically justified
treatments. The commenter stated that the cost to the provider for
additional treatments (beyond 3 per week) delivered at home with more
frequent home HD should be a relatively small incremental cost as
compared to the first 3 treatments per week. Within the reimbursement
of the first 3 treatments (the conventional schedule) the cost of the
machine, the patient training, the nursing support, etc., would already
have been covered and the incremental cost for additional home HD
treatments is strictly the treatment supplies.
The commenter stated that reimbursing for the additional treatments
beyond 3 treatments per week at the full bundled base rate does not
seem appropriate and creates at least the appearance of a profit
incentive for providers (and their physician partners) to utilize this
therapy. Patients should have access to more frequent home HD as a
therapy option, but the reimbursement for this therapy should be more
straightforward and transparent, and on a level playing field with
other dialysis therapy options, such as conventional 3 times weekly HD
or PD. The commenter believes the CMS equivalency proposal would do
that.
The commenter suggested that CMS consider adding a new lower
incremental treatment rate for home HD treatments beyond 3 treatments
per week to cover the additional incremental supply cost beyond the
first 3 treatments per week, if CMS feels that is appropriate and is
interested in promoting more frequent home HD therapy. However, another
commenter stated that dialysis centers not only incur the cost of
supplies for the additional treatments, but also incur the cost for
staff to manage the treatments. It makes sense they should be paid
accordingly and therefore avoid costly emergency rooms visits for
episodes of fluid overload or hyperkalemia.
Response: We agree with the commenter that paying the full base
rate amount for treatments over 3 per week without documented medical
justification would have created risks for patients but we note that
this is not the policy that we proposed. We also note that we
aggressively monitor ESRD facility claims so that we are aware of
changes in practice, and they may prompt us to engage in future
rulemaking in this area. As we explained previously, we are not
finalizing the HD equivalency proposal. As an alternative, we will be
making changes in reporting treatments that will allow us to monitor
changes in treatment patterns more effectively.
Comment: Several commenters, while disagreeing with the equivalency
payment proposal as discussed above, supported CMS in paying the full
ESRD PPS base rate for each home HD training treatments, even when
those treatments are furnished more than 3 times per week. The
commenters agreed that this frequency of payment would assist CMS in
the investigation for payments and costs related to training for future
refinement. The commenters indicated that the proposal is appropriate
because

[[Page 77846]]

training treatments are an essential process to transitioning patients
home safely. In addition, they agreed it would permit facilities to
bill for training treatments that are furnished to beneficiaries
receiving more than 3 HD treatments per week and allow these facilities
to receive payment for training more consistently with how they are
furnishing these treatments.
Response: We appreciate the commenters' support for the proposal
regarding allowing the payment of the full base rate for all home
dialysis training treatments, even when they are furnished more than 3
times per week, subject to our payment limit of 25 HD training
sessions. While we are not finalizing the equivalency payment for
maintenance HD (discussed above) when it is furnished more than 3 times
per week, we continue to believe that it is important for our payment
for home HD training to be consistent with how we pay for home PD
training. In addition, we do not believe that this will change the
amount of total dollars paid out for home HD training because
facilities will receive the training add-on for only 25 treatments,
which has been a longstanding policy. The difference is that facilities
can receive the full base rate for more than 3 HD training treatments
in a single week. Therefore, for this rule we are finalizing our
proposal to pay the full ESRD PPS base rate for all training treatments
even when they exceed 3 times per week with a limit of 25 sessions as
proposed.
Comment: A commenter suggested what they believe is a much simpler
solution under which CMS would instruct the MACs to apply payment edits
to ensure that Medicare payment on the monthly claim is consistent with
the 3-times weekly dialysis treatment payment limit. Thus, for a 30-day
month, the commenter believes payment should be limited to 13
treatments and for a 31-day month the commenter believes payment should
be limited to 14 treatments. The commenter indicates this approach
enforces the 3 times a week rule effectively. In addition, it permits
flexibility, allowing payment for a 4 treatment week followed by a 2
treatment week for those few cases having logistical but no medical
justification, such as Christmas and New Year's, weather or water
system failures causing unexpected facility closure, as well as major
events in patients' lives such as out of town family weddings and
funerals.
Several commenters stated that Medicare reimbursement should signal
its willingness to support safe schedules, especially every other day
(EOD) HD schedules. The commenter recommended that the PPS should base
home HD reimbursement on 7 treatments every 2 weeks, that is, reimburse
home HD fully, equivalent to EOD schedules, and to reimburse a partial
bundle amount for treatments in excess of EOD.
Other commenters implored CMS to explore paying for HD by the hour
rather than by the treatment, or, minimally, to pay for up to 15
standard in-center HD treatments per month without medical
justification to allow dialysis every other day and eliminate the 3-day
dialysis weekend.
Response: Since ESRD facilities submit bills on a monthly basis, we
currently enforce the 3-treatments-per-week payment policy through
established treatment limits by month, that is, 13 treatments for 30-
day months and 14 treatments for 31-day months and we will continue to
do so. We appreciate the suggestions to increase the monthly limits,
however, these suggestions are beyond the scope of the proposed rule.
As we mentioned above, payment for additional treatments should remain
individualized to the patient as medically necessary and that the
determination will continue to be made on a case-by-case basis by the
MACs.
Comment: We received many comments objecting to the notion
expressed in the proposed rule that extra sessions would be prescribed
based on patient preference or convenience. One commenter stated that
the idea that they took on the responsibility for their treatments,
coordinating and storage of medical supplies, cannulating themselves,
drawing blood, completing and filing flow sheets, troubleshooting
medical and mechanical emergencies, and then having to clean up and
sanitize the equipment as a matter of convenience is ludicrous. Another
commenter pointed out that patients receiving additional treatments
only consent to them because they experience a real and sustained
clinical benefit.
Another commenter objected to statements in the proposed rule
stating that more frequent HD is the result of evolving or new
technology. The commenter believes it is more accurate to say that the
option to furnish more than 3 HD treatments per week is an existing
option that is increasingly utilized because of evolving technology
that facilitates treatment in the home setting, where more frequent HD
is more feasible, as well as increasing awareness of the unsolved
clinical problems that more frequent HD can positively address. The
commenter also pointed out evidence that more frequent HD is not new
and referred to a systematic review of clinical outcomes in patients on
more frequent HD that studied patients who initiated more frequent
hemodialysis in Asia, Europe, North America, and South America as early
as 1972. In other words, more frequent hemodialysis was an
internationally-recognized prescription long before the advent of the
currently dominant home HD technology in the US.
One commenter expressed concern about the implication that a
significant number of prescribed extra HD sessions are not predicated
upon medical necessity. The commenter pointed out that more frequent HD
requires a greater investment of time on therapy than thrice-weekly
therapy, no matter how it is prescribed. This therapy is not prescribed
for convenience. The commenter pointed out that CMS has noted that no
HD session is without risks, and more frequent therapy would not be
prescribed unless it is clinically necessary to address a particular
patient's needs. The commenter believed suggesting otherwise is
inconsistent with the responsible practice of medicine. Another
commenter explained that the hemodynamic benefits are a major reason
why doctors prescribe, and patients embrace, this form of therapy. As
such, the hemodynamic benefits are at the very core of the basis for
the medical necessity for more frequent HD therapy.
Response: We appreciate these clarifications. Our intent was merely
to pay appropriately for shorter, more frequent dialysis prescriptions
that are equivalent to in-center treatments. We did not mean to imply
that physicians order treatments that are not medically necessary, or
that patients receive shorter, but more frequent dialysis solely for
their convenience. However, when a home dialysis machine supplier met
with us and was asked if their machine could perform in the same way as
an in-center machine performs, that is, whether patients could dialyze
3 times per week, we were told the patients could do so, but that it
would take longer. Consequently, the patients using this home modality
choose shorter, more frequent dialysis treatments at home 5 times per
week. We agree with the commenter that it is more accurate to say that
the option to furnish more than 3 HD treatments per week has been
increasingly chosen as a treatment option. This may be due to the
evolving technology facilitating more frequent HD treatment in the home
setting.

[[Page 77847]]

Comment: An LDO, a national dialysis industry organization, a
patient advocacy organization and many patients, caregivers,
physicians, and nurses supported the proposal to continue current
payment policy for treatments determined medically justified based on
MAC consideration of medical evidence as required under a LCD. The
commenters stated this is an important existing policy that allows
patients who have a medical need to be able to obtain extra treatments
and for the facilities to be reimbursed for them. They also noted that
this policy preserves the physician's medical decision-making to meet
the individual needs of patients.
A dialysis nursing association expressed concern that despite the
promulgation of LCDs for additional dialysis treatments, there are
substantial differences in the MAC's assessment of medical
justification for these treatments. They urged CMS to continue to
educate the MACs on what constitutes medical justification and ensure
the MACs are thoroughly examining each medical record in its entirety
when assessing whether there is medical justification for additional
treatments. They pointed out that differences in documentation
requirements necessitate additional work for their members, and it is
imperative that the MACs exhibit greater consistency when determining
the appropriateness of payment based upon the medical documentation.
However, many other commenters, primarily physicians, implored
Medicare not to interfere with the physician's clinical judgment in
determining the best treatment regimen that meets the needs of their
patients. Physicians indicated that all the treatments they prescribe
are medically necessary. Several commenters expressed concern the
proposal may limit the physician's freedom to prescribe additional HD
sessions for patients who could benefit. Commenters pointed out that
currently there is no national policy that restricts a physician's
ability to prescribe medically appropriate extra HD sessions for their
patients and that the decision about whether the therapy prescribed is
medically appropriate is made locally, between the physician and the
local MAC. The commenter expressed concern that the HD equivalency
proposal may take away some of that freedom if certain language in the
rule is not changed. One commenter stated they are not asking CMS to
specify what the MACs should or should not pay for, but rather that CMS
should leave that decision to physicians.
A clinical association stated that while they are generally
supportive of the current medical justification approach, they noted
that it can create administrative burdens and, in some cases, interfere
with the patient-physician relationship. Due to the heterogeneity with
which various MACs interpret what is medically justified, clinicians in
some areas have less latitude to provide what they believe is medically
justified care. For example, it may be appropriate for certain patients
who have benefitted from a fourth dialysis session in 1 week to receive
a fourth dialysis session in the following week as a prophylactic
measure to prevent an adverse outcome from occurring again. The
commenter believes CMS should urge all MACs to approach medical
justification with a consistent, broad view and a respect for
physicians' responsibility in determining, in consultation with their
patients, what constitutes medically necessary additional dialysis
sessions.
Another commenter agreed, stating that absence of documentation on
some claims forms requesting payment for extra prescribed sessions does
not indicate absence of medical necessity. Instead, it may be due to
variations in the documentation particular MACs are seeking, or a
misunderstanding of how to properly submit a claim for a type of
therapy that is rarely prescribed. In these instances, documentation of
medical necessity likely is to be found in the prescribing physician's
patient records. The commenter stated that it is rational to assume
that a reiteration of clear instructions on this point, from CMS and
the MACs, would address the discrepancies in claims submissions that
CMS has noted.
An advocacy organization asked that CMS reiterate again in final
rulemaking that there is no national coverage decision for additional
hemodialysis sessions, that the determination of medical justification
for both acute and chronic prescriptions involving more than three
sessions per week is left entirely to the discretion of the MACs and
that if a MAC wishes to restrict coverage to any certain conditions or
require any unique documentation, it must execute a formal LCD process
with public comment.
Other commenters stated that the overwhelming clinical evidence
shows that the closer HD treatment approximates the functioning of the
healthy human kidney (24 hours/per day, 7 days/per week), the better
the patient outcomes. Therefore, they believe Medicare should presume
that longer, more frequent dialysis is medically justifiable in all
cases, and that the actual treatment regimen should be determined by
the patient, in consultation with their physician, taking into account
both anticipated clinical outcomes and the patient's overall life
goals.
Another commenter suggested that a conversation should be opened
with Medicare contractors to permit a full understanding for the
reasons for more frequent HD therapy. Justifications for on-going more
frequent HD therapy are not necessarily the same as that for a one-time
only justification for an extra treatment for a conventionally treated
patient. The justifications for the two groups should be separated. The
commenter stated that Medicare should unequivocally signal support for
the concept of more frequent HD and should also clearly signal that
more frequent HD treatments, when justified, will be funded. Lastly,
the commenter stated that should more frequent HD be prescribed without
justification, then treatments in excess of 3-per-week should not be
reimbursed. Another commenter agreed, stating that all home HD
treatments provided should be reported and, through use of a modifier,
be indicated as medically supported or not medically supported with all
supported treatments being paid at the designated HD facility rate.
Response: We thank the commenters for their comments. However, we
did not propose to change the process for MAC approval of additional
dialysis treatments. We believe the current process has been effective
in approving additional treatments based on the medical evidence for
individual patients. We agree with the commenter who stated that there
is no national coverage decision for additional HD sessions and that
the determination of medical justification for prescriptions involving
more than three sessions per week is left entirely to the discretion of
the MACs and related administrative processes. We support more frequent
HD for those patients who can benefit from it and agree that if more
frequent HD is prescribed without medical justification, the treatments
in excess of 3-per-week should not be paid. We thank the commenters for
their suggestions and will consider them if we make changes to this
policy.
Comment: Several commenters stated they appreciate that CMS listed
heart failure, a chronic disease, as a potential medical justification
for the delivery of more than 3 HD treatments per week. They noted that
the medical directors of at least one MAC have asserted that CMS has
guided that only acute diseases can constitute medical justification
for additional treatments. They encouraged

[[Page 77848]]

CMS to reiterate in the final rule that both acute and chronic diseases
can constitute medical justification. The commenter indicated that
heart failure is a good example of a chronic disease that may
constitute medical justification for more frequent HD because of its
leading role in morbidity, mortality, and medical spending among
dialysis patients, but it is certainly not the only example of a
chronic disease. Persistent hypertension, persistent hyperphosphatemia,
sleep disturbances, pain attributable to dialysis-related amyloidosis,
and symptomatic intradialytic hypotension are all examples of chronic
comorbid conditions that may be positively addressed by ongoing
treatment with more frequent HD.
However, another commenter pointed out that the need for more than
3 HD treatments per week occurs in less than 1 percent of the ESRD
population and the need for additional treatments is very brief in
duration. This commenter indicated that after receiving perhaps a few
extra treatments, the patient should be able to be managed with 3
treatments a week. The commenter indicated that if facilities report a
diagnostic code such as congestive heart failure (CHF), the extra
treatments are automatically paid by the MAC without pre-payment review
and, moreover, the MAC will continue to pay for these treatments as
long as the diagnosis is included on the claim. The commenter believes
that this payment procedure is an invitation to serious Medicare abuse
and recommended that CMS demand pre-payment review of every patient
requiring more than 3 treatments a week for a period of more than 1
week. Specifically, the facility should be required to provide monthly
physician progress notes, chest x-ray reports, and other confirmatory
testing and medical justification for the ongoing need for extra
treatments and the patient's inability to return to 3 times a week
treatments.
Response: In the proposed rule (81 FR 42810), we mentioned that
additional conventional HD treatments are reimbursed at the full ESRD
PPS payment if the facility's MAC determines the treatments are
medically justified based on a patient condition, such as CHF or
pregnancy. We did not mean to imply that the MACs should view the
presence of a CHF diagnosis on a claim as medical justification for
additional treatments, nor did we mean to imply that chronic disease
diagnoses should confer medical justification. We agree with the
commenter that automatically paying for additional treatments for
patients with chronic medical conditions every month for as long as
bills with the diagnosis code for CHF appear does not seem appropriate.
However, all decisions regarding medical justification for additional
dialysis treatments are paid at the discretion of the MAC. We will
continue to monitor claims that include additional treatments and will
consider whether additional guidance or other prepayment review as
suggested by the commenter is needed.
Final Rule Action: After considering the comments we received, we
are not finalizing our proposal for payment for HD when more than 3
treatments are furnished per week. Based on the feedback from
commenters regarding the administrative burden associated with this
policy, we have determined that the best course is not to finalize this
policy and, instead, to evaluate other billing mechanisms to collect
data on the treatments provided to beneficiaries. We are reiterating
that facilities are expected to report all dialysis treatments
provided, whether they are separately paid or not paid.
However, we reiterate that we are finalizing our proposal to pay
the full ESRD PPS base rate for all training treatments even when they
exceed 3 times per week with a limit of 25 sessions as proposed.
2. Home and Self-Dialysis Training Add-On Payment Adjustment
a. Background
In 2014, Medicare paid approximately $30 million to ESRD facilities
for home and self-dialysis training claims, $6 million of which is in
the form of home dialysis training add-on payments. These payments
accounted for 115,593 dialysis training treatments (77,481 peritoneal
dialysis (PD) training treatments and 38,112 hemodialysis (HD) training
treatments) for 12,829 PD beneficiaries and 2,443 HD beneficiaries.
Hereinafter, we will refer to this training as home dialysis training.
Under the ESRD PPS, there are three components to payment for home
dialysis training: The base rate, a wage-adjusted home dialysis
training add-on payment, and an allowable number of training treatments
to which the training add-on payment can be applied.
When the ESRD PPS was implemented in 2011, we proposed that the
cost for all home dialysis services would be included in the bundled
payment (74 FR 49930), and therefore, the computation of the base rate
included home dialysis training add-on payments made to facilities as
well as all composite rate payments, which account for facility costs
associated with equipment, supplies, and staffing. In response to
public comments, in the CY 2011 ESRD PPS final rule (75 FR 49062), we
noted that although we were continuing to include training payments in
computing the ESRD PPS base rate, we agreed with commenters that we
should treat training as an adjustment under the ESRD PPS. Accordingly,
we finalized the home dialysis training add-on amount of $33.44 per
treatment as an additional payment made under the ESRD PPS when one-on-
one home dialysis training is furnished by a nurse for either HD or PD
training or retraining (75 FR 49063). In addition, we continued the
policy of paying the home dialysis training add-on payment for 15
training treatments for PD and 25 training treatments for HD. In 2011,
the amount we finalized for the home dialysis training add-on was
$33.44, which was updated from the previous adjustment amount of $20.
This updated amount of $33.44 per treatment was based on the national
average hourly wage for Registered Nurses (RN), from the Bureau of
Labor Statistics (BLS) data updated to 2011 (75 FR 49063), and reflects
1 hour of training time by a RN for both HD and PD. Section
494.100(a)(2) of the Conditions for Coverage for ESRD Facilities
stipulates that the RN must conduct the home dialysis training, but in
the ESRD Program Interpretive Guidance published October 3, 2008
(http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCletter09-01.pdf) we clarify that
other members of the clinical dialysis staff may assist in providing
the home training. We also elaborate in this guidance that the
qualified home training RN is responsible for ensuring that the
training is in accordance with the requirements at Sec. 494.100, with
oversight from the ESRD facility's interdisciplinary team.
The $33.44 amount of the home dialysis training add-on was based on
the national mean hourly wage for RNs as published in the Occupational
Employment Statistics (OES) data compiled by BLS. This mean hourly wage
was then inflated to 2011 by the ESRD wages and salaries proxy used in
the 2008-based ESRD bundled market basket. In the calendar year (CY)
2014 ESRD PPS final rule (78 FR 72185), CMS further increased this
amount from $33.44 to $50.16 to reflect 1.5 hours of training time by
an RN in response to stakeholder concerns that the training add-on was
insufficient.
In response to the CY 2016 ESRD PPS proposed rule, we received a
significant number of stakeholder comments

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concerning the adequacy of the home dialysis training add-on for HD.
Because we did not make any proposals regarding the home dialysis
training add-on in the CY 2016 ESRD PPS proposed rule, we made no
changes to the home dialysis training add-on for CY 2016 but we did
provide a history of the home dialysis training add-on and stated our
intention to conduct further analysis of the adjustment.
While some commenters, primarily patients on home HD and a
manufacturer of home HD machines, requested that we increase the home
dialysis training add-on payment adjustment so that more ESRD patients
could receive the benefit of home HD, we also heard from large dialysis
organizations (LDOs) that the current home dialysis training add-on
amount is sufficient. In addition to these differing viewpoints, we
received public comments indicating a wide variance in training hours
per treatment and the number of training sessions provided. As we
indicated in the CY 2016 ESRD PPS final rule (80 FR 69004), patients
who have been trained for home HD and their care partners have stated
that the RN training time per session spanned from 2 to 6 hours per
training treatment, that the number of training sessions ranged from 6
to 25 sessions, and that the training they received took place in a
group setting. The range of hours per training treatment may indicate
that the amount of RN training time gradually decreased over the course
of training so that by the end of training, the patient was able to
perform home dialysis independently.
In order to incentivize the use of PD when medically appropriate,
Medicare pays the same home dialysis training add-on for all home
dialysis training treatments for both PD and HD, even though PD
training takes fewer hours per training treatment. It has never been
our intention that the training add-on payment adjustment would
reimburse a facility for all of its costs associated with home dialysis
training treatments. Rather, for each home dialysis training treatment,
Medicare pays the ESRD PPS base rate, all applicable case-mix and
facility-level adjustments, and outlier payments plus a training add-on
payment of $50.16 to account for RN time devoted to training. The home
dialysis training add-on payment provides ESRD facilities with payment
in addition to the ESRD PPS payment amount. Therefore, the ESRD PPS
payment amount plus the $50.16 training add-on payment should be
considered the Medicare payment for each home dialysis training
treatment and not the home dialysis training add-on payment alone.
We are committed to analyzing the home dialysis training add-on to
determine whether an increase in the amount of the adjustment is
appropriate. To begin an analysis of the home dialysis training add-on
payment adjustment, we looked at the information on 2014 ESRD facility
claims and cost reports.
b. Analysis of ESRD Facility Claims Data
We analyzed the ESRD facility claims data to evaluate if the
information currently reported provides a clear representation of the
utilization of training. We note that after an initial home dialysis
training program is completed, ESRD facilities may bill for the
retraining of patients who continue to be good candidates for home
dialysis. We indicated in the proposed rule that retraining is allowed
for certain reasons as specified in the Medicare Claims Processing
Manual (Pub 100-4, Chapter 8, section 50.8): The patient changes from
one dialysis modality to another (for example, from PD to HD); the
patient's home dialysis equipment changes; the patient's dialysis
setting changes; the patient's dialysis partner changes; or the
patient's medical condition changes (for example, temporary memory loss
due to stroke, physical impairment) (81 FR 42813). We also noted that
we are not able to differentiate training treatments from retraining
treatments. That is, all training claims are billed with condition code
73, which is what an ESRD facility would use for both training and
retraining treatments. Under the current claims processing systems, we
are unable to identify in the data when the maximum number of training
treatments have been completed, 25 for HD and 15 for PD, however,
administrative guidance will be forthcoming on this issue. Therefore,
we are unable to clearly tell when the patient is still training on the
modality versus when they have completed the initial training and need
retraining for one of these reasons provided in the claims processing
manual noted above.
To be able to make informed decisions on future training payment
policies we would need to have specificity regarding the utilization
for each service. We are interested in assessing the extent to which
patients are retrained and the number of retraining sessions furnished.
The findings of this assessment will inform future decisions about how
we compute the training add-on payment and whether we should consider
payment edits for retraining treatments. For this reason, we stated our
intention to issue sub-regulatory guidance to provide a method for
facilities to report retraining treatments. We solicited input from
stakeholders on retraining, how often retraining occurs, how much RN
time is involved, and the most common reason for retraining.
A summary of these comments and our responses are provided below.
In addition, historically ESRD facilities have indicated they are
unable to report all treatments furnished on the monthly claim. For
this reason, we believe the number of training treatments currently
reported on claims may be inaccurate. As discussed in detail in section
II.B.1.a of the proposed rule (81 FR 42813), there are claims
processing edits in place that may prevent reporting of HD treatments,
including both training and maintenance treatments, that exceed the
number of treatments typically furnished for conventional HD, that is,
3 per week, unless the additional treatments are medically justified.
This is because of the longstanding Medicare payment policy of basing
payment on 3 HD treatments per week, which, for claims processing
purposes is 13 to 14 treatments per month. For PD, which is furnished
multiple times each day, ESRD facilities report a treatment every day
of the month and MACs pay for these treatments by applying an HD-
equivalent daily rate. We proposed a similar payment approach for HD
treatments furnished more than 3 times per week, which would allow
facilities to report all HD treatments furnished, but payment would be
made based on a 3 treatments per week daily rate.
As we explain in section II.B.1 of this final rule, we are not
finalizing the HD payment equivalency proposal due to the burden it
would have on facilities, however, we are pursuing other methods for
identifying medically justified treatments and treatments that do not
meet the MAC's LCD for additional dialysis treatments, such as through
the use of modifiers. We are also finalizing that we would not limit
the number of home HD training treatments per week for which we would
pay the full ESRD PPS base rate to be consistent with how we pay for PD
training and to better align Medicare payments for training to when
facilities are incurring the cost for training. We believe these
changes will greatly improve the accuracy of the reporting of training
treatments.
We solicited comments on implementing the HD payment equivalency
and sought information on the use of retraining and the establishment
of coding on the ESRD

[[Page 77850]]

facility claim for retraining. The comments and our responses to the
comments regarding retraining are set forth below. The comments and our
responses regarding the HD payment equivalency proposal are located in
section II.B.1.d of this final rule.
Comment: A dialysis industry organization appreciates that CMS will
begin working with the kidney care community as it seeks to better
understand retraining, how often it occurs, the amount of nursing time
involved, and the most common reasons for it. They and many other
commenters stated their support for the definition of retraining found
in the Medicare Claims Processing Manual, described above. They believe
that retraining does not occur often, but when it does, each retraining
can vary depending on the specific circumstances. In some instances, it
would be the same as training, but designated as retraining only
because the patient had received home dialysis training previously. For
example, when a patient changes modality, there may be consistency in
partner support, but the same amount of RN training time and number of
training sessions may be required to ensure that the patient
understands how to operate the new device safely. The same could be
true if a patient experienced a temporary memory loss. In some
instances, it might be possible to reduce the number of training
sessions, such as when there is a minor modification to the device,
something changes in the patient's home, or the patient's dialysis
partner changes. As discussed in the Medicare Claims Processing Manual,
Chapter 8, Section 50.8, retraining may also be necessary when there is
evidence that a patient needs a refresher in how to properly use the
device because they have developed an infection or other problems. They
and other organizations expressed support for CMS' efforts to improve
data collection that would give CMS and providers a clearer sense of
the incidence of training and retraining in the aggregate to inform
policy decisions.
A physician organization agreed, stating that some research has
shown that individuals starting PD commonly develop complications like
peritonitis, need hospitalization, and are transferred to catheter-
based HD within the first 90 days of dialysis initiation. The
organization noted that adapting to home dialysis is challenging and
may indicate a need for improved initial training and a targeted
increase in early retraining interventions.
Based on an informal survey of their members, the organization
suggests that retraining is warranted in the following circumstances:
After any episode of peritonitis, bacteremia, or infection in which
root-cause analyses suggests that the condition resulted from a break
in sterility of technique; after prolonged period of hospitalization or
skilled nursing facility care, when the patient or caregiver may be out
of practice; after changes in HD access (catheter to fistula or graft,
new fistula or graft, especially if on the opposite side, or difficulty
with cannulation at a particular part of a fistula or graft); training
for use of a heparin pump; change in dialysis machine or equipment;
when there is a change in who is going to perform or assist with home
PD or HD (for example, if a patient has had a stroke and now their
spouse will do PD or if one caregiver is replaced by another); when
home dialysis patients move or transfer to another program (whether
permanently or temporarily), reflecting that protocols, equipment and
care practices may differ among programs.
An LDO indicated that in its experience retraining typically occurs
at six-month intervals and following a hospitalization, infection, or
return to therapy. The commenter agreed that in some circumstances, it
can be difficult to differentiate training from retraining treatments.
A patient advocacy organization urged CMS to allow flexibility for
facilities to deliver retraining, when it is necessary, to ensure
patients continue to dialyze safely at home. They also noted that
training currently is and should continue to be individualized and
tailored to the patients' needs and learning aptitude, and policies
should remain flexible to ensure a patient-centered approach is
attainable. A manufacturer stated that the first step will be to
establish nomenclature and definitions. The commenter indicated that
they plan to send a communication on this point separately, not as part
of this comment process.
Response: We appreciate the valuable information submitted and will
address retraining once we are able to analyze claims data that
identifies retraining treatments. We are pleased to announce that we
have been approved to establish a condition code to identify retraining
treatments. Change Request 9609 (https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/MM9609.pdf), titled ``Updates to the 72X Type of Bill for Home and
Self-Dialysis Training, Retraining, and Nocturnal Hemodialysis'' and
issued on September 16, , which establishes a condition code for
retraining treatments effective July 1, 2017.
c. Technical Correction of the Total Training Payment in the CY 2016
ESRD PPS Final Rule
In the CY 2016 ESRD PPS final rule (80 FR 60093), we incorrectly
cited the payment amount to facilities for HD training as $1,881 based
on a total of 37.5 hours of training. The amount we should have cited
is $1,254. This is the result of a multiplication error.
We did not receive any comments on this technical correction.
d. Analysis of ESRD Cost Report Data
CMS evaluated 2014 ESRD cost report data in an effort to identify
the nature of the specific costs reported by ESRD facilities associated
with home dialysis training treatments. We found that there is a
significant disparity among facilities with regard to their reported
average cost per home dialysis training treatment particular to HD
training, ranging from under $100 per treatment to as high as several
thousand dollars per treatment. Because of this substantial variation,
we believe that the cost report data we currently collect cannot be
used to accurately gauge the adequacy of the current $50.16 amount of
the per treatment training add-on and that additional cost reporting
instructions are necessary. We believe that the cost difference between
training treatment costs and maintenance treatment costs is primarily
the additional staff time required for training and inconsistencies in
how to report related costs. All other training costs, that is,
equipment, supplies, and support staff are accounted for in the ESRD
PPS base rate. Based on this understanding, extreme variations in staff
time should not occur as the number of hours required should fluctuate
only slightly for some patients depending on modality or other factors.
However, one patient needing a total nursing time of 1-2 hours compared
to another patient needing 50 hours for the same modality indicates a
lack of precision in the data.
In response to these findings and in an effort to obtain a greater
understanding of costs for dialysis facilities, and as we discussed in
the CY 2017 ESRD PPS proposed rule (81 FR 42814), we are considering a
3-pronged approach to improve the quality and the value of the cost
report data and to enable us to use the average cost per home dialysis
training treatment reported by ESRD facilities to set the amount of the
training add-on payment adjustment in the future. First, CMS would
complete an in-depth analysis of cost report data elements. The
analysis would assist CMS in determining what

[[Page 77851]]

areas of the cost report are being incorrectly populated by ESRD
facilities, what fields are left blank, and which ESRD facilities are
deviating from the instructions for the proper completion of various
fields within the report. Once we identify facilities that are
deviating from proper reporting procedures, we would further evaluate
the specific nature of how other ESRD facilities' cost reports were
completed to see if there is a systemic problem that may be the result
of imprecise instructions. If so, we would update the instructions
appropriately to fix the common error. If we believe the instructions
are clear but facilities are not following the guidance, we would work
through the MACs to correct errors. We anticipate the result of our
analysis will be greater uniformity in reporting methods and in turn,
heightened data quality in future years.
Second, in accordance with section 217(e) of PAMA, CMS is currently
performing comprehensive audits of ESRD facility cost reports. We
anticipate the audits will also result in greater uniformity in
reporting methods and in turn, heightened data quality in future years.
Third, we are considering an update to the independent ESRD
facility cost report (CMS-265-11) to include new fields and to rework
several worksheets in an effort to obtain more granularity in data on
home dialysis training. Also, we are considering a locking mechanism
that would prevent a facility from submitting a cost report if certain
key fields have not been completed, such as those in Worksheet S,
allowing CMS to capture the needed information to appropriately pay
home dialysis training by an RN.
The comments and our responses to the comments for this 3-pronged
strategy to improve the ESRD cost report data are set forth below.
Comment: Several industry organizations and clinical associations
agreed that the current cost report data do not provide an accurate
view of home dialysis training costs. They noted that there is
significant variation between ESRD facilities' cost report data, and it
is likely that CMS is collecting data that inaccurately assesses the
adequacy of the home and self-dialysis training add-on. They believe
CMS should update the cost reports and insert new fields with clear
instructions on how to report training costs and labor. They and many
other commenters strongly encouraged CMS to work with dialysis
facilities to provide clear and accurate instructions as to how to
report training costs and labor to address this problem. One
organization emphasized the importance of CMS working with the provider
community to identify possible changes to cost reports and other data
collection mechanisms and expressed their interest in working with CMS
on any proposals while in development and under consideration.
One commenter indicated that new fields on the cost report can
provide additional information on patient training resource allocation
(among other issues), however, they strongly recommended that the new
fields be designed to have clear and concise micro specifications (that
is, specific description of definitions, criteria, and contents) to
avoid ambiguity and multiple interpretations among dialysis facility
personnel and vendors. They further recommended that these micro
specifications be released for public comment in order for CMS to
appreciate how the different stakeholders interpret them and to allow
for feedback and questions, thereby allowing for clarification and
modifications prior to implementation. They also urged CMS to implement
changes in a manner that recognizes that providers have different cost
reporting periods, requiring longer--at least 6 months--lead time to
implement. As CMS begins this data collection and analysis initiative,
they recommended inclusion of industry stakeholders to provide input on
appropriate changes.
Another commenter indicated that the proposed approach to improving
the quality of cost report data, and to improve the estimate of the
cost of home training, is very reasonable, as long as the locking
mechanism is implemented cautiously. New fields on cost reports will
probably require new fields in electronic health records and
bookkeeping systems. Users should receive warnings and notifications
when they skip mandatory fields, to avoid last-minute crises when they
discover that they have omitted required data. If not prepared by such
warnings, commenters fear that the requirement to meet a filing
deadline might lead some users to submit less precise data.
Another commenter strongly supports CMS' multi-pronged effort to
improve the data associated with the cost of home dialysis training
treatments. In their analysis of resources necessary to deliver home
training, they found similar data variances, especially between those
programs with a higher volume of home patients and those who were
training only a few individuals. The commenters believe that the
analysis and audits proposed will result in a greater understanding of
common errors, and lead to agency clarification and guidance around the
reporting elements that will greatly improve data quality.
MedPAC supports CMS' effort to collect more reliable data on the
cost of providing home dialysis training. Once CMS collects
sufficiently reliable data about the duration and composition of
training treatments, MedPAC believes the agency should assess the need
to adjust the training add-on payment amount from the current rate.
A dialysis industry organization had thoughtful suggestions on how
the current cost report might be used in a way that avoids issues with
data variability. They proposed using an alternative weighting scheme
based on an analysis of total HD treatments versus PD treatments that
yielded a training add-on payment of $229.83 for 2017. Using cost
report data, the analysis established 4.65 hours of additional staff
time per training treatment and RN hourly compensation of $49.43. As a
result, the organization urged CMS to increase the proposed training
add-on adjustment to $229.83 per treatment for 2017.
Response and Final Rule Action: While we appreciate the efforts
made by an organization to establish a training add-on amount using the
current cost report, we note that the organization's analysis addressed
the variability in costs by removing facilities with extreme values and
estimated the add-on based on 70 percent of facility cost reports.
Although we usually apply edits to remove outlier costs from our
analyses to ensure that our results are not skewed by extreme values,
we did not feel comfortable removing 30 percent of the data in order to
set the training add-on payment amount. Rather, we believe our proposed
approach to revise the cost report will allow us to use more facility
cost report data to set the training add-on payment amount.
We appreciate the views expressed by commenters and are proceeding
with changes to the ESRD facility cost report as proposed. As we work
to improve the data reporting ability on claims and cost reports, we
will keep in mind the various helpful suggestions made by commenters on
this topic. We are considering various options for obtaining assistance
from stakeholders, such as obtaining feedback via the ESRD Payment
mailbox at ESRDPayment@cms.hhs.gov.
e. Final Increase to the Home and Self-Dialysis Training Add-On Payment
Adjustment
Based on our analysis of ESRD facility claims and cost reports
which we

[[Page 77852]]

describe above, we are pursuing changes which we believe will enable us
to use the data to set the home dialysis training add-on payment
adjustment in the future. Although we have already begun the process to
implement changes to the cost report and claims, it will take several
years for the changes to be implemented and yield data we could use as
the basis for a change in the home training add-on payment adjustment.
However, each year since implementation of the ESRD PPS in 2011, we
have received public comments about the inadequacy of the home dialysis
training add-on payment adjustment. In addition, we are committed to
ensuring that all beneficiaries who are appropriate candidates for home
dialysis have access to these treatment options, which generally
improve beneficiaries' quality of life. For these reasons, we looked
for a reasonable proxy for the home dialysis training add-on so that we
could provide additional payments to support home dialysis in the
interim until we are able to make changes to the home dialysis training
add-on based on claims and cost report data.
Under the ESRD PPS, and in accordance with section
1881(b)(14)(A)(i) of the Act, we implemented a single base rate that
applies to all treatments, even though PD costs facilities less than HD
in terms of staff time, equipment, and supplies. To be consistent with
this payment approach for routine maintenance dialysis treatments, we
implemented a single home dialysis training add-on for both PD and HD,
even though home dialysis training for PD takes half the time per
training treatment on average than HD.
In order to maintain this payment approach and provide an increase
in the payment for home dialysis training treatments, we proposed an
increase in the single home dialysis training add-on amount for PD and
HD, based on the average treatment time for PD and HD and the
percentage of total training treatments for each modality as a proxy
for nurse training time as described below, until such time as we have
data that concretely indicates what an adequate payment should be.
For wages, we proposed to use the latest Occupational Employment
Statistics (http://www.bls.gov/oes/tables.htm) released by BLS ($34.14
in 2015), inflated to CY 2017 using the wages and salaries proxy used
in the 2012-based ESRD bundled market basket. This would result in a
new RN hourly wage of $35.93. For the hours, we proposed an increase to
the number of hours of home dialysis training by an RN that is
accounted for by the home dialysis training add-on. We used the average
treatment times for PD and HD as proxies for training times. The
sources we researched indicated 4 hours is a clinically appropriate
length of time for HD and 2 hours is a clinically appropriate length of
time for a PD treatment. We noted that the Kidney Disease Outcomes
Quality Initiative (KDOQI) guidelines and educational material from
various patient advocacy groups are examples of these sources.
Since PD training is approximately 67 percent of total training
treatments and takes an average of 2 hours per treatment and HD is 33
percent of total training treatments and takes an average of 4 hours
per treatment, we proposed to base the payment for home dialysis
training on 2.66 hours of treatment time ((.67 x 2 hours) + (.33 x 4
hours) = 2.66 hours) resulting in a training add-on payment of $95.57
(2.66 hours x $35.93 = $95.57). This would provide for an increase of
$45.41 per training treatment (that is, $95.57-$50.16 = $45.41). This
approach would provide a significant increase in payment for home
dialysis training for CY 2017 while maintaining consistent payment for
both PD and HD modalities.
As we did in CY 2014 when we last increased the training add-on
payment, we proposed that the increase in the training add-on payment
would be made in a budget neutral manner by applying a budget
neutrality adjustment to the ESRD PPS base rate. The proposed increase
resulted in a budget neutrality adjustment of 0.999729.
The comments and our responses to the comments for the proposed
increase to the home dialysis training add-on are set forth below.
Comment: Many commenters, including patients and their care
partners, nurses, and physicians described the benefits of home
dialysis overall and the importance of training, and requested CMS'
continued support of the modality. Commenters indicated that home
dialysis is more convenient, particularly in rural settings, and
stressed that training makes dialyzing at home feel safer.
One LDO noted that dialysis modality selection is a complex
decision for any individual and believes that too much attention has
been paid to the training an individual receives (and the cost of such
training) and too little has been paid to the myriad other factors that
influence this decision. The commenter pointed out that numerous
comment letters from the community and a recent report from the General
Accounting Office (GAO) have identified factors that influence
decisions regarding home dialysis, including everything from an
individual's home life to their familial support structure to their
clinical status, as well as their physician's familiarity with home
therapies.
One commenter urged CMS to set separate payment rates for home HD
and for PD training to eliminate any payment incentive for a center to
favor PD training over the more-costly home HD training. The commenter
indicated that the only incentive for choosing one mode of home
dialysis over the other should be how closely each modality comes to
making it possible for patient to meet his or her treatment and
lifestyle goals, after being fully informed about the clinical and
lifestyle implications of each type of dialysis modality. Another
commenter expressed support for CMS' proposals to obtain better data,
and noted that separately evaluating the adequacy of the payment for
each unique modality may be warranted.
A physician stated that home HD is ultimately a better treatment
option medically for many patients and would like to see improved
access to home training. This commenter went on to explain that in
order to accomplish this dialysis centers would need to invest
additional resources into home training, and the physician is hopeful
that the proposed increased training payment would allow for this. The
commenter noted that in their experience most dialysis centers do not
offer home HD training and those that do offer training usually have a
long waitlist for patients to receive the training, resulting in delays
in training for patients. The commenter indicated that applying the
same training payment for PD and home HD seems to benefit PD because
they have not experienced delays in training PD patients due to lack of
staff resources. Finally, the commenter indicated that training
treatments are an essential process to transitioning patients home
safely and agrees that these treatments should all be paid.
Response: We appreciate the comments emphasizing the importance of
home dialysis training and we share the commenter's hope that the
increased home dialysis training add-on will lead to greater investment
by ESRD facilities into home modalities and home dialysis training. We
believe that dialysis modality selection and whether dialysis will
occur in-center or at home is a decision made by the patient and their
physician. We continue to make an effort to provide proper payment for
home dialysis training because that is something we can do through the
ESRD PPS to encourage more ESRD facilities to offer home modalities and
home dialysis training.

[[Page 77853]]

With respect to the comments requesting that we establish separate
training rates for PD and HD, we will take these views into account as
we contemplate revisions to the cost report to better capture training
costs. However, we note that historically, we have paid the same base
rate and per treatment training add-on to both PD and HD to encourage
use of PD for those patients who can benefit from that modality. As we
explained in the CY 2011 ESRD PPS proposed rule (74 FR 49115),
composite rate costs and separately billable payments are lower for PD,
and as a result, the use of a modality payment variable would result in
substantially lower payments for PD patients. We stated that we
believed the substantially lower payments for PD patients that would
result if modality were used as a payment adjuster in the ESRD PPS
would discourage the increased use of PD for patients able to use that
modality (74 FR 49967). Because we want to encourage home dialysis, in
which PD is currently the prevailing mode of treatment, we adopted an
ESRD PPS base rate that did not rely on separate payment rates based on
modality.
With regard to the comment about the proposal to pay for all
treatments during training, we will no longer apply weekly training
limits during HD training. However, we continue to believe that the
limit of 25 home HD training treatments is appropriate. In response to
the CY 2011 ESRD PPS proposed rule, we received numerous comments
requesting that CMS retain the existing policy that limits coverage of
the total number of training treatments at the current levels of 15 for
PD (CAPD and CCPD) and 25 for HD. In the CY 2011 ESRD PPS final rule
(75 FR 49063, we agreed with the commenters and stated that under the
ESRD PPS, we will continue the current cap on training treatments at 15
for PD (CAPD and CCPD) and 25 for HD training because most commenters
indicated that they can complete training within these training
treatment parameters. Based on an analysis of claims data, it appears
that patients are still able to be trained for home dialysis within the
existing limits and we are finalizing the proposal to pay the full base
rate for all treatments furnished during home dialysis training, up to
the current limits of 15 for PD and 25 for HD.
Comment: Several industry organizations, a manufacturer and a
clinical association supported the training add-on increase but only if
CMS implements the increase without applying the budget neutrality
reduction to the base rate. Commenters stated that there is no
requirement for CMS to make such a change in a budget neutral manner.
The commenter noted that the budget neutrality requirements associated
with the ESRD PPS, as set forth in section 1881(b)(14)(A) of the Act,
are plainly limited to the first year of the ESRD PPS. As we are many
years into the functioning of the ESRD PPS, the commenters believe that
CMS has no statutory obligation to continue to apply a budget
neutrality adjustment. Another commenter indicated that the budget-
neutral approach is inappropriate because the increased training add-on
payments represent new costs outside of the ESRD PPS that facilities
incur for a specific group of patients.
Many commenters argued that the training add-on is different than
other adjusters. For example, case-mix adjusters seek to tailor the
more general base rate to ensure that facilities are not penalized for
caring for patients who require more resources than those who do not.
So, while the rate goes up slightly for the more expensive patients, it
is reduced for the less expensive patients. This approach seeks to even
out the resources being provided.
However, due to the fact that the training rate is an add-on and
not an adjuster, the commenter contends that the training add-on is not
redistributing existing resources according to patient need. Rather, it
is meant to reimburse facilities for additional costs that otherwise
would not be necessary for the typical in-center patient. These costs
are outside of the base rate and, as such, the commenter believes there
is no rationale for making the adjustment budget-neutral.
The commenter acknowledged that CMS has historically made
modifications to the home dialysis training add-on in a budget-neutral
manner. However, given the ongoing concerns related to the integrity of
the ESRD PPS bundle, underpayments, and the growing instability of the
economics of the ESRD system overall, the commenter believes there is a
solid rationale for changing this policy. The commenter indicated that
the ESRD PPS bundle continues to erode each year and creating further
erosion by imposing budget neutrality in the context of the training
add-on is inappropriate. While it may be true that a 6-cents-per-
treatment reduction is small, the problem is that the ongoing systemic
reduction of the base rate places in-center patients, as well as those
receiving home dialysis, at risk.
MedPAC, however, believes that CMS should make a change to the
training add-on payment in a budget-neutral manner. They stated that it
is unclear whether the proposed budget-neutrality adjustment factor
accounts for any increase in the number of home HD training treatments
eligible for Medicare payment that may result from the proposed claims
adjudication process change and recommended that CMS clearly explain
the methods used to calculate the budget-neutrality adjustment factor
and identify the total number of training treatments accounted for by
the factor.
Response: In responding to these comments, we believe it may be
helpful to first recount the significant history of the home dialysis
training add-on adjustment. In the CY 2011 ESRD PPS proposed rule, we
proposed that the cost for all home dialysis services would be included
in the bundled payment (74 FR 49930). We noted that because we were
proposing that training costs under the ESRD PPS would be treated no
differently than any other overhead expense, an explicit adjustment to
the bundled payment amount for HD and PD training expenditures would
not be necessary (74 FR 49931). We also explained in the proposed rule
that we were proposing modality-neutral payments, because PD, the
predominant modality for home dialysis at that time, is less costly
than HD, and we believed that estimating a prospective rate that is
higher for PD than it would otherwise be would encourage home dialysis
for PD patients (74 FR 49967).
In the CY 2011 ESRD PPS final rule, we explained that we received
comments encouraging us to consider utilizing an add-on payment
adjustment to pay for the costs of home dialysis training. In response
to those comments, we explained that although we were continuing to
include training payments in computing the ESRD PPS base rate, we
agreed with commenters that we should treat training as an adjustment
under the ESRD PPS. Thus, we finalized the home dialysis training add-
on payment adjustment of $33.44 per treatment as an additional payment
made under the ESRD PPS when one-on-one home dialysis training is
furnished by a nurse for either hemodialysis or peritoneal dialysis
training and retraining (75 FR 49063). We chose to calculate a home
dialysis training add-on payment adjustment based on one hour of
nursing time because it was similar to the existing training add-on
payments under the basic case-mix payment system (75 FR 49062). The
amount we finalized for the adjustment--$33.44 per training treatment--
was updated from the previous adjustment amount of $20 per hour and was
based on the national

[[Page 77854]]

average hourly wage for nurses from Bureau of Labor Statistics data
updated to 2011 (75 FR 49063). We noted that because nursing salaries
differ greatly based on geographic location, we would adjust the
training add-on payment by the geographic area wage index applicable to
the ESRD facility. Based on the amount of the home dialysis training
add-on payment adjustment that was finalized in 2011, facilities that
furnished 25 HHD training treatments would receive around $500 in the
form of home dialysis training add-on adjustment payments in addition
to the dollars included in the base rate to account for training costs.
We clarified our policy on payment for home dialysis training again
in the CY 2013 ESRD PPS final rule in which we stated that training
costs are included in the ESRD PPS base rate, however, we also provide
an add-on adjustment for each training treatment furnished by a
Medicare-certified home dialysis training facility (77 FR 67468). As
such, we explained that it is not the intent of the add-on treatment to
reimburse a facility for all of the training costs furnished during
training treatments. Rather, the single ESRD PPS base rate, all
applicable case-mix and facility-level adjustments, as well as the add-
on payment should be considered the Medicare payment for each training
treatment and not the training add-on payment alone. We noted that the
fact that the add-on payment for training accounts for one hour of
training time per treatment is not intended to imply that it only takes
one hour per training session to properly educate a beneficiary to
perform home dialysis.
Then in the CY 2014 ESRD PPS final rule (78 FR 72183), we concluded
in response to public comments that the training add-on, which
represented 1 hour of nursing time, did not adequately represent the
staff time required to ensure that a patient is able to perform home
dialysis safely. We had received numerous comments on the home dialysis
training add-on payment adjustment raising concerns about access to
home dialysis and identifying training elements that were not
contemplated in 2011, such as self-cannulation and certain aspects of
operating an HHD machine. As a result, we recomputed the add-on based
upon 1.5 hours of nursing time per training treatment, which amounted
to a 50 percent payment increase of $16.72 per training treatment in
addition to the training treatment costs included in the base rate.
Therefore, the add-on payment rose from $33.44 to $50.16. In
calculating the budget neutrality factor, the historical number of home
HD training treatments was used. We did not attempt to guess how much
that number would change in the future under the new reporting
principles. This is consistent with the approach taken for other issues
in the past such as the number of patients with comorbidity adjusters
or outlier thresholds. Historic data, not speculation about future
behavior, were used to set the payment parameters. We have the
flexibility to make adjustments budget neutral and have chosen to do so
with past adjustments. Our decision to make the training add-on
adjustment budget neutral is consistent with other past adjustments.
We believe increasing the training adjustment in a budget-neutral
manner is appropriate. As noted above, we consider this increase to be
a temporary accommodation while we collect cost and claims data to
determine a more accurate training add-on payment adjustment in the
future. We are increasing the training adjustment before we are able to
collect that data to ensure continued access to this important
modality. However, we do not believe it is appropriate to increase
overall expenditures under the ESRD PPS during this interim period. As
we note above, home dialysis training is also accounted for in the base
rate and not just paid for through the home dialysis training
adjustment. Because of this, we view moving dollars from the base rate
to the home dialysis training adjustment as a way to effectively target
this modality. When we have collected sufficient data to examine the
cost and utilization of home dialysis training, we will be in a better
position to evaluate whether it may be more appropriate to not make the
adjustment budget neutral.
Finally, in terms of how we calculated the budget neutrality
adjustment factor, we first evaluated the impact of increasing the home
and self-dialysis training add-on from $50.16 (as of CY 2016) to $95.60
(which is being finalized for CY 2017). This was done by comparing the
Medicare Allowable Payments (MAP) that were estimated under a PPS with
the existing training add-on of $50.16 with those that were estimated
under a PPS with the revised training add-on of $95.60. This comparison
was made while holding other aspects of the ESRD PPS policy constant,
and before determining estimated outlier payments. The number of
training treatments estimated to be eligible for the adjustment was
based on the most recent year of claims data. Training treatments were
identified on 2015 claims containing pricer return codes that indicated
the training adjustment was applied, which included 72,364 training
treatments during 2015 based on the claims data used for the final
rule. In estimating payments, the existing training-add on for CY 2016
and the revised training add-on for CY 2017 were applied to the
eligible training treatments identified on the 2015 claims. The
training budget neutrality adjustment factor was calculated as the
ratio of the estimated MAP when applying the CY 2016 training add-on to
the total estimated MAP when applying the CY 2017 training add-on. This
calculation resulted in a training budget neutrality adjustment factor
of 0.999737 for CY 2017.
Comment: Many home dialysis advocates requested that the training
add-on be increased to recognize the full cost of training and include
a factor to reflect the value of employee benefits and taxes. They
believe that CMS intended to reimburse the full cost of the incremental
labor necessary to deliver home training treatments. Commenters pointed
out that the Office of Management and Budget (OMB) suggests a benefit
rate of 36.2 percent. As OMB Circular 76-A states, in calculating
direct labor, agencies should not only include salaries and wages, but
also other ``entitlements'' such as fringe benefits. CMS uses the
fringe benefits assumptions from OMB Circular 76-A in calculations in
other sections of the proposed rule, but neglected to apply it in the
calculation of the training adjustment. The factor defined in OMB 76-A
for civilians is 36.25 percent. The commenters recommended that we
apply the fringe benefit percentage to the reference wage rate which
would increase the wage rate from the proposed $35.93/hour to $48.95/
hour ($35.93 x 1.3625) and result in a home dialysis training add-on
payment of $130.21 ($48.95/hour x 2.66 hours = $130.21.
Many other commenters pointed out that the proposed payment is a
move in the right direction; however, the training add-on falls short
of covering training costs. One commenter stated that while they
appreciate CMS' proposal to increase the training add-on payment
adjustment in 2017, they strongly urged CMS to raise the amount to
$229.83 per treatment to better account for facility training costs.
The commenters contend that the proposed amount simply does not
adequately cover facility training costs to sufficiently promote and
facilitate greater use of home and self-dialysis, particularly for
small and medium dialysis facilities.
Response: We did not propose the increase to the home dialysis
training

[[Page 77855]]

add-on payment amount to reflect the full cost for the RN. Instead, as
we explained in the proposed rule, it has never been our intention that
the training add-on payment adjustment would reimburse a facility for
all of its costs associated with home dialysis training treatments.
Rather, for each home dialysis training treatment, Medicare pays the
ESRD PPS base rate, all applicable case-mix and facility-level
adjustments, and outlier payments plus a training add-on payment of
$95.60 (as finalized below) to account for RN time devoted to training.
As such, we did not apply the fringe benefit factor described in OMB
Circular 76-A to the training add-on proxy, similar to the original
add-on methodology, as it was not intended to cover all costs. We
further note that most of the training treatment payment is derived
from the ESRD PPS payment amount which is updated annually by the ESRD
bundled market basket and includes a fringe benefits weighting factor.
The home dialysis training add-on payment provides ESRD facilities with
payment in addition to the ESRD PPS payment amount, which accounts for
the costs associated with the actual treatment, that is, the equipment,
supplies, and staffing. Therefore, the ESRD PPS payment amount plus the
$95.60 (as finalized below) training add-on payment should be
considered the Medicare payment for each home dialysis training
treatment and not the home dialysis training add-on payment alone.
In order to provide additional payments to support home dialysis in
the interim until we are able to make changes to the home dialysis
training add-on based on claims and cost report data, we looked for a
reasonable proxy for the home dialysis training add-on. We believe the
interim rate, which is not intended to reflect the full cost of the RN,
and almost doubles the current training add-on payment amount, is
sufficient. Once reliable data is available, we will consider whether
the adjustment needs to be increased or decreased.
Comment: Several individual commenters indicated that nursing care
during training is vital to the success of the training period and that
the proposed increase to 2.6 hours is good, but more is needed as 3 to
3.5 hours of training better represents the typical amount of time
needed. Other commenters pointed out that their training was 4 hours
per day for four weeks, others said eight weeks, some commenters
recommended 4.5 hours and others said 4 to 5 hours, and one commenter
recommended 6 hours.
However, another commenter pointed out that increasing the training
add-on from 1.5 to 2.66 hours of RN labor is a move in the right
direction. Providing training for patients and care partners is a
critical element of facilitating and maintaining a home treatment
regimen for the highest number of patients who are candidates for home
dialysis. The commenter stated that as CMS works to improve their own
data related to costs, this is an appropriate interim step.
Response: We have learned through public comments that training
appears to vary widely from patient to patient. As we stated above, the
ESRD PPS base rate reflects the costs for the staff time involved with
treatment and the training add-on serves as a supplemental payment.
Furthermore, we pay based on averages. While home HD training may take
4 hours, PD takes considerably less time. As the training add-on is
meant to address the training for both modalities, 2.66 hours
represents the average time for both modalities, weighted by their
frequency. Lastly, we believe that the updated training add-on payment
rate is sufficient as an interim rate until we are able to develop a
rate based on our data.
Comment: A patient advocacy organization expressed concern that
when outlining the formula CMS used for determining the increased
training adjuster, CMS references that there are KDOQI guidelines on
the nursing hours recommended to train patients. However, none of the
KDOQI guidelines include recommendations related to the number of hours
a nurse is involved in training patients for PD or home HD and the
commenter is unaware of any conclusive evidence that would point to
such a recommendation.
Another commenter agreed indicating that the KDOQI guidelines are
clinical practice guidelines which are not based on time studies of
actual training sessions. While guidelines may provide an outline of
the expected time for training sessions, they do not accurately
represent the time spent training home dialysis patients. The commenter
encouraged CMS to continue to research and evaluate this issue to align
payments with the true cost of training services.
Response: We did not mean to imply that the KDOQI guidelines were
used as a source for establishing the number of hours of RN training
time. We used the KDOQI guidelines strictly for the average number of
hours for HD, which is 3 to 4 hours. We intend to maintain the current
amount of the training add-on, which is based on treatment times, until
we are able to analyze reliable cost report data after the cost report
refinements are complete in order to align payments with the true cost
of training services.
Comment: One commenter stated that CMS allows dialysis providers 90
days to stabilize a patient on therapy and create a plan of care and
questioned why that approach was not the same for training patients on
a new therapy. The commenter pointed out that dialysis providers take
months to train employees who already have medical backgrounds and
throughout employee training, there is a mentor who continues to
educate and ensure the new employee's work is thorough and reflects
knowledge of the therapy and the job. The commenter questioned why we
do not ensure that home dialysis patients receive the same level of
intensive training.
Response: ESRD facilities that are certified to provide home
dialysis training are responsible for providing support services to
patients dialyzing at home. The support services required are specified
in 42 CFR 494.100(c) and include periodic monitoring of the patient's
home adaptation, including visits to the patient's home by facility
personnel in accordance with the patient's plan of care, coordination
of the home patient's care by a member of the dialysis facility's
interdisciplinary team, and development and periodic review of the
patient's individualized comprehensive plan of care that specifies the
services necessary to address the patient's needs and expected
outcomes.
We thank the commenter for their suggestion. Our policy is to pay
for 25 training treatments for home hemodialysis patients and 15
training treatments for peritoneal dialysis patients, which remains
unchanged at this time. The goal of training is to ensure that
beneficiaries are able to safely dialyze independently at home once
complete. We do allow for additional retraining treatments under
specific reasons detailed in the Medicare Claims Processing Manual (Pub
100-4, Chapter 8, section 50.8). We will consider this comment as we
evaluate our training and retraining policies as we collect data.
Comment: An LDO indicated that CMS needs to ensure that it does not
create a perverse incentive for physicians to start patients on a
modality that is unlikely to succeed for them. The commenter does not
observe an access barrier to home HD, and they noted that they do not
turn away eligible patients from this modality. However, they are
mindful of the long-term viability of this modality for many of their
patients given the burdens it

[[Page 77856]]

places on them and their care partners. Rather than view home HD
myopically as a stand-alone therapy as some in the dialysis community
seek to do, they agree with CMS that home HD must be viewed in the
broader context of the overall performance of the ESRD PPS.
Response: As we have previously stated, the decision about modality
selection and location is determined by the patient and their
physician. We rely on the physician to recommend home HD only for those
patients who have the ability to learn the dialysis process and dialyze
themselves at home, with the support of their ESRD facility.
Comment: One commenter pointed out that the 67 percent/33 percent
weighting used in the calculation appears to assume that the dialysis
training add-on payment is paid for in all PD training treatments,
when, in fact, most are paid under the new patient adjustment, or more
specifically, the onset of dialysis payment adjustment. The commenter
urged CMS to recalculate the proxy to take into account only those PD
training sessions that actually receive the training add-on payment
rather than those that are paid under the new patient adjustment (onset
of dialysis adjustment).
Response: When patients are in the onset of dialysis period (the
first 4 months of dialysis), the ESRD facility receives the onset of
dialysis adjustment and does not receive the training add-on payment
adjustment. As a result, the calculation for the weighting ratio of PD
included only PD treatments with the home dialysis training add-on
payment applied which is what we understand the commenter to suggest.
We believe that ESRD facilities correctly accounted for all PD
treatments during training because they receive the full ESRD PPS base
rate for training treatments rather than the HD-equivalent rate they
receive for treatments after training is completed.
Comment: One commenter recommended that CMS provide for an annual
inflation adjustment to the training add-on payment.
Response: In consideration of industry concerns about applying the
training add-on in a budget neutral manner, we are not implementing an
annual inflation update to the training add-on. Instead, we intend to
monitor changes in the BLS data to determine if an update to the
national average RN hourly wage is warranted. If we determine an update
is necessary, we would propose a change to the training add-on and
solicit public comments.
Comment: One organization commented that it would have been more
appropriate for CMS to use the BLS RN salary for Outpatient Care
Centers (Industry Group 621400) in the BLS Occupational Employment
Statistics. Thus, the more appropriate wage proxy for renal nurses is
the national mean hourly wage for RN (Occupation 29-1141) in the
Outpatient Care Centers industry group. The commenter pointed out that
the data collected by BLS are gross pay wages, excluding overtime,
shift differentials, and employer cost of supplemental benefits.
Response: We agree that the BLS data provides various wages for RNs
that we could have proposed to use for establishing an interim increase
for the home dialysis training add-on and we are aware that the BLS
data are gross wages, without supplemental benefits. We looked at many
sources of wage data and selected the BLS because their Occupational
Employment Statistics (OES) program provides comprehensive data on
wages which is updated annually and identifies wages by setting. In CY
2011 when we first established the training add-on, we based the
training add-on on the national RN average hourly wage because we
believed that the training activities we were paying for were best
reflected in that wage rather than any of the other categories BLS data
includes.
We do not believe that use of the Outpatient Care Center group wage
is a better reflection of the training performed by these RNs, and, for
this reason, we are utilizing the BLS wage rate we proposed.
Final Rule Action: We are finalizing the proposal to base the
payment for home dialysis training on 2.66 hours of treatment time
((.67 x 2 hours) + (.33 x 4 hours) = 2.66 hours) resulting in a
training add-on payment of $95.60 (2.66 hours x $35.94 = $95.60). This
provides an increase of $45.44 per training treatment (that is, $95.60-
$50.16 = $45.44). This approach provides a significant increase in
payment for home dialysis training for CY 2017 while maintaining
consistent payment for both PD and HD modalities. We intend to apply
the above referenced payment amount, without adjustment, until we have
empirical evidence for a change, which could increase or decrease the
home dialysis training add-on payment amount. Additionally, we are also
finalizing the home and self-dialysis training add-on budget neutrality
adjustment factor.
3. Final CY 2017 ESRD PPS Update
a. Final CY 2017 ESRD Market Basket Update, Productivity Adjustment,
and Labor-Related Share for the ESRD PPS
In accordance with section 1881(b)(14)(F)(i) of the Act, as added
by section 153(b) of MIPPA and amended by section 3401(h) of the
Affordable Care Act, beginning in 2012, the ESRD PPS payment amounts
are required to be annually increased by an ESRD market basket increase
factor and reduced by the productivity adjustment described in section
1886(b)(3)(B)(xi)(II) of the Act. The application of the productivity
adjustment may result in the increase factor being less than 0.0 for a
year and may result in payment rates for a year being less than the
payment rates for the preceding year. The statute also provides that
the market basket increase factor should reflect the changes over time
in the prices of an appropriate mix of goods and services used to
furnish renal dialysis services.
Section 1881(b)(14)(F)(i)(I) of the Act, as added by section
217(b)(2)(A) of PAMA, provides that in order to accomplish the purposes
of subparagraph (I) with respect to 2016, 2017, and 2018, after
determining the market basket percentage increase factor for each of
2016, 2017, and 2018, the Secretary shall reduce such increase factor
by 1.25 percentage points for each of 2016 and 2017 and by 1.0
percentage point for 2018. Accordingly, for CY 2017, we proposed to
reduce the amount of the market basket percentage increase by 1.25
percent and to further reduce it by the productivity adjustment.
We proposed to use the CY 2012-based ESRDB market basket as
finalized and described in the CY 2015 ESRD PPS final rule (79 FR 66129
through 66136) to compute the CY 2017 ESRDB market basket increase
factor and labor-related share based on the best available data.
Consistent with historical practice, we estimate the ESRDB market
basket update based on the IHS Global Insight (IGI), Inc. forecast
using the most recently available data. IGI is a nationally recognized
economic and financial forecasting firm that contracts with CMS to
forecast the components of the market baskets.
As a result of these provisions, and using the IGI forecast for the
first quarter of 2016 of the CY 2012-based ESRDB market basket (with
historical data through the fourth quarter of 2015), the proposed CY
2017 ESRD market basket increase was 0.35 percent. This market basket
increase was calculated by starting with the proposed CY 2017 ESRDB
market basket percentage

[[Page 77857]]

increase factor of 2.1 percent, reducing it by the mandated legislative
adjustment of 1.25 percent (required by section 1881(b)(14)(F)(I)(i) of
the Act), and reducing it further by the MFP adjustment (the 10-year
moving average of MFP for the period ending CY 2017) of 0.5 percent. As
is our general practice, we proposed that if more recent data are
subsequently available (for example, a more recent estimate of the
market basket or MFP adjustment), we will use such data to determine
the CY 2017 market basket update and MFP adjustment in the CY 2017 ESRD
PPS final rule.
For the CY 2017 ESRD payment update, we proposed to continue using
a labor-related share of 50.673 percent for the ESRD PPS payment, which
was finalized in the CY 2015 ESRD final rule (79 FR 66136).
We did not receive any comments on the proposed market basket
update, multi-factor productivity (MFP) adjustment, or labor-related
share.
Final Rule Action: As noted, the final CY 2017 market basket update
and MFP adjustment in the ESRD PPS final rule will be based on the most
recent forecast of data available. Therefore, using the most recent
data available, the final CY 2017 ESRDB update is 0.55 percent. This is
based on a 2.1 percent market basket update, less a 1.25 percent
adjustment as required by section 1881(b)(14)(F)(i)(I) of the Act, as
amended by section 217(b)(2)(A)(ii) of PAMA, and further reduced by a
0.3 percent MFP update. The CY 2017 ESRDB market basket update and MFP
adjustment are based on the IGI 3rd quarter 2016 forecast with
historical data through the 2nd quarter 2016.
b. The Final CY 2017 ESRD PPS Wage Indices
i. Annual Update of the Wage Index
Section 1881(b)(14)(D)(iv)(II) of the Act provides that the ESRD
PPS may include a geographic wage index payment adjustment, such as the
index referred to in section 1881(b)(12)(D) of the Act, as the
Secretary determines to be appropriate. In the CY 2011 ESRD PPS final
rule (75 FR 49117), we finalized the use of the Office of Management
and Budget's (OMB) Core-Based Statistical Area (CBSA)-based geographic
area designations to define urban and rural areas and their
corresponding wage index values. OMB publishes bulletins regarding CBSA
changes, including changes to CBSA numbers and titles. The latest
bulletin, as well as subsequent bulletins, is available online at
http://www.whitehouse.gov/omb/bulletins_index2003-2005.
For CY 2017, we stated that we would continue to use the same
methodology as finalized in the CY 2011 ESRD PPS final rule (75 FR
49117) for determining the wage indices for ESRD facilities.
Specifically, we are updating the wage indices for CY 2017 to account
for updated wage levels in areas in which ESRD facilities are located.
We use the most recent pre-floor, pre-reclassified hospital wage data
collected annually under the inpatient prospective payment system. The
ESRD PPS wage index values are calculated without regard to geographic
reclassifications authorized under section 1886(d)(8) and (d)(10) of
the Act and utilize pre-floor hospital data that are unadjusted for
occupational mix. The final CY 2017 wage index values for urban areas
are listed in Addendum A (Wage Indices for Urban Areas) and the final
CY 2017 wage index values for rural areas are listed in Addendum B
(Wage Indices for Rural Areas). Addenda A and B are located on the CMS
Web site at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ESRDpayment/End-Stage-Renal-Disease-ESRD-Payment-Regulations-and-Notices.html.
In the CY 2011 and CY 2012 ESRD PPS final rules (75 FR 49116
through 49117 and 76 FR 70239 through 70241, respectively), we also
discussed and finalized the methodologies we use to calculate wage
index values for ESRD facilities that are located in urban and rural
areas where there is no hospital data. For urban areas with no hospital
data, we compute the average wage index value of all urban areas within
the State and use that value as the wage index. For rural areas with no
hospital data, we compute the wage index using the average wage index
values from all contiguous CBSAs to represent a reasonable proxy for
that rural area.
We apply the wage index for Guam as established in the CY 2014 ESRD
PPS final rule (78 FR 72172) (0.9611) to American Samoa and the
Northern Mariana Islands. We apply the statewide urban average based on
the average of all urban areas within the state (78 FR 72173) (0.8637)
to Hinesville-Fort Stewart, Georgia. We note that if hospital data
becomes available for these areas, we will use that data for the
appropriate CBSAs instead of the proxy.
A wage index floor value has been used in lieu of the calculated
wage index values below the floor in making payment for renal dialysis
services under the ESRD PPS. In the CY 2011 ESRD PPS final rule (75 FR
49116 through 49117), we finalized that we would continue to reduce the
wage index floor by 0.05 for each of the remaining years of the ESRD
PPS transition. In the CY 2012 ESRD PPS final rule (76 FR 70241), we
finalized the 0.05 reduction to the wage index floor for CYs 2012 and
2013, resulting in a wage index floor of 0.5500 and 0.5000,
respectively. We continued to apply and to reduce the wage index floor
by 0.05 in the CY 2013 ESRD PPS final rule (77 FR 67459 through 67461).
Although our intention initially was to provide a wage index floor only
through the 4-year transition to 100 percent implementation of the ESRD
PPS (75 FR 49116 through 49117; 76 FR 70240 through 70241), in the CY
2014 ESRD PPS final rule (78 FR 72173), we continued to apply the wage
index floor and continued to reduce the floor by 0.05 per year for CY
2014 and for CY 2015.
In the CY 2016 ESRD PPS final rule (80 FR 69006 through 69008), we
finalized the continuation of the application of the wage index floor
of 0.4000 to areas with wage index values below the floor, rather than
reducing the floor by 0.05. We stated in that rule that we needed more
time to study the wage indices that are reported for Puerto Rico to
assess the appropriateness of discontinuing the wage index floor. Also,
in that rule a commenter provided several alternative wage indexes for
Puerto Rico for the CY 2016 ESRD PPS final rule: (1) Utilize our policy
for areas that do not have reliable hospital data by applying the wage
index for Guam as we did in implementing the ESRD PPS in the Northern
Marianas and American Samoa; (2) use the U.S. Virgin Islands as a proxy
for Puerto Rico, given the geographic proximity and its ``non-
mainland'' or ``island'' nature; or (3) reestablish the wage index
floor in effect in 2010 when Puerto Rico became the only wage areas
subject to the floor, that is, 0.65.
For the CY 2017 proposed rule, we analyzed ESRD facility cost
report and claims data submitted by facilities located in Puerto Rico
and compared them to mainland facilities. Specifically, we analyzed CY
2013 claims and cost report data for 37 freestanding Puerto Rico
facilities and compared it to 5,024 non-Puerto Rico freestanding
facilities. We found that the freestanding facilities in Puerto Rico
are bigger than facilities elsewhere in the United States. The Puerto
Rico facilities produce roughly twice the number of treatments as other
facilities and this larger size likely results in higher labor
productivity. Finally, dialysis patients in Puerto Rico are much more
likely to be non-Medicare. We discussed the findings in

[[Page 77858]]

detail in the CY 2017 proposed rule (81 FR 42817)
Therefore, for CY 2017, we solicited public comments on the wage
index for CBSAs in Puerto Rico as part of our continuing effort to
determine an appropriate course of action. We did not propose to change
the wage index floor for CBSAs in Puerto Rico, but requested public
comments in which stakeholders can provide useful input for
consideration in future decision-making. Specifically, we solicited
comment on the useful suggestions that were submitted in last year's
final rule (80 FR 69007) and reiterated above.
The comments and our responses to the comments for the proposal and
solicitation are set forth below.
Comment: An LDO that operates 27 ESRD facilities in Puerto Rico
pointed out that the continued gradual reduction in the wage index
floor has impaired operations in Puerto Rico since all areas of the
island have been subject to the floor due to low wage index values.
This commenter appreciates CMS' recommendation to apply a wage index of
.40 to areas with a wage index below the floor for CY 2017, but
believes the Agency must do more. Until CMS is able to adjust the wage
index used to calculate ESRD facility reimbursements and fully take
into account the totality of circumstances challenging facilities
operating in Puerto Rico, they recommend that the wage index floor be
re-instituted at a level that will avoid a negative impact on dialysis
facilities. They recommend that CMS consider using the wage index for
Guam or the Virgin Islands as they are similar to Puerto Rico in their
island and U.S. territory status. The commenter believed CMS' policy to
utilize the same wage index as Guam for the Northern Marianas and
American Samoa could serve as a precedent for doing the same thing for
Puerto Rico. The commenter does not believe maintaining a wage index of
0.40 for CY 2017 in Puerto Rico is adequate to offset the poor economic
conditions to which patients and dialysis facilities are exposed.
An organization of community stakeholders agreed, suggesting that
CMS apply ESRD wage indexes in Puerto Rico that are consistent with
other territories through the use of a temporary proxy. This group is
requesting urgent administrative action from CMS. They are requesting
that CMS: (1) Re-establish a fair and meaningful wage index floor given
factual uncertainties and the demonstrated anomalies with the wage
index for Puerto Rico; (2) Establish a temporary alternative wage index
for Puerto Rico, given the observed disadvantage and the
inconsistencies with the indexes used for other Territories; and (3)
Ensure the corresponding adjustment in MA benchmarks for ESRD to secure
the appropriate support to the Medicare program that serves 90 percent
of all the Medicare A & B beneficiaries in Puerto Rico.
However, an industry organization expressed support for our current
methodology for determining the wage indices and the continued
application of the wage index floor of 0.4000.
Response: For the commenters that asked us to take an
administrative action to establish a temporary alternative wage index
value for Puerto Rico until we are able to correct the anomalies, we
unfortunately, are unable to do so for several reasons. First, we did
not propose an alternative to the wage indices for Puerto Rico based on
reported hospital wage data. Rather, we presented various alternatives
and requested public comment on those alternatives. We would need to
have proposed changes to the Puerto Rico wage index in order to
finalize a change in their wage index. With regard to the corresponding
adjustment in MA benchmarks for ESRD to secure the appropriate support
to the Medicare program, we note that this comment is beyond the scope
of the proposed rule.
One of the commenters who addressed the proposed wage index
alternatives expressed an interest in basing the wage indices for
Puerto Rico CBSAs on the wage values applied to other U.S. Territories
and another commenter suggested applying the wage value for the U.S.
Virgin Islands. The only other recommendation was maintenance of the
current floor of 0.4000 with no comment on the alternatives in the
proposed rule.
When we developed the wage indices for the Pacific Rim territories
in the CY 2014 ESRD PPS final rule (78 FR 40845), we applied the
methodologies we use to calculate wage index values for ESRD facilities
that are located in urban and rural areas where there is no hospital
data. Those policies were finalized in the CY 2011 and CY 2012 ESRD PPS
final rules (75 FR 49116 through 49117 and 76 FR 70239 through 70241,
respectively). For urban areas with no hospital data, we compute the
average wage index value of all urban areas within the State and use
that value as the wage index. For rural areas with no hospital data, we
compute the wage index using the average wage index values from all
contiguous CBSAs to represent a reasonable proxy for that rural area.
As we explained in the CY 2014 ESRD PPS final rule (78 FR 72172
through 72173), in the case of American Samoa and the Northern Mariana
Islands, we determined that Guam represented a reasonable proxy because
the islands are located within the Pacific Rim and share a common
status as United States Territories. In addition, the Northern Marianas
and American Samoa are rural areas with no hospital data. Therefore, we
used the established methodology to compute an appropriate wage index
using the average wage index values from contiguous CBSAs, to represent
a reasonable proxy. While the islands of the Pacific Rim are not
actually contiguous, we determined that Guam is a reasonable proxy for
American Samoa and the Northern Marianas.
The primary difference between how we handled the wage index for
the Pacific Rim islands and the situation in Puerto Rico is that we
were able to rely upon existing policy for determining a wage index for
areas with no hospital data for the Pacific Rim islands. We have
hospital data upon which to base wage index values for Puerto Rico
CBSAs, so our policy for CBSAs without wage index data does not apply
to Puerto Rico, despite the fact that its, wage index data results in
very low wage index values compared to other Territories and mainland
CBSAs. This is a complex policy issue that cannot be resolved for CY
2017. We intend to continue analysis in this area so that we can
address this issue in a future rulemaking.
Final Rule Action: After considering the public comments we
received regarding the wage index, we are finalizing the CY 2017 ESRD
PPS wage indices based on the latest hospital wage data as proposed. In
addition, we are maintaining a wage index floor of 0.4000.
ii. Application of the Wage Index Under the ESRD PPS
A facility's wage index is applied to the labor-related share of
the ESRD PPS base rate. In the CY 2015 ESRD PPS final rule (79 FR
66136), we finalized a new labor-related share of 50.673 percent, which
was based on the 2012-based ESRDB market basket finalized in that rule,
and transitioned the new labor-related share over a 2-year period.
Thus, for CY 2017, the labor-related share to which a facility's wage
index would be applied is 50.673 percent.
c. CY 2017 Update to the Outlier Policy
Section 1881(b)(14)(D)(ii) of the Act requires that the ESRD PPS
include a payment adjustment for high cost outliers due to unusual
variations in the

[[Page 77859]]

type or amount of medically necessary care, including variability in
the amount of erythropoiesis stimulating agents (ESAs) necessary for
anemia management. Some examples of the patient conditions that may be
reflective of higher facility costs when furnishing dialysis care would
be frailty, obesity, and comorbidities such as cancer. The ESRD PPS
recognizes high cost patients, and we have codified the outlier policy
in our regulations at 42 CFR 413.237. The policy provides the following
ESRD outlier items and services are included in the ESRD PPS bundle:
(i) ESRD-related drugs and biologicals that were or would have been,
prior to January 1, 2011, separately billable under Medicare Part B;
(ii) ESRD-related laboratory tests that were or would have been, prior
to January 1, 2011, separately billable under Medicare Part B; (iii)
medical/surgical supplies, including syringes, used to administer ESRD-
related drugs, that were or would have been, prior to January 1, 2011,
separately billable under Medicare Part B; and (iv) renal dialysis
service drugs that were or would have been, prior to January 1, 2011,
covered under Medicare Part D, excluding oral-only drugs used in the
treatment of ESRD.
In the CY 2011 ESRD PPS final rule (75 FR 49142), we stated that
for purposes of determining whether an ESRD facility would be eligible
for an outlier payment, it would be necessary for the facility to
identify the actual ESRD outlier services furnished to the patient by
line item (that is, date of service) on the monthly claim. Renal
dialysis drugs, laboratory tests, and medical/surgical supplies that
are recognized as outlier services were originally specified in
Attachment 3 of Change Request 7064, Transmittal 2033 issued August 20,
2010, rescinded and replaced by Transmittal 2094, dated November 17,
2010. Transmittal 2094 identified additional drugs and laboratory tests
that may also be eligible for ESRD outlier payment. Transmittal 2094
was rescinded and replaced by Transmittal 2134, dated January 14, 2011,
which was issued to correct the subject on the Transmittal page and
made no other changes.
Furthermore, we use administrative issuances and guidance to
continually update the renal dialysis service items available for
outlier payment via our quarterly update CMS Change Requests, when
applicable. We use this separate guidance to identify renal dialysis
service drugs that were or would have been covered under Part D for
outlier eligibility purposes and in order to provide unit prices for
calculating imputed outlier services. In addition, we also identify
through our monitoring efforts items and services that are either
incorrectly being identified as eligible outlier services or any new
items and services that may require an update to the list of renal
dialysis items and services that qualify as outlier services, which are
made through administrative issuances.
Our regulations at 42 CFR 413.237 specify the methodology used to
calculate outlier payments. An ESRD facility is eligible for an outlier
payment if its actual or imputed MAP amount per treatment for ESRD
outlier services exceeds a threshold. The MAP amount represents the
average incurred amount per treatment for services that were or would
have been considered separately billable services prior to January 1,
2011. The threshold is equal to the ESRD facility's predicted ESRD
outlier services MAP amount per treatment (which is case-mix adjusted)
plus the fixed-dollar loss amount. In accordance with Sec. 413.237(c)
of our regulations, facilities are paid 80 percent of the per treatment
amount by which the imputed MAP amount for outlier services (that is,
the actual incurred amount) exceeds this threshold. ESRD facilities are
eligible to receive outlier payments for treating both adult and
pediatric dialysis patients.
In the CY 2011 ESRD PPS final rule, using 2007 data, we established
the outlier percentage at 1.0 percent of total payments (75 FR 49142
through 49143). We also established the fixed-dollar loss amounts that
are added to the predicted outlier services MAP amounts. The outlier
services MAP amounts and fixed-dollar loss amounts are different for
adult and pediatric patients due to differences in the utilization of
separately billable services among adult and pediatric patients (75 FR
49140). As we explained in the CY 2011 ESRD PPS final rule (75 FR 49138
through 49139), the predicted outlier services MAP amounts for a
patient are determined by multiplying the adjusted average outlier
services MAP amount by the product of the patient-specific case-mix
adjusters applicable using the outlier services payment multipliers
developed from the regression analysis to compute the payment
adjustments.
For the CY 2017 outlier policy, we used the existing methodology
for determining outlier payments by applying outlier services payment
multipliers that were developed for the CY 2016 ESRD PPS final rule (80
FR 68993-68994, 69002). We used these outlier services payment
multipliers to calculate the predicted outlier service MAP amounts and
projected outlier payments for CY 2017.
For CY 2017, we proposed that the outlier services MAP amounts and
fixed-dollar loss amounts would be derived from claims data from CY
2015. Because we believe that any adjustments made to the MAP amounts
under the ESRD PPS should be based upon the most recent data year
available in order to best predict any future outlier payments, we
proposed that the outlier thresholds for CY 2017 would be based on
utilization of renal dialysis items and services furnished under the
ESRD PPS in CY 2015. We recognize that the utilization of ESAs and
other outlier services have continued to decline under the ESRD PPS,
and that we have lowered the MAP amounts and fixed-dollar loss amounts
every year under the ESRD PPS. We continue to believe that since the
implementation of the ESRD PPS, data for CY 2015 are reflective of
relatively stable ESA use, in contrast with the relatively large
initial declines in the use of both EPO and darbepoetin in the first 2
years of the ESRD PPS. In 2015, there were both decreases in the use of
EPO and increases in the use of darbepoetin based on estimates of
average ESA utilization per session, suggesting a relative shift
towards the use of darbepoetin between 2014 and 2015.
i. CY 2017 Update to the Outlier Services MAP Amounts and Fixed-Dollar
Loss Amounts
For CY 2017, we did not propose any change to the methodology used
to compute the MAP or fixed-dollar loss amounts. Rather, we proposed to
update the outlier services MAP amounts and fixed-dollar loss amounts
to reflect the utilization of outlier services reported on 2015 claims.
For this final rule, the outlier services MAP amounts and fixed-dollar
loss amounts were updated using 2015 claims data. The impact of this
update is shown in Table 1, which compares the outlier services MAP
amounts and fixed-dollar loss amounts used for the outlier policy in CY
2016 with the updated estimates for this final rule. The estimates for
the final CY 2017 outlier policy, which are included in Column II of
Table 1, were inflation adjusted to reflect projected 2017 prices for
outlier services.

[[Page 77860]]

Table 1--Outlier Policy: Impact of Using Updated Data To Define the Outlier Policy
----------------------------------------------------------------------------------------------------------------
Column I final outlier policy Column II final outlier policy
for CY 2016 (based on 2014 forCY 2017 (based on 2015
data price inflated to 2016) * data price inflated to 2017)
---------------------------------------------------------------
Age <18 Age >=18 Age <18 Age >=18
----------------------------------------------------------------------------------------------------------------
Average outlier services MAP amount per $40.20 $53.29 $38.77 $47.00
treatment......................................
Adjustments
Standardization for outlier services........ 0.9951 0.9729 1.0078 0.9770
MIPPA reduction............................. 0.98 0.98 0.98 0.98
Adjusted average outlier services MAP amount $39.20 $50.81 $38.29 $45.00
Fixed-dollar loss amount that is added to the $62.19 $86.97 $68.49 $82.92
predicted MAP to determine the outlier
threshold......................................
Patient months qualifying for outlier payment... 5.8% 6.5% 4.6% 6.7%
----------------------------------------------------------------------------------------------------------------

As demonstrated in Table 1, the estimated fixed-dollar loss amount
per treatment that determines the CY 2017 outlier threshold amount for
adults (Column II; $82.92) is lower than that used for the CY 2016
outlier policy (Column I; $86.97). The lower threshold is accompanied
by a decline in the adjusted average MAP for outlier services from
$50.81 to $45.00. For pediatric patients, there is an increase in the
fixed-dollar loss amount from $62.19 to $68.49, and a decrease in the
adjusted average MAP for outlier services from $39.20 to $38.29.
We estimate that the percentage of patient months qualifying for
outlier payments in CY 2017 will be 6.7 percent for adult patients and
4.6 percent for pediatric patients, based on the 2015 claims data. The
pediatric outlier MAP and fixed dollar loss amounts continue to be
lower for pediatric patients than adults due to the continued lower use
of outlier services (primarily reflecting lower use of ESAs and other
injectable drugs).
ii. Outlier Percentage
In the CY 2011 ESRD PPS final rule (75 FR 49081), in accordance
with 42 CFR 413.220(b)(4), we reduced the per treatment base rate by 1
percent to account for the proportion of the estimated total payments
under the ESRD PPS that are outlier payments. Based on the 2015 claims,
outlier payments represented approximately 0.93 percent of total
payments, close to the 1 percent target. Recalibration of the
thresholds using 2015 data is expected to result in aggregate outlier
payments close to the 1 percent target in CY 2017. We believe the
update to the outlier MAP and fixed-dollar loss amounts for CY 2017
will increase payments for ESRD beneficiaries requiring higher resource
utilization and move us closer to meeting our 1 percent outlier policy.
We note that recalibration of the fixed-dollar loss amounts in this
final rule would result in no change in payments to ESRD facilities for
beneficiaries with renal dialysis items and services that are not
eligible for outlier payments, but would increase payments to ESRD
facilities for beneficiaries with renal dialysis items and services
that are eligible for outlier payments. Therefore, beneficiary co-
insurance obligations would also increase for renal dialysis services
eligible for outlier payments.
The comments and our responses to the comments for the proposal to
update the outlier thresholds using CY 2015 data are set forth below.
Comment: A national industry organization stated they were pleased
that CMS has refined the outlier pool to align the dollars paid out
more closely with the estimated amount used to create the outlier pool.
However, they noted that the alignment has not yet addressed the fact
that the outlier pool is consistently paying out less than the amount
removed from the base rate. Commenters estimate the outlier pool
underpaid $0.68 per treatment in 2015. Other Medicare payment systems
at times pay out less than the estimate and at other times pay out
more. This fluctuation above and below the estimate indicates that the
outlier pool amount is appropriate. The organization strongly
encouraged CMS to further refine the outlier policy so that it is more
consistent with how outlier policies in other Medicare payment systems
work.
Other industry organization indicated that, since the outlier
threshold has not been met since the implementation of the ESRD PPS and
continues to fall short of 1 percent, CMS should propose a 0.5 outlier
percentage for CY 2018. This 0.5 percent outlier percentage would
reduce the offset to the base rate yet continue to provide payment for
extraordinary costs. An MDO would prefer that CMS remove the outlier
provision from the payment system, however, they understand that an
outlier policy is statutorily required. Since CMS does not have the
authority to remove the provision, they also suggested that the outlier
percentage be reduced to 0.5 percent.
A professional association stated that they appreciate the efforts
of CMS to recognize that the needs of all patients are not universally
equal, and that a minority of patients will require treatments that
carry markedly higher costs than the average ESRD patient. They support
the concept of an outlier policy to sufficiently reimburse dialysis
facilities for implementing necessary dialysis-related treatments to
meet the needs of these patients and established therapeutic goals.
However, in their view the outlier payments amount should equal the
withhold amount.
As CMS continues to assess the outlier policy in future years, they
suggested that future adjustments to the threshold for outlier payments
be done annually to fully expend the withholding or adjust the
withholding based on the running average expenditures from the prior 3
years (not to exceed 1 percent).
Response: We appreciate the commenters' support for the outlier
policy. As we explained above, our analysis of ESRD PPS claims show
that outlier payments reached 0.93 percent of the 1.0 percent outlier
target in 2015. Specifically, outlier payments were made for 200,544
patient months, totaling $82,419,791 ($103,024,739 when including
patient or secondary insurer obligations). For these patient months,
outlier payments represented 17.2 percent of total Medicare ESRD
payments. About 6,540 facilities received at least one outlier payment.
Eighteen percent of outlier payments in dollars were received by
independent

[[Page 77861]]

facilities and another 16 percent were received by facilities that were
part of a multi-facility organization other than the three largest
chains. As we stated in the CY 2016 ESRD PPS final rule (80 FR 69010),
outlier payments are particularly important for small dialysis
organizations and independent dialysis facilities because they often
lack the volume of patients necessary to offset the high cost of
certain patients. The 1.0 percent outlier target is small compared to
outlier policies in other Medicare payment systems and was not designed
to cover a large number of claims. As indicated in Table 1, we estimate
that the percentage of patient months qualifying for outlier payments
in CY 2017 will be 6.7 percent for adult patients and 4.6 percent for
pediatric patients, based on the 2015 claims data.
Also discussed in the CY 2016 ESRD PPS final rule (80 FR 69010
through 69011) we acknowledge that the 1.0 percent target has not been
achieved since 2011 primarily because our annual update of the fixed-
dollar loss amounts and MAP amounts could not keep up with the
continued decline in the use of outlier services (primarily ESAs). That
is, facilities incurred lower costs than anticipated, and those savings
accrued to facilities more than offsetting the extent to which the
consequent outlier payments fell short of the 1.0 percent target. In
last year's rule we stated that we believed that decline was leveling
off, which would make our projections of outlier payments more
accurate. Using the most recent data, we found outlier payments to come
close to the 1 percent target (at 0.93 percent). Outlier payments may
not have reached 1 percent during 2015 primarily due to patterns in ESA
utilization. There is evidence in the 2015 claims of increased use of
epoetin beta, which may have been used as a lower cost substitute for
other ESAs (at a clinically equivalent dose) and contributed to a
decrease in the average outlier service MAP amounts for 2015.
With regard to the suggestion that we annually adjust the
withholding based on the running average of the expenditure from the
prior three years, with the total withholding not to exceed 1.0
percent, as we explain above, each year we simulate payments under the
ESRD PPS in order to set the outlier fixed-dollar loss and MAP amounts
for adult and pediatric patients to try to achieve the 1.0 percent
outlier policy. We would not increase the base rate to account for
years where outlier payments were less than 1.0 percent of total ESRD
PPS payments and, more importantly we would not reduce the base rate if
the outlier payments exceed 1.0 percent of total ESRD PPS payments.
Rather than increasing and decreasing the base rate, we re-estimate the
fixed-dollar loss threshold and MAP amounts so that outlier payments in
the following year are 1.0 percent of total ESRD PPS payments. This is
the approach used in other Medicare payment systems that include an
outlier policy, such as the Inpatient Psychiatric Facility PPS. As we
have done since 2011, we will continue to monitor outlier payments and
assess annually the extent to which adjustments need to be made in the
fixed-dollar loss and MAP amounts in order to achieve outlier payments
that are 1.0 percent of total ESRD PPS payments.
Final Rule Action: After consideration of the public comments, we
are finalizing the updated outlier thresholds based on CY 2015 data.
d. Update of the ESRD PPS Base Rate for CY 2017
i. Background
In the CY 2011 ESRD PPS final rule (75 FR 49071 through 49083), we
discussed the development of the ESRD PPS per treatment base rate that
is codified in the Medicare regulations at Sec. Sec. 413.220 and
413.230. The CY 2011 ESRD PPS final rule also provides a detailed
discussion of the methodology used to calculate the ESRD PPS base rate
and the computation of factors used to adjust the ESRD PPS base rate
for projected outlier payments and budget neutrality in accordance with
sections 1881(b)(14)(D)(ii) and 1881(b)(14)(A)(ii) of the Act,
respectively. Specifically, the ESRD PPS base rate was developed from
CY 2007 claims (that is, the lowest per patient utilization year as
required by section 1881(b)(14)(A)(ii) of the Act), updated to CY 2011,
and represented the average per treatment Medicare Allowable Payment
(MAP) for composite rate and separately billable services. In
accordance with section 1881(b)(14)(D) of the Act and regulations at
Sec. 413.230, the ESRD PPS base rate is adjusted for the patient
specific case-mix adjustments, applicable facility adjustments,
geographic differences in area wage levels using an area wage index, as
well as applicable outlier payments or training payments.
ii. Payment Rate Update for CY 2017
The ESRD PPS base rate for CY 2017 is $231.55. This update reflects
several factors, described in more detail below.
Market Basket Increase: Section 1881(b)(14)(F)(i)(I) of the Act
provides that, beginning in 2012, the ESRD PPS payment amounts are
required to be annually increased by the ESRD market basket percentage
increase factor. The latest CY 2017 projection for the ESRDB market
basket is 2.1 percent. In CY 2017, this amount must be reduced by 1.25
percentage points as required by section 1881(b)(14)(F)(i)(I) of the
Act, as amended by section 217(b)(2)(A) of PAMA, which is calculated as
2.1-1.25 = 0.85 percent. This amount is then reduced by the
productivity adjustment described in section 1886(b)(3)(B)(xi)(II) of
the Act as required by section 1881(b)(14)(F)(i)(II) of the Act. The
final multi-factor productivity adjustment for CY 2017 is 0.3 percent,
yielding an update to the base rate of 0.55 percent for CY 2017 (0.85-
0.3 = 0.55 percent). Therefore, the ESRD PPS base rate for CY 2017
before application of the wage index and training budget-neutrality
adjustment factors would be $231.66 ($230.39 x 1.0055 = $231.66).
Wage Index Budget-Neutrality Adjustment Factor: We compute a wage
index budget-neutrality adjustment factor that is applied to the ESRD
PPS base rate. For CY 2017, we did not propose any changes to the
methodology used to calculate this factor which is described in detail
in CY 2014 ESRD PPS final rule (78 FR 72174). The CY 2017 wage index
budget-neutrality adjustment factor is 0.999781. Therefore, the ESRD
PPS base rate for CY 2017 before application of the training budget-
neutrality adjustment factor would be $231.61 ($231.66 x 0.999781 =
$231.61).
Home and Self-Dialysis Training Add-on Budget-Neutrality Adjustment
Factor: Also, as discussed in section II.B.2.e of this final rule, we
are establishing an increase in the home dialysis training add-on in a
budget-neutral manner. The home dialysis training add-on budget-
neutrality factor ensures that the increase in the training add-on
payment adjustment does not affect aggregate Medicare payments.
Therefore, we are finalizing a home dialysis training add-on payment
adjustment budget-neutrality adjustment factor of 0.999737, which is
applied to the CY 2017 ESRD PPS base rate. This application yields a CY
2017 ESRD PPS base rate of $231.55 ($231.61 x 0.999737 = $231.55).
In summary, the final CY 2017 ESRD PPS base rate is $231.55. This
amount reflects a payment rate update of 0.55 percent, the CY 2017 wage
index budget-neutrality adjustment factor of 0.999781, and the home
dialysis training add-on payment adjustment budget-neutrality
adjustment of 0.999737.

[[Page 77862]]

The comments and our responses to the comments for the base rate
proposals are set forth below:
Comment: Generally, commenters were supportive of the CY 2017
proposed base rate. One commenter contended CMS should increase the
proposed ESRD base rate for 2017 positing that, as proposed, the base
rate is too low for dialysis facilities--particularly small and medium
facilities--working to provide high-quality, patient-centered care to
this highly vulnerable adult and pediatric patient population. Another
commenter supported CMS' continued labor-related share of 50.673
percent that recognizes the enhanced role of registered dietary
nutritionists and other providers in improving outcomes and promoting
therapy adherence, including dialysis treatments, dietary
recommendations, and medication regimes.
Response: We appreciate the commenters' support of the CY 2017
proposed base rate. We also thank the commenter's support of the labor-
related share and the perspective that it supports interdisciplinary
staff roles in enhancing patient care. With regard to the comment on
the base rate being too low for dialysis facilities, as discussed in
section II.A.3, the base rate is updated annually by the ESRD bundled
market basket. For CY 2017, CMS is mandated by legislation to reduce
this increase by two factors. The first factor is the multi-factor
productivity adjustment discussed in section II.B.3.d.ii. The second
factor is a specified reduction amount determined in section
217(b)(2)(A) of PAMA. For CY 2017, this reduction is 1.25 percentage
point. For CY 2018, the reduction will be 1.00 percentage point.
Final Rule Action: As stated above the final CY 2017 ESRD PPS base
rate is $231.55.
4. Miscellaneous Comments
We received many comments from Medicare beneficiaries, family
members, ESRD facilities, nurses, physicians, professional
organizations, renal organizations, and manufacturers related to issues
that were not specifically addressed in the CY 2017 ESRD PPS proposed
rule. Some of these comments are discussed below.
Comment: A pharmaceutical company believes that the transitional
drug add-on payment adjustment (TDAPA) should be paid for innovative
therapies for at least 2 years so that innovation will not be stifled
and ESRD patients will not be denied access to the benefits of improved
clinical outcomes. This commenter also states that CMS should revisit
and refine the drug designation process finalized in the 2016 ESRD PPS
final rule and provide transitional add-on payment for new innovative
products that are neither generic nor biosimilar to products already
included within the ESRD PPS bundle. Another pharmaceutical company
believes that CMS should use the TDAPA to incentivize the development
of products that will prevent catheter-related bloodstream infections
and clarify the anti-infective functional category to ensure that new
drugs qualify for the TDAPA.
A congressional delegation also submitted a comment regarding the
application of the TDAPA for an injectable drug that replaces iron and
maintains hemoglobin in dialysis patients. An industry organization, an
MDO, and a pharmaceutical company had similar concerns, adding that the
benefits of new injectable drugs must be accounted for as an increase
in the bundle, and specifically pointed to an injectable calcimimetic
that has not received FDA approval to date.
An LDO and an MDO stressed that the drug designation policy is a
critical issue for ESRD providers and urges CMS to confirm and clarify
how the drug designation policy will be implemented. These commenters
also asked for clarification regarding how payment for oral-only drugs
that will be transitioned into the bundle as well.
Response: We appreciate and understand how important the
implementation of this policy is and have begun developing the
administrative guidance for the TDAPA which will be forthcoming. In the
2016 Final Rule (80 FR 69023), we explained that we anticipate that
there may be new drugs that do not fall within the existing ESRD PPS
functional categories and therefore, are not reflected in the ESRD PPS
bundled payment. Where a new injectable or intravenous product is used
to treat or manage a condition for which there is not a functional
category, we would pay for the new injectable or intravenous product
using a transitional drug add-on payment adjustment under the authority
of section 1881(b)(14)(D)(iv) of the Act. We proposed that the
transitional drug add-on payment adjustment would be based on the ASP
pricing methodology and would be paid until we have collected
sufficient claims data for rate setting for the new injectable or
intravenous product, but not for less than 2 years.
With regard to the application of the TDAPA for an injectable
anemia management drug, the anemia management functional category is
one of the drug categories for which we have included dollars in the
base rate and that has been updated with the annual ESRD market basket
percentage increase factor. As a result, there is no separate
transitional drug-add-on payment adjustment available for drugs and
biologicals that manage an ESRD beneficiary's anemia. As we stated
above, the transitional drug add-on adjustment payment is intended to
capture those drugs and biologicals that are not reflected in the base
rate. We note that drugs and biologicals that are accounted for in the
ESRD PPS base rate could qualify as an outlier service when the
manufacturer reports the Average Sales Price to CMS.
Comment: One patient expressed concern that copays for dialysis can
be expensive on Medicare Part B, and the commenter would prefer to have
a Medicare Advantage plan because of the out-of-pocket maximum. Another
patient commented that his facility has told him that they are doing
too many blood tests related to his polycystic kidney disease and that
he may have to pay for them himself because Medicare will not. This
commenter also states that he or she believes their treatment is not
about patient care, but is about money and that his care team does not
have compassion toward him.
Response: We are saddened to hear of these situations that
beneficiaries have shared with us. We thank commenters for sharing
their experience regarding the dialysis care they receive at their
facilities, and we note that when care is less than desirable we
encourage beneficiaries to reach out to their ESRD Network or Quality
Improvement Organization (QIO) for their state. ESRD Networks were
mandated by the Congress and are accountable for, among other things,
assuring the effective and efficient administration of benefits,
improving quality of care for ESRD patients, collecting data to measure
quality of care, providing assistance to ESRD patients and facilities,
and evaluating and resolving patient grievances. More information on
the ESRD Networks is available on the CMS Web site: https://www.cms.gov/Medicare/End-Stage-Renal-Disease/ESRDNetworkOrganizations/index.html. QIOs are groups of health quality experts, clinicians, and
consumers organized to improve the care delivered to people with
Medicare. QIOs work under the direction of the CMS to assist Medicare
providers with quality improvement and to review quality concerns for
the protection of beneficiaries and the Medicare Trust Fund. We value
each of our beneficiaries and want them to receive the best care
experience. We urge any beneficiary who requires assistance or

[[Page 77863]]

has a grievance to contact the ESRD Networks for help. The ESRD Network
can also ensure that beneficiaries receive the care they need for their
specific condition. With regard to joining a Medicare Advantage plan,
they are open to ESRD beneficiaries under specific circumstances: (1)
If you're already in a Medicare Advantage Plan when you develop ESRD,
you may be able to stay in your plan or join another plan offered by
the same company; (2) If you're already getting your health benefits
(for example, through an employer health plan) through the same
organization that offers the Medicare Advantage Plan; (3) If you had
ESRD, but have had a successful kidney transplant, and you still
qualify for Medicare benefits (based on your age or a disability), you
can stay in Original Medicare, or join a Medicare Advantage Plan; and
(4) You may be able to join a Medicare Special Needs Plan (SNP) for
people with ESRD if one is available in your area.
Comment: An industry organization suggested refinements to the low-
volume payment adjustment to address the rare change of ownership
instance wherein the new owner accepts the provider agreement but the
ownership change results in a new provider number because of provider
type classifications. In this example, due to the issuance of a new
provider number, this facility would be deemed ineligible for the Low-
Volume Payment Adjustment (LVPA).
Response: We appreciate the commenter bringing this scenario to our
attention; we will consider updating our policies and regulations to
address this specific instance in the future.
Comment: A health system recommended that other professional
specialties be allowed to bill for their services from the ESRD
facility site of service. Because ESRD patients spend hours each week
immobile while they receive their treatment, this would be an opportune
time for patients to receive care from other specialists
(cardiologists, psychiatrists, endocrinologists, vascular surgeons,
etc.).
Response: We appreciate the commenter's suggestion for providing
other specialties of care to beneficiaries while they receive dialysis.
This is an interesting perspective that would require changes across
programs, but it is one we will consider exploring in the future.
Comment: Several commenters expressed concern that the inaccuracy
of the case-mix adjusters causes leakage from the ESRD PPS. Another
commenter recommended that case-mix adjusters included in the payment
system should be selected based on the policy goal of improving patient
access and that some adjusters may work together while others may
cancel each other out. The commenter encourages CMS to ensure that the
adjusters truly cover the costs of providing care for those patients
with more health care needs. Commenters also suggest that CMS eliminate
the remaining four comorbid case-mix adjusters for the same reason that
bacterial pneumonia and monoclonal gammopathy were removed.
Additionally, another commenter suggested that CMS discard the changes
made to the age categories in the CY 2016 final rule by returning to
the CY 2015 methodology. These same commenters stated that CMS should
address the way that the body size (that is, the low body mass index
(BMI) and body surface area (BSA)) adjusters cancel each other out and
ultimately benefit very few beneficiaries. Another commenter believes
that using the age range of 70-79 as the reference age group is
inappropriate since facilities would not receive an adjustment for this
age range, however, they would receive an adjustment for patients
between the ages of 60 and 69. This commenter also had concerns about
the rationale for using both a BSA and a BMI adjustment and encourages
CMS to adopt a BMI adjustment for overweight and underweight patients
that will better account for costs of treatment.
Finally, another commenter urges CMS to reevaluate and update the
pediatric case mix adjuster utilizing the most recent data available.
This commenter elaborates that pediatric patients have an increased
level of acuity of nursing care when compared to adult dialysis
patients, these patients often need developmental or behavioral
specialists, social workers or school-based specialists to assist with
optimizing school performance, as well as increased assessments from
dietitians to adjust formulas and diet for the patient's growth and
nutrition requirements. The array of dialysis supplies required by
these patients is also broader.
Response: With regard to the comments regarding the ESRD PPS
refinement implemented in CY 2016, as we stated in the CY 2016 ESRD PPS
final rule (80 FR 68974) we continue to believe that the CY 2016
updated model aligns with our goals for the prospective payment system
in establishing accurate payments and safeguarding access for Medicare
beneficiaries. We modeled the ESRD PPS using methodologies that were
tested under the Basic Case-Mix Adjusted (BCMA) composite rate payment
system and in using the most recently available data, we made our best
estimate for predicting the payment variables that best reflect cost
variation among ESRD facilities for furnishing renal dialysis services
to a vulnerable population of patients. This refinement uses data that
illustrates a fully bundled prospective payment system and reflects the
practice patterns under such environment. We continue to believe that
it would not be appropriate to both perpetuate certain payment
adjusters into the future that were developed using pre-PPS data and
update the other adjusters using ESRD claims data and cost reports from
2012 and 2013. We thank the commenters for their views about the
pediatric case mix adjustment. We describe in the detail how we
reevaluated and updated the pediatric case mix adjusters utilizing the
most recent data available in the CY 2016 Final Rule (80 FR 69001).
Comment: One commenter expressed support for the ESRD PPS
refinement based upon an updated regression analysis and established in
the CY 2016 ESRD PPS final rule (80 FR 68973) and the low-volume and
rural payment adjustments. This commenter agrees that these adjustments
are necessary to ensure beneficiaries' access to services where they
may otherwise lack dialysis options. This commenter also urged CMS to
ensure that stagnation in the base rate does not negatively impact
patient care, specifically with regard to payments to rural ESRD
facilities and for facilities that treat pediatric patients. This
commenter appreciates CMS' consideration of the potentially
disproportionate impact of the ESRD PPS on those facilities. Another
commenter stated that CMS should eliminate the rural adjuster and add a
second tier, low-volume adjuster for facilities with 4,001-6,000
treatments per year. An industry organization expressed their concern
that there is an incentive for facilities to limit access to specific
locations in order to meet the requirements for the LVPA.
Response: We appreciate the support and agree that our diligence
with regard to the base rate needs to be ongoing. We appreciate the
useful suggestions for refining the LVPA from the commenters. However,
significant changes to the eligibility criteria would need to be
adopted through notice and comment rulemaking. We believe that the
finalized CY 2016 policy changes represent improvement in the targeting
of the payment adjustments. We will certainly consider these
suggestions for future refinement. We plan to continue to monitor the
utilization of renal

[[Page 77864]]

dialysis services furnished in low-volume and rural facilities.
Comment: An LDO commented that increasing costs and utilization of
certain clinical diagnostic laboratory services have not yet been
recognized through a corresponding adjustment to the base rate, which
undermines the integrity of the ESRD PPS bundled payment.
Another LDO urged CMS to repair the underlying methodology of the
ESRD PPS, which, based on their analysis, results in millions of
dollars intended by CMS for patients' care to leak from the system. The
organization stated that returning resources to the ESRD base rate will
improve treatment for all Medicare dialysis beneficiaries, including
home dialysis patients.
An industry organization commented that the ESRD PPS has underpaid
providers by over $1 billion since 2011 and are predicting negative
profit margins through 2018. The organization provided the same
critique of the ESRD PPS regression methodology that they provided in
response to the CY 2016 ESRD PPS proposed rule, reiterating their view
that the ESRD PPS refinement regression methodology used by CMS
violates the core assumptions for a valid analysis.
Response: As we stated in the CY 2011 ESRD PPS final rule (75 FR
49054), we included payments for all laboratory tests billed by ESRD
facilities and independent laboratories for ESRD patients in
calculating the final base rate in order to appropriately account for
such tests as renal dialysis services. The ESRD PPS base rate is
updated annually (as discussed in section II.B.3. of this final rule)
by the ESRD bundled market basket. Therefore, we believe the base rate
reflects price increases for laboratory renal dialysis services. With
respect to increases in utilization of laboratory renal dialysis
services, we continue to monitor utilization of laboratory services
under the ESRD PPS and encourage ESRD facilities to report all
laboratories services that they furnish. With regard to repairs to the
ESRD PPS, we received comments of this nature last year and responded
to them in the CY 2016 ESRD PPS final rule. As we stated in the CY 2016
final rule (80 FR 68974), we thoroughly reviewed these comments in
consultation with our research team and other internal experts. We
examined the outcomes of the current ESRD PPS specifically looking at
access and quality of the PPS and based on our comprehensive monitoring
of health outcomes and access under the ESRD PPS, we believe the
current payment model has been successful in allocating payments across
facilities and patients while supporting access and quality. While we
recognize there can be theoretically optimal approaches to addressing
payment model design, the availability of data is often an important
factor in the approach ultimately undertaken. This is true with the
ESRD PPS and the use of a two-equation model that relies on both claims
and cost report data, as other payment systems do under Medicare.
Comment: One commenter expressed concern about the lack of
transparency in the use of data regarding the factors used in
calculating payments. Although they appreciate that CMS has made more
data available, the commenters stated that there continue to be
differences in the calculations between what providers believe is the
correct amount to adequately care for ESRD patients and the ESRD PPS
base rate. The best way to resolve the differences would be through
full transparency by releasing all data and calculations used in
development of payment rates and adjusters.
Response: Transparency is important to us. Therefore, we make the
Limited Data Set (LDS) available with each rule. More information is
located: https://www.cms.gov/research-statistics-data-and-systems/files-for-order/limiteddatasets/standardanalyticalfiles.html. We
believe the data provided and the availability of technical reports
explaining the methodology is sufficient to enable stakeholders to
provide meaningful feedback, however, we have asked industry partners
to identify specific instances in which the results of the calculations
vary from what we have developed so that the CMS contractors can
reconcile the variance.
Comment: Several commenters provided information on the barriers
that they believe minimize the growth of home dialysis and gave
suggestions on how to increase the utilization of home modalities.
Commenters expressed concern about medical staff providing
misinformation on home dialysis in an effort to keep new patients
coming in-center for treatment rather than choosing home dialysis. They
attributed this to poor patient education and improperly incentivized
facilities. Other commenters suggested creating payment incentives to
encourage home dialysis and stated whatever needs to be done to
encourage people to take their dialysis home, should be done even if
that means increasing payments to clinics for training. These
commenters suggested that CMS fund wages and salaries for nurses and
technicians to train because there is confusion and misinformation
coming from medical professionals that scares patients away from home
dialysis when they should be doing just the opposite.
One commenter noted that the U.S. Food and Drug Administration
approvals for dialysis machines for home use require that the patient
have a care partner who can assist in emergencies. This requirement
prevents people who live alone (or whose care partner is temporarily
absent) from doing home HD, and may place an undue burden on the family
unit. The commenter believes that a dialyzer should be able to choose
to perform home HD with or without a care partner, as their training
and comfort level dictates. The ESRD facility should discuss with the
patient the risks of dialyzing alone, assess the dialyzer's ability to
perform his or her own treatments without assistance, and discuss
alternate safety precautions available to the patient if the patient
chooses to forego having a care partner.
One LDO expressed concern that some home HD machines are designed
in such a way that the patient must dialyze more frequently than three
times per week and has found that a significant number of patients
``burn out.'' That is, they begin therapy on home HD but later decide
they cannot effectively manage such a complex task at home and choose
to dialyze in-center instead. The LDO's own data indicate that the
average year-over-year ``burn out'' rate for home HD is 42 percent,
compared to 24 percent for their PD patients. The primary cause for the
drop-off among home HD patients is the burden on the patient's care
partner.
Another commenter suggested that CMS standardize the elements of
the training manuals across dialysis machine manufacturers for
patients. The commenter noted that they appreciated having a
professionally written training manual, which was provided by one
manufacturer, and believes that similar manuals would enhance
dialyzer's confidence in what they were learning. Another improvement
the commenter suggested is to require that training clinic managers be
more experienced. The commenter described their experience of having a
training clinic that only required 3 months of training experience for
their clinical nurse managers. The commenter believes that this amount
of training experience does not seem sufficient for them to manage
their staff and know how to evaluate and improve their work. The
commenter also suggested that CMS implement a requirement for ongoing
home dialysis training because in the commenter's experience when some
training clinics

[[Page 77865]]

re-write their procedures, the only people that find out about the
changes, besides the nurses, are the new patients and the long-term
dialyzers are not informed of things that could make their treatments
more efficient or safer. The commenter also suggested an increase in
training dollars for clinics expressing that in the long run, it is
money well spent since the cost of home dialysis is less than the cost
of dialyzing in center.
Response: The goal of our policy with regard to the treatment of
ESRD is for ESRD facilities to provide the most appropriate care
available for the beneficiary, whether in home or in-center. With the
increased training add-on finalized in this rule, we hope that
facilities will encourage home dialysis for beneficiaries who can
benefit from it. Not all ESRD facilities are appropriately certified to
provide training for home dialysis but we expect that if a beneficiary
would like to receive home dialysis, the facility would refer the
beneficiary to a home dialysis training facility. We encourage all ESRD
facilities to be knowledgeable in all aspects of dialysis in order to
educate beneficiaries. We appreciate the comments regarding barriers to
home dialysis and will consider them for future policy changes, as
appropriate.
Comment: One commenter stated that although patients often receive
pre-dialysis education in group settings, they know of no one who has
been trained to perform home HD in a group setting in recent years. The
commenter expressed concern that CMS has received comments to the
contrary, and wanted to indicate that such instances should be
extremely rare in light of the Conditions of Participation and should
not affect the calculation of the costs of home HD training.
Response: We appreciate the commenter's concern about the
utilization of group training for home dialysis. As the commenter
indicates, we have received many comments to the contrary and with this
mixed information from the industry, we find that more analysis needs
to take place in order for us to develop an appropriate methodology for
computing the home dialysis training add-on based on updated cost
report data.
Comment: We received comments from SDOs, healthcare investment
companies, and a nursing facility company indicating the benefits of
Skilled Nursing Facility (SNF)/Nursing Facility (NF) patients receiving
their home HD in the SNF/NF. They highlight lower readmission rates,
decreased lengths of stay, and improved social outcomes when patients
receive dialysis in the SNF/NF as opposed to being transported to an
ESRD facility. One commenter stated that their patients benefit greatly
from staff-assisted, more frequent HD within their SNF.
Response: We recognize that receiving renal dialysis services in a
SNF or NF can be beneficial to the patient. As we stated in the CY 2011
ESRD PPS final rule (75 FR 49057), nursing home patients are regarded
as home dialysis patients because they are considered residents of the
nursing home and receive dialysis treatments at the nursing homes and
not at dialysis facilities. In addition, we note that the Medicare
Benefit Policy Manual (Pub 100-02, chapter 11, section 40.D (https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c11.pdf)) indicates that Medicare ESRD beneficiaries who
permanently reside in a nursing home or long term care facilities and
who meet the home dialysis requirements set forth under 42 CFR 494.100
are considered home dialysis patients. All home dialysis items and
services will be paid under the ESRD PPS and no separate payment will
be made to the facility. Also in the Medicare Benefit Policy Manual we
indicated in section 30.1.C that staff-assisted home dialysis using
nurses to assist ESRD beneficiaries is not included in the ESRD PPS and
is not a Medicare covered service. We appreciate the commenter's
suggestions for furnishing renal dialysis services in a SNF or NF and
will consider them for future rulemaking.
Comment: One dietician and nutritionist organization supports the
``implementation of the outlier statute'' and notes that registered
dietitian nutritionists are able to assist in addressing the patient
conditions that may increase facility costs when furnishing dialysis
care and recommends that CMS make available the reimbursement for these
services.
Response: Response: We appreciate the commenters bringing these
services to our attention. We agree that dietary needs are very
important in the multidisciplinary care for ESRD beneficiaries and will
consider these comments for future policy refinement; however, it's
unclear what the commenters mean by the ``implementation of the outlier
statute''.
Comment: One dialysis equipment supplier commented on the Kidney
Disease Education benefit and suggested that we allow regional training
centers to have management contracts with ESRD facilities to provide
the home dialysis training in a centralized location. They also
recommended defining a minimally adequate form of modality education as
well as a minimally acceptable frequency of administration, and link
this to eligibility for the payment model. In addition they noted that
programs focusing on educational efforts have historically been very
effective. Studies of focused, unbiased ESRD modality education,
offered in the months prior to dialysis initiation have demonstrated
that nearly one third of patients begin home dialysis when they have
completed a balanced education program. In the field of diabetes, the
American Diabetes Association, the Association of Diabetes Educators,
and other organizations have developed extensive tools, assessments,
and professional standards to deliver the education required by CMS in
the provision of Diabetes Self-Management Education. Unfortunately,
this success has not generally extended to the education of kidney
patients, where the Kidney Disease Education Benefit is historically
underutilized and too narrow in scope to meet the needs of patients
approaching dialysis. Thus, incident dialysis patient awareness and
knowledge of self-management (home dialysis) treatment modalities is
highly variable. The commenters believe that, without minimal
standards, dialysis modality education will fall victim to provider
priority conflicts or short-term economic disincentives. With
demonstration of a balanced and effective chronic kidney disease
education program as a baseline requirement, and with the percentage
target of home dialysis utilization described above, the market will
make training better and more consistent, allowing patients to make
truly informed decisions and increasing the likelihood that patients
choose and remain on a home dialysis therapy option.
Another commenter noted that home dialysis innovations are limited
by the local scale of the provider census and the resultant experience
of providers' training programs. In the current ESRD market, home
dialysis training is a small percentage of the activity at any single
center; therefore, the level of expertise needed to develop certain
skills and cost benefits is unattainable for many. As an alternative to
the current model, many have identified the need for regional home
training centers that service a network of traditional dialysis
centers. Yet regional training centers are not the norm because centers
do not want to refer patients to other programs for fear of losing the
patient and their corresponding revenue. The commenter stated that CMS
should strive to

[[Page 77866]]

eliminate barriers to establishment of regional training centers. For
example, modification of ESRD facility certification processes to allow
for a CMS certified management service organization that provides
transitional care, home dialysis training, and home dialysis ongoing
management under a traditional management services construct could
dramatically improve scale, skill, etc. The outsourcing of training and
transitional care of incident patients or those moving from one
modality to another would allow the ``home and transition care'' to be
done in specialized programs that are contracted by the patients'
originating centers. Coordination of care would occur naturally, as
training centers could focus exclusively on the best means of providing
home training and transitional care, without threatening the interests
of patients' originating center in retaining home patients. Smaller
centers, unable to support the requirements of home training services
mandated by the Conditions for Coverage would likely be willing to
refer patients for training, without fearing that their patients will
be lost to another center. Under this paradigm, patients benefit by
getting access to true centers of excellence for home dialysis training
and support, physicians benefit by placing the care of their patients
in the most expert hands, and providers benefit by having access to
therapy services that may otherwise be economically infeasible due to
scale, geography or other limiting factors.
Response: We appreciate the suggestions with regard to regional
training centers and other training delivery models. While these
comments are out of scope of this final rule, we will consider them for
future rulemaking.

III. Final Coverage and Payment for Renal Dialysis Services Furnished
to Individuals With Acute Kidney Injury (AKI)

A. Background

On June 29, 2015, the Trade Protection Extension Act of 2015 (TPEA)
(Pub. L. 114-27) was enacted. In the TPEA, the Congress amended the Act
to include coverage and provide for payment for dialysis furnished by
an ESRD facility to an individual with AKI. Specifically, section
808(a) of the TPEA amended section 1861(s)(2)(F) of the Social Security
Act (the Act by including coverage for renal dialysis services
furnished on or after January 1, 2017 by a renal dialysis facility or
provider of services currently paid under section 1881(b)(14) of the
Act to an individual with AKI. In addition, section 808(b) of TPEA
amended section 1834 of the Act by adding a new subsection (r).
Subsection (r)(1) of section 1834 of the Act provides that in the case
of renal dialysis services (as defined in subparagraph (B) of section
1881(b)(14) of the Act) furnished under Part B by a renal dialysis
facility or a provider of services paid under such section during a
year (beginning with 2017) to an individual with acute kidney injury,
the amount of payment under Part B for such services shall be the base
rate for renal dialysis services determined for such year under such
section, as adjusted by any applicable geographic adjustment applied
under subparagraph (D)(iv)(II) of such section and may be adjusted by
the Secretary (on a budget neutral basis for payments under section
1834(r) of the Act) by any other adjustment factor under subparagraph
(D) of section 1881(b)(14) of the Act. Section 1834(r)(2) of the Act
defines ``individual with acute kidney injury'' to mean an individual
who has acute loss of renal function and does not receive renal
dialysis services for which payment is made under section 1881(b)(14)
of the Act.

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the Coverage and Payment for Renal Dialysis Services
Furnished to Individuals With Acute Kidney Injury (AKI)

C. Final Payment Policy for Renal Dialysis Services Furnished to
Individuals With AKI

1. Definition of ``Individual With Acute Kidney Injury''
Consistent with section 1834(r)(2) of the Act, we proposed to
define an individual with AKI as an individual who has acute loss of
renal function and does not receive renal dialysis services for which
payment is made under section 1881(b)(14) of the Act. Section
1881(b)(14) of the Act contains all of the provisions related to the
ESRD PPS. We interpret the reference to section 1881(b)(14) of the Act
to mean that we would pay renal dialysis facilities for renal dialysis
services furnished to individuals with acute loss of kidney function
when the services furnished to those individuals are not payable under
section 1881(b)(14) of the Act because the individuals do not have
ESRD. We proposed to codify the statutory definition of individual with
acute kidney injury at 42 CFR 413.371 and we solicited comments on this
definition.
The comments and our responses to the comments for this proposal
are set forth below.
Comment: Many individual commenters as well as dialysis nursing
associations, dialysis industry associations, and a large dialysis
organization supported the legislation allowing the coverage of and
payment for renal dialysis services furnished to individuals with AKI
in an ESRD facility. The commenters believe that it will decrease
inpatient hospital lengths of stay and hospital-acquired infections,
utilize the resources available in the outpatient setting, and that
this access will be paramount to the care of beneficiaries with
multiple co-morbidities, frequent procedures or diagnostics, and
specialist visits. These commenters also believe that access to these
services in ESRD facilities for beneficiaries with AKI is important in

[[Page 77867]]

the management of patients with delayed graft function post-kidney
transplant when patients may need dialysis until the transplant begins
to function. One individual commenter expressed gratitude that these
policies will assist patients if their kidney disease progresses and
they ultimately must make the emotional and clinical transition to
maintenance dialysis at the ESRD facility.
Response: We appreciate the support and agree that these policies,
described in detail below, provide individuals with AKI the option to
receive dialysis in either the hospital outpatient department or, if
able, in their community ESRD facility. We would like to note that this
benefit is for beneficiaries already Medicare eligible, that have AKI
and need dialysis. Specifically, needing dialysis for AKI does not
entitle these individuals to Medicare and is not the same as being
certified as ESRD and initiating life-sustaining maintenance dialysis.
Comment: Many commenters, including dialysis industry organizations
and a health system, support the proposed definition of an individual
with AKI. Industry organizations commended CMS for its recognition and
acknowledgement of the unique acute medical needs of the AKI
population, noting that AKI dialysis patients are, by definition, in a
transitory state. The commenters indicated that utilization of renal
dialysis services furnished to beneficiaries with AKI may substantially
differ from that of patients with ESRD in other ways.
One industry organization commented that CMS should reaffirm the
distinct needs of AKI patients and support the flexibility for
physicians to determine the classification, frequency of treatment, and
types of services provided to these patients. A dialysis organization
stated that the most meaningful definition for an AKI patient would be
``a patient needing dialysis who does not require acute inpatient care
for whom the nephrologist believes that there is a reasonable chance of
kidney function recovery, and for whom the nephrologist therefore
declines to sign the form 2728 (the physician's certification that a
patient has reached stage 5 chronic kidney disease, or end-stage renal
disease)''. A patient advocacy group recommended that CMS convene a
technical expert panel of dialysis clinicians, nephrologists, and
beneficiary organization to discuss how AKI patients can have
guaranteed access to this new benefit.
Response: We appreciate commenter's support of the CMS definition
of AKI. We also acknowledge the alternative definitions suggested. We
continue to believe that the definition set forth in the statute
provides an appropriate way to distinguish an individual with AKI from
an individual with ESRD. We believe the broad nature of the definition
ensures access to renal dialysis services in an ESRD facility to those
beneficiaries that have an acute loss of renal function.
Final Rule Action: After review and consideration of our proposal,
the statute, and the comments, we are finalizing Sec. 413.371 as
proposed in the regulation text to define an individual with AKI as an
individual who has acute loss of renal function and does not receive
renal dialysis services for which payment is made under section
1881(b)(14) of the Act.
2. The Payment Rate for AKI Dialysis
Section 1834(r)(1) of the Act, as added by section 808(b) of TPEA,
provides that the amount of payment for AKI services shall be the base
rate for renal dialysis services determined for a year under section
1881(b)(14) of the Act. We proposed to interpret this provision to mean
the ESRD PPS per treatment base rate as set forth in 42 CFR 413.220,
which is updated annually by the market basket less the productivity
adjustment as set forth in 42 CFR 413.196(d)(1), and adjusted by any
other adjustment factor applied to the ESRD PPS base rate. The ESRD PPS
per-treatment base rate is established on an annual basis through
rulemaking and finalized in the CY ESRD PPS final rule. We recognize
that there could be rulemaking years in which legislation or policy
decisions could directly impact the ESRD PPS base rate because of
changes to ESRD PPS policy that may not relate to the services
furnished for AKI dialysis. For example, for CY 2017 we are applying a
training add-on budget-neutrality adjustment factor to the otherwise
applicable base rate. In those situations, we would still consider the
ESRD PPS base rate as the payment rate for AKI dialysis. We believe
that the statute was clear in that the payment rate for AKI dialysis
shall be the ESRD PPS base rate determined for a year under section
1881(b)(14) of the Act, which we interpret to mean the finalized ESRD
PPS base rate and not to be some other determined amount. As described
below, ESRD facilities will have the ability to bill Medicare for non-
renal dialysis items and services and receive separate payment in
addition to the payment rate for AKI dialysis. For example,
beneficiaries with AKI may require certain laboratory tests so that
their practitioner can gauge organ function and accurately adjust the
dialysis prescription that would be optimal for kidney recovery. These
beneficiaries would require laboratory tests specific to their
condition which would not be included in the ESRD PPS and thus, would
be paid for separately. For instance, an individual with AKI might need
to be tested for a biochemical indication of a urea cycle defect
resulting in hyperammonemia. We proposed to codify the AKI dialysis
payment rate in our regulations at 42 CFR 413.372 and solicited comment
on this proposal.
The comments and our responses to the comments for this proposal
are set forth below.
Comment: A health system and an industry group support the proposed
payment rate but believe that the AKI payment rate should not include
legislative and policy decisions that directly impact ESRD PPS
services, but not AKI services.
Response: We believe that the statute was clear in that we would
pay ESRD facilities for renal dialysis services furnished to
beneficiaries with AKI in the amount of the ESRD PPS base rate.
Specifically, we believe the statute requires us to utilize the wage-
adjusted ESRD PPS base rate as the payment rate for AKI. As discussed
below, ESRD facilities will receive payment based on Part B fee
schedules for other items and services that are not considered to be
renal dialysis services. In addition, and also discussed below, there
is no weekly limit on the number of treatments that will be paid. We
continue to believe that these payment considerations are sufficient
for Medicare payment of renal dialysis services furnished to
beneficiaries with AKI and as these services evolve we can address any
changes in future rulemaking.
Final Rule Action: Therefore, for CY 2017 and subsequent years, we
are finalizing the AKI dialysis payment rate as set forth in Sec.
413.372 as proposed.
The CY 2017 final ESRD PPS base rate is $231.55. Accordingly, we
are finalizing a CY 2017 payment rate for renal dialysis services
furnished by ESRD facilities to individuals with AKI as $231.55.
Comment: An industry organization commented that the ESRD Network
fee should not be removed from the AKI payments since Networks focus on
ESRD, not AKI.
Response: Thank you for bringing the ESRD Network fee portion of
payment to our attention. We agree with the commenter that section
1834(r) of the Act, as added by section 808(b) of TPEA does not give
CMS the authority to reduce the AKI payment rate by the 50

[[Page 77868]]

cent network fee. Specifically, section 1881(b)(7) of the Act provides
that ``[t]he Secretary shall reduce the amount of each composite rate
payment under this paragraph for each treatment by 50 cents . . . and
provide for payment of such amount to the organizations (designated
under subsection (c)(1)(A) of this section) for such organizations'
necessary and proper administrative costs incurred in carrying out the
responsibilities described in subsection (c)(2) of this section''. This
language provides that (1) the reduction can only be taken from the
payment provided for in section 1881(b)(7) of the Act--the composite
rate--a payment system that was later subsumed by the ESRD PPS and (2)
the reduction can only be used for the costs incurred in carrying out
the network organization's responsibilities in (c)(2), which pertain to
the ESRD population. After consideration of the comment and review of
the statutory provision, we will not apply the per treatment reduction
of $0.50 to the AKI dialysis payment rate.
Comment: MedPAC expressed concern regarding the payment rate
variance for furnishing outpatient dialysis to AKI beneficiaries in a
hospital outpatient department as compared to the ESRD facility and
suggested that this variance may cause Medicare and beneficiaries to
pay more than necessary. MedPAC suggested that CMS should not pay more
in one setting versus another for the same treatment.
Response: We appreciate MedPAC's comments regarding site-neutral
payment, however, section 808(b) of TPEA did not address payments to
hospital outpatient departments for dialysis furnished to beneficiaries
with AKI.
3. Geographic Adjustment Factor
Section 1834(r)(1) of the Act further provides that the amount of
payment for AKI dialysis services shall be the base rate for renal
dialysis services determined for a year under section 1881(b)(14) of
the Act, as adjusted by any applicable geographic adjustment factor
applied under section 1881(b)(14)(D)(iv)(II) of the Act. We interpret
the reference to ``any applicable geographic adjustment factor applied
under section (D)(iv)(II)'' of such section to mean the geographic
adjustment factor that is actually applied to the ESRD PPS base rate
for a particular facility. Accordingly, we proposed to apply the same
wage index that is used under the ESRD PPS that is based on the most
recent pre-floor, pre-reclassified hospital wage data collected
annually under the inpatient prospective payment system that are
unadjusted for occupational mix to the AKI dialysis payment rate. The
ESRD PPS wage index policy was finalized in the CY 2011 ESRD PPS final
rule (75 FR 49117) and codified at 42 CFR 413.231. We explained in the
CY 2017 ESRD PPS proposed rule (81 FR 42821) that the AKI dialysis
payment rate would be adjusted by the wage index for a particular
facility in the same way that the ESRD PPS base rate is adjusted by the
wage index for that facility. Specifically, we would apply the wage
index to the labor-related share of the ESRD PPS base rate that we will
utilize for AKI dialysis to compute the wage-adjusted per-treatment AKI
dialysis payment rate. We proposed that for CY 2017, the AKI dialysis
payment rate would be the CY 2017 ESRD PPS base rate (established in
the CY 2017 ESRD PPS final rule), adjusted by the ESRD facility's wage
index. In proposed 42 CFR 413.372(a), we refer to the ESRD PPS wage
index regulation at 42 CFR 413.231 as an adjustment we will apply to
the ESRD PPS base rate.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Several commenters supported the proposal to apply the
same wage index that is used under the ESRD PPS to the AKI dialysis
payment rate.
Response: We appreciate the commenters' support.
Final Rule Action: We are finalizing application of the wage index
to the AKI dialysis payment rate and the accompanying regulation at
Sec. 413.372(a) as proposed.
4. Other Adjustments to the AKI Payment Rate
Section 1834(r)(1) of the Act also provides that the payment rate
for AKI dialysis may be adjusted by the Secretary (on a budget neutral
basis for payments under section 1834(r) of the Act) by any other
adjustment factor under subparagraph (D) of section 1881(b)(14) of the
Act. For purposes of payment for AKI dialysis, we did not propose to
adjust the AKI payment rate by any other adjustments at this time.
Therefore, for at least the first year of implementation of the AKI
payment rate, we did not propose to apply any of the optional payment
adjustments under subparagraph (D) of section 1881(b)(14) of the Act.
We proposed to codify our authority to adjust the AKI payment rate by
any of the adjustments under section 1881(b)(14)(D) of the Act in our
regulations at 42 CFR 413.373.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: A large dialysis organization and dialysis industry
associations supported CMS' decision not to apply ESRD-based case-mix
adjusters to the AKI dialysis payment rate. Another dialysis industry
group explained that the ESRD case-mix adjusters were not designed to
target the costs involved in treating individuals with AKI.
A health system disagreed with the CMS' proposal of paying the ESRD
base rate with no adjustments and expressed that the AKI patients cost
substantially more than ESRD patients. The commenter suggested that CMS
develop an AKI adjustor to be applied to the ESRD PPS base rate. A
dialysis industry association suggested that in the future, CMS apply
patient and facility-level adjustments to the AKI dialysis payment
rate, similar to how CMS adjusts for ESRD beneficiaries.
Response: We appreciate the thoughtful comments on the adjustments
to the ESRD PPS base rate applicable to the AKI dialysis payment rate
and we will consider the suggestions for future rulemaking. As
discussed above, the AKI dialysis payment rate will be the finalized
ESRD PPS base rate adjusted by the wage index that is used under the
ESRD PPS. We are not adjusting the payment amount by any other factors
at this time, but may in future years.
With regard to the higher costs associated with AKI patients as
compared to ESRD patients, we are finalizing a policy of paying for all
treatments provided to a patient, without applying the monthly
treatment limits applicable under the ESRD PPS. We are also finalizing
a policy to pay separately for all items and services that are not part
of the ESRD PPS base rate. Once we have substantial data related to the
AKI population and its associated utilization, we will determine the
appropriate steps toward further developing the AKI payment rate.
Final Rule Action: After consideration of the comments we are
finalizing our authority to adjust the AKI dialysis payment in the
regulations text at Sec. 413.373 as proposed.
Comment: One individual commenter asked CMS to clarify how
treatments for patients with AKI would count toward the attestation for
the Low-Volume Payment Adjustment (LVPA) and asked if the 4,000 limit
should be increased to account for the impact of this new policy.
Response: Since the implementation of the LVPA, we have indicated
that for purposes of determining eligibility for the LVPA (defined in
Sec. 413.232(b)), ``treatments'' mean total hemodialysis

[[Page 77869]]

equivalent treatments, that is, Medicare and non-Medicare. Since the
total treatment count includes all treatments furnished by the ESRD
facility regardless of payer, we believe that AKI dialysis treatments
also count toward the number of treatments furnished by an ESRD
facility and should be reported to the MAC in the facility's
attestation for the LVPA. More information regarding the eligibility
criteria of the LVPA is available in the Medicare Benefit Policy Manual
(Pub 100-02, chapter 11, section 60.B.1 (https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c11.pdf)). At
this time, we do not believe that the eligibility criteria for the LVPA
need to be changed, however we will monitor utilization of the LVPA for
future refinements. Facilities should include AKI dialysis treatment in
their counts for purposes of the LVPA.
5. Renal Dialysis Services Included in the AKI Payment Rate
Section 1834(r)(1) of the Act provides that the AKI payment rate
applies to renal dialysis services (as defined in subparagraph (B) of
section 1881(b)(14) of the Act) furnished under Part B by a renal
dialysis facility or provider of services paid under section
1881(b)(14) of the Act. We proposed that drugs, biologicals, laboratory
services, and supplies that are considered to be renal dialysis
services under the ESRD PPS as defined in 42 CFR 413.171, would be
considered to be renal dialysis services for patients with AKI. As
such, no separate payment would be made for renal dialysis drugs,
biologicals, laboratory services, and supplies that are included in the
ESRD PPS base rate when they are furnished by an ESRD facility to an
individual with AKI. We proposed to codify this policy in the
regulations at 42 CFR 413.374(a).
However, we recognize that the utilization of items and services
for beneficiaries with AKI receiving dialysis may differ from the
utilization of these same services by ESRD beneficiaries. This is
because we expect that individuals with AKI will only need dialysis for
a finite number of days while they recover from kidney injury, while
ESRD beneficiaries require dialysis indefinitely unless they receive a
kidney transplant. We recognize that the intent of dialysis for
patients with AKI is curative; therefore, we proposed to pay for all
hemodialysis treatments furnished to beneficiaries with AKI in a week,
even if the number of treatments exceeds the three times-weekly
limitation we apply to HD treatments furnished to beneficiaries with
ESRD.
Other items and services furnished to beneficiaries with AKI that
are not considered to be renal dialysis services as defined in 42 CFR
413.171, but that are related to their dialysis treatment as a result
of their AKI and that an ESRD facility might furnish to a beneficiary
with AKI, would be separately payable. In particular, an ESRD facility
could seek separate payment for drugs, biologicals, laboratory
services, and supplies that ESRD facilities are certified to furnish
and that would otherwise be furnished to a beneficiary with AKI in a
hospital outpatient setting. Therefore, we proposed to pay for these
items and services separately when they are furnished to beneficiaries
with AKI receiving dialysis in ESRD facilities. We proposed to codify
this policy at 42 CFR 413.374(b).
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Generally, commenters agreed with the proposal to consider
renal dialysis services as defined in Sec. 413.171 to be renal
dialysis services for AKI patients. However, some commenters expressed
concern that over time the adequacy of the ESRD PPS base rate for such
services may be questionable. Specifically, dialysis nursing
organizations, an individual, and an LDO commented that it is important
for CMS to recognize that AKI patients utilize treatments, drugs, labs,
and other services differently than ESRD beneficiaries. For example,
AKI patients may require more frequent laboratory services, antibiotic
administration, and infection monitoring. The commenter further warned
that these patients may be more likely to miss treatments due to
recurrent illnesses, hospital-based treatments, or debility. The
commenters suggested that CMS work with the dialysis community to
determine if the AKI payment rate should be adjusted for adequacy as a
result of more frequent utilization in the future.
The commenters cautioned CMS that when analyzing historic
utilization that the data may not be representative of the actual
prevalence of AKI patients who require dialysis. A dialysis industry
association urged CMS to closely track the utilization of items and
services that patients with AKI dialysis receive that are in the bundle
because the utilization could be higher.
A dialysis industry organization supported CMS' decision not to
modify payment until there is more experience with these patients in
the ESRD facility setting. Another dialysis industry organization
concurred with CMS' intent to monitor separately billable services for
appropriate utilization and urges CMS to strike a careful balance
between monitoring and recognizing that utilization will be higher. A
different dialysis industry organization commented that CMS should
reaffirm the distinct needs of AKI patients and be supportive of
flexibility for physicians to determine AKI versus ESRD classification,
frequency of treatment, and the types of services provided.
Response: We appreciate the comments from stakeholders regarding
the utilization of drugs, labs, and other services by patients with
AKI. We continue to believe that since the basis of payment is the ESRD
PPS base rate, payment for renal dialysis services is accounted for
through the per treatment AKI dialysis payment rate. Additionally, as
discussed below, other items and services furnished to beneficiaries
with AKI are separately payable.
We acknowledge the commenters' concerns regarding AKI patients'
more frequent use of renal dialysis services when compared to ESRD
beneficiaries. We encourage the reporting of all items and services
furnished to beneficiaries with AKI. We also expect ESRD facilities to
continue to report all services that are furnished to ESRD
beneficiaries. We plan to monitor the utilization of these items and
services to support any necessary changes in future rulemaking.
With regard to the flexibility for physicians to determine when an
AKI patient has regained kidney function, or whether the transition
must be made to ESRD treatment, we agree that this is a medical
decision that should be supported by lab tests and a dialysis
scheduling protocol, including withdrawing dialysis to determine the
extent of recovery of renal function. The goal of AKI should be to have
the kidneys return to normal functioning.
Comment: Several commenters, including dialysis industry
associations and large dialysis organizations, are supportive of the
CMS proposal to pay separately for items and services furnished to
beneficiaries with AKI that are not considered to be renal dialysis
services as defined in 42 CFR 413.171, but that are related to their
dialysis treatment as a result of their AKI and that an ESRD facility
might furnish to a beneficiary with AKI.
Response: We appreciate the support on this issue. We continue to
believe what commenters have explained, that AKI patients have various
treatment needs and outcomes that may not be the same as an ESRD
patient. We acknowledge that this distinction between the two
populations is important and will monitor the

[[Page 77870]]

utilization of items and services along with health outcomes.
Final Rule Action: After consideration of public comments, we are
finalizing in Sec. 413.374(a) that drugs, biologicals, laboratory
services, and supplies that are considered to be renal dialysis
services under the ESRD PPS as defined in 42 CFR 413.171, would be
considered to be renal dialysis services for patients with AKI. As
such, no separate payment would be made for renal dialysis drugs,
biologicals, laboratory services, and supplies that are included in the
ESRD PPS base rate when they are furnished by an ESRD facility to an
individual with AKI. We are also finalizing in Sec. 413.374(b) that
other items and services furnished to beneficiaries with AKI that are
not considered to be renal dialysis services as defined in 42 CFR
413.171, but that are related to their dialysis treatment as a result
of their AKI and that an ESRD facility might furnish to a beneficiary
with AKI, would be separately payable.

D. Applicability of ESRD PPS Policies to AKI Dialysis

1. Uncompleted Dialysis Treatment
Generally, we would pay for only one treatment per day across all
settings. However, similar to the policy applied under the ESRD PPS for
treatments for patients with ESRD, in the interest of fairness and in
accordance with Chapter 8, section 10.2 of the Medicare Claims
Processing Manual, if a dialysis treatment is started, that is, a
patient is connected to the machine and a dialyzer and blood lines are
used, but the treatment is not completed for some unforeseen, but valid
reason, for example, a medical emergency when the patient must be
rushed to an emergency room, both the ESRD facility and the hospital
would be paid. We consider this to be a rare occurrence that must be
fully documented to the A/B MAC's satisfaction.

2. Home and Self-Dialysis

We do not expect that beneficiaries with AKI will receive dialysis
in their homes due to the duration of treatment and the unique needs of
AKI. Specifically, it is our understanding that these patients require
supervision by qualified staff during their dialysis and close
monitoring through laboratory tests to ensure that they are receiving
the necessary care to improve their condition and get off of dialysis.
Therefore, we did not propose to extend the home dialysis benefit to
beneficiaries with AKI.
3. Vaccines and Their Administration
Section 1881(b)(14)(B) of the Act specifically excludes vaccines
covered under section 1861(s)(10) of the Act from the ESRD PPS.
However, ESRD facilities are identified as an entity that can bill
Medicare for vaccines and their administration. Therefore, we proposed
to allow ESRD facilities to furnish vaccines to beneficiaries with AKI
and bill Medicare in accordance with billing requirements in the
Medicare Claims Processing Manual (Pub. 100-04, Chapter 18 Preventive
and Screening Services, section 10.2 which is located on the CMS Web
site: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c18.pdf). We solicited comment on the proposal for ESRD
facilities to administer vaccines to beneficiaries with AKI.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Many commenters, including dialysis nursing organizations,
dialysis organizations, and dialysis industry associations applauded
CMS for proposing to pay for all treatments provided to AKI patients in
a week and suggested that we finalize the policy as proposed. One
dialysis physician association and a couple of dialysis organizations
requested that CMS clarify that both peritoneal dialysis (PD) and
hemodialysis (HD) modalities will be available to these patients and
that the beneficiaries should be allowed to complete their PD treatment
at home.
Response: We thank the commenters for their support. We continue to
believe and expect to continue to see through monitoring initiatives
that individuals with AKI will only need dialysis for a finite number
of days while they recover from kidney injury. As we stated above, we
recognize that the intent of dialysis for patients with AKI is curative
as opposed to long term. Therefore, we are finalizing the policy to
provide payment for all hemodialysis treatments furnished to
beneficiaries with AKI in a week, even if the number of treatments
exceeds the 3 times-weekly limitation we apply to HD treatments
furnished to beneficiaries with ESRD.
With regard to the commenter's concern regarding modalities, we
agree with commenters that individuals with AKI should have the
ability, if they are candidates, for other modalities of dialysis while
they are in the facility. Therefore, in response to commenters we will
apply our policy of payment for AKI dialysis to both in-center PD and
HD. We are finalizing payment for both of these dialysis modalities
furnished to individuals with AKI in a week, including peritoneal
dialysis when clinically appropriate, when the dialysis is furnished in
the ESRD facility. Further discussion regarding home dialysis is below.
Comment: Many commenters supported the policy proposals regarding
uncompleted dialysis treatments and vaccine administration. One
dialysis industry organization requested additional clarification in
regard to the ESRD policies that do not apply to AKI. Another dialysis
industry group encouraged CMS to work with the community to understand
the specific treatment needs of this population.
Response: We thank the commenters for their support regarding our
policies on vaccine administration and uncompleted treatments. We are
finalizing these policies as proposed.
With regard to the commenter's suggestion to clarify the ESRD
policies that do not apply to AKI, as we stated below, we anticipate
that most of the policies laid out in Chapter 8 of the Medicare Claims
Processing Manual will also apply to claims for dialysis furnished to
individuals with AKI. In the timeframe available for the implementation
of the payment for dialysis furnished to individuals with AKI, we
believe that it is prudent to move into CY 2017 with payment policies
that ESRD facilities are accustomed to following. As we monitor
utilization of renal dialysis services and other items and services
that the ESRD facilities furnish to individuals with AKI, we plan to
engage the dialysis community to determine through rulemaking the
continuation or discontinuation of certain policies which are or are
not applicable to this population.
Comment: One dialysis industry association urged CMS to consider
adding renal dialysis services furnished to individuals with AKI to the
list of telehealth eligible services.
Response: Telehealth services are Part B benefits that are outside
of the scope of the ESRD PPS, and therefore, outside of the scope of
this final rule. We note that telehealth dialysis services are limited
to renal dialysis services for home dialysis patients. For more
information on telehealth services, we refer readers to the Medicare
Claims Processing Manual Chapter 12, section 190. (https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c12.pdf). As
discussed below, we do not believe at this time that it is appropriate
for individuals with AKI to be trained to perform home dialysis. The
dialysis industry has repeatedly shared with us

[[Page 77871]]

that this population of patients is unstable and needs close physician
supervision while they receive renal dialysis services. The literature
characterizes this population as needing meticulous attention to fluid,
acid-base, and electrolyte balance, as well as the removal of uremic
toxins (http://www.uptodate.com/contents/use-of-peritoneal-dialysis-for-the-treatment-of-acute-kidney-injury-acute-renal-failure).
Comment: A dialysis industry association suggested that CMS use the
data when dialysis is initiated for individuals with AKI for purposes
of determining transplant wait-list priority status and Medicare
entitlement for patients who transition from AKI to ESRD. This
commenter urged CMS to explicitly include the transplant recipients who
develop AKI and need dialysis after having a functional allograft, in
the rules governing delivery of care, reporting, and conditions for
coverage for individuals with AKI and on dialysis as they believe the
restoration of allograft function in transplant recipients with AKI
dialysis is a critical outcome.
Response: We appreciate the comments related to individuals with
AKI dialysis and kidney transplantation as well as the request for
clarification. If an individual has had a kidney transplant and is just
receiving temporary dialysis for AKI, then facilities could receive
payment for their services under the AKI benefit, provided the
beneficiary meets the criteria for being an AKI patient. If however,
the beneficiary is a kidney transplant recipient and they're beginning
a regular course of dialysis because their ESRD has returned, then
they'd be entitled to the ESRD benefit. Dialysis furnished to kidney
transplant recipients would be covered, whether the dialysis is
necessary because of AKI or ESRD. With regard to AKI beneficiaries who
develop AKI after having a functional allograft and need dialysis. We
note that payment would be made for dialysis furnished to these
beneficiaries under this policy.
Comment: An individual commenter believes that CMS should not
restrict renal dialysis services furnished to individuals with AKI to
the ESRD facility and should allow for home dialysis. They believe that
this particularly impacts patients with ambulation problems, with an
immunosuppressed status, or those that reside in a long term care
facility. This comment is in direct contrast to a comment received from
a patient advocacy organization, a large health system, a dialysis
industry association, and dialysis nursing organizations who agree with
our proposal to limit AKI dialysis to in-center treatments since most
AKI patients will not use home dialysis because the modality takes time
to initiate. An LDO suggested that CMS specifically define requirements
for patients that reside in a facility that could be designated as a
home. A dialysis industry organization requested that CMS reconsider a
blanket rejection of home dialysis care pointing out that PD, initially
begun in the facility, could be appropriate in the home and would be
particularly helpful to patients for whom transportation is a
challenge.
Response: We appreciate the feedback regarding allowing AKI
patients to dialyze at home. This policy decision is one that we will
monitor for future changes. Multiple sources in the industry, however,
including, physicians, patient advocacy groups, and dialysis
organizations of all sizes, have communicated to us that this
population of patients is unstable. Some commenters stated that
patients require close attention while they receive their dialysis,
which is why alternatively the service was primarily available in the
hospital outpatient setting prior to the TPEA amendments. In addition,
based on the data we have received, at this time we believe that this
population will dialyze primarily in an ESRD facility. Therefore we are
finalizing as proposed. However, as we gather data on the AKI
population and the extent of home training necessary to safely self-
administer PD in the home, we may consider the use of PD in the home
for the AKI patient in the future as we may find that there are be
subsets of patients whose injury may lend itself, after an initial
treatment period, to PD in the home. (http://www.uptodate.com/contents/use-of-peritoneal-dialysis-for-the-treatment-of-acute-kidney-injury-acute-renal-failure).
Final Rule Action: We will keep this option as one to consider in
the future.

E. Monitoring of Beneficiaries With AKI Receiving Dialysis in ESRD
Facilities

Because we are aware of the unique acute medical needs of the AKI
population, we plan to closely monitor utilization of dialysis and all
separately billable items and services furnished to individuals with
AKI by ESRD facilities. For example, stakeholders have stated that
beneficiaries with AKI will require frequent labs to monitor renal
function or they will be at risk for developing chronic renal failure.
Another recurrent concern is the flexibility necessary in providing
dialysis sessions to beneficiaries with AKI. Stakeholders have told us
that these patients may need frequent dialysis, but will also require
days with no dialysis to test for kidney recovery. Consequently, we
will closely monitor utilization of dialysis treatments and the drugs,
labs and services provided to these beneficiaries.
We met with both physician and provider associations with regard to
the care of patients with AKI. Both have expressed concerns that
physician oversight will be limited for these beneficiaries, based on
current operational models used by ESRD facilities. They encouraged CMS
to support close monitoring of this patient population, particularly
with regard to lab values, in the interest of preventing these patients
from becoming ESRD patients. A close patient-physician relationship is
critical for the successful outcome of the AKI patient.
The comments and our responses to the comments for this approach
are set forth below.
Comment: An LDO and dialysis industry associations encouraged CMS
to consult with stakeholders regarding monitoring of these patients and
to also be transparent regarding AKI utilization data collected for
payment and delivery of AKI services. Another dialysis industry
association appreciated that CMS recognizes the importance of
monitoring and suggests that a monitoring add-on payment is
appropriate. A third dialysis industry association commented that
nephrologists and other dialysis caregivers should implement active
measures to promote and to monitor renal recovery.
Response: We appreciate the support on this issue. We will be
developing formal monitoring programs for utilization to inform future
payment policy. When we refer to monitoring, we are referring to data
review based on claims data, not physician monitoring. Physician
oversight for these beneficiaries would be included in the AKI dialysis
payment rate or payable through the appropriate fee for service
benefit, if not a renal dialysis service. We will develop public use
files for the utilization of these services, but do not anticipate that
this data will be available for at least 1 year. If stakeholders have
data, we would welcome the receipt of that data.

F. AKI and the ESRD Conditions for Coverage

The ESRD Conditions for Coverage (CfCs) at 42 CFR part 494 are
health and safety standards that all Medicare-participating dialysis
facilities must meet. These standards set baseline requirements for
patient safety, infection control, care planning, staff qualifications,
record keeping, and other

[[Page 77872]]

matters to ensure that all ESRD patients receive safe and appropriate
care. We proposed a technical change to 42 CFR 494.1(a), statutory
basis, to incorporate the changes to ESRD facilities and treatment of
AKI in the Act as enacted by section 808 of the Trade Protection
Extension Act of 2015 (Pub. L. 114-27, June 29, 2015) (TPEA), and are
finalizing this change as proposed.
We did not propose changes to the CfCs specific to AKI, but did
request comment from the dialysis community as to whether revisions to
the CfCs might be appropriate for addressing treatment of AKI in ESRD
facilities. We received 11 timely comments addressing this issue and
thank the commenters for their input. While we are not formally
responding to the comments at this time, the comments are summarized
(with some clarification on our part), below.
All commenters agreed that we do not need to revise the ESRD CfCs
to address AKI at this time. About half of the commenters recommended
that we not revise the CfCs to directly address AKI at all, while the
remaining commenters suggested we consider revisions to requirements
addressing the comprehensive patient assessment, care planning,
modality options, and transplantation. A few commenters recommended
that we not revise the ESRD CfCs to address AKI because AKI and ESRD
are different diseases. We understand the reasoning behind this
statement but wish to clarify that the ESRD CfCs apply to ESRD
facilities, not to ESRD patients, and note that the ESRD CfCs would be
the appropriate regulatory location for standards addressing care
provided to AKI patients in ESRD facilities.
We thank the commenters, and will consider their comments for
future rulemaking and regulatory guidance.

G. ESRD Facility Billing for AKI Dialysis

For payment purposes, claims for beneficiaries with AKI would be
identified through a specific condition code, an AKI diagnosis, an
appropriate revenue code, and an appropriate Common Procedural
Terminology code. These billing requirements would serve to verify that
a patient has AKI and differentiate claims for AKI from claims for
patients with ESRD. ESRD facilities are expected to report all items
and services furnished to individuals with AKI and include comorbidity
diagnoses on their claims for monitoring purposes. We anticipate that
with exceptions for separately billable items and services, most of the
claims policies laid out in Chapter 8 of the Medicare Claims Processing
Manual will also apply to claims for dialysis furnished to AKI
beneficiaries. All billing requirements will be implemented and
furnished through sub-regulatory guidance.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Industry organizations, an LDO, and an MDO made claims
processing and cost report modification suggestions. Another industry
organization commented that reimbursement policy should be clearly and
unequivocally conveyed to all MACs. Another industry organization
agrees with the creation of a specific payment code and corresponding
Current Procedural Terminology code to distinguish AKI patients from
ESRD patients. Another industry organization made suggestions for
modifications to the cost report. Yet another industry organization
suggested the CMS develop an intake form, a treatment form, and a
recovery form with data elements specific to AKI.
Response: We appreciate the thorough and thoughtful responses
provided in regards to claims processing and cost report changes. We
have completed a similar analysis and administrative guidance will be
forthcoming. The usage of other forms will be considered for future
updates as well.

H. Announcement of AKI Payment Rate in Future Years

In future years, we anticipate announcing the AKI payment rate in
the annual ESRD PPS rule or in a Federal Register notice. We will adopt
through notice and comment rulemaking any changes to our methodology
for payment for AKI as well as any adjustments to the AKI payment rate
other than the wage index. When we are not making methodological
changes or adjusting (as opposed to updating) the payment rate,
however, we will announce the update to the rate rather than subjecting
it to public comment every year. We proposed to announce the annual AKI
payment rate in a notice published in the Federal Register or,
alternatively, in the annual ESRD PPS rulemaking, and provide for that
announcement at proposed 42 CFR 413.375. We welcomed comments on
announcing the AKI payment rate for future years.
The comments and our responses to the comments for this proposal
are set forth below.
Comment: We received several comments from industry organizations
encouraging CMS to allow for notice and comment rulemaking when
updating the AKI payment rate.
Response: Because we believe we are required under section 1834(r)
to utilize the ESRD PPS base rate as adjusted by the wage index, we do
not believe it is necessary to adopt that rate through notice and
comment rulemaking as we don't believe we have discretion to adopt an
amount other than that, except to the extent that we apply other
payment adjustments to that amount. As noted above, any methodology
changes or payment adjustments that are applied to the AKI dialysis
payment rate will be adopted through notice and comment rulemaking.
Final Rule Action: We are finalizing the announcement of the AKI
payment as proposed and revising the regulations text at Sec. 413.375
to reflect this proposal.

IV. End-Stage Renal Disease (ESRD) Quality Incentive Program (QIP)

A. Background

Section 1881(h) of the Act requires the Secretary to establish an
End-Stage Renal Disease (ESRD) Quality Incentive Program (QIP) by (1)
selecting measures; (2) establishing the performance standards that
apply to the individual measures; (3) specifying a performance period
with respect to a year; (4) developing a methodology for assessing the
total performance of each facility based on the performance standards
with respect to the measures for a performance period; and (5) applying
an appropriate payment reduction to facilities that do not meet or
exceed the established Total Performance Score (TPS). This final rule
discusses each of these elements and our policies for their application
to the ESRD QIP.

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the End-Stage Renal Disease (ESRD) Quality Incentive
Program (QIP)

[[Page 77873]]

a comment period that ended on August 23, 2016.
In that proposed rule, for the ESRD QIP, we proposed updates to the
ESRD QIP, including updates for the PY 2018 through PY 2020 programs.
We received approximately 50 public comments on our proposals related
to the ESRD QIP, including comments from large dialysis organizations,
ESRD facilities; national renal groups, nephrologists, patient
organizations, patients and care partners, manufacturers, health care
systems; nurses, and other stakeholders.
In this final rule, we provide a summary of each proposed
provision, a summary of the public comments received and our responses
to them, and the policies we are finalizing for the ESRD QIP. Comments
related to the paperwork burden are addressed in the ``Collection of
Information Requirements'' section in this final rule. Comments related
to the impact analysis are addressed in the ``Economic Analyses''
section in this final rule.
We received comments about general policies and principles of the
ESRD QIP. The comments and our responses are set forth below.
Comment: Many commenters expressed concern about CMS' continued
reliance on process measures and recommended that CMS seek to use risk-
adjusted outcome measures that capture the effective management of
dialysis patients. Commenters stressed that CMS should strive to adopt
evidence-based measures that promote the delivery of high-quality care
and improved patient outcomes. Commenters also stressed the importance
of working with stakeholders in the nursing community when developing
and implementing measures because nephrology nurses in particular are
integral to the collection and processing of quality improvement data
and it is vitally important to represent their perspective during the
measure development and implementation process.
Many commenters raised particular concerns about the lack of
measures in the QIP that adequately address the needs of the pediatric
population or of home hemodialysis patients. They argued that the
current measurement criteria do not take their unique needs into
consideration. Commenters asked CMS to ensure that the reporting
structure is viable for all providers, whether they service patients
in-center or at home. Many of the smaller facilities enter data
manually into CROWNWeb, and commenters argued that given the current
structure of the QIP, many pediatric facilities in particular are
unable to participate. They recommended that CMS focus its attention on
aligning quality metrics and value-based programs with the goal of
achieving a high quality of care for pediatric patients. One commenter
argued that it is counter-productive to subject providers who care for
unique populations to penalties for not achieving results which are
unrealistic in their populations.
Response: We appreciate the commenters' commitment to the adoption
of evidence-based measures that address high-quality care and improved
patient outcomes. We share this commitment, which is why we've made an
effort to incorporate measures that address patient experiences of
care, readmissions and hospitalizations, and bloodstream infections. We
hope to continue this trend in the future. We are cognizant of the
issues around adequately assessing the quality of care provided for
pediatric and home hemodialysis patients and we continue to investigate
options to more effectively incorporate measures relevant to those
patient populations. We continue to believe that existing data sources
used to capture data for calculating ESRD QIP measures, (that is,
CROWNWeb and NHSN) are viable for facilities that provide home as well
as in-center hemodialysis, because they utilize web-based applications
that can be accessed with a personal computer. Facilities providing
home dialysis should also not experience any undue burden using claims
to report clinical data if they are also able to submit claims for
reimbursement.
Comment: One commenter questioned why CMS believed it was necessary
to develop Dialysis Facility Compare in addition to the QIP, because
the commenter believes having two quality systems may lead to confusion
for beneficiaries and their families. The commenter recommended that
CMS align measurement methodologies and reporting requirements across
CMS ESRD quality programs or, in the alternative, move toward using one
quality measurement system that could be based on a reasonable number
of outcomes-based performance measures as this would reduce
administrative costs and confusion.
Response: The ESRD QIP and Dialysis Facility Compare program have
different purposes, which in certain cases necessitates divergent
measure specifications and scoring methodologies. However, we
continuously review measure specifications and scoring methodologies
across the programs and will continue to create alignments where
appropriate. The recently developed ESRD Measures Manual may help ease
some of the confusion for facilities because it provides a
comprehensive list of detailed measure specifications. The ESRD
Measures Manual can be found here: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/Downloads/CMS-ESRD-Measures-Manual-Final-v1_0.pdf.
Comment: One commenter sought additional information about whether
any data collected under the ESRD QIP measure set shows the impact of
these measures on patient outcomes or Medicare spending on patients
with ESRD.
Response: We thank the commenter for their question. Unfortunately,
with so many interdependent factors influencing the quality of care
provided at dialysis facilities (for example, payment policies in the
prospective payment system, FDA labeling policies, and independent
advancement in the treatment of ESRD), it is difficult to disentangle
the impact of ESRD QIP policies from other policies and developments in
the field. CMS is actively monitoring the impact of ESRD QIP measures
on the quality of care received by patients with ESRD, and has yet to
identify any unintended consequences caused by policies or measures
implemented by the program. In the future, as more studies are
conducted and results become available, we will consider releasing
these types of monitoring studies for review by the community.
One objective measure we can examine is the improvement of
performance standards over time. Table 2 below shows that as the ESRD
QIP has refined its measure set and as facilities have gained
experience with the measures included in the program, performance
standards have generally continued to rise. We view this as evidence
that facility performance is objectively improving. It remains
difficult to disentangle these results from the impact of the ESRD QIP
policies or those of other policies and developments in the field, but
they show a steady rise in the quality of care received by patients
with ESRD.

[[Page 77874]]

Table 2--Improvement of Performance Standards Over Time
----------------------------------------------------------------------------------------------------------------
Measure PY 2015 PY 2016 PY 2017 PY 2018 PY 2019
----------------------------------------------------------------------------------------------------------------
Hemoglobin > 12 g/dL............ 1% 0%
Vascular Access Type:
% Fistula................... 60% 62.3% 64.46% 53.51% 53.72%
% Catheter.................. 13% 10.6% 9.92% 16.79% 17.06%
Kt/V:
Adult Hemodialysis.......... 93% 93.4% 96.89% 91.08% ..............
Adult, Peritoneal Dialysis.. 84% 85.7% 87.10% 75.42% ..............
Pediatric Hemodialysis...... 93% 93% 94.44% 84.16% ..............
Pediatric Peritoneal .............. .............. .............. 43.22% ..............
Dialysis...................
Hypercalcemia................... .............. 1.7% 1.30% 3.92% 4.21%
NHSN Bloodstream Infection SIR.. .............. .............. .............. 1.812% 1.812
Standardized Readmission Ratio.. .............. .............. 0.996 0.996 1.276
Standardized Transfusion Ratio.. .............. .............. .............. 1.470 1.470
----------------------------------------------------------------------------------------------------------------

Comment: One commenter expressed concerns that if the ESRD QIP
continues to take payment reductions from facilities, some facilities
may be forced to close. They added that accountability for the outcomes
facilities can influence is appropriate but it is important that CMS
not become overzealous in its implementation of new measures.
Response: Section 1881(h) of the Act requires that we implement the
ESRD QIP program each year. We have carefully constructed policies
related to each of the requirements specified in Section 1881(h). Our
policies related to payment reductions for the ESRD QIP have been
constructed to ensure that the application of the scoring methodology
results in an appropriate distribution of payment reductions across
facilities, such that facilities achieving the lowest TPSs receive the
largest payment reductions. The largest payment reduction the ESRD QIP
applies is 2 percent of a facility's total payment for the year.
Additionally, we finalized a Small Facility Adjuster which ensures that
small facilities are not adversely impacted by their small number of
patients or by any outlier patients who may adversely impact their
scores on quality measures included in the program. We believe the ESRD
QIP's scoring methodology combined with payment reductions is the best
way to ensure that facilities are held accountable for the care that
they provide and are only penalized for providing care to their
beneficiaries which does not meet a certain threshold. For the PY 2020
ESRD QIP, a facility will not receive a payment reduction if it
achieves a minimum TPS that is equal to or greater than the total of
the points it would have received if it performed at the performance
standard for each clinical measure and it received the number of points
for each reporting measure that corresponds to the 50th percentile of
facility performance on each of the PY 2018 reporting measures.
Regarding commenter's concern that facilities may be forced to
close based upon the ESRD QIP's payment reductions, we have reviewed
data on facility closures from 2008 through 2013 and we have seen a
steady decrease in the number of facilities that have closed from 80 in
2010 to 56 in 2013. We recognize that the absolute number rose slightly
from 45 in 2012 to 56 in 2013. However these numbers must be looked at
in context. As a percentage of the total number of dialysis facilities
nationwide, the number of facilities closing each year is not
significant. Additionally, facility closures cannot be definitively
attributed to any single factor. The ESRD QIP policies may play a small
role in these numbers, but many other factors, both within and outside
of healthcare, have an impact. Table 3 below shows the number of
facilities closed from 2008 through 2013.

Table 3--ESRD Facility Closures, 2008 Through 2013
----------------------------------------------------------------------------------------------------------------
Closed facilities
-----------------------------------------------------------------------------------------------------------------
2008 2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
50 82 80 72 45 56
----------------------------------------------------------------------------------------------------------------

Comment: Several commenters expressed concerns about the number of
measures included in the QIP and about the addition of more measures,
and argued that too many measures dilute the impact of quality
programs. One commenter suggested that with the current measure set,
patients are no longer being held responsible for their own care and
urged CMS to consider more measures that assess patient compliance with
treatment and medication. Another recommended that CMS look into
developing a system to allocate Medicare benefits for patients
depending on their responsibility in their medical treatment and care.
One commenter argued this dilution of measure impact is evidenced by a
close examination of the measure weights CMS proposed for PY 2020.
Specifically, the small percentage assigned to each measure means that
critical measures such as reducing catheter use are weighted in a
similar manner to measures of less importance, such as the
hypercalcemia clinical measure, which is ``topped out'' under the
criteria previously finalized by the ESRD QIP. Commenters encouraged
CMS to refrain from continuing to develop more measures and instead to
work on finding a small set of measures to use in the program on an
ongoing basis. One commenter encouraged CMS to pause its measure-
development efforts in favor of working with the entire kidney care
community (as opposed to a small group of TEP members) in order to
identify a small set of core measures that matter. Commenters
recommended that new measures be limited to evidence-based outcomes
measures that promote the delivery of high-quality care and improved
patient outcomes, and that they should be the most impactful measures.
One commenter also stressed

[[Page 77875]]

that CMS should consider which measures might be ready to be retired
from the program, and they pointed out that critically important
measures, such as the VAT: Catheter measure, are competing for
percentage points with other measures that have less clinical
significance to patients. This work would likely require addressing
some of the underlying problems with existing measures. For example,
commenter urged CMS to focus on developing a new bone mineral
metabolism measure before pursuing other measure development to make
sure the statutory requirement in PAMA is met.
In developing this core set of measures, commenters urged CMS to
adopt a set of minimum global exclusions that would be automatically
applied to all measures. Specifically, they recommended the following
exclusions: (1) Beneficiaries who die within the applicable month; (2)
Beneficiaries who receive fewer than 7 treatments in a month; (3)
Beneficiaries receiving home dialysis therapy who miss their in-center
appointments when there is a documented good faith effort to have them
participate in such a visit during the applicable month; (4) Transient
dialysis patients; (5) Pediatric patients (unless the measure is
specific to pediatric patients); and (6) Kidney transplant recipients
with a functioning graft. Additionally, commenter asked that CMS
clarify that beneficiaries must have treatment for at least 60 days to
be assigned to a facility. One commenter added that CMS should
particularly consider the needs of small facilities, pediatric
patients, and patients who have received a transplant when developing
exclusions which would apply across the board.
Response: We understand that there are a number of measures we
proposed to be added to the ESRD QIP for PY 2019 and PY 2020. Although
we recognize that adopting more measures in the ESRD QIP increases
costs to facilities as well as CMS, we believe these increased costs
are outweighed by the benefits to patients of incentivizing quality
care in the domains that the measures cover. We are constantly re-
examining the measures that are included in the program to ensure that
they are capturing a variety of information about the care that
patients receive, and we carefully consider whether measures should be
retired from the program. In an effort to ensure that the impact of the
program is not diluted and that each measure receives an appropriate
weight, we are finalizing changes to the weighting of measures and of
the measure domains for both PY 2019 and PY 2020. We believe the
weights we are finalizing will preserve the program's strong incentives
for facilities to achieve high scores on the clinical measures and to
fully and accurately report data for the reporting measures. In future
years of the program, we will consider the feasibility of including
measures that assess patient compliance with treatment and medication.
As we stated in the CY 2015 ESRD PPS Final Rule (79 FR 66164), we
considered applying these six global exclusion criteria in response to
comments on the CY 2014 ESRD PPS proposed rule (78 FR 72192). We agree
with commenters that exclusion criteria for the ESRD QIP measures
should be consistent, where feasible. We further believe, however, that
exclusions also need to take into account the population to which a
measure applies and the settings for which the measures were developed
(for example, in-center hemodialysis as opposed to home hemodialysis).
As stated in previous rules, we will continue to look for ways to align
exclusion criteria for measures in the ESRD QIP, as long as there is
evidence to support such consistency.
Comment: One commenter made several recommendations regarding the
preview period and the Performance Score Report (PSR) provided to
facilities as part of the preview period. First, commenter recommended
that CMS consider lengthening the preview period from 30 to 60 days,
because smaller facilities find it difficult to review their scores in
detail, research patients and labs, write up comments and questions and
submit formal inquiries within 30 days. Second, commenter requested
that the PSR be updated to include the number of eligible patients and
patient-months for each measure and for each facility rather than just
including the number of patient-months. Third, commenter requested that
CMS consider including new measures in the PSR the first year the
measure is included in the QIP without counting scores towards a
facility's TPS so that facilities may see how they would be scored and
how they would rate but they could be given time to work on internal
improvement before the new measure is officially finalized. Commenter
also noted this would also give facilities time to prepare and update
necessary billing system changes, policies and procedures and record-
keeping/patient forms. Fourth, commenter requested that CMS release
summary statistics each year about the Preview Period--specifically,
how many formal inquiries are received, how many are received from each
dialysis organization, how many are overturned and how many result in
score changes, and how many systemic changes are approved. Finally,
commenter requested that the PSR be updated to include actual numerical
percentages rather than ``requisite percentages'' because this would
avoid many questions and would help personnel understand how measures
are scored.
Response: We thank the commenter for their suggestions on ways to
improve the Preview Period experience for facilities as well as ways to
ensure that the PSR provides as much helpful information to facilities
as possible. We will consider the feasibility of implementing some of
these recommendations in future years of the program.
Comment: One commenter questioned why CMS must make so many changes
each year to the ESRD QIP Program--specifically, why new measures must
be added, why the scoring methodology is changed, why new exclusion and
eligibility criteria are added each year, etc. and argued that these
changes are overly demanding and burdensome for facilities.
Response: As new policies are implemented and new measures are
added to the program, we are continually evaluating the program to
ensure that we are capturing a broad range of information about the
care that dialysis facilities are providing to patients and to ensure
that our policies are in line with the goals we are seeking to achieve.
As measures undergo maintenance and are evaluated by measures
developers and by the NQF, new exclusion and eligibility criteria are
added to ensure that each measure is specified appropriately to include
only those patients who should be included in the measure's numerator
and denominator. As these changes are incorporated into the program,
other changes must follow, but we seek to provide facilities with as
much notice as possible through rulemaking and other means of
communication so that they are given appropriate time to make necessary
changes within their own programs and policies.
Commenter: One commenter asked whether CMS will allow Calcium,
Phosphorus, and Kt/V to be obtained from outside sources the way
hemoglobin (Hgb) is able to be collected from outside sources.
Response: In response to the commenter's question, Calcium,
Phosphorus, and Kt/V can all be obtained from outside sources in the
same way that Hgb can be collected from outside sources. In fact, in
the CY 2013 ESRD PPS Final Rule (77 FR 67473), we finalized that if a
patient is hospitalized or transient during a claim

[[Page 77876]]

month, the facility could monitor the serum calcium and serum
phosphorus readings for that patient for the month if a patient has
labs drawn by another provider/facility, those labs are evaluated by an
accredited laboratory (a laboratory that is accredited by, for example,
Joint Commission, College of American Pathologists, AAB (American
Association of Bioanalysts), or State or Federal Agency), and the
dialysis facility reviews the serum calcium and serum phosphorus
readings. The Kt/V can also be obtained from outside sources in the
same way, provided those same conditions are met.

C. Requirements for the Payment Year (PY) 2018 ESRD QIP

1. Small Facility Adjuster (SFA) Policy for PY 2018
In the CY 2016 ESRD PPS Final Rule, we revised the calculation of
the Small Facility Adjuster (SFA) (80 FR 69039). In that rule we
proposed to correct our description of the SFA for payment year (PY)
2017 and future years. Our original proposal pegged the SFA to the
national mean, such that small facilities scoring below the national
mean would receive an adjustment, but small facilities scoring above
the national mean would not. Several commenters supported the overall
objectives of the proposed SFA modification but were concerned that too
few facilities would receive an adjustment under our proposed
methodology. They recommended that rather than pegging the SFA to the
national mean, we peg the SFA to the benchmark, which is the 90th
percentile of national facility performance on a measure, such that
facilities scoring below the benchmark would receive an adjustment, but
those scoring above the benchmark would not. In the process of updating
the finalized policy to reflect public comment, we inadvertently
neglected to update this sentence from our statement of finalized
policy: ``For the standardized ratio measures, such as the Standardized
Readmission Ratio (SRR) and Standardized Transfusion Ratio (STrR)
clinical measures, the national mean measure rate (that is, P is set to
1.'' (80 FR 69039).
Setting the ratio measures at the national mean in the SFA equation
would have been inconsistent with our desired policy position and would
have been unresponsive to the commenter's point. It was also
inconsistent with another part of our statement on the finalized SFA
methodology and was more punitive for facilities because it did not
provide an adjustment for a number of small facilities that may have
been adversely affected by a small number of outlier patients.
Therefore, in this year's rule making we proposed to correct the
description of the SFA methodology such that, for the standardized
ratio measures such as the SRR and STrR clinical measures, P is set to
the benchmark, which is the 90th percentile of national facility
performance.
We sought comments on this proposal. The comments and our responses
to comments are set forth below.
Comment: One commenter expressed concerns about the SFA, arguing
that the inclusion of very small sample sizes leads to many facilities'
scores being driven more by luck than by actual performance, and
stressed that this effect is particularly exacerbated for the
standardized ratio measures.
Response: We thank the commenter for their concern regarding the
SFA. We want to clarify that this adjuster provides a positive
adjustment to eligible small facilities' measure scores which we
believe is sufficient to counteract the negative effects of a small
patient census on facility scores.
Final Rule Action: We are finalizing our proposal to correct the
description of the SFA methodology such that, for the standardized
ratio measures such as the SRR and STrR clinical measures, P is set to
the benchmark, which is the 90th percentile of national facility
performance. The purpose of this policy change is to ensure that small
facilities are not adversely impacted by outlier patients and that
facilities are being fairly scored on their actual performance
regardless of their size.
2. Changes to the Hypercalcemia Clinical Measure
During the measure maintenance process at National Quality Forum
(NQF), two substantive changes were made to the Hypercalcemia clinical
measure. First, plasma was added as an acceptable substrate in addition
to serum calcium. Second, the denominator definition changed such that
it now includes patients regardless of whether any serum calcium values
were reported at the facility during the 3-month study period.
Functionally, this means that a greater number of patient-months will
be included in this measure, because patient-months will not be
excluded from the measure calculations solely because a facility
reports no calcium data for that patient during the entire 3-month
study period.
We proposed to update the measure's technical specifications for PY
2018 and future years to include these two substantive changes to the
Hypercalcemia clinical measure included in the ESRD QIP. These changes
will positively impact data completeness in the ESRD QIP because
facilities' blood tests typically use plasma calcium rather than serum
calcium. Including patients with unreported calcium values in the
measure calculations will encourage more complete reporting of this
data. Additionally, these changes will ensure that the measure aligns
with the NQF-endorsed measure and can continue to satisfy the
requirements of the Protecting Access to Medicare Act of 2014 (PAMA),
which requires that the ESRD QIP include in its measure set measures
(outcomes-based, to the extent feasible), that are specific to the
conditions treated with oral-only drugs.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: Several commenters requested clarification regarding the
technical specifications for the Hypercalcemia Clinical Measure, noting
that there is an apparent discrepancy. Specifically, they asked whether
the exclusion ``patients without at least one uncorrected serum calcium
value at that facility during the 3-month study period'' should be
applicable for PY's 2017 through 2020.
Response: We understand why there may be some confusion, however
there is no real discrepancy in the technical specifications published
at the time of the proposed rule. The technical specifications for PY
2017 are correct, and do not include the exclusion ``patients without
at least one uncorrected serum calcium value at that facility during
the 3-month study period'' because the updates to the measure were
proposed for PY 2018 and future years. The PY 2018 Technical
Specifications published at the time of the proposed rules reflected
the change that we proposed. We note below that we are now delaying
implementation of this change until PY 2019, so updated Technical
Specifications for PY 2018 are now published on the CMS Web site. The
Technical Specifications proposed for PY 2019, published at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/Downloads/PY-2020-NPRM-NHSN-Dialysis-Event-tech-spec-for-PY-2019.pdf only included specifications for the measure being
added to the program for PY 2019 (that is, the proposed NHSN Dialysis
Event Reporting Measure's Specifications). The Technical Specifications
proposed for PY 2020 included all measures previously finalized for
inclusion in the ESRD QIP for PY 2020, as well as the substantive
changes described above

[[Page 77877]]

which we proposed for the Hypercalcemia Clinical Measure.
Because we are now finalizing the changes proposed to the
Hypercalcemia Clinical Measure for PY 2019, we have provided updated
Technical Specifications for PY 2018 at https://www.cms.gov/Medicare/Quality-INitiatives-Patient-Assessment-Instruments/ESRDQIP/index.html.
The Technical Specifications that we are finalizing for PY 2019 and PY
2020 already contain these changes to the measure.
Comment: One commenter recommended that CMS consult with
stakeholders to determine whether a different Performance Standard
should apply to Home Dialysis patients for the Hypercalcemia Clinical
Measure, because the commenter believes the standards established in
the rule are difficult for home dialysis programs to achieve due to
dependence upon patient adherence and compliance. While in-center
hemodialysis patients are generally given their medication through IV
while they are in the dialysis center, home dialysis patients need to
pick up their medications and adjust dosing as directed.
Response: We thank commenter for their recommendation. However,
``hypercalcemia is usually an inadvertent complication of the
management of CKD mineral and bone disorder, so therapy should be
focused on preventing the development of sustained serum calcium
greater than 10.2 mg/dL. The TEP felt that the measure's threshold
(>10.2 mg/dL) addressed concerns about adverse events in patients that
exceeded the upper limit of normal and therefore was a safety concern
for all ESRD patients. That safety concern, we argue, is irrespective
of whether patients are on in-center hemodialysis or home peritoneal
dialysis therapies (home HD, or PD), and we note that the TEP did not
consider for discussion separate thresholds based on modality. Based on
the TEP's reasoning, we feel there is an expectation that facilities
are responsible for ensuring home dialysis patients as well as in-
center patients avoid elevated calcium levels ``above the normal
range'' as per clinical practice guideline recommendations. [KDIGO
2009]. As such, we believe it is appropriate to include home dialysis
patients in the denominator of the hypercalcemia measure.
Comment: Several commenters expressed concerns that the
Hypercalcemia clinical measure is not impactful and is not the best
indicator of clinical care because it is topped out and recommended
that CMS instead focus its measure development efforts on developing
and testing a more appropriate measure to meet the statutory
requirement of PAMA, particularly in light of NQF's conclusion that
there is very little room for improvement and that the performance gap
identified by the developer did not warrant a national performance
measure. One commenter specifically argued that the Hypercalcemia
measure should not be characterized as a measure specific to conditions
treated with oral-only drugs because Hypercalcemia is not only treated
with oral-only drugs and because it may sometimes be treated with a
calcimimetic when calcium levels have risen due to treatment with
active Vitamin D, which is typically given intravenously during
hemodialysis.
Commenters also asserted that the measure provides no value to the
patient and does not relate to the provision of quality care. Despite
these concerns, they expressed an understanding that maintaining this
measure in the ESRD QIP measure set meets the statutory requirements of
PAMA, and encouraged CMS to work with the kidney care community to find
replacement measures. They added that CMS should continue to track
hypercalcemia, but stated that linking hypercalcemia to specific
medications without including the influence of active Vitamin D is
problematic and unlikely to produce reliable data. In the interim,
commenters expressed support for the proposed changes to the measure to
ensure that the measure continues to satisfy NQF recommendations, but
urged CMS to continue monitoring the Food and Drug Administration's
(FDA's) approach to new injectables because that may require CMS to
reconsider its approach.
Response: We thank the commenters for their comments. Hypercalcemia
is the only measure of which we are aware that meets the statutory
requirements in PAMA for an NQF-endorsed quality measure of conditions
treated with oral-only medications. The measure has been recommended
for reserve status endorsement by the NQF in part because of its
utility as an important safety measure for dialysis patients. The NQF
recommends measures for ``reserve status'' when they are ``highly
credible, reliable, and valid measures that have high levels of
performance due to quality improvement actions. The purpose of reserve
status is to retain endorsement of reliable and valid quality
performance measures that have overall high levels of performance with
little variability so that performance could be monitored in the future
if necessary to ensure that performance does not decline.'' \1\ While
hypercalcemia (as defined in the measure's technical specifications, as
the serum calcium level of 10.2) is not a common complication among
ESRD patients, it is still associated with elevated risks for
mortality, suggesting that when it occurs, it can have serious
consequences for patients.
---------------------------------------------------------------------------

\1\ Glossary of Terms, National Quality Forum, https://www.qualityforum.org/Measuring_Performance/.../NQF_Glossary.aspx.
---------------------------------------------------------------------------

We recognize that the Hypercalcemia measure is not a comprehensive
measure of all oral-only medications, but limitations in available
evidence have prevented us from developing measures that might address
oral-only medications more broadly used in the ESRD dialysis
population. We will continue to work with the community to develop more
comprehensively applicable measures that meet these requirements. Three
TEPs have been convened in 2006, 2010, and 2013 to address the topic of
mineral bone disease measures, but the limited clinical evidence
available has prevented those panels from recommending any measures
that identify elevated levels of parathyroid hormone (PTH) or
phosphorus. We have consulted with the dialysis community on this
matter and will continue to do so, but we are unaware of any other
specified and NQF-endorsed measure that would meet the requirements in
PAMA. As evidence evolves to support more comprehensive measures of
conditions treated by and these measures earn consensus endorsement, we
agree that it will be appropriate to carefully consider the role of the
Hypercalcemia measure in the ESRD QIP.
Comment: One commenter expressed concerns about the effect the
proposed changes to the Hypercalcemia clinical measure may have on
facilities' TPSs and requested that CMS evaluate the impact of these
changes on facility scores to ensure that no facility is penalized due
to a change in methodology.
Response: We have conducted additional analyses, the results of
which are published here: https://www.cms.gov/Medicare/Quality-INitiatives-Patient-Assessment-Instruments/ESRDQIP/index.html. An
analysis of the effect the changes to the Hypercalcemia clinical
measure will have on payment reductions shows that only 11 additional
facilities would receive a payment reduction under the new methodology
compared to the old methodology. Table 4 below shows

[[Page 77878]]

simulated payment reductions for PY 2020 using the old Hypercalcemia
methodology (on the left) and the new Hypercalcemia methodology (on the
right).

Table 4--PY 2020 Simulated Payment Reductions Comparing Prior
Hypercalcemia Methodology to New Hypercalcemia Methodology
------------------------------------------------------------------------
Simulated payment Simulated payment
reductions for PY reductions for PY
Reduction 2020 using prior 2020 using new
hypercalcemia hypercalcemia
methodology (N(%)) methodology
------------------------------------------------------------------------
0/5............................. 3322 (55.2%)...... 3311 (55.0%).
0.5%............................ 1552 (25.8%)...... 1538 (25.5%).
1.0%............................ 823 (13.7%)....... 832 (13.8%).
1.5%............................ 255 (4.2%)........ 269 (4.5%).
2.0%............................ 69 (1.2%)......... 71 (1.2%).
------------------------------------------------------------------------

Comment: One commenter expressed concern that the ESRD QIP has not
adopted a measure specific to bone mineral disorder. The commenter
noted that CMS correctly identified calcimimetics and phosphate binders
as two types of oral-only drugs but argued that CMS incorrectly
identified the three conditions that are treated with these two classes
of drugs, and encouraged CMS to continue looking at measures specific
to Chronic Kidney Disease (CKD) Mineral Bone Disease (MBD) broadly.
They specifically recommended a composite measure which would focus on
the three biochemical parameters associated with Chronic Kidney Disease
Mineral Bone Disease: Calcium, phosphorous, and PTH, rather than
focusing on one individual biochemical parameter in isolation.
Response: We thank the commenter for raising concerns about
adopting measures specific to bone mineral disorder. At present, we
have two measures that address mineral bone disorder (MBD). We
finalized a measure of hypercalcemia (NQF #1454) beginning with the PY
2016 program and we are finalizing the implementation of a phosphorus
reporting measure (NQF #0255) beginning with PY 2020.
The 2013 Mineral and Bone Disorder TEP recognized the current
limited evidence supporting development of a new MBD measure. They
repeatedly raised the issue of the overall lack of evidence that was
available due to the lack of randomized clinical trials that exist in
order to inform recommendations for proposed measures, and meet the
criterion of scientific acceptability. The TEP did discuss the strength
of evidence regarding PTH as a risk factor in light of recent
randomized trials including EVOLVE (2012) and the ADVANCE study
(2011).\2\ The TEP lacked agreement over the strength of the evidence
but also concluded that these two trials are the current strongest
bodies of evidence that exist since the 2010 TEP was convened. The 2013
TEP recognized that the previously cited problem with PTH assay
variability could be overcome if the same assay is used each time; and
that given the normal physiologic oscillations in PTH, measurement
should be conducted more often to minimize variability. To that end,
the TEP recommended a process measure that included documenting
measurement of PTH and documentation of assay used. This measure still
needs to undergo testing once required data elements are available for
collection from dialysis facilities via CROWNWeb, or another system.
---------------------------------------------------------------------------

\2\ Raggi P, Chertow GM, Torres PU, et al. ``The ADVANCE study:
A randomized study to evaluate the effects of cinacalcet plus low-
dose vitamin D on vascular calcification in patients on
hemodialysis.'' Nephrology, dialysis, transplantation: Official
publication of the European Dialysis and Transplant Association--
European Renal Association (2011) 26; 1327-39. PMID 21148030.
EVOLVE Trial Investigators, Chertow GM, Block GA, et al.
``Effect of cinacalcet on cardiovascular disease in patients
undergoing dialysis.'' The New England journal of medicine (2012)
367:2482-94. PMID: 23121374.
---------------------------------------------------------------------------

The 2013 TEP members agreed that the combination of laboratory
values (PTH with calcium and phosphorus) may be more predictive of
mortality, but since each lab value changes individually, it would be
very difficult to make a recommendation based on a combination. It
should also be noted that, the kidney care community would more readily
support such a composite measure if each constituent measure were NQF
endorsed. Previously one PTH measure, and two phosphorous measures were
submitted to NQF (in 2010). These measures, respectively, were not
endorsed due to the lack of evidence supporting a PTH target or range,
and similarly lack of evidence to support a target for phosphorous. The
suggested composite measure may be conceptually satisfying, but we are
concerned that we lack sufficient evidence to justify implementing such
a measure at this time.
Comment: One commenter objected to the continued inclusion of the
hypercalcemia measure in the QIP and encouraged CMS to consult with
stakeholders to develop a more appropriate measure specific to the
conditions treated with oral-only drugs. One commenter added that until
CMS develops and implements a more suitable measure, calcimimetic
agents should not be included in the ESRD PPS base rate.
Response: We continue to believe that the hypercalcemia measure
most effectively meets current statutory requirements as defined by
MIPPA to include measures of mineral metabolism, and by PAMA, to
include measures specific to conditions treated with oral-only drugs
that are NQF-endorsed. As far as we are aware, there are no other
clinical performance measures that currently meet these criteria.
Comment: One commenter opposed the implementation of technical
changes to the Hypercalcemia Clinical Measure for PY 2018 and
recommended a delay until PY 2019 because facilities are currently in
the performance period for PY 2018. They argued that it is
inappropriate to change the technical specifications half way through a
performance period.
Response: We thank the commenter for their suggestion, and we agree
that it would be unfair to facilities to make this change for PY 2018,
given that the changes were not proposed until over half way through
the performance period. The substantive modifications to the
Hypercalcemia clinical measure were made during the NQF measure
maintenance process that concluded at

[[Page 77879]]

the end of last year, and while we believe it is crucial to keep
measures in the ESRD QIP measure set consistent with NQF-endorsed
specifications, we also recognize that notice should be given to
facilities prior to making such substantive changes. The changes to the
Hypercalcemia Clinical Measure will not affect the way in which
facilities provide care to their beneficiaries or the reporting
requirements for the measure. Rather, this change will affect the way
this measure is calculated because the denominator definition has
changed such that it now includes patients regardless of whether any
serum calcium values were reported at the facility during the 3-month
study period. Eligible facilities that do not report data for 3
consecutive months will be included in both the numerator and
denominator for this measure's calculations. Functionally, facilities
do not need to make any changes in response to the changes proposed.
Final Rule Action: In consideration of the comments received, we
are finalizing the changes to the hypercalcemia measure's technical
specifications for PY 2019 and future years, rather than for PY 2018 as
proposed. We note that these changes will positively impact data
completeness, as facilities typically use plasma calcium blood tests
and including patients with unreported calcium values in the measure
calculation will encourage more complete data. Lastly, these measure
changes will ensure alignment with NQF and satisfy the statutory
requirements set forth in PAMA.

D. Requirements for the PY 2019 ESRD QIP

1. New Measures for the PY 2019 ESRD QIP
a. Reintroduction of the Expanded NHSN Dialysis Event Reporting Measure
We first adopted the National Healthcare Safety Network (NHSN)
Dialysis Event Reporting Measure for the PY 2014 ESRD QIP. For that
program year, we required facilities to (1) enroll in the NHSN and
complete any training required by the Centers for Disease Control and
Prevention (CDC); and (2) submit 3 or more consecutive months of
dialysis event data to the NHSN (76 FR 70268 through 69). For PY 2015,
we retained the requirement for facilities to enroll in the NHSN and
complete any training required by the CDC, but expanded the reporting
period to require facilities to report a full 12 months of dialysis
event data (77 FR 67481 through 84). Beginning with PY 2016, we
replaced the NHSN Dialysis Event Reporting Measure with the clinical
version of the measure (78 FR 72204 through 07). As a result,
facilities were scored for purposes of the ESRD QIP based on how many
dialysis events they reported to the NHSN in accordance with the NHSN
protocol. We introduced the clinical version of the measure because we
believed that the measure would hold facilities accountable for
monitoring and preventing infections in the ESRD population. We
continue to believe it is vitally important to hold facilities
accountable for their actual clinical performance on this measure.
Since we introduced the NHSN Bloodstream Infection (BSI) Clinical
Measure into the ESRD QIP, some stakeholders have expressed significant
concerns about two distinct types of accidental or intentional under-
reporting. First, these stakeholders believe that many facilities do
not consistently report monthly dialysis event data for the full 12-
month performance period. Second, these stakeholders believe that even
with respect to the facilities that report monthly dialysis event data,
many of those facilities do not consistently report all of the dialysis
events that they should be reporting. (80 FR 69048). These public
comments, as well as our thorough review of data reported for the PY
2015 NHSN Dialysis Event Reporting Measure and results from the PY 2014
NHSN data validation feasibility study, suggest that as many as 60 to80
percent of dialysis events are under-reported.^{3 4}
---------------------------------------------------------------------------

\3\ Duc B. Nguyen, et al. Completeness of Methicillin-Resistant
Staphylococcus aureus Bloodstream Infection Reporting From
Outpatient Hemodialysis Facilities to the National Healthcare Safety
network, 2013. Infection Control & Hospital Epidemiology, http://journals.cambridge.org/abstract_S0899823X15002652.
\4\ Nicola D. Thompson, Matthew Wise, Ruth Belflower, Meredith
Kanago, Marion A Kainer, Chris Lovell and Priti R. Patel. Evaluation
of Manual and Automated Bloodstream Infection Surveillance in
Outpatient Dialysis Centers. Infection Control & Hospital
Epidemiology, Available on CJO 2016 doi: 10.1017/ice.2015.336.
---------------------------------------------------------------------------

We believe that there are delicate tradeoffs associated with
incentivizing facilities to both report monthly dialysis event data and
to accurately report such data. On the one hand, if we incentivize
facilities to report monthly dialysis event data but do not hold them
accountable for their performance, we believe that facilities will be
more likely to accurately report all dialysis events. Complete and
accurate reporting is critical to maintaining the integrity of the NHSN
surveillance system, enables facilities to implement their own quality
improvement initiatives, and enables the CDC to design and disseminate
prevention strategies. Nevertheless, incentivizing full and accurate
reporting without financial consequences for poor performance will not
necessarily improve patient safety. On the other hand, if we
incentivize facilities to achieve high clinical performance scores
without also incentivizing them to accurately report monthly dialysis
event data, we believe that facilities will be less likely to report
complete and accurate monthly data, which could diminish the integrity
of the NHSN surveillance system and the quality improvement efforts
that it supports. Maintaining an incentive structure along these lines
increases the financial consequences for not achieving high clinical
scores, but jeopardizes the accuracy and completeness of the dialysis
event data upon which those scores are based.
In light of these considerations, we believe that the best way to
strike the proper balance between these competing interests is to
propose to reintroduce the expanded NHSN Dialysis Event Reporting
Measure, beginning with PY 2019, and to include both this measure and
the NHSN BSI Clinical Measure in the ESRD QIP measure set.
In combination with other programmatic features described in the
proposed rule (see sections IV.C.2. and IV.C.8. of the proposed rule
(81 FR 42824)), we believe this reporting measure will bolster
incentives for facilities to report complete and accurate data to NHSN,
while the clinical measure will preserve incentives to reduce the
number of dialysis events. We believe that including both of these
measures in the ESRD QIP measure set will ensure that we hold
facilities accountable for the frequency with which they report data to
the NHSN and will address validation concerns related to the two
distinct types of under-reporting of data, described above.
Beginning with PY 2019, we proposed that facilities must enroll in
NHSN and complete any training required by the CDC related to reporting
dialysis events via NHSN, and that they must report monthly dialysis
event data on a quarterly basis to the NHSN. We also proposed that each
quarter's data would be due 3 months after the end of the quarter. For
example, data from January 1 through March 31, 2017 would need to be
submitted to NHSN by June 30, 2017; data from April 1 through June 30,
2017 would need to be submitted by September 30, 2017; data from July 1
through September 30, 2017 would need to be submitted by December 31,
2017;

[[Page 77880]]

and data from October 1 through December 31, 2017 would need to be
submitted by March 31, 2018. For further information regarding NHSN's
dialysis event reporting protocols, please see http://www.cdc.gov/nhsn/pdfs/pscmanual/8pscdialysiseventcurrent.pdf. These requirements are the
same ones that previously applied to the expanded NHSN Dialysis Event
Reporting Measure when that measure was included in the ESRD QIP (77 FR
67481 through 84).
Section 1881(h)(2)(B)(i) of the Act requires that, unless the
exception set forth in section 1881(h)(2)(B)(ii) of the Act applies,
the measures specified for the ESRD QIP under section
1881(h)(2)(A)(iii) of the Act must have been endorsed by the entity
with a contract under section 1890(a) of the Act (which is currently
NQF). Under the exception set forth in 1881(h)(2)(B)(ii) of the Act, in
the case of a specified area or medical topic determined appropriate by
the Secretary for which a feasible and practical measure has not been
endorsed by the entity with a contract under section 1890(a) of the
Act, the Secretary may specify a measure that is not so endorsed so
long as due consideration is given to measures that have been endorsed
or adopted by a consensus organization identified by the Secretary. The
proposed NHSN Dialysis Event Reporting Measure is not endorsed by the
NQF, but for the reasons explained above, we believe that it is
appropriate to assess facilities solely based on whether they actually
report full and accurate monthly dialysis event data to the NHSN.
Although we recognize that the NHSN BSI Clinical Measure is currently
included in the ESRD QIP measure set and that this measure and the
proposed NHSN Dialysis Event Reporting Measure would be calculated
using the same set of data, the two measures assess different outcomes.
We believe that including both of these measures in the ESRD QIP
measure set will collectively support our efforts to ensure that
facilities report, and are scored based on, complete and accurate
dialysis event data.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: Several commenters did not support the proposal to
reintroduce the Expanded NHSN Dialysis Event Reporting Measure, calling
into question the validity and reliability of the clinical measure.
They argued that the 60-80 percent of under-reporting of dialysis
events demonstrates that the NHSN BSI Clinical Measure is not valid,
and added that with that lack of validity comes uncertainty about
whether the measure results in accurate findings. They argued that CMS
should not finalize the measure, because giving facilities extra credit
will not move the needle in ensuring that all events are reported, nor
will this change the difficulties facilities have in obtaining
information from hospitals. Several commenters also urged us to include
the NHSN BSI Measure as a Reporting Measure for PY 2018 and PY 2019,
and discontinue the inclusion of the NHSN BSI Clinical Measure until
reliability and validity testing of the Clinical Measure has been
completed.
Response: Although previous studies have suggested that 60-80% of
bloodstream infections might be underreported to NHSN, these results
must be considered in the proper context. First, it is important to
note that these studies have largely attributed under-reporting to poor
communication of reportable positive blood cultures (PBCs) from
hospitals to dialysis centers when bloodstream infections are
identified in hospitals. Second, these studies are based on small
sample sizes. Although we are aware that underreporting can occur in
all dialysis facilities, the degree of variation in underreporting
across facilities is unknown and this is a truer reflection of the
reliability of the ESRD QIP measure. Underreporting by itself does not
lead to an unreliable measure.
The NHSN BSI measure has been endorsed by the National Quality
Forum (NQF). The quantitative centerpiece of the NQF-endorsed NHSN
Dialysis Event Bloodstream Infection Measure is the Standardized
Infection Ratio (SIR), which is the ratio of observed to predicted
events. Because the SIR has withstood scrutiny from NQF, which
explicitly considered the measure's reliability, we continue to believe
that it is reliable enough to remain in the ESRD QIP measure set.
We recognize that there are shortfalls in BSI ascertainment for
purposes of reporting and that more needs to be done to improve the
quality and completeness of data used in the NHSN BSI measure.
Nevertheless, the measure itself remains an important tool for
assessing the quality of care and closing performance gaps when and
where they are identified, and there is no other measure available that
would serve this purpose. We believe that further improvements in the
reliability of NSHN data can be achieved through more complete
communications between hospitals and dialysis facilities of relevant
measure data, in particular the results of diagnostic microbiology
testing by hospitals that are indicative of bloodstream infections in
dialysis patients. We also believe that more robust validation of
measure data, such as the validation approach we are finalizing, offer
additional safeguards against incomplete case finding and shortcomings
in measure data. Additionally, the CDC has encouraged dialysis
providers, especially large dialysis organizations, to perform a
validation of their own data. The CDC has provided a validation
toolkit, available for any facility to use on its own. The goal of the
validation, whether performed internally or by an external observer, is
to improve the quality of the data. Taking all these considerations
into account, we believe that on balance the ESRD QIP and patients'
interests are best served by retaining the NHSN BSI measure in the ESRD
QIP measure set.
Comment: Several commenters supported the reintroduction of the
NHSN Dialysis Event Reporting Measure, as well as the continued
inclusion of the NHSN BSI Clinical Measure and creation of the NHSN BSI
Measure Topic as BSIs are serious events in ESRD patients. They argued
that the integrity of the data that is submitted is essential for
accurate analysis and benchmarking to improve BSI prevention, and that
underreporting can be a serious hindrance to the data accuracy. One
commenter suggested that scoring should be modified to incentivize
reporting only for 12 complete months of data, awarding no points for
incomplete reporting. One commenter recommended that CMS ensure
facilities that are accurately reporting are not singled out as having
worse outcomes because of being engaged in quality improvement projects
and to develop a process whereby CMS would provide monthly feedback to
providers so they can identify inconsistencies in their own reporting.
One commenter also recommended that both the CDC and CMS should
validate the data in a timely manner, and that NHSN data should be bi-
directional such that a facility could review submitted data, analyze
it to determine why there are inconsistencies, and make any necessary
corrections to their process.
Response: We thank commenters for their support and we agree that
this approach will appropriately address bloodstream infections in ESRD
patients. We agree that the integrity of the data submitted is
essential for accurate analysis and benchmarking and that is precisely
the reason we have taken the approach proposed. We hope that by
incentivizing complete reporting, we will obtain as much information as
possible to accurately

[[Page 77881]]

analyze and benchmark the data for the NHSN BSI Clinical Measure, and
by incentivizing the reduction of infections among facilities'
patients, we will encourage facilities to pay close attention to these
important events. Similarly, we believe that the increased data
validation study we are finalizing and our updated data validation
methodology will help us to determine the extent and types of
underreporting that are occurring. We disagree that the scoring
methodology should be modified to incentivize reporting only for 12
complete months of data because there is still some value in reporting
6-11 months of data. We believe our scoring methodology makes it clear
that 12 complete months are ideal, but we still value the effort
facilities are making in reporting 6-11 months of data and we believe
it is important to recognize that through the methodology. Regarding
commenter's suggestion to institute a bi-directional data validation
process, NHSN data are already bi-directional. The data are immediately
available within NHSN to be viewed and edited. CDC encourages all
facilities to review their data on a regular basis to identify and
correct errors. A dialysis data review tool is available here: http://www.cdc.gov/nhsn/pdfs/dialysis/3-steps-to-review-de-data-2014.pdf. It
can be found on the following page under ``Analysis Resources to Create
Reports'': http://www.cdc.gov/nhsn/dialysis/event/index.html.
Final Rule Action: For the reasons stated above, we are finalizing
our proposal to reintroduce the NHSN Dialysis Event Reporting Measure
to the ESRD QIP beginning with PY 2019 as proposed.
b. Scoring the NHSN Dialysis Event Reporting Measure
With respect to the NHSN Dialysis Event Reporting measure, we
proposed to score facilities with a CCN Open Date on or before January
1, 2017. Using the methodology described below, we proposed to assign
the following scores for reporting different quantities of data:

Scoring Distribution for the Proposed NHSN Dialysis Event Reporting
Measure
------------------------------------------------------------------------

-------------------------------------------------------------------------
Number of Reporting Months:
12 months = 10 points.
6-11 months = 2 points.
0-5 months = 0 points.
------------------------------------------------------------------------

We selected these scores for the following reasons: First, due to
the seasonal variability of bloodstream infection rates, we want to
incentivize facilities to report the full 12 months of data and reward
reporting consistency over the course of the entire performance period.
We therefore proposed that facilities will receive 10 points for
submitting 12 months of data. Second, we recognized, however, that from
the perspective of national prevention strategies and internal quality
improvement initiatives, there is still some value in collecting fewer
than 12 months of data from facilities. We also stated that we would
need at least 6 months of data in order to calculate reliable scores on
the NHSN BSI Clinical Measure. For these reasons, we proposed that
facilities will receive 2 points for reporting between 6 and 11 months
of dialysis event data. Finally, in consultation with the CDC, we have
determined that NHSN BSI Clinical Measure rates are not reliable when
they are calculated using fewer than 6 months of data. For that reason,
we proposed that a facility will receive 0 points on the NHSN Dialysis
Event Reporting Measure if it reports fewer than 6 months of data.
The proposed scoring methodology for the NHSN Dialysis Event
Reporting Measure differs slightly from what we finalized for PY 2015.
For that year of the program, facilities were awarded 0 points for
reporting fewer than 6 months of data, 5 points for reporting 6
consecutive months, and 10 points for reporting all 12 months of data.
We believe that it is appropriate to reduce the number of points
facilities receive for reporting 6-11 months of data from 5 to 2
because by PY 2019, facilities will have had 3 more years of experience
reporting data to NHSN than they had for PY 2015.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: One commenter supported CMS's proposed methodology for
scoring the proposed NHSN BSI Measure Topic and the NHSN Reporting
Measure because it rewards dialysis facilities that have made
investments to support robust surveillance programs by allowing for
monthly data input. The commenter added that the proposed scoring
methodology strongly encourages facilities to report all 12 months of
data, which serves to improve the integrity of the data.
Response: We thank the commenter for its support, and we agree that
our proposed scoring methodology will encourage facilities to report
all 12 months of data and that this will in turn improve the integrity
of the data.
Comment: Several commenters did not support the proposal for
scoring the proposed NHSN Dialysis Event Reporting Measure because it
inappropriately penalizes facilities and, combined with the proposed
weight of the measure for PY 2019, does not accurately distinguish
among facilities that fail to report varying amounts of data.
Commenters noted that missing one month of reporting is not the same as
missing 5 months, yet the proposed scoring methodology treats these
situations the same. One commenter expressed concern about facilities
that may miss something very insignificant for 1 month and then lose 8
points, and recommended that the measure be scored in the same way that
the Mineral Metabolism reporting measure is currently scored, because
it would still encourage a facility to report 12 months. Two commenters
argued that a sliding scale would me more appropriate. One commenter
specifically recommended that CMS consider 0 points for 0 months of
data, 1 point for 1-2 months of data, and so on. Another commenter
recommended that CMS change the weight of the NHSN BSI Clinical Measure
to make it one quarter the weight of the other clinical measures.
Response: We thank commenters for their suggestions, however we
disagree that the proposed scoring methodology for the NHSN Dialysis
Event Reporting Measure inappropriately penalizes facilities. In fact,
we believe the scoring methodology appropriately rewards facilities for
complete reporting and for their efforts at preventing infections, and
that this scoring approach is consistent with the ESRD QIP's goal of
incentivizing complete and accurate reporting as well as successful
efforts to prevent bloodstream infections appropriate given the goals
we are trying to accomplish. Unlike the Mineral Metabolism Reporting
measure, facilities need to report all twelve months of data to NHSN in
order to appropriately score and baseline the NHSN BSI Clinical Measure
because there is seasonal variability in bloodstream infection rates. A
sliding scale would not appropriately incentivize facilities to report
the full 12 months' worth of data, which is needed to accurately score
the NHSN BSI clinical measure. Additionally, we do not believe that
reporting 1-2 months' worth of data significantly contributes to
national prevention campaigns and internal quality improvement
initiatives, and we therefore do not believe that it is appropriate to
allocate any points on the reporting measure for this level of
reporting. We want to incentivize facilities to report the full 12
months of data because without this data, the surveillance program that
the CDC has established to monitor

[[Page 77882]]

bloodstream infections will not function to its fullest extent. Scoring
the reporting measure on a sliding scale is therefore inconsistent with
the need to provide strong incentives for facilities to report the full
12 months of data. We recognize that facilities occasionally have
difficulty accessing the NHSN system and the CDC is diligently working
to ensure that facilities have the information and training that they
need to report successfully, but we believe that the system functions
appropriately and does not impose impediments that would prevent
facilities from reporting data on a monthly basis. Although the NHSN
BSI clinical measure cannot be scored accurately on the basis of less
than 12 months of data, from the perspective of national prevention
strategies and internal quality improvement initiatives, there is still
some value in collecting between 6 and 11 months of data. This is why
we have proposed to give facilities that do so 2 points on the
Reporting Measure, even though they will continue to receive a score of
zero on the NHSN BSI clinical measure.
Final Rule Action: After consideration of the comments above we are
finalizing the proposal for scoring the NHSN Dialysis Event Reporting
Measure, described above, beginning in PY 2019. We believe this is the
best way to incentivize complete and accurate reporting of NHSN data.
2. New Measure Topic Beginning With the PY 2019 ESRD QIP--NHSN BSI
Measure Topic
Beginning with PY 2019, we proposed to create a new NHSN BSI
Measure Topic. We proposed that this measure topic would consist of the
following two measures:
(i) NHSN Bloodstream Infection (BSI) in Hemodialysis Patients, a
clinical measure;
(ii) NHSN Dialysis Event Reporting Measure.

We stated our belief that it is appropriate to combine these two
measures into one measure topic because data from the reporting measure
will be used to score both that measure and the clinical measure, and
combining both measures under the same measure topic will better enable
us to precisely calibrate incentives for complete and accurate
reporting and high clinical performance. The NHSN BSI Clinical Measure
and the NHSN Dialysis Event Reporting Measure are mutually reinforcing
because one measure encourages accurate reporting while the other uses
the reported data to assess facility performance on preventing BSIs in
their patients. Therefore, combining the reporting and clinical
measures under the same measure topic will simplify the process of
weighting each of the two measures, such that incentives from one
measure can be simply reallocated to the other if new evidence suggests
that the incentives are not properly balanced to optimize both
reporting and prevention.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: Two commenters supported the proposed creation of the NHSN
BSI Measure Topic because it encourages accurate reporting as well as
the prevention of bloodstream infections, but one commenter recommended
that in an effort to avoid confusion, the two measures that comprise
the Measure Topic should be renamed to avoid referring to them as
either ``Clinical'' or ``Reporting'' measures. They suggested instead
that CMS change the ``NHSN Bloodstream Infection in Hemodialysis
Patients Clinical Measure'' name to ``NHSN Bloodstream Infection in
Hemodialysis Patients'' without referring to it as a Clinical Measure
and suggested changing the name of the ``NHSN Dialysis Event Reporting
Measure'' to ``NHSN Dialysis Event Surveillance'' or ``NHSN Dialysis
Event Participation'' or even ``NHSN Dialysis Event Data Entry''.
Response: We thank commenters for their support of the proposed
NHSN BSI Measure Topic. However, we disagree that the names of the
measures should be changed as the commenter recommended. The NHSN BSI
Clinical measure is correctly referred to as a Clinical Measure because
it measures the Standardized Infection Ratio (SIR) of BSIs among
patients receiving hemodialysis at outpatient hemodialysis centers and
is therefore a measure of the care being provided to beneficiaries.
Similarly, the NHSN Dialysis Event Reporting Measure is correctly
referred to as a Reporting Measure because it measures the number of
months for which facilities report NHSN Dialysis Event data to the
CDC's NHSN system and is therefore a measure of the completeness of a
facility's data reporting. We agree with commenter that the proposed
Measure Topic is neither purely clinical nor purely reporting, which is
why we have proposed to place it within its own Safety Domain. However,
the two measures that make up the Measure Topic are still fundamentally
different in that one is a Clinical Measure and one is a Reporting
Measure.
Comment: In light of reliability issues discussed above, commenters
encouraged CMS to retain the NHSN BSI Measure as a Reporting Measure,
and to not finalize the NHSN BSI Measure Topic or the proposed addition
of the Safety Measure Domain in the QIP until CMS can resolve issues
surrounding reliability and validity of the Clinical Measure before
including it in the QIP's measure set.
Response: We thank commenters for their suggestion, however we have
decided to finalize the NHSN BSI Measure Topic and the Safety Measure
Domain. As discussed above, the studies conducted on the reporting of
bloodstream infections to NHSN were largely attributed to poor
communication of reportable positive blood cultures from hospitals to
dialysis centers and were based on small sample sizes. We do not
believe they are generally indicative of any issues of reliability or
validity with the NHSN BSI measures. And we continue to believe that it
is essential to retain the NHSN BSI clinical measure because it is
absolutely critical to evaluate facilities' efforts to prevent
bloodstream infections. In light of this this need to retain the NHSN
BSI clinical measure, we continue to believe that the introduction of
the NHSN BSI Measure Topic and the addition of the Safety domain is the
best way to ensure complete and accurate reporting of data, while at
the same time hold facilities accountable for preventing bloodstream
infections.
Comment: Commenter offered support to work with CMS to address the
validity issues in the NHSN BSI measure and stated that ensuring the
appropriate sharing of patient information between hospitals and
dialysis facilities is a priority, but until that problem is solved and
the validity of the NHSN Bloodstream Infection measure has been
affirmed, they cannot support the proposed approach to NHSN.
Response: We agree that it is vitally important to ensure the
appropriate sharing of patient information between hospitals and
dialysis facilities. We have addressed commenter's concerns about the
validity of the NHSN BSI measure above, in section IV(D)(1)(a).
Regarding commenter's suggestions surrounding communication between
dialysis facilities and hospitals, we encourage facilities to implement
processes and procedures to ensure that they are best able to receive
information from local hospitals and that they are coordinating the
care of their patients in the most effective ways possible.
Comment: One commenter expressed concerns that the data
specifications for the NHSN BSI Clinical Measure require

[[Page 77883]]

collection of events from dialysis center and non-dialysis outpatient
laboratories. They added that this measure originated in the hospital
setting where all cultures are sent to a single lab, but extra data
collection efforts are needed in the dialysis setting because cultures
are performed at a variety of sites of care. They requested additional
data testing to show that this is actually occurring. They added that
the providers who are complying with the data specifications will
likely appear to have a higher infection rate as more infections will
be captured, whereas those who are not collecting data from other
providers may not be accurately reporting all infections.
Response: We are aware that underreporting can occur, and in some
studies, has been largely attributed to poor communication of
reportable positive blood cultures (PBCs) from hospitals to dialysis
centers. The measure did not originate in the hospital setting. It has
always been an outpatient dialysis center measure. The reporting of
PBCs within one calendar day of a hospital admission is a necessary
element of the BSI measure. Without it, facilities could refer most or
all patients to an ED or hospital for suspected BSI and the measure
would be compromised. We recognize that obtaining this information from
hospitals can be challenging, and requires knowledge and implementation
of the NHSN protocol. However, CDC, CMS and other stakeholders in the
dialysis community agree that good communication across care
transitions is important for not just surveillance, but optimal
clinical care of patients. ESA dose, hepatitis B status, and
communication of antibiotics prescribed and planned duration of
treatment are just a few examples of information that should routinely
be shared across healthcare facilities. A positive blood culture and
organism identification and susceptibility results are equally
important to communicate. CDC hosts protocol trainings that users
should attend yearly to ensure NHSN participants are aware of the
protocol requirements. CDC has also made available data validation
tools that facilities can use to assess their knowledge and adherence
to the reporting protocol. Facilities are given 90 days from the end of
a quarter (before the reporting deadline) to facilitate obtaining
records from hospitals and EDs. CDC is working with ESRD Networks and
others to try to improve hospital-to-dialysis center communication.
Networks will target facilities that have challenges obtaining these
data from hospitals to assist them in developing more effective
communication strategies. Together, we are actively seeking best
practice strategies that can be shared with other facilities.
Comment: One commenter requested that the CDC and CMS address
potential data quality issues before the NHSN BSI Clinical Measure is
used in the QIP and specifically requested that the CDC produce a
histogram of infection events to determine if a bimodal distribution
exists, which would suggest data reporting issues. They also
recommended that CMS update the data submission process for CROWNWeb to
improve data accuracy and reduce costs. They suggested that one
solution may be to enable dialysis providers to ``copy and paste''
their entire database to CMS and that CMS and CDC should release
histograms to determine if the NHSN BSI metric is truly valid and
should be used in the QIP as currently structured.
Response: We thank commenter for their suggestions and we will
consider developing histograms of this nature for future analysis. We
are constantly seeking ways to improve data accuracy and to reduce
costs for facilities. We will take commenter's ideas about improving
the data submission process for CROWNWeb into consideration for future
updates of the CROWNWeb system.
Comment: A commenter requested that CMS establish a minimum
threshold for data submission completeness before using CROWNWeb data
for the ESRD QIP or for other purposes and suggested that this could be
accomplished by comparing the number of Medicare beneficiaries at a
given facility who have claims with the number of patients with
accepted data in CROWNWeb. One commenter also recommended that CMS
validate patient counts against provider Electronic Medical Records to
determine when the minimum threshold for the use of both Medicare and
non-Medicare CW data is met.
Response: We thank commenter for their suggestions. At this time,
we are not proposing to establish a minimum threshold for data
submission completeness however, as we stated in the CY 2014 ESRD PPS
Final Rule (78 FR 72210), we encourage facilities to ensure that their
patient censuses are accurately reflected in CROWNWeb. In this way,
facilities can compare for themselves the number of Medicare
beneficiaries they have seen and who have claims with the number of
patients with accepted data in CROWNWeb attributed to their facility.
With regards to validation, we agree that updates should be made to
CROWNWeb to ensure that accurate data passes validation testing while
also ensuring that inaccurate data is not used to calculate scores on
ESRD QIP clinical performance measures, and we are in the process of
enhancing CROWNWeb to accomplish this task. Nevertheless, facilities
are ultimately responsible for ensuring that patient data is accurately
reflected in CROWNWeb.
Comment: One commenter urged CMS to change the definition of
``positive blood culture'' for the NHSN BSI Clinical Measure to ensure
that positive blood cultures are only counted toward the measure
calculation if the suspected source of blood culture was ``vascular
access,'' not any of the other three options.
Response: As we stated in the CY 2014 ESRD PPS Final Rule (78 FR
72205), NQF endorsed a bloodstream infection measure (NQF #1460, the
measure upon which the proposed NHSN BSI Clinical Measure is based)
because BSIs can be objectively identified. NQF raised concerns about
an access-related bloodstream infection measure because determining the
source of infections (for example, determining whether an infection was
related to vascular access) requires subjective assessments. The NHSN
BSI Clinical Measure avoids this subjectivity by including all positive
blood cultures. This makes it simpler and more reliable than an access-
related bloodstream infection measure. While we recognize that the NHSN
BSI Clinical Measure may occasionally misattribute BSIs to dialysis
facilities, we believe that the measure's objectivity, simplicity, and
reliability make it the most appropriate measure for assessing facility
performance. NHSN relies upon use of standard definitions to ensure
that infection events are reported in the same manner across
facilities. The vast majority of reported bloodstream infection events
represent true HAIs that are not the result of misclassification or
misattribution. Therefore, considering the benefits to patients
associated with strong incentives to reduce BSIs, we believe that these
technical issues are not significant enough to warrant changing the
definition of ``positive blood culture'' for purposes of this measure.
CDC will continue to assess the possibility that certain facility-
related factors could systematically overestimate infection rates, and
it will consider risk-adjusting the measure to take these factors into
account.
Comment: Commenter argued that when entering data for NHSN, it
would be more logical for facilities to report the number of patients
who were treated

[[Page 77884]]

on the last two working days of the month, not the first two. Growing
clinics' census numbers can increase dramatically over the course of a
month, and entering a small number on the first two days as opposed to
a larger number on the last two days will cause the estimated amount of
blood cultures to be lower. This then impacts facility scoring, because
the denominator derived from the first two working days of the month is
not representative of the patient population treated at the facility
during that full month.
Response: To reduce the burden of manual denominator data
collection, the National Healthcare Safety Network (NHSN) uses the
number of patients dialyzed at a clinic during the first two working
days of a reporting month as a proxy measure for the total number of
patient-days-at-risk during that month.
In a small study, CDC compared the NHSN denominator to various
denominator measures including the last 2 days of the month and the
entire month using electronically captured data and found that the
first two working days was a generally good estimate of the entire
month denominator.
Specifically, the results revealed a strong correlation between
monthly total denominator and NHSN denominator and between the NHSN
denominator and the other denominator methods [p< 0.0001].\5\
---------------------------------------------------------------------------

\5\ Poster Abstract Session: HAI Surveillance and Public
Reporting, October 10, 2014. https://idsa.confex.com/idsa/2014/webprogram/Paper46611.html.
---------------------------------------------------------------------------

We note that although a ``growing clinic'' might have an NHSN
denominator that is low in one month (if there is a drastic increase
during that month), the denominator should be a good estimator of the
number of patients at the facility for all subsequent months. If the
growth is more gradual, then the NHSN denominator is still a relatively
good estimator of the month census. The only way this would not be the
case is if census fluctuated drastically within each month so that the
first 2 days were always somehow different than the rest of the month
(for example, patients always added in the middle of the month and then
removed before the start of the next month). We have not encountered a
systematically occurring example of this type of phenomenon.
Comment: One commenter recommended that CMS add some patient-level
exclusions to the NHSN BSI Clinical Measure, and specifically urged CMS
to exclude positive blood cultures for transient patients. They also
urged CMS to consider implementing a threshold for number of patient
months for a facility to qualify for the NHSN BSI Clinical Measure.
Response: NHSN is designed to capture dialysis events for all
dialysis patients (including transient patients). BSIs are important in
all patients, including transient patients and meeting the
``transient'' definition does not exclude the patient from having an
infection that could have been acquired in the dialysis center. Measure
inclusions and exclusions were considered by the NQF when they reviewed
and endorsed the BSI measure. NHSN has a field facilities can use to
identify dialysis events that occurred in transient patients. This
information can be used to inform internal QI purposes. See dialysis
event protocol here: https://www.cdc.gov/nhsn/pdfs/pscmanual/8pscdialysiseventcurrent.pdf. We use claims to determine whether
facilities meet the 11-patient minimum to be eligible for the NHSN BSI
Clinical Measure.
Final Rule Action: After considering the comments received, we are
finalizing our proposal to include the NHSN BSI Measure Topic in the
ESRD QIP. This new Measure Topic will consist of the NHSN Dialysis
Event Reporting Measure and the NHSN BSI Clinical Measure, as described
above. We believe these two measures are mutually reinforcing in that
one measure rewards reporting and the other uses reported data to
assess facilities' efforts to prevent dialysis events.
3. New Safety Measure Domain
We currently use two domains in the ESRD QIP for purposes of
scoring. The first domain, termed the Clinical Measure Domain, is
defined as an aggregated metric of facility performance on the clinical
measures and measure topics in the ESRD QIP, and we use subdomains
within the Clinical Measure Domain for the purposes of calculating the
Clinical Measure Domain score (79 FR 66213). Second is a Reporting
Measure Domain, in which scores on reporting measures are weighted
equally (79 FR 66218 through 66219).
In section IV.C.2 of the proposed rule (81 FR 42825), we described
the NHSN BSI Measure Topic. We believe that this measure topic,
consisting of both the NHSN Dialysis Event Reporting Measure and the
NHSN BSI Clinical Measure, is fundamentally different from the other
measures and measure topics included in the ESRD QIP's measure set. The
two measures included in this measure topic are inextricably linked
because data from the reporting measure is used to calculate the
clinical measure. No other reporting measures currently included in the
ESRD QIP's measure set are used for this purpose. Placing these two
measures together in a single measure topic to which we can assign a
single measure topic score, creates the important linkage between the
two measures and balances out the competing incentives involved:
Incentivizing complete and accurate reporting of data to NHSN while
also incentivizing facilities to achieve high clinical scores on the
clinical measure. Therefore, it does not appropriately belong in either
the Reporting Measure Domain or the Clinical Measure Domain.
Because of these fundamental differences, we proposed to remove the
Safety Subdomain from the Clinical Measure Domain for PY 2019 and
future payment years. We proposed that the Safety Subdomain will
instead be a new, third Domain, separate from and in addition to the
existing Clinical and Reporting Measure Domains. Additionally, we
proposed that facilities will receive a Safety Measure Domain score in
addition to their Reporting Measure Domain and Clinical Measure Domain
scores. We describe our proposed scoring methodology more fully in
section IV.C.6 of our proposed rule (81 FR 42826), and note that these
three Domain scores will be combined and weighted to produce a Total
Performance Score (TPS) for each facility.
We sought comments on these proposals. The comments and our
responses are set forth below.
Comment: Several commenters supported CMS' goals of reducing BSIs
and specifically supported the proposed creation of the new Safety
Domain separate from the Clinical and Reporting Domains because the
NHSN BSI Measure Topic does not belong solely in either in the
Reporting or the Clinical Domains. They added that inclusion of both
the Clinical and the Reporting measures for NHSN will encourage
improvement and provide additional incentives for complete reporting.
Response: We thank the commenters for their support, and we agree
that inclusion of both the Clinical and the Reporting Measures for NHSN
will encourage improvement and provide additional incentives for
complete reporting.
Comment: One commenter did not support CMS's proposal to establish
a safety measure domain due to the reliability and validity issues of
the NHSN BSI measure. The commenter further stated they do not believe
the reintroduction of the NHSN Dialysis

[[Page 77885]]

Event Reporting Measure is appropriate or necessary, nor do they
believe the Measure Topic is necessary and they therefore believe the
creation of the Safety Measure Domain is also unnecessary.
Response: We have addressed the concerns raised by the commenter
about the reliability and validity of the NHSN BSI Clinical Measure
above (see section IV.D.1.a.). We believe that combining the NHSN
Dialysis Event Reporting Measure together with the NHSN BSI Clinical
Measure in a single NHSN BSI Measure Topic, as proposed, within the
proposed Safety Measure Domain is the best way to ensure that the
incentives for complete and accurate reporting and for the prevention
of BSIs are appropriately calibrated. Combining the clinical and
reporting measure into a hybrid measure topic accomplishes this
objective because it reflects aggregated performance and reporting
requirements.
Final Rule Action: After careful consideration of the comments
received, we are finalizing our proposal to remove the Safety Subdomain
from the Clinical Measure Domain for PY 2019 and future payment years,
and to add a new third domain, the Safety Measure Domain, to the ESRD
QIP's scoring methodology. We believe that this approach is the best
way to ensure complete and accurate reporting, while also incentivizing
facilities to lower the incidence of BSIs among their patients.
4. Scoring for the NHSN BSI Measure Topic
We proposed to assign significant weight to the NHSN Dialysis Event
Reporting Measure in the overall NHSN BSI Measure Topic score. However,
our proposed weighting scheme also reflects our goal to incentivize
strong performance on the clinical measure. For these reasons, we
proposed that the NHSN Dialysis Event Reporting Measure be weighted at
40 percent of the measure topic score and the NHSN BSI Clinical Measure
be weighted at 60 percent of the measure topic score. The formula below
depicts how the NHSN BSI Measure Topic would be scored.

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

-------------------------------------------------------------------------
Proposed Formula to Derive NHSN BSI Measure Topic Score:
[NHSN Dialysis Event Reporting Measure Score * 0.4] + [NHSN BSI
Clinical Measure Score*0.6] = Measure Topic Score
------------------------------------------------------------------------

We sought comment on this proposal. The comments and our responses
are set forth below.
Comment: One commenter supported CMS's proposal for scoring the
NHSN BSI Measure Topic and believes that the 40/60 split between the
Reporting and Clinical Measures will encourage both accurate reporting
and strong clinical performance.
Response: We thank the commenter for their support, and we agree
that assigning 40 percent of the Measure Topic Score to the NHSN
Dialysis Event Reporting Measure and 60 percent of the Measure Topic
Score to the NHSN BSI Clinical Measure is the best way to incentivize
both strong performance on the clinical measure and thorough and
accurate reporting.
Final Rule Action: Based upon the comments received, we will
finalize the scoring for the NHSN BSI Measure Topic as proposed. We
will assign 40 percent of the measure topic score to the NHSN Dialysis
Event Reporting Measure and 60 percent of the measure topic score to
the NHSN BSI Clinical Measure.
5. Performance Standards, Achievement Thresholds, and Benchmarks for
the Clinical Measures Finalized for the PY 2019 ESRD QIP
In the calendar year (CY) 2016 ESRD PPS final rule, we finalized
that for PY 2019, the performance standards, achievement thresholds,
and benchmarks for the clinical measures would be set at the 50th, 15th
and 90th percentile, respectively, of national performance in CY 2015,
because this will give us enough time to calculate and assign numerical
values to the proposed performance standards for the PY 2019 program
prior to the beginning of the performance period. (80 FR 69060). At the
time the proposed rule was published, we did not have the necessary
data to assign numerical values to the proposed performance standards,
achievement thresholds, and benchmarks because we did not yet have
complete data from CY 2015. Nevertheless, we were able to estimate
these numerical values based on the most recent data available at the
time. For the Vascular Access Type, Hypercalcemia, NHSN BSI and ICH
CAHPS clinical measures, this data came from the period of January
through December 2015. For the SRR and STrR clinical measures, this
data came from the period of January through December 2014. In Table 5,
we provided the estimated numerical values for all of the finalized PY
2019 ESRD QIP clinical measures.

Table 5--Estimated Numerical Values for the Performance Standards for the PY 2019 ESRD QIP Clinical Measures
Using the Most Recently Available Data
----------------------------------------------------------------------------------------------------------------
Achievement Performance
Measure threshold Benchmark standard
----------------------------------------------------------------------------------------------------------------
Vascular Access Type
%Fistula........................................... 53.72% 79.62% 66.04%
%Catheter.......................................... 17.06% 2.89% 9.15%
Hypercalcemia.......................................... 4.21% 0.32 1.85%
NHSN Bloodstream Infection SIR......................... 1.812 0 0.861
Standardized Readmission Ratio......................... 1.276 0.629 0.998
Standardized Transfusion Ratio......................... 1.470 0.431 0.923
Comprehensive Dialysis Adequacy Measure Set............ 86.85% 97.19% 92.53%
ICH CAHPS: Nephrologists' Communication and Caring..... 56.41% 77.06% 65.89%
ICH CAHPS: Quality of Dialysis Center Care and 52.88% 71.21% 60.75%
Operations............................................
ICH CAHPS: Providing Information to Patients........... 72.09% 85.55% 78.59%
ICH CAHPS: Overall Rating of Nephrologists............. 49.33% 76.57% 62.22%
ICH CAHPS: Overall Rating of Dialysis Center Staff..... 48.84% 77.42% 62.26%
ICH CAHPS: Overall Rating of the Dialysis Facility..... 51.18% 80.58% 65.13%
----------------------------------------------------------------------------------------------------------------

In previous rulemaking, we have finalized policies to the effect
that if final numerical values for the performance standard,
achievement threshold, and/or benchmark were worse than they were for
that measure in the previous year of the ESRD QIP, then we would
substitute the previous year's performance standard,

[[Page 77886]]

achievement threshold, and/or benchmark for that measure. We finalized
this policy because we believe that the ESRD QIP should not have lower
performance standards than in previous years. In light of recent
discussions with CDC, we have determined that in certain cases it may
be appropriate to re-baseline the NHSN BSI Clinical Measure, such that
expected infection rates are calculated on the basis of a more recent
year's data. In such cases, numerical values assigned to performance
standards may appear to decline, even though they represent higher
standards for infection prevention. For this reason, with the exception
of the NHSN BSI Clinical Measure, we proposed to substitute the PY 2018
performance standard, achievement threshold, and/or benchmark for any
measure that has a final numerical value for a performance standard,
achievement threshold, and/or benchmark that is worse than it was for
that measure in the PY 2018 ESRD QIP. We also proposed that the
performance standards for the NHSN BSI Clinical Measure for PY 2019
will be used irrespective of what values were assigned to the
performance standards for PY 2018.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: Several commenters supported our continued reliance on the
methodology used to set the Performance Standard, Achievement
Threshold, and Benchmark at the 50th, 15th and 90th percentiles
respectively of national facility performance for PY 2019. One
commenter requested that CMS clarify in Table 2 of the proposed rule
(81 FR 42826) whether the Benchmarks, Achievement Thresholds and
Performance Standards listed for the ICH CAHPS measures are the percent
of responses or the percent of top box responses. Another commenter
asserted that if the national average for the NHSN BSI Clinical Measure
is 5.15, then the benchmark of an SIR of 0.0 cannot be correct.
Response: We thank the commenter for their support. In Table 2 of
the proposed rule (81 FR 42826), the Benchmarks, Achievement Thresholds
and Performance Standards listed for the ICH CAHPS measures represent
the percent of top box responses. Table 2 in the proposed rule (81 FR
42826) indicates that the Achievement Threshold for the NHSN BSI SIR is
1.812, the Benchmark is 0 and the Performance Standard (that is, the
average national performance) is 0.861. These values were estimated
numerical values using the most recently available data at the time the
proposed rule was published, and we have ensured that they were
calculated correctly.
Final Rule Action: Since the time that the Proposed Rule was
published, we have collected the data needed to calculate finalized
performance standards for the PY 2019 ESRD QIP. After consideration of
the comments, we will finalize the performance standards, achievement
thresholds, and benchmarks for the clinical measures included in the PY
2019 ESRD QIP as updated below, using the most recently available data.
Table 6 below lists the finalized numerical values for all of the
finalized PY 2019 ESRD QIP clinical measures.

Table 6--Finalized Numerical Values for the Performance Standards for the PY 2019 ESRD QIP Clinical Measures
Using the Most Recently Available Data
----------------------------------------------------------------------------------------------------------------
Achievement Performance
Measure threshold Benchmark standard
----------------------------------------------------------------------------------------------------------------
Vascular Access Type
%Fistula........................................... 53.66% 79.62% 65.93%
%Catheter.......................................... 17.20% 2.95% 9.19%
Kt/V Composite......................................... 87.22% 97.74% 93.16%
Hypercalcemia.......................................... 4.15% 0.32% 1.83%
Standardized Transfusion Ratio......................... 1.564 0.336 0.894
Standardized Readmission Ratio......................... 1.289 0.624 0.998
NHSN Bloodstream Infection............................. 1.738 0 0.797
SHR measure............................................ 1.244 0.665 0.967
ICH CAHPS: Nephrologists' Communication and Caring..... 56.41% 76.93% 65.87%
ICH CAHPS: Quality of Dialysis Center Care and 52.88% 71.15% 60.74%
Operations............................................
ICH CAHPS: Providing Information to Patients........... 72.10% 85.54% 78.54%
ICH CAHPS: Overall Rating of Nephrologists............. 49.37% 76.54% 62.17%
ICH CAHPS: Overall Rating of Dialysis Center Staff..... 48.63% 77.41% 62.24%
ICH CAHPS: Overall Rating of the Dialysis Facility..... 51.10% 80.45% 65.02%
----------------------------------------------------------------------------------------------------------------
Data sources: VAT measures: 2015 Medicare claims; SRR, STrR: 2015 Medicare claims; Kt/V: 2015 Medicare claims
and 2015 CROWNWeb; Hypercalcemia: 2015 CROWNWeb; NHSN: CDC; SHR: 2014 Medicare claims, CAHPS: 2015 ICH CAHPS
surveys.

6. Weighting for the Safety Measure Domain and Clinical Measure Domain
for PY 2019
As discussed in section IV.C.3 of the proposed rule (81 FR 42825),
we proposed to remove the Safety Subdomain from the Clinical Measure
Domain and establish it as a third domain alongside the Clinical
Measure and Reporting Measure Domains for the purposes of scoring
facilities and determining Total Performance Scores (TPSs).
In light of stakeholder comments we have received about the
prevalence of under-reporting for the NHSN BSI Clinical Measure, as
well as the tradeoffs (discussed more fully in section IV.C.1.a. of the
proposed rule (81 FR 42823) between our desire to maintain strong
incentives for facilities to report bloodstream infections and to
prevent those infections, and because the Safety Domain is comprised of
a single measure topic, we believe it is necessary to reduce the weight
of the Safety Measure Domain as a percentage of the TPS. However, we
believe it is important to maintain as much consistency as possible in
the ESRD QIP scoring methodology. Therefore, we proposed to gradually
reduce the weight of the Safety Measure Domain to 15 percent of the TPS
in PY 2019, and then reduce it further in PY 2020, as proposed below.
We further proposed that the Clinical Measure Domain will be weighted
at 75 percent of the TPS, and the Reporting Measure Domain will
continue to be weighted at 10 percent of the TPS because we do not want
to diminish the incentives to report data on the reporting measures.
In the CY 2015 ESRD PPS final rule, we finalized the criteria we
will use to

[[Page 77887]]

assign weights to measures in a facility's Clinical Measure Domain
score (79 FR 66214 through 66216). Under these criteria, we take into
consideration: (1) The number of measures and measure topics in a
subdomain; (2) how much experience facilities have had with the
measures; and (3) how well the measures align with CMS' highest
priorities for quality improvement for patients with ESRD.
With respect to criterion 3, one of our top priorities for
improving the quality of care furnished to ESRD patients includes
increasing the number and significance of both outcome and patient
experience of care measures because these measures track important
patient outcomes, instead of focusing on the implementation and
achievement of clinical processes that may not result in improved
health for patients.\6\ We believe that a shift toward outcome measures
will establish a sounder connection between payment and clinical
results that matter to patients. We similarly believe that it is
important to prioritize measures of patient experience because high
performance on these measures improves clinical outcomes and patient
retention. Accordingly, we believe that increasing the impact of
outcome and patient experience of care measures in the ESRD QIP measure
set will ensure that facilities that fail to perform well on these
measures are much more likely to receive a payment reduction.
---------------------------------------------------------------------------

\6\ CMS Quality Strategy, page 10, 2016. https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/Downloads/CMS-Quality-Strategy.pdf.
---------------------------------------------------------------------------

In light of the proposed addition of the Safety Measure Domain as
well as the policy priorities discussed above, we proposed to change
the Clinical Measure Domain weighting for the PY 2019 ESRD QIP.
Specifically, we proposed to increase the weight of the Vascular Access
Type, Dialysis Adequacy and Hypercalcemia measures by 1 percentage
point each in the Clinical Measure Domain. This will result in a minor
reduction of the weight that each of these measures receives as a
percentage of the TPS, which is consistent with our policy to assign
greater weight to outcome and experience of care measures. We also
proposed to apportion six percent of the Clinical Measure Domain to the
standardized readmission ratio (SRR) and In-center hemodialysis
consumer assessment of healthcare providers and systems (ICH CAHPS)
measures, and to apportion the remaining 5 percent to the standardized
transfusion ratio (STrR) measure. We believe this is appropriate
because it distributes points as equally as possible among the outcome
and experience of care measures, with a slight preference for SRR and
ICH CAHPS because facilities will have had more experience with these
measures than they will have had with STrR.
For the reasons discussed above, we proposed to use the following
weighting system in Table 7 below, for calculating a facility's
Clinical Measure Domain score for PY 2019. For comparison, in Table 8,
we have also provided the Measure Weights we originally finalized for
PY 2019 in the CY 2016 ESRD PPS Final Rule (80 FR 69063).

Table 7--Proposed Clinical Measure Domain Weighting for the PY 2019 ESRD
QIP
------------------------------------------------------------------------
Measure weight in
the clinical Measure weight as
Measures/Measure topics by measure domain percent of TPS
subdomain score (proposed (proposed for PY
for PY 2019) (%) 2019) (%)
------------------------------------------------------------------------
Patient and Family Engagement/Care 42 .................
Coordination Subdomain...........
ICH CAHPS measure............. 26 19.5
SRR measure................... 16 12
Clinical Care Subdomain........... 58 .................
STrR measure.................. 12 9
Dialysis Adequacy measure..... 19 14.25
Vascular Access Type measure 19 14.25
topic........................
Hypercalcemia measure......... 8 6
------------------------------------------------------------------------
Note: For PY 2019, we proposed that the Clinical Domain will make up 75
percent of a facility's TPS. The percentages listed in this Table
represent the measure weight as a percent of the Clinical Domain
Score.

Table 8--Finalized Clinical Measure Domain Weighting for the PY 2019
ESRD QIP
[Finalized in the CY 2016 ESRD PPS Final Rule]
------------------------------------------------------------------------
Measure weight in
the clinical Measure weight as
Measures/Measure topics by measure domain percent of TPS
subdomain score (finalized (finalized for PY
for PY 2019) (%) 2019) (%)
------------------------------------------------------------------------
Safety Subdomain.................. 20 .................
NHSN BSI Clinical Measure..... 20 18
Patient and Family Engagement/Care 30 .................
Coordination Subdomain...........
ICH CAHPS measure............. 20 18
SRR measure................... 10 9
Clinical Care Subdomain........... 50 .................
STrR measure.................. 7 6.3
Dialysis Adequacy measure..... 18 16.2
Vascular Access Type measure 18 16.2
topic........................
Hypercalcemia measure............. 7 6.3
------------------------------------------------------------------------

[[Page 77888]]

In the CY 2016 ESRD PPS Final Rule, we finalized a requirement
that, to be eligible to receive a TPS, a facility had to be eligible
for at least one reporting measure and at least one clinical measure
(80 FR 69064). With the proposed addition of the Safety Measure Domain
for PY 2019, we proposed a change to this policy. Specifically, for PY
2019, we proposed that to be eligible to receive a TPS, a facility must
be eligible for at least one measure in the Clinical Measure Domain and
at least one measure in the Reporting Measure Domain. As such,
facilities do not need to receive a score on a measure in the Safety
Measure Domain in order to be eligible to receive a TPS. The NHSN BSI
Clinical Measure and the NHSN Dialysis Event Reporting Measure have the
same eligibility requirements (specifically they require that a
facility treated at least 11 eligible patients during the performance
period). We proposed this change in policy to avoid a situation in
which a facility is eligible to receive a TPS when it only receives a
score for a single measure topic. We did not propose any changes to the
policy that a facility's TPS will be rounded to the nearest integer,
with half of an integer being rounded up.
We sought comments on these proposals. The comments and our
responses for these proposals are set forth below.
Comment: Two commenters did not support our proposal for weighting
the proposed safety domain within the TPS or our proposal to change the
weighting of the clinical measure domain for PY 2019. They suggested
that CMS consider re-weighting the Subdomains in the Clinical Measure
Domain and reduce the weight of the Patient and Family Engagement/Care
Coordination Subdomain because the measures within this subdomain--
Readmissions and ICH CAHPS--may not have any relation with clinical
performance. Specifically, one commenter argued that the SRR measure
accounts for readmissions due to foot ulcers or cancer treatment and
may have nothing to do with facility performance. Likewise, the Patient
Satisfaction survey scores may be skewed, commenter argued, due to end
of life grief, loss, chronic illness, anger with diagnosis, organic
brain diagnosis or other cognitive disabilities. For these reasons, the
commenter urged CMS to reduce the weight of the Patient and Family
Engagement/Care Coordination Subdomain to 20 percent or less of the
Clinical Measure Domain score and give more weight to the Clinical
Measures themselves. One commenter also argued that the current
weighting proposal is not balanced and recommended that CMS either
reduce the weight of the Patient and Family Engagement Subdomain back
to 30 percent, consider adding another measure to the subdomain, or
reduce the number of completed ICH CAHPS surveys needed to be eligible
for that measure.
Response: We thank commenters for their suggestions. We proposed
the weighting structure for several reasons, outlined in more detail in
the proposal. We carefully considered the criteria finalized in the CY
2015 ESRD PPS Final Rule (79 FR 66213 through 66216) to construct the
proposed scoring methodology. Specifically, we considered the number of
measures and measure topics within a subdomain, the experience
facilities have had with the measures, and how well the measures align
with CMS' highest priorities for quality improvement for patients with
ESRD. We have weighted the SRR and ICH CAHPS measures as proposed
because facilities will have had more experience with these measures
than they will have had with the STrR measure, and because the focus on
patient satisfaction and care coordination constitutes and important
policy priority for CMS. Furthermore, we disagree with the commenters
that the SRR measure does not have any relation with clinical
performance. The SRR measure is carefully risk adjusted to account for
comorbidities and patient characteristics relevant to the ESRD
population. Additionally, while the causes of readmissions are
multifactorial, our analyses demonstrate that facilities are able to
exert an influence on readmissions that is roughly equivalent to that
exerted by the discharging acute care hospital. We believe that
coordination of care requires interaction between multiple providers,
including those discharging the patient, and those continuing patient
care following discharge. While cultural factors and patient
noncompliance can lead to hospital admissions, this is no less true for
the acute care hospitals, long-term care hospitals, inpatient
rehabilitation facilities, nursing homes, and home health agencies, and
it does not negate the deleterious consequences readmissions can have
for those patients. At this time there are no additional measures that
can appropriately be added to the Patient and Family Engagement
Subdomain. However we are constantly working with the kidney care
community to identify measures that are appropriate for the ESRD QIP
program. Finally, the ICH CAHPS measure cannot be reliably scored on
the basis of fewer than 30 completed surveys, so we do not believe it
is appropriate to reduce this aspect of the minimum data requirements
for the measure. It is important to note that the weight allocated to
ICH CAHPS in the TPS will be distributed evenly throughout the measures
on which a facility received a score, in the event that the facility
does not obtain the 30 completed surveys needed to score the ICH CAHPS
measure.
Comment: Two commenters supported CMS's criteria for weighting
measures but recommended adding three additional criteria: (1) Strength
of Evidence; (2) Opportunity for Improvement; and (3) Clinical
Significance.
Response: We thank the commenters for their support. We agree with
the commenters that these criteria encompass important considerations
for evaluating measures. As stated in the CY 2015 ESRD PPS Final Rule
with comment period (79 FR 66216) and the CY 2016 ESRD PPS Final Rule
with comment period (80 FR 69063), we take these criteria into account
when making decisions about whether to adopt a measure in the ESRD QIP,
because it would be inappropriate to adopt a measure that did not meet
these criteria. Based on this understanding, we developed the three
criteria discussed above for determining subdomain weighting within the
Clinical Measure Domain (80 FR 37849). We believe these criteria
account for the programmatic and operational concerns associated with
scoring facilities on the ESRD QIP while also reflecting our focus on
improving the quality of care provided to ESRD patients. This analysis
also implicitly includes a review of the strength of the clinical
evidence supporting the measure, the opportunity for improvement among
facilities, and the clinical significance of the measure because these
issues are inextricably linked with an assessment of the measure's
appropriateness and importance of measurement within the ESRD QIP.
Because the additional criteria recommended by the commenter are used
as a threshold for adopting ESRD QIP measures and are sub-components of
the three previously finalized measure weighting criteria, we do not
believe it would be appropriate to also factor these criteria into
decisions about how much weight to give measures in a facility's
Clinical Domain Score.
Final Rule Action: After consideration of the comments, we will
finalize the weighting structure for PY 2019 as proposed. We are also
finalizing the new policy described above that to be

[[Page 77889]]

eligible to receive a TPS, a facility must be eligible for at least one
measure in the Clinical Measure Domain and at least one measure in the
Reporting Measure Domain. This policy will ensure that facilities will
not be eligible to receive a TPS if they only receive a score for a
single measure topic.
The weights we are finalizing appear in Table 9, below:

Table 9--Final Clinical Measure Domain Weighting for the PY 2019 ESRD QIP
----------------------------------------------------------------------------------------------------------------
Measure weight in the
clinical measure Measure weight as
Measures/measure topics by subdomain domain score (proposed percent of TPS
for PY 2019) (%) (proposed for PY 2019)
----------------------------------------------------------------------------------------------------------------
Patient and Family Engagement/Care Coordination Subdomain..... 42 .......................
ICH CAHPS measure......................................... 26 19.5
SRR measure............................................... 16 12
Clinical Care Subdomain....................................... 58 .......................
STrR measure.............................................. 12 9
Dialysis Adequacy measure................................. 19 14.25
Vascular Access Type measure topic............................ 19 14.25
Hypercalcemia measure......................................... 8 6
----------------------------------------------------------------------------------------------------------------
Note: For PY 2019, the Clinical Domain will make up 75 percent of a facility's TPS. The percentages listed in
this Table represent the measure weight as a percent of the Clinical Domain Score.

7. Example of the Final PY 2019 ESRD QIP Scoring Methodology
In this section, we provide examples to illustrate the proposed
scoring methodology for PY 2019. Figures 1 through 4 illustrate how to
calculate the Clinical Measure Domain score, the Reporting Measure
Domain score, the Safety Measure Domain score, and the TPS. Figure 5
illustrates the full proposed scoring methodology for PY 2019. Note
that for this example, Facility A, a hypothetical facility, has
performed very well.
Figure 1 illustrates the methodology used to calculate the Clinical
Measure Domain score for Facility A.
[GRAPHIC] [TIFF OMITTED] TR04NO16.304

[[Page 77890]]

Figure 2 illustrates the general methodology for calculating the
Reporting Measure Domain score for Facility A.
[GRAPHIC] [TIFF OMITTED] TR04NO16.305

[[Page 77891]]

Figure 3 illustrates the methodology used for calculating the
Safety Measure Domain score for Facility A.
[GRAPHIC] [TIFF OMITTED] TR04NO16.306

[[Page 77892]]

Figure 4 illustrates the methodology used to calculate the TPS for
Facility A.
[GRAPHIC] [TIFF OMITTED] TR04NO16.307

[[Page 77893]]

Figure 5 illustrates the full scoring methodology for PY 2019.
[GRAPHIC] [TIFF OMITTED] TR04NO16.308

8. Payment Reductions for the PY 2019 ESRD QIP
Section 1881(h)(3)(A)(ii) of the Act requires the Secretary to
ensure that the application of the ESRD QIP scoring methodology results
in an appropriate distribution of payment reductions across facilities,
such that facilities achieving the lowest TPSs receive the largest
payment reductions. In the CY 2016 ESRD PPS final rule, we finalized
our proposal for calculating the minimum TPS for PY 2019 and future
payment years (80 FR 69067). Under our current policy, a facility will
not receive a payment reduction if it achieves a minimum TPS that is
equal to or greater than the total of the points it would have received
if: (i) It performs at the performance standard for each clinical
measure; and (ii) it receives the number of points for each reporting
measure that corresponds to the 50th percentile of facility performance
on each of the PY 2017 reporting measures (80 FR 69067).
We were unable to calculate a minimum TPS for PY 2019 in the CY
2016 ESRD PPS final rule because we were not yet able to calculate the
performance standards for each of the clinical measures. We therefore
stated that we would publish the minimum TPS for the PY 2019 ESRD QIP
in the CY 2017 ESRD PPS final rule (80 FR 69068).
Based on the estimated performance standards listed above, we
estimated that a facility must meet or exceed a minimum TPS of 59 for
PY 2019. For all of the clinical measures except the SRR and STrR,
these data come from CY 2015. The data for the SRR and STrR clinical
measures come from CY 2014 Medicare claims. For the ICH CAHPS clinical
measure, we set the performance standard to zero for the purposes of
determining this minimum TPS, because we are not able to establish a
numerical value for the performance standard through the rulemaking
process before the beginning of the PY 2019 performance period. We
proposed that a facility failing to meet the minimum TPS, as
established in the CY 2017 ESRD PPS final rule, will receive a payment
reduction based on the estimated TPS ranges indicated in Table 10.

[[Page 77894]]

Table 10--Estimated Payment Reduction Scale for PY 2019 Based on the
Most Recently Available Data
------------------------------------------------------------------------
Total performance score Reduction (%)
------------------------------------------------------------------------
100-59.................................................. 0.0
58-49................................................... 0.5
48-39................................................... 1.0
38-29................................................... 1.5
28-0.................................................... 2.0
------------------------------------------------------------------------

We sought comments on these proposals. The comments and our
responses are set forth below.
Comment: Two commenters did not support our proposed payment
reductions for the PY 2019 ESRD QIP. One commenter expressed the
following concerns with the proposed Scoring Methodology. First, they
are concerned about the unresolved methodological issues surrounding
the validity and reliability of the NHSN BSI Measure. Second, CROWNWeb
data transmission issues remain a concern. Third, CMS seems to be
pursuing a strategy of including ESRD QIP measures that are outside the
dialysis facility's direct sphere of influence. One commenter argued
that all three of these issues could result in an artificial
deterioration in dialysis facility performance with respect to the ESRD
QIP performance scoring, in the absence of a demonstrable change in the
quality of care delivered. One commenter urged CMS to delay increasing
the stringency of ESRD QIP scoring until these issues have been
addressed. Another commenter argued that the current scoring
methodology unfairly penalizes small facilities, particularly those
that are affiliated with academic medical centers, and they were
troubled by CMS's assertion that the care they provide to their
patients is anything less than high quality. One commenter suggested
that TPSs should not be calculated for low-volume dialysis programs
because doing so may cause an inappropriate distribution of payments
across facilities, which is contrary to Section 1881(h)(3)(A)(ii) of
the Act.
Response: We thank commenters for sharing their concerns. We have
several policies in place designed to address the commenters' concerns.
Specifically, the SFA is designed to ensure that small facilities, many
of which are affiliated with academic medical centers, are not
adversely affected by a small number of outlier patients. We have
addressed concerns about the reliability and validity of the NHSN BSI
Clinical Measure in section IV.D.1.a in this rule. We believe it is
important to include even the low-volume dialysis facilities in the
ESRD QIP and to calculate a TPS for them so that these facilities
receive appropriate incentives to deliver high quality care to their
patients. We are continually striving to improve the data submission
process in CROWNWeb to make the process easier for facilities, and we
note that low rejection rates achieved by certain batch-submitting
organizations demonstrates that CROWNWeb is equipped to accept this
mode of data submission. Additionally, we believe that all of the
measures in the ESRD QIP measure set evaluate the quality of care that
is within the dialysis facility's sphere of influence, included to SRR
measure, because our analyses demonstrate that the facility exerts an
influence on readmissions roughly equivalent to that exerted by the
discharging acute care hospital. Finally, we are constantly examining
our policies and methodologies to ensure that they fairly and
accurately assess the quality of care provided by dialysis facilities,
and we do not believe that the proposed payment reduction policies
constitute increased stringency because this policy has remained
constant since the PY 2014 program (76 FR 70282).
Comment: Several commenters supported our continuation of the
current policy for determining payment reductions, including the
process for setting the minimum TPS. One commenter argued that it is
critical to ensure that the ESRD QIP performance scoring is well
thought-out and fair to all facilities, including low-volume facilities
which service sicker-than average populations.
Response: We thank the commenters for their support and we believe
that the ESRD QIP's scoring methodology is fair to all facilities. We
also note that we finalized the SFA specifically to ensure that low-
volume facilities are not unfairly penalized for a few outlier patients
who could significantly impact their measure scores.
Final Rule Action: After careful consideration of the comments
received and an analysis of the most recently available data, we are
finalizing that the minimum TPS for PY 2019 will be 60. We are also
finalizing the payment reduction scale shown in Table 11.

Table 11--Payment Reduction Scale for PY 2019 Based on the Most Recently
Available Data
------------------------------------------------------------------------
Total performance score Reduction (%)
------------------------------------------------------------------------
100-60.................................................. 0.0
50-59................................................... 0.5
40-49................................................... 1.0
30-39................................................... 1.5
0-29.................................................... 2.0
------------------------------------------------------------------------

9. Data Validation
One of the critical elements of the ESRD QIP's success is ensuring
that the data submitted to calculate measure scores and TPSs are
accurate. We began a pilot data validation program in CY 2013 for the
ESRD QIP, and procured the services of a data validation contractor
that was tasked with validating a national sample of facilities'
records as reported to Consolidated Renal Operations in a Web-Enabled
Network (CROWNWeb). For validation of CY 2014 data, our first priority
was to develop a methodology for validating data submitted to CROWNWeb
under the pilot data validation program. That methodology was fully
developed and adopted through the rulemaking process. For the PY 2016
ESRD QIP (78 FR 72223 through 72224), we finalized a requirement to
sample approximately 10 records from 300 randomly selected facilities;
these facilities had 60 days to comply once they received requests for
records. We continued this pilot for the PY 2017 and PY 2018 ESRD QIP,
and proposed to continue doing so for the PY 2019 ESRD QIP. Under this
continued validation study, we will sample the same number of records
(approximately 10 per facility) from the same number of facilities
(that is, 300) during CY 2017. If a facility is randomly selected to
participate in the pilot validation study but does not provide us with
the requisite medical records within 60 calendar days of receiving a
request, then we propose to deduct 10 points from the facility's TPS.
Once we have developed and adopted a methodology for validating the
CROWNWeb data, we intend to consider whether payment reductions under
the ESRD QIP should be based, in part, on whether a facility has met
our standards for data validation.
In the CY 2015 ESRD PPS final rule, we also finalized that there
will be a feasibility study for validating data reported to the Centers
for Disease Control and Prevention (CDC's) National Healthcare Safety
Network (NHSN) Dialysis Event Module for the NHSN BSI Clinical Measure.
Healthcare-Acquired Infections (HAI) are relatively

[[Page 77895]]

rare, and we finalized that the feasibility study would target records
with a higher probability of including a dialysis event, because this
would enrich the validation sample while reducing the burden on
facilities. This methodology resembles the methodology we use in the
Hospital Inpatient Quality Reporting Program to validate the central
line-associated BSI measure, the catheter-associated urinary tract
infection measure, and the surgical site infection measure (77 FR 53539
through 53553).
For the PY 2019 ESRD QIP, we proposed to randomly select 35
facilities to participate in an NHSN dialysis event validation study by
submitting 10 patient records covering two quarters of data reported in
CY 2017. A CMS contractor will send these facilities requests for
medical records for all patients with ``candidate events'' during the
evaluation period; i.e., patients who had any positive blood cultures;
received any intravenous antimicrobials; had any pus, redness, or
increased swelling at a vascular access site; and/or were admitted to a
hospital during the evaluation period. Facilities will have 30 calendar
days to respond to the request for medical records based on candidate
events either electronically or on paper. If the contractor determines
that additional medical records are needed to reach the 10-record
threshold from a facility to validate whether the facility accurately
reported the dialysis events, then the contractor will send a request
for additional, randomly selected patient records from the facility.
The facility will have 30 calendar days from the date of the letter to
respond to the request. With input from CDC, the CMS contractor will
utilize a methodology for reviewing and validating records from
candidate events and randomly selected patients, in order to determine
whether the facility reported dialysis events for those patients in
accordance with the NHSN Dialysis Event Protocol. If a facility is
selected to participate in the validation study but does not provide
CMS with the requisite lists of positive blood cultures within 30
calendar days of receiving a request, then we propose to deduct 10
points from the facility's TPS. Information from the validation study
may be used in future years of the program to inform our consideration
of future policies that would incorporate NHSN data accuracy into the
scoring process.
We recognize that facilities have previously had 60 days to respond
to these requests. However, in the process of implementing the pilot
validation study for CY 2015 data, we recognized that the validation
contractor did not have enough time to initiate requests, receive
responses, validate data reported to NHSN, and generate a comprehensive
validation report before the end of the contract cycle. Although
facilities will have less time, the 30-day response requirement is
consistent with validation studies conducted in the Hospital IQR
Program, and we believe that 30 days is a reasonable amount of time for
facilities to obtain and transmit the requisite medical records.
We sought comments on this proposal. The comments and our responses
for these proposals are set forth below.
Comment: Several commenters supported our proposed changes to Data
Validation in the ESRD QIP. One commenter specifically supported our
proposed extension of the data validation pilot study as well as the
proposal to validate NHSN data. They also supported our proposal to
implement a penalty for failure to comply with the 30-day response
window. One commenter specifically supported our proposed NHSN Data
Validation methodology because providers do not always report dialysis
events or do not report them in accordance with the CDC's NHSN Dialysis
Event Protocol and they argued that this validation study, if done
correctly, will better hold facilities accountable for the quality of
care they provide to patients. One commenter added that validation,
when coupled with meaningful accountability, is the best way to
guarantee that the dialysis events of ESRD patients are reported
accurately and appropriately.
Response: We thank commenters for their support.
Comment: Two commenters raised concerns that the two data
validation studies are masked attempts at auditing quality data
submissions and that CMS is actually conducting the study because the
CROWNWeb validation study showed that CROWNWeb is not reliable or valid
as a collection tool and because the NHSN BSI Measure has not been
appropriately validated. They argued that if the actual goal of the
validation studies is to audit facilities, then CMS should provide a
mechanism to appeal adverse decisions before points are taken away from
facilities' total performance scores. The commenter offered support in
working with CMS to ensure the validity and reliability of the data
submitted to NHSN but argued that the validation studies is not the
appropriate way to address concerns that CMS has and asked that CMS
state clearly in the final rule the reason that such studies are
necessary and whether or not the purpose of them is to audit
facilities.
Response: As stated previously in the CY 2015 final rule with
comment period (79 FR 66188) and the CY 2016 final rule with comment
period (80 FR 69049), we agree that one of the purposes of the
validation studies is to identify instances in which facilities are
reporting invalid data either to CROWNWeb or to NHSN. However, we
continue to believe it is inappropriate to designate the validation
studies as ``audits'' of facility data, because the ultimate objective
of the studies is to improve the validity of data reported to CROWNWeb
and to NHSN, rather than to penalize facilities for reporting invalid
data. We further note that we did not propose to penalize facilities
for reporting invalid data for either of the validation studies. If we
propose to do so in future rulemaking, we will consider implementing an
appeal process that facilities can use to contest CMS determinations
that invalid data was reported to either CROWNWeb or to NHSN. The
purpose of these studies is not to audit facilities but to improve the
validity of the data by identifying instances of intentional or
unintentional under-reporting.
Comment: One commenter suggested that CMS consider providing
resources to state health departments so that they can conduct on-site
data validation as this would also help with educating facility staff
on surveillance, reporting, and infection prevention, identify areas of
misunderstanding and improve communication, and provide technical
assistance to facilities in reporting and data validation efforts.
Another commenter requested that CMS release the results of the
CROWNWeb validation study and that CMS stop using CROWNWeb as part of
the ESRD QIP until it has been appropriately validated. Two commenters
offered suggestions for expanding the Data Validation Studies. If
financial barriers are a concern, the commenter suggested an
alternative approach would be to require facilities to engage in a
self-validation exercise module which would still be a burden of labor
on the facility but would provide useful information to both CMS and
the facility. They offered examples of such self-validation modules,
available through the California Department of Public Health. One
commenter recommended that CMS increase the size of the validation
study to include at least 5 percent of facilities, arguing that a
larger, more representative sample is needed for validation, especially
considering that this data will soon be publicly available for the
first time via

[[Page 77896]]

Dialysis Facility Compare. Another commenter specifically recommended
that CMS perform validation on at least one percent of (or at least 70)
facilities. They also recommended increasing the number of records
reviewed at each facility from the 10 proposed in the rule. They also
encouraged CMS to conduct validations of facilities that do not report
dialysis events or that report zero events, because these non-compliant
facilities could be skewing national averages, negatively impacting
those facilities that do comply with the measure requirements.
Response: We thank commenters for their recommendations about ways
to improve the NHSN BSI validation study and increase the size of the
study. We appreciate the commenter's recommendation to require
facilities to conduct a self-validation module as a means to overcome
these resource limitations, and we will consider the feasibility of
such an approach in the future. We also appreciate the recommendation
to provide funding to state health departments to conduct validation
studies; we agree that these agencies have conducted very successful
studies of this nature and will consider the feasibility of this
approach. We also appreciate the suggestion to selectively sample
facilities that report zero dialysis events for validation, and we will
investigate the utility of using a non-random sample in the future.
Unfortunately, at this time, resource limitations prevent us from
increasing the size of the NHSN BSI Validation Study, both respect to
the number of facilities sampled, as well as the number of records from
each facility that are validated. We believe the proposed study
methodology will provide the CDC and CMS with greater insights than
previous studies because this study will yield information about the
types of under-reporting, the extent of under-reporting and the reasons
for under-reporting to the NHSN system. We look forward to continuing
to refine this study to ensure that we are collecting as much reliable
and useful data about bloodstream infections as possible.
CDC agrees that there are substantial benefits that occur when
health departments conduct on-site assessments of facility data and
direct education of staff to improve surveillance practices. The CDC
supports the suggestion of providing state health departments with
funds to conduct data validation activities. Few states are currently
funded via the CDC cooperative agreement (Epidemiology and Laboratory
Capacity grant) to conduct external HAI data validation. These states
have conducted data validation of patient safety modules that resulted
in an improvement in states' understanding of gaps in HAI reporting,
commonly made errors, improved partnerships and communication between
state health departments and healthcare facilities.
Comment: Several commenters did not support our proposal to
decrease the response time for the NHSN Data Validation Study for
facilities from 60 to 30 days, and argued that the reduced response
time, coupled with the penalty for non-response, is too harsh compared
with the problem identified by the studies, particularly in light of a
lack of due process for facilities that are found to be non-compliant.
With respect to the proposed reduced response time, one commenter
argued that facilities often do not receive the faxed or written
request for records or they are lost, leaving them with less time to
respond to the request, and recommended that CMS instead email the
requests to all of the NHSN users within each facility to ensure that
the request is received. Another argued that 30 days is simply too
short a period of time to ensure the request is received and can be
completed. One commenter also added that providers often must obtain
documentation from other healthcare providers in order to respond to
the request and that 60 days is simply not enough time to receive the
request, coordinate with other providers, and send in the required
documentation. One commenter suggested that while the data validation
study is ongoing, CMS should not reduce a facility's TPS since the
purpose of the study, as commenter sees it, is to assess future
policies to ensure the accuracy of the data submitted to NHSN.
With regards to the penalty for non-response, commenters urged CMS
to eliminate the proposed 10-point reduction in a facility's TPS due to
non-compliance with the NHSN Data Validation Study for two reasons.
First, they argued that compliance with a data validation study is
unrelated to the quality of care provided at a facility and therefore
is inappropriate for inclusion in a facility's TPS. Second, they
suggested that reducing a facility's TPS score confuses and misinforms
patients, caregivers and families about the quality of care provided at
a given facility.
Response: Based upon the comments received, we are not going to
finalize the 30-day response time. Instead, we will give facilities 60
days to respond to record requests. However, facilities should not need
to collect records from other healthcare facilities solely for the
purposes of the data validation record request.
We disagree with the comment about deducting points from a
facility's TPS for noncompliance with the CROWNWeb and NHSN validation
studies. As stated previously at (79 FR 66189), our policy to deduct
points from a facility's TPS is consistent with section
1881(h)(3)(A)(i) of the Act, because it is part of our methodology for
assessing the total performance of each provider of services and renal
dialysis facility based on performance standards with respect to the
measures selected. The main purpose of these studies is to assess
whether facilities are reporting accurate data, and we have determined
that review of medical records is integral to that determination.
Comment: One commenter pointed out that being admitted to a
hospital should not qualify as a reportable Dialysis Event for purposes
of the Data Validation Study.
Response: The validation study includes positive blood cultures
collected or identified in patients during the first day of a
hospitalization because these events are included in the calculations
for the NHSN BSI clinical measure. In order to report these events,
facilities will need to obtain medical records from hospitals that
capture these results.
Final Rule Action: After careful consideration of the comments
received, we are finalizing the methodologies for Data Validation with
one change. Specifically, we are increasing the amount of time
facilities will have to respond to record requests for the NHSN Data
Validation Study from 30 days to 60 days. We believe this should give
facilities ample time to collect and submit the required records.

E. Requirements for the PY 2020 ESRD QIP

1. Replacement of the Mineral Metabolism Reporting Measure Beginning
With the PY 2020 Program Year
We consider a quality measure for removal or replacement if: (1)
Measure performance among the majority of ESRD facilities is so high
and unvarying that meaningful distinctions in improvements or
performance can no longer be made (in other words, the measure is
topped-out); (2) performance or improvement on a measure does not
result in better or the intended patient outcomes; (3) a measure no
longer aligns with current clinical guidelines or practice; (4) a more
broadly applicable (across settings, populations, or conditions)
measure for the topic

[[Page 77897]]

becomes available; (5) a measure that is more proximal in time to
desired patient outcomes for the particular topic becomes available;
(6) a measure that is more strongly associated with desired patient
outcomes for the particular topic becomes available; or (7) collection
or public reporting of a measure leads to negative or unintended
consequences (77 FR 67475). In the CY 2015 ESRD PPS final rule, we
adopted statistical criteria for determining whether a clinical measure
is topped out, and also adopted a policy under which we could retain an
otherwise topped-out measure if we determined that its continued
inclusion in the ESRD QIP measure would address the unique needs of a
specific subset of the ESRD population (79 FR 66174).
Subsequent to the publication of the CY 2016 ESRD PPS final rule,
we evaluated the finalized PY 2019 ESRD QIP measures that would be
continued in PY 2020 against all of these criteria. We determined that
none of these measures met criterion (1), (2), (3), (4), (5) or (6). As
part of this evaluation for criterion one, we performed a statistical
analysis of the PY 2019 measures to determine whether any measures were
``topped out.'' The full results of this analysis can be found at
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/061_TechnicalSpecifications.html and a summary of
our topped-out analysis results appears in Table 12.

Table 12--PY 2020 Clinical Measures Including Facilities With at Least 11 Eligible Patients per Measure
--------------------------------------------------------------------------------------------------------------------------------------------------------
75th/25th 90th/10th Statistically Truncated Truncated
Measure N Percentile Percentile Std error indistinguishable mean SD TCV TCV's 0.10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kt/V Delivered Dose above 6210 96.0 98.0 0.093 No................. 92.5 4.20 0.05 Yes.
minimum.
Fistula Use................... 5906 73.2 79.6 0.148 No................. 65.7 8.88 0.14 No
Catheter Use.................. 5921 5.43 2.89 0.093 No................. \1\90.1 5.16 <0.01 Yes.
Serum Calcium >10.2........... 6257 0.91 0.32 0.049 No................. \1\97.8 1.48 <0.01 Yes.
NHSN--SIR..................... 5781 0.41 0.00 0.011 No................. 0.963 0.57 <0.01 Yes.
SRR........................... 5739 0.82 0.64 0.004 No................. 0.995 0.21 <0.01 Yes.
STrR.......................... 5650 0.64 0.43 0.008 No................. 0.965 0.37 <0.01 Yes.
SHR........................... 6086 0.79 0.63 0.004 No................. 0.983 0.23 <0.01 Yes.
ICH CAHPS:
Nephrologists 3349 71.8 77.1 0.159 No................. 65.7 7.11 0.11 No
communication and caring.
Quality of dialysis center 3349 66.2 71.2 0.134 No................. 60.9 6.20 0.10 No
care and operations.
Providing information to 3349 82.4 85.6 0.101 No................. 78.4 4.61 0.06 Yes.
patients.
Rating of Nephrologist.... 3349 69.9 76.6 0.204 No................. 62.0 9.29 0.15 No
Rating of dialysis 3349 70.9 77.4 0.215 No................. 62.0 9.92 0.16 No
facility staff.
Rating of dialysis center. 3349 73.8 80.6 0.221 No................. 64.8 10.18 0.16 No
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Truncated mean for percentage is reversed (100 percent-truncated mean) for measures where lower score = better performance.

As the information in Table 12 indicates, none of these clinical
measures are currently topped-out in the ESRD QIP. Accordingly, we did
not propose to remove any of these measures from the ESRD QIP for PY
2020 because they are topped out.
We consider the data sources we use to calculate our measures based
on the reliability of the data, and we also try to use CROWNWeb data
whenever possible. The Mineral Metabolism measure currently in the ESRD
QIP measure set uses CROWNWeb data to determine how frequently
facilities report serum phosphorus data, but it also uses Medicare
claims data to exclude patients when they were treated at a facility
fewer than seven times in a month. There is no evidence to suggest that
the Mineral Metabolism reporting measure is leading to negative or
unintended clinical consequences. However, we do not think it is
optimal to use claims data to calculate the measure because that is
inconsistent with our intention to increasingly use CROWNWeb as the
data source for calculating measures in the ESRD QIP. There is also
another available measure that can be calculated using only CROWNWeb
data and that we believe is as reliable as the Mineral Metabolism
Reporting Measure. The measure also excludes patients using criteria
consistent with that used by other ESRD QIP measures. For these
reasons, we proposed to remove the Mineral Metabolism Reporting Measure
from the ESRD QIP measure set beginning with the PY 2020 program and to
replace that measure with the proposed Serum Phosphorus Reporting
measure, the specifications for which are described in section
IV.D.2.c.i. of the proposed rule (81 FR 42838)
We sought comments on this proposal. The comments and our responses
for these proposals are set forth below.
Comment: Many commenters supported the replacement of the Mineral
Metabolism Reporting Measure with the Serum Phosphorus measure. They
noted that NQF 0255 is topped out because of high facility performance
and minimal room for improvement, so it's not the best indicator of
quality, but they understand that CMS is required to comply with PAMA.
They further encouraged CMS to work with the kidney care community to
identify more appropriate measures to satisfy the statutory
requirement.
Response: We appreciate the commenters' support, and we agree that
it would be desirable to have more robust measures on bone mineral
metabolism. We note that neither the Mineral Metabolism nor the Serum
Phosphorus measures can be topped out in the same sense as other
clinical measures, because reporting measures are scored on the basis
of how much data are reported, and clinical measures are scored on the
basis of what the data represent. In the case of clinical measures,
uniformly high performance indicates that the measure may no longer be
necessary because high quality care is being delivered virtually across
the board. In the case of reporting measures, by contrast, high levels
of reporting do not obviate the need for the measure, because the
measures are largely put in place to capture data on an ongoing basis.
Comment: Commenters asked CMS for two clarifications regarding the
proposed Serum Phosphorus Reporting Measure. First, commenters noted
that plasma is absent from the measure title and from the measure's
Technical Specifications, although it is mentioned in the ``additional
information'' in the Serum Phosphorus Technical Specifications and
recommended that the title of the measure be modified to clearly denote
plasma as an acceptable

[[Page 77898]]

substrate and that the specifications make this abundantly clear.
Second, commenters requested that CMS review the measure's
specifications and standardize the exclusions between the Mineral
Metabolism Measure and the Serum Phosphorus Measure.
Response: We thank commenter for their suggestion, however at this
time we are not proposing to change the title of the proposed Serum
Phosphorus Reporting Measure. This measure is based upon an NQF-
endorsed measure, #0255 Measurement of Serum Phosphorus Concentration.
The measure's technical specifications clearly indicate that plasma is
an acceptable substrate and we do not believe it is necessary to
indicate this in the title of the measure. The differences in the
exclusions between the Mineral Metabolism Measure and the Serum
Phosphorus measure appear in the technical specifications of the
measures and pertain to the determination of patient eligibility (that
is, Mineral Metabolism uses number of treatments in claims to determine
this, but Serum Phosphorus uses days at the facility as indicated in
CROWNWeb). As we indicated in the proposed rule, we proposed this
change because of our intention to increasingly use CROWNWeb as the
data source for calculating measures in the ESRD QIP and because this
reporting measure is based upon an NQF-endorsed measure.
Final Rule Action: After considering the comments received, we are
finalizing our proposal to replace the Mineral Metabolism Reporting
Measure with the Serum Phosphorus Reporting Measure beginning in PY
2020. This measure change is consistent with our intention to
increasingly use CROWNWeb as the data source for calculating measures
in the ESRD QIP, and it brings measure exclusion criteria into
alignment with other measures used in the ESRD QIP program.
2. Measures for the PY 2020 ESRD QIP
a. PY 2019 Measures Continuing for PY 2020 and Future Payment Years
We previously finalized 12 measures in the CY 2016 ESRD PPS final
rule for the PY 2019 ESRD QIP, and these measures are summarized in
Table 13. In accordance with our policy to continue using measures
unless we propose to remove or replace them, (77 FR 67477), we will
continue to use 11 of these measures in the PY 2020 ESRD QIP. As noted
above, we proposed to replace the Mineral Metabolism Reporting Measure
with the Serum Phosphorus Reporting Measure and we proposed to
reintroduce the NHSN Dialysis Event Reporting Measure into the ESRD QIP
measure set beginning with PY 2019.

Table 13--PY 2019 ESRD QIP Measures Being Continued in PY 2020
------------------------------------------------------------------------
NQF No. Measure title and description
------------------------------------------------------------------------
0257......................... Vascular Access Type: AV Fistula, a
clinical measure.
Percentage of patient-months on
hemodialysis during the last
hemodialysis treatment of the month
using an autogenous AV fistula with two
needles.
0256......................... Vascular Access Type: Catheter >= 90
days, a clinical measure.
Percentage of patient-months for patients
on hemodialysis during the last
hemodialysis treatment of month with a
catheter continuously for 90 days or
longer prior to the last hemodialysis
session.
N/A.......................... National Healthcare Safety Network (NHSN)
Bloodstream Infection in Hemodialysis
Patients, a clinical measure.
The Standardized Infection Ratio (SIR) of
Bloodstream Infections (BSI) will be
calculated among patients receiving
hemodialysis at outpatient hemodialysis
centers.
1454......................... Hypercalcemia, a clinical measure.
Proportion of patient-months with 3-month
rolling average of total uncorrected
serum calcium greater than 10.2 mg/dL.
N/A.......................... Standardized Readmission Ratio, a
clinical measure.
Standardized hospital readmissions ratio
of the number of observed unplanned 30-
day hospital readmissions to the number
of expected unplanned readmissions.
N/A.......................... Standardized Transfusion Ratio, a
clinical measure.
Risk-adjusted standardized transfusion
ratio for all adult Medicare dialysis
patients.
Number of observed eligible red blood
cell transfusion events occurring in
patients dialyzing at a facility to the
number of eligible transfusions that
would be expected.
0258......................... In-Center Hemodialysis Consumer
Assessment of Healthcare Providers and
Systems (ICH CAHPS) Survey
Administration, a clinical measure.
Facility administers, using a third-party
CMS-approved vendor, the ICH CAHPS
survey twice in accordance with survey
specifications and submits survey
results to CMS.
N/A.......................... Anemia Management Reporting, a reporting
measure.
Number of months for which facility
reports ESA dosage (as applicable) and
hemoglobin/hematocrit for each Medicare
patient.
N/A.......................... Pain Assessment and Follow-Up, a
reporting measure.
Facility reports in CROWNWeb one of six
conditions for each qualifying patient
once before August 1 of the performance
period and once before February 1 of the
year following the performance period.
N/A.......................... Clinical Depression Screening and Follow-
Up, a reporting measure.
Facility reports in CROWNWeb one of six
conditions for each qualifying patient
once before February 1 of the year
following the performance period.
N/A.......................... NHSN Healthcare Personnel Influenza
Vaccination, a reporting measure.
Facility submits Healthcare Personnel
Influenza Vaccination Summary Report to
CDC's NHSN system, according to the
specifications of the Healthcare
Personnel Safety Component Protocol, by
May 15 of the performance period.
N/A.......................... Kt/V Dialysis Adequacy Comprehensive
Clinical Measure.
Percentage of all patient months for
patients whose average delivered dose of
dialysis (either hemodialysis or
peritoneal dialysis) met the specified
threshold during the reporting period.
N/A.......................... NHSN Dialysis Event Reporting Measure
(Proposed for PY 2019 in section
IV.C.1.a. of the proposed rule (81 FR
42823)).
------------------------------------------------------------------------

We received general comments on the PY 2020 measure set. The
comments and our responses for these proposals are set forth below.
Comment: Commenter argued that the measures being proposed for
inclusion in the ESRD QIP do not take a patient-

[[Page 77899]]

centric approach to care because they do not take into consideration
the fact that many of these patients have multiple comorbidities and
that dialysis is just one treatment being offered to them. Commenter
added that the patient's primary care physician should be at the center
of the complex care plan model used for patients with ESRD.
Response: We thank the commenter for sharing these concerns. The
SRR, SHR, and STrR do consider patient comorbidities through
standardized risk adjustment models that incorporate a variety of
comorbidities that contribute to the risk of poor health outcomes. We
agree that a patient's primary care physician should be involved in the
complex care planning required for many ESRD dialysis patients, and
coordination between the facility and the primary care physician is
part of the responsibility of the interdisciplinary team. We also
believe that the SRR and SHR epitomize our aim to include patient-
centered measures in the ESRD QIP measure set, because these measures
assess outcomes that deeply matter to patients, and because high
performance on these measures requires a patient-centered orientation
that emphasizes care coordination and special attention to patients in
precarious situations (for example, those who are at-risk for a
hospitalization and/or readmission).
Comment: Two commenters argued that the technical specifications
for the Kt/V measure, the hypercalcemia measure, and the phosphorus
measure may be creating barriers to accessing home dialysis due to the
ways in which they address patients who switch from hemodialysis to
home dialysis. They recommended that CMS modify the exclusion criteria
for these measures to remove these barriers. Specifically, commenter
pointed out that under the current specifications, if a patient is on
in-center HD for more than 90 days and then switches to home PD, the
patient is included in the QIP calculation as soon as they have a PD-
related Medicare claim. The patient who switches from in-center HD to
PD and has no Kt/V during the month is viewed as not meeting the
standard. However, if a new patient begins dialysis as a home PD
patient, the specs provide a 90-day grace period during which no Kt/V
data is expected. The current specifications therefore encourage
facilities to perform a Kt/V on PD patients during training which is
not clinically necessary. To address this concern, commenter
recommended that CMS modify the exclusion criteria from ``patients on
dialysis for less than 90 days'' to ``patients on the PD modality for
less than 90 days.''
For Hypercalcemia and Phosphorus, commenter recommended that CMS
modify the exclusion criteria to state: ``home dialysis patients for
whom a facility does not submit a claim during the claim month or PD
patients with fewer than 15 billable days or home HD patients with
fewer than seven treatments during claim month.'' Commenter argued that
the way the specifications are currently written, home patients are
required to receive a lab result while in-center patients have a six-
treatment grace period. Additionally, if a home patient receives a
treatment on the first of the month and then goes to the hospital for
the remainder of the month, the patient-month will be counted as not
meeting the standard. Patients are therefore being treated to medically
unnecessary tests, and the commenter argued that this modification to
the specifications for these measures will address this problem for
patients who sift from in-center HD to home PD in relation to the
hypercalcemia and phosphorus measures.
Response: We thank the commenters for their concerns. The Kt/V
measure does provide a longer timeline for completion of Kt/V
assessment for a new ESRD patient beginning dialysis on PD than it does
for a patient who has previously been on In-center HD and subsequently
switches modality. The commenter's suggestion to change the denominator
exclusion to ``patients on the PD modality for less than 90 days''
would effectively provide similar timelines for completion of the first
Kt/V assessment. However, it is not certain that this proposed approach
is the most appropriate one. Patients new to dialysis whose initial
modality is PD almost always have significant residual renal function
that allows initiation of less aggressive PD prescriptions during and
for several weeks after initial training. Since Kt/V for PD is defined
as a combination of both residual renal function and dialytic Kt/V, the
contribution of residual renal function is typically substantial in
this situation. For patients having previously been treated with In-
center HD who subsequently change modality, the likelihood of having
persisting significant residual renal function is much lower. In this
scenario, the clinical team may well need to provide more aggressive
initial PD prescription to compensate for absent residual renal
function in order to provide adequate PD. Whether or not allowing 120
days for the provider to assess delivered Kt/V in these very different
scenarios has not been carefully evaluated. Prior to revising the
current specifications, more study is needed to assess the safety
impact of this revision. Finally, the comment that the current
specifications encourage facilities to perform a Kt/V on PD patients
during training is not necessarily correct. The current specifications
encourage providers to perform Kt/V as soon as possible after
initiation of PD in order to evaluate the adequacy of the initial
dialysis prescription in this setting where residual renal function may
be reduced.
With regard to hypercalcemia and phosphorus, the commenter
describes a claims-based exclusion paradigm that is not used for the
hypercalcemia or phosphorus measures, nor is it consistent with the DFC
specification of Kt/V. Irrespective of modality, patients are included
in the measures' denominator based primarily on CROWNWeb admission and
discharge data and not primarily on the number of Medicare Claims
treatment events. In addition, assessment of calcium and phosphorus
concentrations and avoidance of hypercalcemia apply equally to both In-
center HD and home dialysis patients.
Comment: Commenter expressed dismay at the fact that there is no
health-related quality of life measure in the ESRD QIP and recommended
that starting in CY 2018 (for PY 2020), each facility must report in
CROWNWeb whether each eligible patient completed the KDQOL. Commenter
argued that this is the most important measure because it is a patient-
reported outcome measure which predicts hospitalization and survival in
dialysis patients as strongly as dialysis dose and serum albumin.
Response: We thank commenter for their suggestion. We agree that it
is vitally important to examine the quality of life of patients with
ESRD, and for that reason, we have included important measures such as
the Pain Assessment and Follow-Up Reporting Measure and the Depression
Screening and Follow-Up Reporting Measure. The CMS Dialysis Conditions
for Coverage already requires, under Condition 494.90, that facilities
complete an annual psychosocial evaluation for each patient, and
facilities typically use the KDQOL survey for this purpose. Therefore,
adding an additional measure on how many patients receive the KDQOL
survey for the ESRD QIP would be unnecessarily duplicative and would
unnecessarily dilute the significance of other measures in the ESRD QIP
measure set. We will continue working with the community to identify
appropriate patient-reported outcome measures for use in the ESRD QIP.

[[Page 77900]]

Comment: Several commenters supported our proposal to study the
impact of the SRR and STrR measures on quality of care.
Response: We thank commenters for their support and we look forward
to sharing the results of the study with the community when they become
available.
Comment: Commenters generally supported the continued inclusion of
the ICH CAHPS measure in the ESRD QIP but expressed some concerns and
made several recommendations for improving the measure as implemented
in the program.
The concerns expressed by commenters include: (1) Patients need to
be involved with the survey in a meaningful way; (2) The ESRD National
Coordinating Center (NCC) LAN Affinity Group is in the process of
trying to address #1; (3) Patients remain concerned with
inconsistencies in the administration and understanding of the survey;
(4) Patients remain concerned that while a minority of patients may see
benefits from the results of the survey, it will not improve the
patient experience of care or have a meaningful impact on process
change at the facility level as it currently exists; (5) In light of
these concerns, the current weight being assigned to this metric
appears to be excessive. They recommended reconsideration for the
weighting assigned to the CAHPS measure until these concerns are
addressed.
The changes commenters recommended include: (1) Provide a specific
list of the exclusions that would exclude homeless patients as well;
(2) Expand the ICH CAHPS survey to include peritoneal dialysis and home
hemodialysis patients in future rulemaking; (3) Administer the survey
consistent with the AHRQ specifications, including by dividing it into
three sections that were independently tested; (4) Require that the
survey be administered only once each year, consistent with the
findings of the American Institutes for Research/RAND et al.; (5)
Coordinate with the ESRD Networks to reduce duplication in its
administration; (6) Implement a mechanism for facilities to ensure that
patients' contact information is as accurate and up-to-date as
possible; (7) Review the lingual translations of the surveys to ensure
that they are accurate.
Response: We appreciate the concerns listed by the commenters. We
will address each one separately. (1) A specific list of the exclusions
from the ICH CAHPS survey is published in the In-Center Hemodialysis
CAHPS[supreg] Survey Administration and Specifications Manual, which
can be found on the survey technical Web site, https://ichcahps.org
under the Survey and Protocols tab. We explicitly chose not to exclude
homeless persons based on the advice of our technical expert panel,
which indicated that some homeless persons can be contacted for survey
research. (2) We are considering creating an ICH CAHPS survey for home
and peritoneal dialysis patients. However, we do not currently have
concrete plans for this expansion. (3) The commenter suggests using the
AHRQ specifications for administering the ICH CAHPS Survey. The AHRQ
specifications are not designed to support public reporting of survey
data. The CMS specifications are much more detailed because they are to
ensure, to the extent possible, that the survey is conducted the same
way by all vendors. This improves the quality of the data for public
reporting purposes. We do not understand the comment that the survey
should be divided into three sections that were independently tested.
The entire ICH CAHPS survey has been tested. (4) We considered the
option of doing the survey once a year, but realized that a single
administration could miss patients and that it would cover patient
experiences for only part of the year. We decided to require that the
survey be conducted twice a year to increase opportunities for patients
to make their experiences known. (5) We are already working with the
ESRD networks and are receptive to suggestions for reducing
duplication. (6) We currently ask that survey vendors contact
facilities for updated patient contact information. However, we ask
that the vendor request updated information for all patients, not just
those that are in the sample, in an effort to protect patient
confidentiality. (7) We are currently reviewing translations of the
questionnaires.
Comment: Commenter appreciates that the current ICH CAHPS measure
is not appropriate for assessing the care of home patients but urged
CMS to invest in the development and adoption of a patient experience
instrument validated for assessing the home dialysis population.
Commenter added that it is extremely important for CMS to recognize
that PD and HHD are distinct from each other and from in-center
dialysis and to keep these important differences in mind when
developing a survey instrument that would be more appropriate for the
home dialysis population.
Response: We thank the commenter for their comments and
suggestions. We are considering the possibility of developing an
additional CAHPS survey for home and peritoneal patients. However, we
do not have specific plans for this survey at this time.
Comment: One commenter opposed the continued use of the ICH CAHPS
measure as a clinical measure and expressed concerns that the twice
annual survey requirement does not allow sufficient time for facilities
to make improvements based on the first survey responses before the
second survey is due to be conducted. They added that the current
required timing is contrary to the goal of improving the patient
experience and urged CMS to reconsider the requirement for two annual
surveys.
Another commenter supported CMS's willingness to consider expanding
the ICH CAHPS survey in future years to include peritoneal dialysis,
home hemodialysis patients, and homeless patients. In the interim, they
recommended that CMS consider certain modifications to the measure to
make it less burdensome to facilities and patients. First, they
recommended addressing concerns about the burden on patients by
aligning the ICH CAHPS measure specifications with those AHRQ relied
upon when testing the measure. Specifically, they recommended that CMS
divide the survey into three sections, which were each independently
tested, and they suggested reducing the requirement to a single
administration of the survey each year. They also urged CMS to work
with facilities to develop a mechanism to ensure that patients' contact
information is accurate and up-to-date so that facilities are not
penalized for non-response when the patient's address was incorrect and
encouraged CMS to ensure that the ICH CAHPS survey is correctly
translated for all foreign-language speakers, and that the translation
is meaningful and accurate.
Response: One of the goals of the ICH CAHPS survey is to encourage
quality improvements. We are aware that some improvement efforts will
take more than one survey period to be reflected in the data. This is
particularly true for the publicly-reported data, which is reported for
two survey administration periods. However this does not mean that the
facility cannot or should not undertake quality improvement efforts.
The AHRQ guidelines were not designed to support public reporting.
They are, therefore, less detailed than the CMS guidelines, which are
designed to improve data quality for public reporting. We conduct the
survey twice a year in order to provide patients with multiple
opportunities to report their experiences. We also report the data from
two survey administrations to improve the possibility that the sample

[[Page 77901]]

sizes will be large enough to provide useful information.
Comment: Commenters generally supported the continued inclusion of
the NHSN Healthcare Personnel Influenza Vaccination Reporting Measure
in the ESRD QIP, as well as the elimination of the requirement for
written documentation, but they made several recommendations for
improving the measure. Most importantly, commenters recommended
changing the Performance Period for the NHSN HPI Vaccination Reporting
Measure to align with CDC guidelines and to set it as October 1 through
March 31 so that facilities are not penalized for complying with
established clinical guidelines and so that patients are not placed at
increased risk early in the influenza season. Second, commenters
recommended that exemptions should be in place for short-term visitors
and that the performance period be extended to allow for early
vaccination. Third, commenters expressed concerns about the third part
of the denominator, requiring students/trainees and volunteers to be
vaccinated. They argued that facilities often have such individuals on
a very short-term basis and documenting their vaccination status is
difficult, highly burdensome and diverts resources away from important
clinical care. Finally, commenters recommended that CMS include a
baseline reporting threshold for the measure, similar to what is
required for inpatient rehab hospitals and other healthcare facilities.
Response: The current performance period for NHSN's measure of
healthcare personnel influenza vaccination is from October 1 through
March 31. All personnel who physically work in a reporting facility for
at least one day from October 1 through March 31 are eligible for
inclusion in the measure denominator. The numerator of the measure
begins ``as soon as vaccine becomes available'' for a given influenza
season. Personnel who are working in the reporting facility during the
denominator reporting period (October 1 through March 31) may be
vaccinated as early as August or September and this vaccination would
be included in the NHSN measure; therefore, there is no penalty for
early vaccination built into the NHSN measure.
Since short-term visitors can transmit or acquire influenza even
when in a healthcare facility for a limited amount of time, all
healthcare personnel working one day or more during the reporting
period are included in the NHSN measure. Facilities are encouraged to
develop tracking systems that will capture these data from short-term
HCP when they come into the facility during the reporting period. Among
short-term healthcare personnel, adult students/trainees and volunteers
may be reasonably anticipated to have substantial contact with patients
and/or other healthcare personnel in a healthcare facility, increasing
the risk of acquiring or transmitting influenza infection during the
influenza season. To alleviate the challenges associated with
collecting data on groups that do not regularly work in a facility, CDC
encourages facilities to devise tracking systems to reach these
individuals. CDC developed an information sheet that lists methods and
strategies on how this can be accomplished, based on interviews
conducted with a sample of acute care facilities that collected these
data during the 2012-2013 influenza season: http://www.cdc.gov/nhsn/PDFs/HPS/General-Strategies-HCP-Groups.pdf.
Comment: Two commenters urged CMS to establish batch submission to
NHSN as soon as possible for the NHSN HPI Vaccination Measure, arguing
that it's very problematic that facilities are not yet able to do this.
Response: One of CDC's goals is to minimize reporting burden. Due
to the development time needed to support batch submission, CDC is not
able to rapidly transition to this data collection system. Currently,
CDC anticipates the batch submission of healthcare personnel influenza
vaccination data will be available for the 2018/2019 influenza season
(PY 2021 QIP).
Comment: Several commenters expressed concerns about the effect the
SRR measure is having on patient access to care, but they added that
they are looking forward to seeing the results of the access to care
study, to better understand the impact the SRR and STrR measures are
having on access to care. One commenter recommended evaluating the
effectiveness of these two measures at measuring the actual care
provided in dialysis facilities, and urged CMS not to use the measures
in the program until it has been determined whether they have a
positive or negative impact on dialysis patients.
Response: We thank commenters for sharing their concerns. We look
forward to sharing the results of the access to care study with the
community once they become available. We believe these two measures are
vitally important to continue including in the ESRD QIP measure set
because they measure important aspects of patient care. We are
continually evaluating the effectiveness of all of the measures
included in the program and we have policies in place to determine when
a measure should be retired from the program (77 FR 67475). Neither of
these measures meet the criteria established through rule-making.
Comment: One commenter recommended that CMS exclude patients with
an incomplete claims history from the SRR measure.
Response: We considered excluding patients without a full 1-year
Medicare history but decided in the end that this was not necessary.
Many patients without a full year of claims history are not Medicare
eligible when they begin dialysis. They subsequently become Medicare
eligible and may experience a hospitalization and a readmission in the
first year. In the event of a readmission, CMS has the data from the
diagnoses of the index discharge, and these data provide substantial
detail on comorbidities and are available for all patients. The
availability of these data enables adequate risk adjustment. We
additionally note that the SRR does make use of the hierarchical
condition categories (HCCs) to capture comorbidities. Excluding such
patients would eliminate much of the incentive to avoid readmissions in
a highly vulnerable population during their first year of care. We
believe care coordination is important in this population and strive to
include assessment of appropriate populations where feasible.
Comment: Commenter supports efforts to reduce hospital readmissions
that are directly related to the care provided by dialysis facilities,
but is concerned that the SRR measure does not provide actionable
information that promotes quality improvement in facilities.
Response: High readmission rates may indicate the facility may be
missing opportunities to improve care transitions during and after
hospital discharge. A few pilot studies have shown that better care
coordination between the facility and the hospital can reduce
readmissions. The SRR measure development TEP considered the
possibility of constraining the assessment of readmissions to those
directly related to the care provided by dialysis facilities, but could
not reach a consensus defining such events. The TEP recommended moving
forward with the development of the SRR as an all-cause readmission
measure. We have met with kidney community stakeholders regarding
methods that can make measure data more actionable, including the
provision of patient-level quality data and more timely reporting.
While we believe we have improved upon this, we also agree that we
should work toward continuing enhancement

[[Page 77902]]

of the quality information made available to facilities for this
measure and others.
Comment: One commenter recommended that CMS work to develop an
appropriate risk model that accounts for hospital-specific patterns and
adjusts for physician-level admitting patterns as there is great
geographic variability in both of these factors that need to be
accounted for. They also urged CMS to align the standardized risk
measures methodology with that used for other Medicare programs and
other providers such as MA plans, by using the CMS claims-data
available for the hierarchical conditions categories (CMS-HCC).
Response: The SRR risk adjustment model does adjust for hospital
effects by including hospital-level random effects. Our methodology
uses past-year comorbidities that are obtained from ICD-9/ICD-10
diagnoses codes from Medicare claims. These diagnoses are grouped using
the HCC. This approach is aligned with the methodology for the CMS
Hospital Wide Readmission measure. Our position on the adjustment for
physician-level admitting patterns has not changed, however. The
treating nephrologist is, by definition, part of the inter-disciplinary
team that treats patients under the aegis of the dialysis facility, as
outlined in the Conditions for Coverage. As a consequence, any
component of care provided by the treating nephrologist that influences
risk for readmissions is appropriately attributable to the dialysis
facility, and not appropriate for risk adjustment.
Comment: One commenter recommended that CMS consider adding a page
in CROWNWeb for the patient's medical history with start and end dates
in order to gather all the patient's medical history and to ensure that
STrR excludes the correct patients. This medical history page would be
a part of the patient's information, which would mean it would travel
with them from facility to facility.
Response: We are constantly evaluating the effectiveness and
usability of CROWNWeb and we will consider adding a page for the
patient's medical history with start and end dates in future updates of
the system.
Comment: One commenter expressed concerns that the STrR measure is
flawed and that facilities could be unfairly penalized for transfusions
they had no opportunity to avoid or control.
Response: While we recognize most transfusions occur in the
hospital, facilities are directly responsible for appropriate anemia
management based on the Medicare Conditions for Coverage and Medicare
payment policies. Since dialysis facilities have a direct role in
determining achieved hemoglobin as a result of their anemia management
practices, which influences the risk for transfusion in dialysis
patients, dialysis facilities share responsibility with other providers
for transfusion events. The responsibility of the dialysis facility for
achieved hemoglobin outcomes (and transfusion risk related to achieved
hemoglobin) is strengthened by applying an extensive list of exclusions
for comorbid conditions that are associated with decreased ESA
responsiveness, increased transfusion risk, and increased risk of ESA
complication.
Comment: Commenter suggested that the timely monitoring and
reporting of transfusions for patients on dialysis are extremely
important and recommended the ongoing collection of data and timely
reporting on the percentage of patients with Hgb levels between 6 and
10. This data could be merged, they suggested, with an individual
patient's transfusion history to determine the Hgb level or levels that
are typically associated with a transfusion, and can be used to see
whether low Hgb levels in a dialysis center are contributing to the
increase in transfusions across all clinical settings. These data could
also be used to develop future transfusion best practice guidelines for
people on dialysis and for those hoping to get a kidney transplant.
Response: We thank the commenter for offering this suggestion.
Studies investigating this issue are available in the published medical
literature. We note that dialysis facilities already monitor hemoglobin
concentration for the patients they treat as part of their
responsibility for anemia management under the Medicare ESRD Conditions
for Coverage. The dialysis receives the results of the hemoglobin test
results drawn in the outpatient setting and is able to respond with
appropriate changes to the patients' medical needs.
Comment: Commenter argued that a transfusion avoidance measure
should be stratified to appropriately capture blood transfusions that
could have been prevented by the dialysis facility and should exclude
those that resulted from acute or chronic medical conditions outside
the scope of practice of the facility or nephrologist caring for the
patient. Commenter acknowledged that tracking blood transfusion data is
critical to understand patient safety issues and that will be difficult
because most transfusions are not provided in the dialysis setting, and
they expressed concern that the STrR measure alone does not completely
counteract the potential to under-treat anemia and may permit patients
hemoglobin levels to fall below the range recommended in the KDOQI
Anemia Management guidelines. Finally, commenter argued that the
transfusion avoidance measure does not take into account patients'
quality of life or cardiovascular risks associated with low hemoglobin
levels.
Response: We are not aware of data that allow us to directly
distinguish between transfusion events that are preventable and those
that are not. In lieu of this, the STrR includes an extensive list of
patient comorbidity exclusions, based on Technical Expert Panel input.
These exclude patients with malignancy, hereditary anemias and other
bone marrow conditions that are associated with erythropoiesis
stimulating agent (ESA) hyporesponsiveness and/or increased risk of ESA
use. This exclusion approach excludes many patients with medical
conditions that complicate anemia management by the treating
nephrologist and dialysis facility. We agree that the STrR does not
address all aspects of clinical anemia management, including patient
quality of life related to anemia. However, it assesses an important
outcome of anemia management provided by the dialysis facility and we
believe its use encourages avoidance of unacceptably low hemoglobin
levels.
Comment: One commenter expressed concerns that the STrR Measure is
not driving improvement in patient outcomes and is therefore not useful
or appropriate for inclusion in the QIP. Instead, they recommended an
alternative measure that would assess erythropoietin dosage levels
compared to hemoglobin outcomes as a better measure to ensure that
patients are receiving appropriate amounts of erythropoietin.
Response: We believe that STrR contributes to quality of care in
ESRD anemia management by reporting on dialysis facility results in the
important area of transfusion avoidance, which is an area of
substantial concern in the kidney community, as indicated by the
numerous comments we received when removing the Hgb <10 measure from
the ESRD QIP (79 FR 66172 through 66174). Blood transfusion in dialysis
patients has been associated with increased HLA sensitivity and may
adversely affect access to kidney transplantation. Additionally, it is
not clear to us what evidence exists to establish requirements for
particular dosage levels, or how comparing them to hemoglobin levels
would be

[[Page 77903]]

operationalized for a measure in the ESRD QIP.
Comment: One commenter expressed concerns that the STrR measure is
not the right measure to use for evaluating anemia management in the
dialysis setting for several reasons, and they offered support to CMS
to help identify a different measure for use in the QIP that would
monitor anemia management in dialysis facilities, consistent with the
changes in the FDA labeling for ESAs. Their first concern is that
dialysis facilities do not provide or direct transfusions; rather,
patients typically receive transfusions in the hospital setting.
Second, the decision to provide a transfusion is typically based upon
hospital protocols that rarely take into account the unique nature of
dialysis patients. Finally, the NQF Renal Standing Committee echoed
these concerns and added that this measure more accurately reflects
transfusion practices and behaviors at the hospital level rather than
at the dialysis facility level, and they identified the potential for
such coding inconsistencies to be a threat to measure validity.
Commenter explained that one of the most problematic aspects of the
STrR measure is that dialysis facilities are not always able to obtain
information from other providers about patient transfusions that they
need to understand the metric and act upon it. If this measure is going
to be of value, dialysis facilities need to obtain quarterly data bout
the raw transfusion, hospitalization, readmissions, and mortality data
using DFR calculations, and the six-month lagged data file. Without
this important information, facilities have no insight on patients who
may or may not be receiving transfusions.
Response: We thank the commenter. We believe the STrR, developed
after the 2011 changes to Food and Drug Administration labeling for
ESAs, reflects those revised recommendations. The FDA position defines
the primary indication of ESA use in the CKD population as transfusion
avoidance, reflecting the assessment of the relative risks and benefits
of ESA use versus blood transfusion.
Dialysis providers are responsible for anemia management as part of
the ESRD Conditions for Coverage. Best dialysis provider practice
should include effective anemia management algorithms that focus on (1)
prevention and treatment of iron deficiency, inflammation and other
causes of ESA resistance, (2) use of the lowest dose of ESAs that
achieves an appropriate target hemoglobin that is consistent with FDA
guidelines and current best practices including transfusion avoidance,
and (3) education of patients, their families and medical providers to
avoid unnecessary blood transfusion so that risk of allosensitization
is minimized, eliminating or reducing one preventable barrier to
successful kidney transplantation.
The STrR measures dialysis facility performance in avoidance of
transfusions for their patients. We agree that the majority of blood
transfusions occur during hospitalization. However, the results of pre-
hospitalization anemia management, reflected in achieved hemoglobin
concentration prior to hospitalization, are a significant contributor
to transfusion risk. The decision to transfuse blood is intended to
improve or correct the pathophysiologic consequences of severe anemia,
defined by achieved hemoglobin or hematocrit, in a specific clinical
context for each patient situation (8). Consensus guidelines in the
U.S. and other consensus guidelines defining appropriate use of blood
transfusions are based, in large part, on the severity of anemia (9-
11). Given the role of hemoglobin as a clinical outcome that defines
anemia as well as forms a basis for consensus recommendations regarding
use of blood transfusion, it is not surprising that the presence of
decreased hemoglobin concentration is a strong predictor of subsequent
risk for blood transfusion in multiple settings, including chronic
dialysis (12-21). For example, Gilbertson, et al. found a nearly four-
fold higher risk-adjusted transfusion rate in dialysis patients with
achieved hemoglobin <10 gm/dl compared to those with >10 gm/dl
hemoglobin. (19) In addition to achieved hemoglobin, other factors
related to dialysis facility practices, including the facility's
response to their patients achieved hemoglobin, may influence blood
transfusion risk in the chronic dialysis population (22, 25). In an
observational study recently published by Molony, et al. (2016)
comparing different facility level titration practices, among patients
with hemoglobin <10 and those with hemoglobin >11, they found increased
transfusion risk in patients with larger ESA dose reductions and
smaller dose escalations, and reduced transfusion risk in patients with
larger ESA dose increases and smaller dose reductions (25). The authors
reported no clinically meaningful differences in all-cause or cause-
specific hospitalization events across groups.
We appreciate the offer to consider additional measures that might
more comprehensively assess anemia management care provided by dialysis
facilities and are willing to discuss this issue with stakeholders in
the future. We are also aware of the desire within the community for
more granular detail with regard to quality of care and we will look
into ways to provide this level of detail. The recently released ESRD
Measures Manual does provide a great amount of detail on technical
microspecifications related to the ways in which measures are
calculated and we are continuing to find ways to make the process more
transparent for the community. The commenter mentioned the DFRs, and it
may be that other quality programs, such as Dialysis Facility Compare
and the DFR offer more opportunity for this type of quality improvement
data.
Comment: Many commenters generally supported the continued
inclusion in the ESRD QIP of Dialysis Adequacy measures, but expressed
concerns with the Comprehensive Dialysis Adequacy Measure finalized in
the CY 2016 ESRD PPS Final Rule, and which they characterized as a
``pooled'' dialysis adequacy measure. Commenters argued that it is not
appropriate to draw conclusions about quality from one group (the
larger adult population) to quality for the pediatric population at
that facility, and expressed concerns that the vast clinical
differences between these two groups makes it difficult to accurately
assess a facility's quality. Specifically, commenters are concerned
that by combining pediatric and adult PD and HD patients into a single
adequacy metric, the transparency provided for pediatric and home
dialysis metrics will be lost and the larger adult and HD populations
will mask actual facility performance for pediatric and PD patients.
Commenters believe that because these categories of patients are
clinically different, pooling of the measures is inappropriate.
Additionally, they stated that the MAP supported the measure when it
was characterized as a composite measure and they therefore did not
review the issue of pooling. Furthermore, they stated that the NQF
Renal Standing Committee recommended against endorsement of this
measure and found that it failed on the performance gap criterion and
the threshold requirement for further discussion on factors such as
validity and reliability. Commenters recommended that rather than
continuing to use the Comprehensive Dialysis Adequacy Clinical Measure
in the program, CMS should return to the four individual dialysis
adequacy measures as separate measures or that they should work to
develop and implement a true composite measure.

[[Page 77904]]

Response: As we stated in the CY 2016 ESRD PPS Final Rule (80 FR
69055), we acknowledge that there might have been some confusion
surrounding our use of the term ``composite'' in the title of the
Comprehensive Dialysis Adequacy Clinical Measure, especially because we
are now aware that the NQF uses a specific set of criterion to
determine whether a measure is a composite for endorsement purposes.
However, as we noted in the CY 2016 ESRD PPS Final Rule, the measure
specifications presented in the CY 2016 ESRD PPS proposed rule were
identical to those submitted for review by the Measure Applications
Partnership, and the calculation methodology uses a pooled approach.
The Comprehensive Dialysis Adequacy Clinical Measure does not
clinically co-mingle different groups of patients. Rather, peritoneal
dialysis patients are assessed based on clinical standards appropriate
for these patients, while hemodialysis patients are assessed based on
clinical standards appropriate for them. Similarly, adult and pediatric
patients are assessed based on clinical standards that are appropriate
for each of those groups. We understand that patient groups that
comprise a smaller percentage of a facility's total population will
have less impact on the facility's performance score for the
Comprehensive Dialysis Adequacy clinical measure. The alternative,
however, is to implement individual measures for each subpopulation in
the Comprehensive Dialysis Adequacy clinical measure, as we had done
previously. This would reintroduce the problem of limiting our ability
to assess dialysis adequacy for patients in facilities large enough to
provide reliable assessments using the Comprehensive Dialysis Adequacy
clinical measure, but also lacking enough patients within the
individual subpopulations to provide reliable assessments using the
more granular measures of dialysis adequacy previously implemented in
the ESRD QIP.
With regard to the question of whether the measure was described as
``pooled'' or ``composite'' at the Measures Application Partnership, we
don't believe characterizing it as a composite measure at the time of
MAP review changes the substance of what the MAP discussed; ``pooled''
was always part of the measure concept. The measure design and
specifications are not substantively changed from those reviewed by the
MAP.
Finally, this measure was not endorsed due to a limited performance
gap criterion. This was also identified for some the previously
implemented Kt/V dialysis adequacy measures that had been previously
endorsed and implemented on ESRD QIP, but exhibited limited variation
in performance. These measures retained a ``reserve'' endorsed status,
which reflects that while other NQF criteria are met, performance on
the measure is extremely high. The Comprehensive Dialysis Adequacy
measure is not eligible for this designation by NQF because it had not
been previously endorsed. However, it is methodologically aligned with
these ``reserve'' measures, leading us to conclude that it is
methodologically sound. Returning to the use of the more granular
measures of dialysis adequacy would not address the underlying concern
reflected in this comment, which is that the performance gap is
limited, as this is reflected by these measures current ``reserve''
status. Under MIPPA, we are required to assess dialysis adequacy as
part of the QIP. Because the Comprehensive Dialysis Adequacy clinical
measure allows us to assess dialysis adequacy among the greater number
of dialysis patients, we believe its continued implementation is
appropriate.
Comment: Commenter disagreed with CMS's assertion in the CY 2016
ESRD PPS Final Rule that including the pediatric population into a
pooled measure is more beneficial than having a separate measure
because the ``pooled'' measure does not ensure that pediatric patients
are receiving adequate dialysis since the pediatric population is not
evaluated separately from the adult population.
Response: The Comprehensive Dialysis Adequacy Clinical Measure
assesses pediatric patients based on clinical standards that are
appropriate for the respective pediatric PD and HD patient populations.
To address the concerns about the combined measure that incorporates
both adult and pediatric populations and modality types, CMS found that
a significant number of facilities that have <11 pediatric patients
would now be assessed for dialysis adequacy in the new combined
measure. Currently these facilities are excluded from the individual
pediatric specific measures due to small facility size. This leads to
the systematic exclusion of these facilities from assessment on these
measures because of the reporting requirements. We believe it is
important that patients at these facilities also be included in the
assessment of adequate dialysis. This provides a mechanism to assess
adequate, with respect to these small patient subpopulations.
Comment: Commenter argued that there are other tests which would be
better indicators of dialysis adequacy than Kt/V. Specifically,
commenter recommended the Beta-2 microglobulin or a 24-hour urine test
when applicable, arguing that these tests, though more costly, would
contribute more accurate information about the patient's dialysis
adequacy.
Response: Assessment of small solute clearance during dialysis
using urea-based metrics has been the industry standard for decades.
This statement is reflected in widely accepted standards of practice,
evidenced by KDOQI clinical guidelines and multiple endorsed NQF
quality metrics based on urea clearance and expressed as Kt/V. These
standards are reflected in the Comprehensive Dialysis Adequacy Clinical
Measure.
Comment: One commenter noted that the evidence for the Kt/V targets
for the hemodialysis population is based on three times per week
dialysis, not four, and that therefore the dialysis adequacy goals may
not be appropriate for patients who dialyze more than three times per
week. Another commenter recommended that CMS revise the technical
specifications for the Comprehensive Dialysis Adequacy Clinical Measure
to include only the evidence-based Kt/V threshold because when the
measure was reviewed by the NQF Renal Standing Committee, they
recommended that the upper Kt/V threshold exclusions be removed from
the measure's specifications due to insufficient evidence supporting
the selected values.
Response: The Kt/V measure included in ESRD QIP did not include an
upper limit for the Kt/V value; the value only needs to be greater than
the target value for the specific population to be included in the
numerator. The measure is also limited to those who dialyze three times
per week. Therefore, we believe the goal is appropriate.
Comment: Two commenters supported the continued inclusion of the
Vascular Access Type Measures in the QIP but asked that CMS adjust the
weights to place more emphasis on reducing catheters in order to
encourage the use of fistulas and grafts. One commenter recommended
that CMS give credit for the fistula measure only if the catheter has
been removed because the presence of a catheter increases the risk of
infection even if it is not in use.
Response: We thank the commenter for sharing concerns relating to
the presence of a catheter increasing the risk

[[Page 77905]]

of infection, even when not in use. We will assess this concern and
consider its implications for future measurement in the ESRD QIP
through our ongoing measure develop and maintenance process. We note
that this issue was raised during the development of a new set of
vascular access measures in 2015. These measures are currently being
reviewed by the National Quality Forum Standing Renal Committee for
consensus endorsement. Once these measures have completed the NQF
endorsement process, we will consider whether they are appropriate for
inclusion in the ESRD QIP. In the interim, we continue to believe that
the weights associated with the Vascular Access Type measures, and
their relative weighting within the Vascular Access Type measure topic,
appropriate disincentivize the use of catheters and appropriately
incentive the use of fistulae. Because existing measures on vascular
access type do not include adjustments to take into account cases where
grafts are more appropriate than fistulae, we believe the existing
weights and measure specification are appropriately neutral with
respect to the use of grafts.
Comment: One commenter supported CMS's submission of changes to the
NQF Renal Standing Committee for the Vascular Access Type Measures that
modify the measure to address the small number of patients for whom a
catheter may be the most appropriate vascular access type when life
expectancy is limited. They also added that they would like the measure
to include all patients with a catheter in place for the reporting
period in the numerator, whether the catheter is in continuous use or
not.
Response: We thank you for your comment and note that the measures
submitted to the NQF Renal Standing Committee this year are not part of
the proposed rule.
Comment: One commenter encouraged CMS to modify the depression
screening measure to require that the same methodology for detecting
depression be used across facilities, or at a minimum that facilities
be required to report how they screened for depression.
Response: We do not believe it is appropriate for CMS to dictate
the depression screening tools that facilities use, and that facilities
are in a better position to determine which tools are appropriate for
their patient populations. We also appreciate the suggestion to require
reporting of the screening tool used, and we will take this
consideration into account in the future.
Comment: Two commenters supported the pain and depression measures
but expressed concern that pain in ESRD patients may be treated with
medication when emotional pain is really the cause of the patient's
pain, because emotional and physical pain are so closely related. One
of the commenters also raised concerns that depression needs to be
clearly differentiated from fatigue or fear and that appropriate
identification of these issues is important to enable dialysis facility
social workers to identify which patients and families might benefit
from additional social and family support.
Response: We thank commenter for their support and for sharing
their concerns. The Pain and Depression measures are measures that
assess how well facilities report rates of screening for these
conditions. They are not designed to differentiate among different
causes of pain or depression. Nor are they designed to evaluate the
intensity and completeness of facilities' screening efforts.
Comment: One commenter supported the continued inclusion of the
Pain Assessment measure in the QIP along with the modification to the
measure from the CY 2016 ESRD PPS Final Rule that based a facility's
score solely on the percentage of eligible patients treated in one six-
month period if the facility treated no eligible patients in the other
six-month period.
Response: We thank commenter for their support.
Comment: One commenter argued that the Pain & Depression measures
included in the ESRD QIP measure set are global measures of patient
well-being which are not specific for dialysis and should be under the
purview of the patients' primary care physician. They argued that
nephrologists and dialysis care teams should not be held responsible
for all medical conditions of the dialysis patients because often the
nephrologist's only option is to inform the patient's PCP and refer out
to appropriate specialists.
Response: We thank commenter for sharing their concerns. These
measures are designed to assess not the treatment of pain or depression
but whether facilities report data on how and whether they screen their
patients for these conditions, document an appropriate plan of care,
and refer their patients to other healthcare providers when necessary.
Nephrologists themselves are not being held responsible for these
medical conditions, and we believe that dialysis facilities' close
connections with patients (due to the regular need for dialysis
treatment) often places them in a better position to provide such
screenings and assessments, in comparison with primary care providers
who typically see ESRD patient far less frequently.
Comment: Two commenters requested an extension of the reporting
deadline for the Pain Assessment Reporting Measure in CROWNWeb. They
expressed that due to system downtime, they were unable to submit their
data by the August 1, 2016 deadline, and they requested that CMS extend
the submission deadline to September 16, 2016.
Response: We thank commenters for their comments regarding the
systems issues encountered during system downtime for CROWNWeb, and we
appreciate that the fulfillment of ESRD QIP requirements is dependent
upon facilities' ability to access CROWNWeb. In an effort to avoid
similar issues in future years of the ESRD QIP, we are making updates
to the reporting deadlines for all measures with CROWNWeb reporting
deadlines beginning in PY 2019 (ICH CAHPS (76 FR 70269), Mineral
Metabolism Reporting Measure (76 FR 70271), Anemia Management Reporting
Measure (78 FR 72199), Pain Assessment and Follow-Up Reporting Measure
(79 FR 66204), Clinical Depression Screening and Follow-Up Reporting
Measure (79 FR 66200)) as well as those being finalized for PY 2020
(Serum Phosphorus Reporting Measure (81 FR 42838) and Ultrafiltration
Rate Reporting Measure (81 FR 42839)). Rather than being required to
submit data or attestations by a certain calendar date, facilities will
now be required to submit data or attestations in CROWNWeb for the
following measures before the clinical month closes in CROWNWeb:
Hypercalcemia, ICH CAHPS, Mineral Metabolism/Proposed Serum Phosphorus
Reporting Measure, Anemia Management Reporting Measure, Pain Assessment
and Follow-Up Reporting Measure, Clinical Depression Screening and
Follow-Up Reporting Measure, and Ultrafiltration Rate Reporting
Measure.
Comment: One commenter supported the anemia management reporting
measure and requested that CMS require facilities to note the Hb level
at the first treatment of the week before dialysis is initiated. They
also requested that CMS work to establish an anemia clinical measure to
protect those on dialysis.
Response: Thank you for supporting the measure and for your
recommendation.
Comment: One commenter requested information about their specific
NHSN BSI Data. Specifically, their center

[[Page 77906]]

incurred 11 cases of BSI. Out of the 11 cases, 5 were access related.
Of the remaining 6, 2 were related to foot gangrene, 1 to a UTI, 2 were
due to infected sacral decubiti, and 1 was for a perforated abdomen.
The facility requests clarification as to why BSI infections extend
beyond access related bacteremia.
Response: CDC submitted several NHSN Dialysis Event measures to the
National Quality Forum (NQF), an independent organization that
evaluates healthcare measures. This includes the NHSN BSI measure, and
a measure of access-related BSI (ARBSI), which is also captured in
NHSN. Determining the source of a positive blood culture is inherently
challenging and introduces significant subjectivity to (and opportunity
for gaming) any measure of ARBSI. NQF evaluated these measures, but
only endorsed the BSI measure because of its standardization and
objectivity, and only that measure is included in the ESRD QIP. Because
BSI includes all positive blood cultures regardless of suspected
source, it's an objective and more reliable measure, relatively easily
captured with electronic data alone, and well suited for use in
assessment and inter-facility comparisons.
We thank commenters for their suggestions on improving the measures
included in the program and we will consider the feasibility of making
some of their recommended changes in future years of the program.
b. New Clinical Measures Beginning With the PY 2020 ESRD QIP
i. Standardized Hospitalization Ratio (SHR) Clinical Measure
Background
Hospitalization rates are an important indicator of patient
morbidity and quality of life. On average, dialysis patients are
admitted to the hospital nearly twice a year and spend an average of
11.2 days in the hospital per year.\7\ Hospitalizations account for
approximately 40 percent of total Medicare expenditures for ESRD
patients.\8\ Measures of the frequency of hospitalization have the
potential to help control escalating medical costs, play an important
role in identifying potential problems, and help facilities provide
cost-effective health care.
---------------------------------------------------------------------------

\7\ United States Renal Data System. 2015 USRDS annual data
report: Epidemiology of kidney disease in the United States.
National Institutes of Health, National Institute of Diabetes and
Digestive and Kidney Diseases, Bethesda, MD 2015.
\8\ USRDS Annual Data Report (2015).
---------------------------------------------------------------------------

At the end of 2013 there were 661,648 patients being dialyzed, of
which 117,162 were new (incident) ESRD patients.\9\ In 2013, total
Medicare costs for the ESRD program were $30.9 billion, a 1.6 percent
increase from 2012.\10\ Correspondingly, hospitalization costs for ESRD
patients are very high with Medicare costs of over $10.3 billion in
2013.
---------------------------------------------------------------------------

\9\ USRDS Annual Data Report (2015).
\10\ United States Renal Data System. 2015 USRDS annual data
report: Epidemiology of kidney disease in the United States.
National Institutes of Health, National Institute of Diabetes and
Digestive and Kidney Diseases, Bethesda, MD 2015.
---------------------------------------------------------------------------

Hospitalization measures have been in use in the Dialysis Facility
Reports (formerly Unit-Specific Reports) since 1995. The Dialysis
Facility Reports are used by the dialysis facilities and ESRD Networks
for quality improvement, and by ESRD state surveyors for monitoring and
surveillance. In particular, the Standardized Hospitalization Ratio
(SHR) for Admissions is used in the CMS ESRD Core Survey Process, in
conjunction with other standard criteria for prioritizing and selecting
facilities to survey. In addition, the SHR has been found to be
predictive of dialysis facility deficiency citations in the past (ESRD
State Outcomes List). The SHR is also a measure that has been publicly
reported since January 2013 on the Centers for Medicare and Medicaid
Services (CMS) Dialysis Facility Compare Web site.
Overview of Measure
The SHR measure is an NQF-endorsed all-cause, risk-standardized
rate of hospitalizations during a 1-year observation window. The
Measures Application Partnership supports the direction of this measure
for inclusion in the ESRD QIP.
We proposed to adopt a modified version of the SHR currently
endorsed by NQF (NQF #1463). We have submitted this modified measure to
NQF for endorsement consideration as part of the standard maintenance
process for NQF #1463. When we previously proposed the SHR for
implementation in the QIP, we received public comments urging us to not
rely solely on CMS Medical Evidence Form 2728 as the only source of
patient comorbidity data in the risk-adjustment calculations for the
SHR measure. These comments correctly stated that incident comorbidity
data are collected for all ESRD patients on CMS Form 2728 when patients
first become eligible to receive Medicare ESRD benefits, regardless of
payer. Although CMS Form 2728 is intended to inform both facilities and
us whether one or more comorbid conditions are present at the start of
ESRD, ``there is currently no mechanism for either correcting or
updating patient comorbidity data on CMS' Medical Evidence Reporting
Form 2728'' (76 FR 70267). Commenters were concerned that risk-
adjusting the SHR solely on the basis of comorbidity data from CMS Form
2728 would create access to care problems for patients, because
patients typically develop additional comorbidities after they begin
chronic dialysis, and facilities would have a disincentive to treat
these patients if recent comorbidities were not included in the risk-
adjustment calculations (77 FR 67495 through 67496).
In the CY 2013 ESRD PPS proposed rule, we noted that updated
comorbidity data could be captured on the ESRD 72x claims form. Some
public comments stated that, ``reporting comorbidities on the 72x claim
could be a huge administrative burden for facilities, including time
associated with validating that the data they submit on these claims is
valid'' (77 FR 67496). In response to these comments, we stated that we
would ``continue to assess the best means available for risk-adjustment
for both the SHR and Standardized Mortality Ratio (SMR) measures,
taking both the benefits of the information and the burden to
facilities into account, should we propose to adopt these measures in
future rulemaking'' (77 FR 67496). We proposed to adopt a Comorbidity
Reporting Measure for the PY 2016 ESRD QIP. This measure would have
allowed us to collect and analyze the updated comorbidity data ``to
develop risk adjustment methodologies for possible use in calculating
the SHR and SMR measures'' (78 FR 72208). We chose not to finalize the
comorbidity measure ``as a result of the significant concerns expressed
by commenters (78 FR 72209).
In response to the comments on the SHR when originally proposed,
and subsequently the proposed comorbidity reporting measure, we have
made revisions to the SHR specifications. The modified SHR that we have
proposed to adopt beginning with the PY 2020 ESRD QIP includes a risk
adjustment for 210 prevalent comorbidities in addition to the incident
comorbidities from the CMS Medical Evidence Form 2728. The 210
prevalent comorbidities were identified through review by a Technical
Expert Panel (TEP) first convened in late 2015. The details of how the
210 comorbidities were identified are described below. We proposed to
identify these prevalent comorbidities for purposes of risk adjusting
the measure using available Medicare claims data. We believe this
approach allows us to address commenters' concerns about increased
reporting burden, while also resulting in

[[Page 77907]]

a more robust risk-adjustment methodology.
Our understanding is that the NQF evaluates measures on the basis
of four criteria: Importance, scientific acceptability, feasibility,
and usability. The validity and reliability of a measure's risk-
adjustment calculations fall under the ``scientific acceptability''
criterion, and Measure Evaluation Criterion 2b4 specifies NQF's
preferred approach for risk-adjusting outcome measures (http://www.qualityforum.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=79434). Under this approach,
patient comorbidities should only be included in risk-adjustment
calculations if the following criteria are met: (1) Risk adjustment
should be based on patient factors that influence the measured outcome
and are present at the start of care; (2) measures should not be
adjusted for factors related to disparities in care or the quality of
care; (3) risk adjustment factors must be substantially related to the
outcome being measured; and (4) risk adjustment factors should not
reflect the quality of care furnished by the provider/facility being
evaluated. As indicated in the ``Inclusion and Exclusion Criteria''
subsection below, as well as in the NQF-endorsed measure
specifications, the proposed SHR clinical measure includes dialysis
patients starting on day 91 of ESRD treatment. Accordingly, we believe
that consistent with NQF Measure Evaluation Criterion 2b4, it is
appropriate to risk adjust the proposed SHR measure on the basis of
incident patient comorbidity data collected on CMS Form 2728 because
these comorbidities are definitively present at the start of care (that
is, on day 91 of ESRD treatment). The 210 prevalent comorbidities now
included for adjustment were also selected with these criteria in mind.
Specifically, in developing its recommendations, the TEP was asked to
apply the same criteria that the NQF uses to assign risk-adjusters
under the approach described above.
Reflecting these criteria, the TEP evaluated a list of prevalent
comorbidities derived through the following process. First, the ESRD
Hierarchical Comorbidity Conditions (ESRD-HCCs) were used as a starting
point to identify ICD-9 diagnosis codes that could be used for risk
adjustment. Those individual ICD-9 conditions that comprised the
respective ESRD HCCs, with a prevalence of at least 0.1 percent in the
patient population, were then selected for analysis to determine their
statistical relationship to mortality or hospitalization. This step
resulted in 555 diagnoses for comorbidities (out of over 3000 ICD-9
diagnosis codes in the ESRD-HCCs). Next, an adaptive lasso variable
selection method was applied to these 555 diagnoses to identify those
with a statistically significant relationship to mortality and/or
hospitalization (p < 0.05). This process identified 242 diagnoses. The
TEP members then scored each of these diagnoses as follows:
1. Very likely the result of dialysis facility care.
2. Likely the result of dialysis facility care.
3. May or may not be the result of dialysis facility care.
4. Unlikely to be the result of dialysis facility care.
5. Very likely not the result of dialysis facility care.
This scoring exercise aimed at identifying a set of prevalent
comorbidities are not likely the result of facility care and therefore
potentially are risk adjusters for SHR and SMR. The TEP concluded that
comorbidities scored as ``unlikely'' or ``very unlikely the result of
facility care'' by at least half of TEP members (simple majority) were
appropriate for inclusion as risk-adjusters. This process resulted in
210 conditions as risk adjustors. The TEP recommended incorporation of
these adjustors in the risk model for the SHR, and CMS concurred.
Section 1881(h)(2)(B)(i) of the Act requires that, unless the
exception set forth in section 1881(h)(2)(B)(ii) of the Act applies,
the measures specified for the ESRD QIP under section 1881(h)(2)(A)(iv)
of the Act must have been endorsed by the entity with a contract under
section 1890(a) of the Act (that entity currently is NQF). Under the
exception set forth in section 1881(h)(2)(B)(ii) of the Act, in the
case of a specified area or medical topic determined appropriate by the
Secretary for which a feasible and practical measure has not been
endorsed by the entity with a contract under section 1890(a) of the
Act, the Secretary may specify a measure that is not so endorsed, so
long as due consideration is given to measures that have been endorsed
or adopted by a consensus organization identified by the Secretary. We
have given due consideration to endorsed measures, including the
endorsed SHR (NQF #1463), as well as those adopted by a consensus
organization, and we proposed this measure under the authority of
1881(h)(2)(B)(ii) of the Act. Although the NQF has endorsed a
hospitalization measure (NQF #1463), our analyses suggest that
incorporating prevalent comorbidities results in a more robust and
reliable measure of hospitalization.
We have analyzed the measure's reliability, the results of which
are provided below and in greater detail in the SHR Measure Methodology
report, available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/061_TechnicalSpecifications.html. The Inter-Unit Reliability (IUR) was
calculated for the proposed SHR using data from 2012 and a
``bootstrap'' approach, which uses a resampling scheme to estimate the
within-facility variation that cannot be directly estimated by the
analysis of variance (ANOVA). A small IUR (near 0) reveals that most of
the variation of the measures between facilities is driven by random
noise, indicating the measure would not be a good characterization of
the differences among facilities, whereas a large IUR (near 1)
indicates that most of the variation between facilities is due to the
real difference between facilities.
Overall, we found that IURs for the 1-year SHRs have a range of
0.70 through 0.72 across the years 2010, 2011, 2012 and 2013, which
indicates that two-thirds of the variation in the 1-year SHR can be
attributed to the between-facility differences and one-third to within-
facility variation. Table 14 below shows the IURs for the 1-year SHR.

Table 14--IUR for 1-Year SHR, Overall and by Facility Size, 2010-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013
Facility size (number of patients) ---------------------------------------------------------------------------------------
IUR N IUR N IUR N IUR N
--------------------------------------------------------------------------------------------------------------------------------------------------------
All............................................................. 0.72 5407 0.71 5583 0.70 5709 0.70 5864
Small (<=50).................................................... 0.54 1864 0.51 1921 0.48 1977 0.46 2028
Medium (51-87).................................................. 0.65 1702 0.63 1785 0.58 1825 0.57 1930
Large (>=88).................................................... 0.81 1841 0.81 1877 0.81 1907 0.82 1906
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 77908]]

We also tested the SHR for measure validity, assessing its association
with established quality metrics in the ESRD dialysis population. The
SHR measure is correlated with the SMR for each individual year from
2010 through 2013, where Spearman's correlation coefficient ranged from
0.27 to 0.30, with all four correlations being highly significant (p <
0.0001). Also for each year from 2011 through 2013, the SHR was
correlated with the Standardized Readmission Ratio (SRR) (Spearman's
rho = 0.54, 0.50, 0.48; p < 0.0001).
In addition, SHR is negatively correlated in each of the 4-years
with the measure assessing percentage of patients in the facility with
an AV Fistula (Spearman's rho = -0.12, -0.15, -0.12, -0.13). Thus
higher values of SHR are associated with lower usage of AV Fistulas.
Further, SHR is positively correlated with catheter use >=90 days
(Spearman's rho = 0.21, 0.21, 0.18, 0.16), indicating that higher
values of SHR are associated with increased use of catheters. These
correlations are all highly significant (p < 0.001). For each year of
2010 through 2013, the SHR is also found to be negatively correlated
with the percent of hemodialysis patients with Kt/V >= 1.2, again in
the direction expected (Spearman's rho = -0.11, -0.13, -0.10, -0.11; p
< 0.0001). Lower SHRs are associated with a higher percentage of
patients receiving adequate dialysis dose.
Data Sources
Data are derived from an extensive national ESRD patient database,
which is largely derived from the CMS Consolidated Renal Operations in
a Web-enabled Network (CROWN), which includes Renal Management
Information System (REMIS), and the Standard Information Management
System database, the Enrollment Database, Medicare dialysis and
hospital payment records, the CMS Medical Evidence Form (Form CMS-
2728), transplant data from the Organ Procurement and Transplant
Network, the Death Notification Form (Form CMS-2746), the Nursing Home
Minimum Dataset, the Dialysis Facility Compare and the Social Security
Death Master File. The database is comprehensive for Medicare Parts A
and B patients. Non-Medicare patients are included in all sources
except for the Medicare payment records. Standard Information
Management System/CROWNWeb provides tracking by dialysis provider and
treatment modality for non-Medicare patients. Information on
hospitalizations and patient comorbidities are obtained from Medicare
Inpatient Claims Standard Analysis Files.
Outcome
The outcome for this measure is the number of inpatient hospital
admissions among eligible chronic dialysis patients under the care of
the dialysis facility during the 1-year reporting period.
Measure Eligible Population
The measure eligible population includes adult and pediatric
Medicare ESRD patients who have reached day 91 of ESRD treatment and
who received dialysis within the 1-year period.
Inclusion and Exclusion Criteria
Patients are included in the measure after the first 90 days of
treatment. For each patient, we identify the dialysis provider at each
point in time. Starting with day 91 of ESRD treatment, we attribute
patients to facilities according to the following rules. A patient is
attributed to a facility once the patient has been treated there for 60
days. When a patient transfers from one facility to another, the
patient continues to be attributed to the original facility for 60 days
and then is attributed to the destination facility. In particular, a
patient is attributed to his or her current facility on day 91 of ESRD
treatment if that facility had treated him or her for at least 60 days.
If on day 91, the facility had treated a patient for fewer than 60
days, we wait until the patient reaches day 60 of treatment at that
facility before attributing the patient to the facility. When a patient
is not treated in a single facility for a span of 60 days (for
instance, if there were two switches within 60 days of each other), we
do not attribute that patient to any facility. Patients are removed
from facilities 3 days prior to transplant in order to exclude the
transplant hospitalization. Patients who withdrew from dialysis or
recovered renal function remain assigned to their treatment facility
for 60 days after withdrawal or recovery.
Risk Adjustment
The SHR measure estimates expected hospitalizations calculated from
a Cox model that adjusts for patient risk factors and demographic
characteristics. This model accounts for clustering of patients in
particular facilities and allows for an estimate of the performance of
each individual facility, while applying the risk adjustment model to
obtain the expected number of hospitalizations for each facility. The
model does not adjust for sociodemographic status. We understand the
important role that sociodemographic status plays in the care of
patients. However, we continue to have concerns about holding dialysis
facilities to different standards for the outcomes of their patients of
diverse sociodemographic status because we do not want to mask
potential disparities or minimize incentives to improve the outcomes of
disadvantaged populations. We routinely monitor the impact of
sociodemographic status on facilities' results on our measures.
NQF is currently undertaking a 2-year trial period in which new
measures and measures undergoing maintenance review will be assessed to
determine if risk-adjusting for sociodemographic factors is
appropriate. For 2-years, NQF will conduct a trial of a temporary
policy change that will allow inclusion of sociodemographic factors in
the risk-adjustment approach for some performance measures. At the
conclusion of the trial, NQF will determine whether to make this policy
change permanent. Measure developers must submit information such as
analyses and interpretations as well as performance scores with and
without sociodemographic factors in the risk adjustment model.
Furthermore, the Office of the Assistant Secretary for Planning and
Evaluation is conducting research to examine the impact of
sociodemographic status on quality measures, resource use, and other
measures under the Medicare program as directed by the Improving
Medicare Post-Acute Care Transformation Act. We will closely examine
the findings of the Assistant Secretary for Planning and Evaluation
studies and consider how they apply to our quality programs at such
time as they are available.
Calculating the SHR Measure
The SHR measure is calculated as the ratio of the number of
observed hospitalizations to the number of expected hospitalizations. A
ratio greater than one means that facilities have more hospitalizations
than would be expected for an average facility with a similar patient-
mix; a ratio less than one means the facility has fewer
hospitalizations than would be expected for an average facility with a
similar patient-mix.
The SHR uses expected hospital admissions calculated from a Cox
model as extended to handle repeated events, with piecewise constant
baseline rates. The model is fit in two stages. The stage 1 model is
first fitted to the national data with piecewise constant baseline
rates applied to each facility. Hospitalization rates are adjusted for
patient age, sex, diabetes, duration of ESRD, nursing home status, BMI
at

[[Page 77909]]

incidence, comorbidity index at incidence, and calendar year. This
model allows the baseline hospitalization rates to vary between
facilities then applies the regression coefficients equally to all
facilities. This approach is robust to possible differences between
facilities in the patient mix being treated. The second stage then uses
a risk adjustment factor from the first stage as an offset. The stage 2
model then calculates the national baseline hospitalization rate. The
predicted value from stage 1 and the baseline rate from stage 2 are
then used to calculate the expected number of hospital days for each
patient over the period during which the patient is seen to be at risk.
The SHR is a point estimate--the best estimate of a facility's
hospitalization rate based on the facility's patient-mix. For more
detailed information on the calculation methodology please refer to our
Web site at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/061_TechnicalSpecifications.html.
We sought comments on our proposal to adopt the SHR measure for the
ESRD QIP beginning with PY 2020. The comments and our responses for
these proposals are set forth below.
Comment: One commenter fully supported the proposed addition of the
SHR measure. Several commenters supported the fact that the SHR measure
now accounts for prevalent co-morbidities but stated that they could
not support the incorporation of the measure into the QIP until its
reliability at the proposed facility size has been demonstrated. The
commenter stated that CMS's own data points out the significant issues
of reliability, particularly for smaller facilities, with the 1-year
SHR, and commenters expressed concerns that facilities will be
penalized for performance due to what they termed ``random chance,''
noting that the reliability statistics for medium and small facilities
fall significantly short of the 0.7 IUR threshold generally recommended
and considered the minimum by the NQF. Specifically, commenters
expressed concerns that only facilities with <5 patient-years at risk
during the performance period are not eligible for the measure. They
also asked CMS to align specifications across the standardized ratio
measures, pointing out that the SHR measure uses a <5 patient-years at
risk threshold while the SMR and STrR use <10 patient-years at risk.
One commenter requested that CMS wait to incorporate the SHR measure
until its reliability at the proposed facility size has been tested and
demonstrated.
Several commenters appreciated CMS's proposal to cast the SHR
measure in terms of patient-years rather than patient numbers but noted
that even under a scenario of a small facility with 50 patients, for
example, where all 50 contribute 12 months of data to the denominator,
the data indicate that the facility's performance score would still be
more due to random chance than actual performance. These commenters
stated that smaller facilities will have even lower reliability,
possibly low enough to make the measure completely unreliable. One
commenter added that even for medium sized facilities, the IUR is below
the 0.7 threshold and argued that it is therefore inappropriate to
penalize facilities when so much of their performance on the measure is
due to random chance.
Response: The SHR was recently reviewed and recommended for
endorsement by the National Quality Forum Standing Renal Committee
(report available here: http://www.qualityforum.org/Renal_2015-2017.aspx) based on the reliability statistics referenced in the
comment, which is consistent with our assessment that the SHR is
sufficiently reliable for use in quality programs. All components of
measure reliability were reviewed in detail at the NQF ESRD Standing
Committee's meeting in June, 2016. The reliability result reported in
the NQF submission showing the overall IURs of 0.70-0.72 across all
facilities was determined acceptable by the NQF Standing Committee as
the measure passed on the reliability criterion, and passed on
scientific acceptability overall. The evaluation and voting process and
result adhered to consensus development guidelines in the evaluation,
thereby reinforcing acceptance of the reliability results.
Given the established effect of sample size on IUR calculations, it
is expected that large facilities will have higher IUR values and small
facilities will have lower IUR values for any given measure. CMS and
consensus-endorsement bodies consider the overall reliability in
determining the acceptability of the measure. We are aware of no
published literature standard requiring an IUR of 0.7 for quality
measure implementation, and are aware of no standard by NQF requiring
this threshold as the minimum for endorsement or implementation.
Nonetheless, the SHR does achieve an overall IUR of >.7.
Comment: One commenter requested that CMS release the reliability
statistics for the proposed SHR measure using the patient-years at risk
construction so that additional analyses can be performed on the
measure's reliability.
Response: We thank the commenter for their request and we have
provided the reliability statistics for the proposed SHR measure below.
The Inter Unit Reliability (IUR) for assessing the reliability of a
measure is defined as:
[GRAPHIC] [TIFF OMITTED] TR04NO16.309

Where:

sb² is the between-facility variance,
sw² is the within-facility variance of the
response for a single individual, and
n' is (approximately) the average number of patients in a facility.

Table 15 below stratifies facilities into three strata based on
patient years at risk for each facility.

Table 15--IUR for 1-Year SHR, Overall and by Facility Size (Patient Years at Risk), 2010-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013
Facility size ---------------------------------------------------------------------------------------
IUR N IUR N IUR N IUR N
--------------------------------------------------------------------------------------------------------------------------------------------------------
All............................................................. 0.72 5407 0.71 5583 0.70 5709 0.70 5864
<32.02.......................................................... 0.60 1811 0.56 1874 0.53 1884 0.53 1919
[32.02, 58.64).................................................. 0.63 1788 0.64 1830 0.57 1891 0.56 2032
>=58.64......................................................... 0.81 1808 0.80 1879 0.81 1934 0.82 1913
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 16 below stratifies into three strata based on the number of
patients for each facility.

[[Page 77910]]

Table 16--IUR for 1-Year SHR, Overall and by Facility Size (Number of Patients), 2010-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013
Facility size ---------------------------------------------------------------------------------------
IUR N IUR N IUR N IUR N
--------------------------------------------------------------------------------------------------------------------------------------------------------
All............................................................. 0.72 5407 0.71 5583 0.70 5709 0.70 5864
Small (<=50).................................................... 0.54 1864 0.51 1921 0.48 1977 0.46 2028
Medium (51-87).................................................. 0.65 1702 0.63 1785 0.58 1825 0.57 1930
Large (>=88).................................................... 0.81 1841 0.81 1877 0.81 1907 0.82 1906
--------------------------------------------------------------------------------------------------------------------------------------------------------

Comment: Several commenters asked CMS to update the exclusion
criteria for the SHR and SRR measures such that a facility is not
penalized twice for certain readmissions. As the measures are currently
specified, a readmission occurring within 30 days of the index
discharge will be captured as a hospitalization by the SHR and a
readmission by the SRR, such that a facility is penalized twice for
each such readmission. Commenters urged CMS to modify the SHR
specifications to incorporate an exclusion for hospitalizations that
occur within 29 days of the index discharge such that the two measures
will appropriately measure two different types of events. One commenter
questioned why CMS is proposing to include both the SRR and the SHR
measures in the QIP concurrently.
Additionally, commenters are concerned that the proposed SHR
measure inappropriately penalizes facilities for hospitalizations over
which they have little to no control, such as from foot ulcers, lupus
flare-ups, myocardial infarction, congestive heart failure, etc. They
pointed out that many providers are involved in the care of ESRD
patients and that while there is a need to coordinate with other
providers, it is not always feasible. Providers struggle with different
EMR systems which often do not communicate with one another and there
is often a lack of resources on either side which prevents effective
communication efforts. Commenters recommended that rather than
implementing an all-cause hospitalization measure, CMS should consider
specific measures such as hospitalization for catheter infection,
hospitalization for volume overload, hospitalization for anemia/blood
transfusions, etc. so that facilities are only being held accountable
for hospitalizations related to conditions directly related to the
patient's dialysis treatment.
Response: It is true that the SHR and SRR may simultaneously
capture the same hospitalization event. We believe this is appropriate
because it places additional emphasis on the importance of avoiding
hospitalizations for dialysis patients. In addition, while the SRR and
SHR are moderately correlated with one another, as might be expected,
it is possible for a facility to score relatively well on one measure,
and relatively poorly on the other. We also believe that the measures
capture distinct aspects of the quality of care provided by a dialysis
facility. While the SRR assesses the coordination of care transitions
as dialysis patients are discharged from an acute care hospital into
the care of a dialysis facility, the SHR evaluates the facility's
overall performance in reducing hospitalizations.
The 2007 TEP that participated in developing the SHR considered the
possibility of developing cause specific SHRs, but recommended the use
of all-cause SHR measures due to various reasons including the lack of
clear research to indicate what causes (that is, reason for admission)
should be selected as valid indicators of poor ESRD care, and issues
associated with inter-rater reliability in assessing cause of
hospitalization. The TEP reached a strong consensus that the all-cause
measure would be reliable and valid and the measure would typically be
related to quality of care. We have some crude measures of cause of
hospitalization which we have used to assess the relationship between
the all-cause measure and cause specific components. These measures are
useful in assessing the overall SHR measures, but we caution that the
cause specific hospitalizations have not been tested or validated at
this time. All correlations are in the expected direction and highly
significant, (p<0.0001). Thus these preliminary analyses show that the
overall hospitalization rate also correlates with specific causes that
are commonly thought to be potentially related to poor quality of care.
Comment: Several commenters strongly supported CMS's use of
prevalent comorbidities in the risk models for the SMR and SHR, and
commended CMS for moving to incorporate prevalent comorbidities in the
proposed specifications for the SHR measure. One commenter encouraged
CMS to review co-morbidities as they relate to the pediatric ESRD
population since these measures include all patients with ESRD.
Commenters also requested that CMS allow for the CMS Medical Evidence
Reporting Form 2728 be permitted to be updated because the UB04 and
8371 forms are unable to accommodate the vast number of diagnosis codes
that patients with ESRD often present with. These commenters stated
that patients often develop additional comorbidities after beginning
dialysis, and facilities would be disincentivized to treat patients if
recently developed comorbidities were not included in the risk-
adjustment calculation. Some commenters supported CMS's proposal to
include a risk adjustment for 210 prevalent comorbidities in addition
to the incident comorbidities from the 2728 Form. One commenter asked
CMS to confirm whether providers will be able to report all conditions/
diagnoses on 72X claim forms, not just those related to ESRD or the
medications and treatments given. Specifically, they asked whether the
Medicare Contractor and their system would be able to accommodate this
much information or whether including additional comorbidities would
cause a billing issue, cause claims to pend, or cause claims to get
stuck in T-status.
Response: We thank commenters for their suggestions, and we agree
wholeheartedly that prevalent comorbidity data should be collected from
multiple sources. We would like to clarify that prevalent comorbidity
information for the measure is obtained from all Medicare claims data
from all facility settings (not limited to dialysis claims only), and
CROWNWeb data, and as such, we are not limited to the comorbidities
filed on 72X claim forms.
Comment: Commenter agrees that strategies to reduce
hospitalizations are an important area to focus on because they will
save the government money and improve the quality of life for patients,
however commenter urged CMS to modify the SHR measure to ensure that
facilities are not unfairly penalized when they have had no impact on
the reason for the hospitalization. They recommended that CMS develop
exclusions for patients

[[Page 77911]]

admitted before being treated at a dialysis unit, patients admitted for
other comorbidities not related to kidney failure, and patients who
repeatedly fail to adhere to their treatment regime. Additionally,
commenter argued that hospitals need to be mandated to share their
discharge information to ensure optimal continuum of care.
Response: The SHR does contain adjustments for comorbidities that
were determined likely not to be the result of facility care (as
determined by a 2015 Technical Expert Panel). We also exclude patients
from a facility if they have not had ESRD for more than 90 days, or if
they have not been receiving treatment at the facility for more than 60
days, which precludes the risk of patients being included in a
facility's SHR prior to treatment. However, the measure is an all-cause
hospitalization measure, reflecting hospital admissions regardless of
cause. The measure's design accounts for hospitalizations that are
random occurrences by assessing facilities' performances relative to
one another. At present, we are aware of no means of distinguishing
what hospitalizations are related to dialysis facility treatment. The
SHR was originally endorsed as an all-cause measure, and this is
consistent in approach to other NQF-endorsed measures, such as the SRR
(NQF #2496). Finally, we appreciate the suggestion to mandate hospitals
to share discharge information with dialysis facilities and we will
take it under advisement.
Comment: Commenter supported the proposed SHR measure but expressed
concerns about the potential for it driving unintended changes in
practice. Specifically, they want CMS to make sure that any error in
measure rates due to small number of cases will not adversely affect
facility payment.
Response: In order to avoid allowing small numbers of cases to
adversely affect facility payment, for the purposes of the SHR measure,
facilities with fewer than 5 patient-years at risk during the
performance period are not eligible for the measure. Additionally, a
small facility adjustment will be applied to small facilities deemed
eligible for the measure.
Comment: Commenter agreed with CMS that outcome measures need to be
emphasized more in pay-for-performance programs. But they disagreed
that rankings should result from nationwide ``tournaments'' because
this format disadvantages certain providers based on not on the quality
of care they deliver but on the demographics of the geographic area
they serve.
Response: We agree with the commenter on the importance of
including outcome measures in the ESRD QIP, which is one reason why we
proposed to adopt the SHR measure. We also note that unlike other CMS
value-based purchasing programs (for example, Hospital Value-Based
Purchasing), the ESRD QIP does not introduce a ``tournament'' mentality
because payment increases from some facilities are off-set by payment
reductions from other facilities. Rather, all facilities that receive a
TPS that is greater than the minimum TPS will avoid a payment
reduction, and this means that a facility's payment is not impacted by
scores received by another facility.
Comment: Commenter requested that for the Standardized
Hospitalization Ratio Clinical Measure, CMS clearly define what counts
as a comorbid condition because, given the definition of ``comorbid
condition'' in the ESRD PPS, there is confusion surrounding this term
and whether it is only referring to the 4 payable ``comorbid
conditions'' or whether it refers to all conditions outside of ESRD
that ail the patient.
Response: We encourage the commenter to refer to the SHR
methodology report, which contains specific information about the
comorbidities that are adjusted for in the SHR. https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/Downloads/SHR-Methodology-Report.pdf.
Comment: Commenter supported the limit of the denominator for the
SHR measure to Medicare patients because they understand the trade-off
to now limit the denominator population due to claims data
availability.
Response: We thank you for your comment and supporting this aspect
of the SHR.
Final Rule Action: After consideration of the comments received, we
are finalizing the Standardized Hospitalization Ratio Clinical Measure
for inclusion in the ESRD QIP measure set beginning in PY 2020.
c. Reporting Measures Beginning With the PY 2020 ESRD QIP
i. Serum Phosphorus Reporting Measure
As mentioned above, for PY 2020 we proposed to adopt a new Proposed
Serum Phosphorus Reporting Measure. Section 1881(h)(2)(A)(iii) of the
Act states that the measures specified for the ESRD QIP shall include
other measures as the Secretary specifies, including, to the extent
feasible, measures of bone mineral metabolism. Abnormalities of bone
mineral metabolism are exceedingly common and contribute significantly
to morbidity and mortality in patients with advanced Chronic Kidney
Disease (CKD). Numerous studies have associated disorders of mineral
metabolism with morbidity, including fractures, cardiovascular disease,
and mortality. Overt symptoms of these abnormalities often manifest in
only the most extreme states of calcium-phosphorus dysregulation, which
is why we believe that routine blood testing of calcium and phosphorus
is necessary to detect abnormalities.
The proposed Serum Phosphorus Reporting Measure is based on a serum
phosphorus measure that is endorsed by the NQF (NQF #0255), which
evaluates the extent to which facilities monitor and report patient
phosphorus levels. In addition, and as explained above, the proposed
Serum Phosphorus Reporting Measure is collected using CROWNWeb data and
excludes patients using criteria consistent with other ESRD QIP
measures. The Measure Applications Partnership expressed full support
for this measure.
For PY 2020 and future payment years, we proposed that facilities
must report serum or plasma phosphorus data to CROWNWeb at least once
per month for each qualifying patient. Qualifying patients for this
proposed measure are defined as patients 18 years of age or older, who
have a completed CMS Medical Evidence Form 2728, who have not received
a transplant with a functioning graft, and who are assigned to the same
facility for at least the full calendar month (for example, if a
patient is admitted to a facility during the middle of the month, the
facility will not be required to report for that patient for that
month). We further propose that facilities will be granted a one-month
period following the calendar month to enter this data. For example, we
would require a facility to report Serum Phosphorus rates for January
2018 on or before February 28, 2018. Facilities would be scored on
whether they successfully report the required data within the timeframe
provided, not on the values reported. Technical specifications for the
Serum Phosphorus reporting measure can be found at: http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/061_TechnicalSpecifications.html.
We sought comments on this proposal. The comments and our responses
are set forth below.
Comment: One commenter specifically recommended that CMS work to
create a mineral metabolism composite measure which would

[[Page 77912]]

include Hypercalcemia, intact-PTH and Phosphorus. One commenter urged
CMS to convene a TEP to identify measures on Mineral Bone Disease that
drive quality outcomes and are within the facility's domain to manage
because Serum Phosphorus levels remain highly dependent on patients'
adherence to prescribed medications.
Response: We thank commenters for their support. We have worked
with the community in an attempt to find measures that are more
appropriate for assessing bone and mineral metabolism. Unfortunately,
we are not aware of any measures which are appropriate for inclusion in
the ESRD QIP at this time. We will take commenters' suggestions into
consideration as we continue to work on identifying more appropriate
measures. We will also consider convening a TEP to identify measures on
Mineral Bone Disease.
Comment: One commenter pointed out that the deadlines listed for
the Serum Phosphorus Reporting Measure are 30 days sooner than the
deadlines for the other measures submitted in CROWNWeb and requested
that CMS align the reporting deadlines so that all of January data is
required to be submitted by March 31. It would be very confusing, they
argued, to have to submit just phosphorus by February 28th but
everything else by March 31.
Response: We thank commenter for sharing their concerns, however we
believe that the reporting deadlines are consistent across measures
submitted in CROWNWeb. Facilities are granted at least 1-month window
after the end of the applicable month to report data. In section
IV(E)(2)(a) above, we have finalized a new policy that, for measures
reported in CROWNWeb, facilities must report data for the relevant
clinical month by the date on which the clinical month closes in
CROWNWeb. For example, under our old policy, February data was required
to be submitted by March 31st. Under our revised policy, February data
will need to be submitted by the date on which the February clinical
month closes in CROWNWeb. In normal circumstances, this data would be
required by March 31st, but this policy provides an exception in the
event that CROWNWeb is not available on that day. The NHSN measures are
an exception to this approach to reporting deadlines; in the cases of
those measures, facilities have more time to report because they are
only required to do so on a quarterly basis.
Comment: Commenters noted that the exclusions between the proposed
Serum Phosphorus Reporting Measure and the Mineral Metabolism measure
differ and they argued that changing the exclusion criteria causes
unnecessary confusion. They urged CMS to harmonize the measure
specifications across measures. Specifically, though they agree with
the exclusions, the previous exclusion of ``in-center HD patients
treated at the facility <7 times during the claim month'' has been
replaced with ``transient dialysis patients (in unit <30 days).''
Additionally, another exclusion expanding on this is provided:
``Patients not at the facility for the entire month (``Admit Date'> the
first day of the month and ``Discharge Date'' < the last day of the
month).'' One commenter also pointed to the exclusion from the Mineral
Metabolism measure of ``in-center HD patients treated at a facility
fewer than 7 times during the claim month'' and noted that the proposed
Serum Phosphorus Reporting Measure specifies instead the exclusion of
``transient dialysis patents'' and of ``patients not at the facility
for the entire month'' and requested an explanation for why these
differences exist.
Response: We thank commenters for their suggestions. However, the
differences in the exclusion criteria between the Mineral Metabolism
Reporting Measure and the proposed Serum Phosphorus Reporting Measure
can be explained by our rationale for making this proposed replacement.
As we explained above, we are proposing to replace the Mineral
Metabolism Reporting Measure with the Proposed Serum Phosphorus
Reporting Measure to align with NQF specifications. The Proposed Serum
Phosphorus Reporting Measure is based on an NQF-endorsed measure, NQF
#0255 Measurement of Serum Phosphorus Concentration, which includes the
same exclusion criteria we have included. Treatments per month and time
at facilities represent different methods for determining patient
eligibility. We are updating the exclusion criteria to be more
consistent with the other measures included in the ESRD QIP measure
set. The Dialysis Adequacy clinical measures use the same exclusion
criteria as the proposed Serum Phosphorus Reporting Measure and it is
likely that as measures undergo review at NQF, they will also be
updated for consistency. Additionally, we are proposing to use admit
and discharge data from CROWNWeb as part of our intention to
increasingly use CROWNWeb as the data source for calculating measures
in the ESRD QIP.
Comment: One commenter argued that the proposed serum phosphorus
measure inappropriately penalizes facilities and care teams for
patients' non-compliance with their medication. They stated that
compliance with phosphorus binders is a challenging problem and that
dialysis units are working to address it by having dieticians reviewing
the importance of compliance with their patients, as well as handing
out educational handouts and presenting webinars to patients.
Response: We disagree that the Serum Phosphorus measure penalizes
facilities for patient non-compliance with their medical regime.
Because Serum Phosphorus is a reporting measure, facilities are
evaluated on the basis of how much data they submit, as opposed to what
those data represent.
Final Rule Action: After consideration of the comments received, we
are finalizing the adoption of the Serum Phosphorus Reporting Measure
into the ESRD QIP Measure set beginning in PY 2020. As discussed above,
this measure will replace the Mineral Metabolism Reporting Measure and
will ensure that exclusion criteria come into alignment across the ESRD
QIP measure set as well as moving the program in the direction of
relying increasingly on CROWNWeb as a data source rather than claims.
ii. Ultrafiltration Rate Reporting Measure
The ultrafiltration rate measures the rapidity with which fluid
(ml) is removed during dialysis per unit (kg) of body weight in unit
(hour) time. A patient's ultrafiltration rate is under the control of
the dialysis facility and is monitored throughout a patient's
hemodialysis session. Studies suggest that higher ultrafiltration rates
are associated with higher mortality and higher odds of an ``unstable''
dialysis session,\11\ and that rapid rates of fluid removal at dialysis
can precipitate events such as intradialytic hypotension, subclinical
yet significantly decreased organ perfusion, and in some cases
myocardial damage and heart failure.
---------------------------------------------------------------------------

\11\ Flythe S.E., Kimmel S.E., Brunelli S.M. Rapid fluid removal
during dialysis is associated with cardiovascular morbidity and
mortality. Kidney International (2011) Jan; 79(2): 50-7. Flythe
J.E., Curhan G.C., Brunelli S.M. Disentangling the ultrafiltration
rate--mortality association: The respective roles of session length
and weight gain. Clin J Am Soc Nephrol. 2013 Jul;8(7):1151-61.
Movilli, E. et al. ``Association between high ultrafiltration rates
and mortality in uraemic patients on regular hemodialysis. A 5-year
prospective observational multicenter study.'' Nephrology Dialysis
Transplantation 22.12(2007): 3547-3552.
---------------------------------------------------------------------------

We have given due consideration to endorsed measures, as well as
those adopted by a consensus organization. Because no NQF-endorsed
measures or measures adopted by a consensus organization that require
reporting of relevant ultrafiltration data currently

[[Page 77913]]

exist, we are proposing to adopt the Ultrafiltration Rate reporting
measure under the authority of section 1881(h)(2)(B)(ii) of the Act.
The proposed Ultrafiltration Rate reporting measure is based upon
the NQF-endorsed Avoidance of Utilization of High Ultrafiltration Rate
(>/= 13 ml/kg/hr) (NQF #2701). This measure assesses the percentage of
patient-months for patients with an ultrafiltration rate greater than
or equal to 13 ml/kg/hr. The Measure Applications Partnership expressed
full support for this measure.
For PY 2020 and future payment years, we proposed that facilities
must report the following data to CROWNWeb for all hemodialysis
sessions during the week of the monthly Kt/V draw submitted to CROWNWeb
for that clinical month, for each qualifying patient (defined below):

HD Kt/V Date
Post-Dialysis Weight
Pre-Dialysis Weight
Delivered Minutes of BUN Hemodialysis
Number of sessions of dialysis delivered by the dialysis unit
to the patient in the reporting month

Qualifying patients for this proposed measure are defined as patients
18 years of age or older, who have a completed CMS Medical Evidence
Form 2728, who have not received a transplant with a functioning graft,
who are on in-center hemodialysis, and who are assigned to the same
facility for at least the full calendar month (for example, if a
patient is admitted to a facility during the middle of the month, the
facility will not be required to report for that patient for that
month). We further proposed that facilities will be granted a 1-month
period following the calendar month to enter this data. For example, we
would require a facility to report ultrafiltration rates for January
2018 on or before February 28, 2018. Facilities would be scored on
whether they successfully report the required data within the timeframe
provided, not on the values reported. Technical specifications for the
Ultrafiltration Rate reporting measure can be found at: http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ESRDQIP/061_TechnicalSpecifications.html.
We sought comments on this proposal. The comments and our responses
for these proposals are set forth below.
Comment: One commenter noted that CMS's proposal to adopt the UFR
measure for the QIP seems inconsistent with the proposed payment
restrictions for patients receiving dialysis more frequently than 3
times per week. The UFR measure restricts the amount of fluid that can
be removed from a patient per session, which results in the medically
justified need for extra dialysis sessions for some patients. The
commenter argued that CMS should therefore allow for payment for extra
dialysis sessions for those patients whose UFR rates exceed the
proposed QIP threshold. Another commenter questioned the value in
implementing UFR as a reporting measure when there is an NQF-endorsed
clinical measure that, if implemented, would be more meaningful to
patient outcomes. Commenter instead encouraged CMS to implement NQF
#2701 as a Clinical Measure in the ESRD QIP.
Several commenters expressed concern about the clinical rationale
behind the UFR measure's technical specifications. Specifically, one
commenter noted that the KDOQI hemodialysis adequacy clinical practice
guidelines do not include a target for UFR and instead recommend
minimizing UFR as much as possible to maximize hemodynamic stability
and tolerability of the hemodialysis procedure. The commenter stated
that the reason for this is that there is limited evidence for setting
a specific target, and that one study suggested an increased risk for
individuals with heart failure with a UFR between 10-14 ml/h/kg but
improvements for those without heart failure with a UFR in that range.
The commenter therefore stated that they would support the
implementation of NQF #2701 in the QIP with the knowledge that there
will be challenges in the implementation process that will require
efforts from facilities, staff, physicians and patients to ensure
patient participation and adherence to their dialysis prescription and
fluid restrictions. The commenter stated that the KCQA measure excludes
patients who dialyze for less time than the average patient, and
commenter urged CMS to include this exclusion. Commenters added that
due to individualized patient responses to fluid removal, it is
difficult to arrive at a single rate for UFR that is ``too high'' for
patients. Rather than the UFR >/= 13 ml/kg/hr that CMS has proposed,
commenters urged CMS to consider a measure of UFR >/= 10 ml/kg/hr. One
commenter suggested that they would not recommend excluding patients
who dialyze more than 3 times per week, transient patients or patients
who are new to ESRD because these patients would not be expected to be
at risk of developing intradialytic hypotension when compared to the
general ESRD population. Another commenter specifically recommended
that CMS exclude patients with <3 hemodialysis treatments in the
facility during the reporting month. One commenter also suggested that
patients who are new to ESRD and in their first 90 days of treatment
should not be excluded from any UFR reporting requirements because of
their particularly high mortality risk. Finally, one commenter stated
that they would support efforts by CMS to ensure that time on dialysis
is adjusted in such a way that patients would not suffer from symptoms
related to rapid ultrafiltration. The commenter stated that monitoring
Kt/V solely instead of taking into consideration the greater role of
fluid management and removal is likely to result in more problems with
sickness for patients, potentially impacting quality of life, and that
while correction of uremia remains important, limiting our focus on the
rate of fluid removal is to the detriment of patients, leading to an
increase in the risk of cardiovascular disease.
Response: We thank the commenters for support of the measure's
implementation, despite the challenges inherent in implementation
described in the comment. We recognize that successful fluid management
in this setting requires a multidisciplinary approach, including
patient education. Regarding the KDOQI reference, we believe that those
clinical practice guidelines are relatively outdated, having been
published before most of the recent literature related to the
association between high UFR and patient risk. We note that both NQF
2700 and 2701 UFR measures passed NQF review criteria for strength of
evidence. Regarding the statement ``The KCQA measure excludes patients
who dialyze for less time than the average patient, and commenter urged
CMS to include this exclusion'', the statement is not factually
correct. NQF 2701 provides a numerator exclusion for patients dialyzing
for > or equal to 240 minutes. The average duration of dialysis session
length for U.S. patients on thrice weekly dialysis is approximately 210
minutes, with a minority of U.S. dialysis patients receiving 240 or
more minutes of dialysis per session.
The rate threshold of >13 ml/kg/hr was chosen to be consistent with
the NQF endorsed threshold, and is also consistent with most of the
published evidence demonstrating associations of poorer outcomes with
UFR between 10-15 ml/kg/hr.
We thank the commenter for generally supporting the importance of
the UFR

[[Page 77914]]

measure. Patients new to ESRD do have increased mortality risk in
general, but there is no convincing evidence to suggest that the
observed risk is directly related to high UFR. In addition, fluid
management generally and, response to high UFR in particular, may
include varied clinically appropriate interventions by the dialysis
provider, including patient education, counselling and dietary planning
by Renal Dietitian and assessment and interventions by social workers
and other members of the Interdisciplinary Care Team to address root
causes for large interdialytic weight gains. Patients new to dialysis
often have not received much of this education and support. Excluding
patients new to dialysis increases the opportunities for dialysis
providers to include these interventions and ultimately enhances the
attribution of the measure outcome to the dialysis facility. We agree
that both small solute removal (for example, Kt/V) and appropriate
fluid management (UFR) are important measures of overall adequate care
of dialysis patients.
Comment: Several commenters supported fluid management as an
important quality improvement area, but stated that they would support
the inclusion of the NQF-endorsed measure, 2701: Avoidance of
Utilization of High Ultrafiltration if CMS incorporated it consistent
with the specifications reviewed and endorsed by the NQF rather than
with the modifications CMS has proposed. They expressed concerns about
the changes that CMS proposed to the measure and asked for
justification for the approach taken to the measure's exclusion
criteria.
Specifically, commenters requested that CMS retain the exclusion of
facilities with 25 or fewer patients, rather than the modified ``fewer
than 11 patients'' that CMS proposed, because commenters believe this
modification would hurt small facilities. Additionally, commenters
requested that CMS expressly state that reporting the number of
hemodialysis sessions delivered during the Kt/V week will be required
for the reporting measure because the NQF-endorsed measure excludes
patients regularly prescribed >3 sessions/week. They noted that CMS has
not indicated this requirement and that NQF 2701 excludes patients
regularly prescribed >3 sessions/week. Commenters asked for
confirmation that the intent is to implement this measure as specified
for those patients receiving thrice weekly HD. Commenters requested
clarification as to whether excluding patients on dialysis <90 days at
the beginning of the reporting month, an exclusion not present in the
KCQA measure, was a data collection issue, or whether CMS has any
additional justification for this approach.
Response: We appreciate the comments. We first note that we have
not proposed the NQF-endorsed #2701: Avoidance of Utilization of High
Ultrafiltration, but a reporting based upon that measure. This is
because the reporting measure is not a measure of clinical performance,
as is 2701, but a measure that collects data relevant to the quality of
care provided by dialysis facilities. The reporting measure does not
limit the measure to patients receiving dialysis less than 3 weekly
sessions as ultrafiltration is considered consequential for these
patients as well. At a later date, CMS may consider through rulemaking
the implementation of NQF #2701 as a clinical performance measure, at
which point such an exclusion could be calculated, as specified, using
the required data elements for each treatment in the week for which the
Kt/V is reported to us.
Comment: Several commenters supported the proposal to adopt the UFR
measure but expressed concerns with CMS's definition of qualifying
patients, and requested clarification regarding the exclusions listed
in the technical specifications. Commenter urged CMS to clarify how
dialysis facilities should report patients who may be assigned to a
facility for a full calendar month but not physically present during a
portion of that month due to events such as hospitalization. They
suggested that CMS use the same exclusion criteria as for other
measures, that is, to exclude patients who dialyze at the facility less
than seven times during the applicable month. Another commenter
requested clarification regarding the exclusion of patients on dialysis
for more than 90 days at the beginning of the reporting month.
Response: As with other measures, such as the Comprehensive
Dialysis Adequacy Measure finalized for PY 2019, we define the
population for this reporting measure by assignment to a facility for a
full month. While a patient may spend part of that month hospitalized,
the facility is still required to provide data for dialysis adequacy,
and we believe it is appropriate to require reporting of
ultrafiltration data for these patients as well, since the data
elements are products of ongoing dialysis treatment. We do not restrict
facilities from coordinating with hospitals to obtain relevant data,
and we believe that such coordination is appropriate. We proposed to
require providers to report the number of HD treatments received by
each patient in the reporting month, which should alert us to
unintended consequences of defining the population as we have.
Comment: Several commenters urged CMS to exclude transient patients
from the UFR measure, and encouraged CMS to include a standard
specification for transient patients within the measure specifications.
One commenter pointed out that ``number of HD sessions delivered during
the month'' is included as a data element but the transient exclusion
is not included in the qualifying patients' description. They also
pointed out that the Mineral Metabolism measure had an exclusion for
patients with <7 treatments, while the Serum Phosphorus measure defines
transient patients as ``in unit <30 days'' but the proposed UFR measure
seems to lack this exclusion altogether, despite its having been
present in the measure's original specifications.
Response: As proposed, transient patients are excluded from the
Ultrafiltration Rate Reporting Measure. We wish to clarify that the
denominator is defined by patients who are assigned to the facility for
an entire month, similar to the Serum Phosphorus measure referenced in
the comments.
Comment: Two commenters supported the proposed UFR measure but
recommended that CMS review the reporting deadlines for the measure.
Specifically they suggested that rates for January 2018 be due on or
before March 31, 2018 rather than February 28 to align with the
reporting of other clinical values for January 2018 and to avoid
confusion.
Response: The Proposed Ultrafiltration Rate Reporting measure
requires facilities to report data to CROWNWeb for all hemodialysis
sessions during the week of the monthly Kt/v draw for that clinical
month. We are finalizing that facilities are required to report
ultrafiltration rates for January 2018 by the date on which the
clinical month closes in CROWNWeb, which is approximately 1-month after
the end of that month. These requirements are consistent with our newly
finalized policy for other measures reported monthly in CROWNWeb. For
example, the proposed Serum Phosphorus Reporting Measure requires
facilities to report data monthly to CROWNWeb. Data for January, 2018
must be reported by the date on which the clinical month closes in
CROWNWeb.
Comment: Several commenters supported the proposed UFR measure but
encouraged CMS to further investigate whether the threshold should be
set at UFR >10 ml/Kg/Hr or at 13 ml/kg/hr. They recommended that paying
for HD hourly rather than by treatment would likely resolve concerns

[[Page 77915]]

about overly aggressive ultrafiltration amounts and rates as the
reluctance of providers to offer longer treatments is financial, and
they recommended that the UFR measure be used for home HD as well as
in-center. Commenters also urged CMS to continue efforts to identify an
improved fluid management measure for use in the ESRD QIP.
Response: We appreciate the comments. We agree that all in the
dialysis community should be pursuing ongoing enhancements of quality
measures. Regarding the specific recommendation for UFR >10 threshold,
the rate threshold of >13 ml/kg/hr was chosen to be consistent with the
NQF endorsed threshold, and is also consistent with most of the
published evidence demonstrating associations of poorer outcomes with
UFR between 10-15 ml/kg/hr.
Comment: One commenter expressed concerns that the administrative
and financial burden associated with the UFR measure is too much for
facilities to take on and urged CMS to adopt a transition period for
complying with this measure.
Response: We thank the commenter for expressing their concerns, and
we appreciate that the proposed Ultrafiltration Rate Reporting Measure
does require a large number of data elements. We believe that there are
important clinical and clinical quality reasons for collecting and
monitoring these data which outweigh the administrative and financial
burden concerns expressed by the commenter. As we indicated in the
proposed rule, higher ultrafiltration rates are associated with higher
mortality and higher odds of an ``unstable'' dialysis session. Rapid
rates of fluid removal at dialysis can precipitate events such as
intradialytic hypotension, subclinical yet significantly decreased
organ perfusion, and in some cases myocardial damage and heart failure.
Final Rule Action: After a careful consideration of the comments
received, we are finalizing the Ultrafiltration Rate Reporting Measure
for inclusion in the ESRD QIP measures set beginning in PY 2020.
3. Performance Period for the PY 2020 ESRD QIP
We proposed to establish CY 2018 as the performance period for the
PY 2020 ESRD QIP for all but the NHSN Healthcare Personnel Influenza
Vaccination reporting measure because it is consistent with the
performance periods we have historically used for these measures and
accounts for seasonal variations that might affect a facility's measure
score.
We proposed that the performance period for the NHSN Healthcare
Personnel Influenza Vaccination reporting measure will be from October
1, 2016 through March 31, 2017, because this period spans the length of
the 2016-2017 influenza season.
We sought comments on these proposals. The comments and our
responses for these proposals are set forth below.
Comment: Commenters generally supported setting CY 2018 as the
Performance Period for PY 2020 but many commenters expressed concern
about the performance period for the NHSN HCP Influenza Vaccination
Reporting Measure and urged CMS to align with the NHSN protocol upon
which the measure is based, and with NQF's Standardized Influenza
Immunization Specifications, which define the acceptable immunization
period as beginning on ``October 1 or when the vaccine became
available'' so that facilities are not penalized for early vaccination,
which is generally recommended to protect patients before the virus
begins spreading through the community. One commenter suggested that
the performance period should span the entire calendar year, while
others recommended that the performance period go from October 1, 2017
through March 31, 2018.
One commenter also expressed concerns with the CCN Open Date
criteria for the NHSN HCP Influenza Vaccination Reporting Measure. They
suggested that if the flu season spans from October 1, 2016 through
March 31, 2017, then the CCN open date should be January 1, 2016 rather
than January 1, 2017. Similarly, for the flu season that spans from
October 1, 2017 through March 31, 2018, facilities should be required
to have a CCN open date of January 1, 2017. The reason for this is that
if a facility is certified on December 31, 2016, they are still
required to report this data for the full 2016/2017 flu season even
though they were not certified for the full flu season and they should
not be required to create a detailed employee log to track the
vaccination status of each employee while also having to focus on
opening a new facility, keeping track of new admits, and registering
for CROWNWeb and NHSN access.
Response: We thank commenters for their support. As we stated in
the CY 2015 ESRD PPS Final Rule (79 FR 66207) under the NHSN HCP
Influenza Vaccination reporting measure, the performance period for the
denominator (the number of healthcare personnel working in a facility)
is from October 1 through March 31. However, the numerator measurement
(vaccination status) includes vaccines obtained ``as soon as vaccine is
available.'' As a result, HCP working at the facility as of October 1
who were vaccinated in September would be considered vaccinated for the
performance period under this measure. Facilities are not penalized in
any way for vaccinating their employees prior to the start of the
performance period.
With regards to commenter's suggestion about our CCN Open Date
policy, we accounted for this concern in the CY 2015 ESRD PPS Final
Rule (79 FR 66212). We stated that facilities with a CCN open date
after January 1, 2016 would not be eligible to receive a score on the
NHSN Healthcare Personnel Influenza Vaccination reporting measure in
the PY 2018 program. We acknowledged that it takes time for facilities
to register with NHSN and become familiar with the NHSN Healthcare
Personnel Safety Component Protocol.
4. Performance Standards, Achievement Thresholds, and Benchmarks for
the PY 2020 ESRD QIP
Section 1881(h)(4)(A) of the Act provides that ``the Secretary
shall establish performance standards with respect to measures selected
. . . for a performance period with respect to a year.'' Section
1881(h)(4)(B) of the Act further provides that the ``performance
standards . . . shall include levels of achievement and improvement, as
determined appropriate by the Secretary.'' We use the performance
standards to establish the minimum score a facility must achieve to
avoid a Medicare payment reduction. We use achievement thresholds and
benchmarks to calculate scores on the clinical measures.
a. Performance Standards, Achievement Thresholds, and Benchmarks for
the Clinical Measures in the PY 2020 ESRD QIP
For the same reasons stated in the CY 2013 ESRD PPS final rule (77
FR 67500 through 76502), we proposed for PY 2020 to set the performance
standards, achievement thresholds, and benchmarks for the clinical
measures at the 50th, 15th, and 90th percentile, respectively, of
national performance in CY 2016, because this will give us enough time
to calculate and assign numerical values to the proposed performance
standards for the PY 2020 program prior to the beginning of the
performance period. We continue to believe these standards will provide
an incentive for facilities to continuously improve their performance,
while not

[[Page 77916]]

reducing incentives to facilities that score at or above the national
performance rate for the clinical measures.
We sought comments on these proposals. The comments and our
responses for these proposals are set forth below.
Comment: Two commenters supported our continued reliance on the
methodology used to set the Performance Standard, Achievement
Threshold, and Benchmark at the 50th, 15th and 90th percentiles
respectively of national facility performance for PY 2020, as well as
the continuation of our current policy for determining payment
reductions, including the process for setting the minimum TPS.
Response: We thank the commenters for their support.
Final Rule Action: After considering the comments received, we will
finalize the performance standards, achievement thresholds, and
benchmarks for the clinical measures included in the ESRD QIP for PY
2020.
b. Estimated Performance Standards, Achievement Thresholds, and
Benchmarks for the Clinical Measures Proposed for the PY 2020 ESRD QIP
At this time, we do not have the necessary data to assign numerical
values to the proposed performance standards for the clinical measures,
because we do not yet have data from CY 2016 or the first portion of CY
2017. We will publish values for the clinical measures, using data from
CY 2016 and the first portion of CY 2017, in the CY 2018 ESRD PPS final
rule.
c. Performance Standards for the PY 2020 Reporting Measures
In the CY 2014 ESRD PPS final rule, we finalized performance
standards for the Anemia Management and Mineral Metabolism reporting
measures (78 FR 72213). We did not propose any changes to these
policies for the PY 2020 ESRD QIP.
In the CY 2016 ESRD PPS final rule, we finalized performance
standards for the Screening for Clinical Depression and Follow-Up, Pain
Assessment and Follow-Up, and NHSN Healthcare Provider Influenza
Vaccination reporting measures (79 FR 66209). We did not propose any
changes to these policies.
For the proposed Ultrafiltration Rate Reporting Measure, we
proposed to set the performance standard as successfully reporting the
following data to CROWNWeb for all hemodialysis sessions during the
week of the monthly Kt/V draw for that clinical month, for each
qualifying patient (1) HD Kt/V Date; (2) Post-Dialysis Weight; (3) Pre-
Dialysis Weight; (4) Delivered Minutes of BUN Hemodialysis; and (5)
Number of sessions of dialysis delivered by the dialysis unit to the
patient in the reporting month. This information must be submitted for
each qualifying patient in CROWNWeb on a monthly basis, for each month
of the reporting period. For the proposed Serum Phosphorus Reporting
measure, we proposed to set the performance standard as successfully
reporting a serum phosphorus value for each qualifying patient in
CROWNWeb on a monthly basis, for each month of the reporting period.
For the proposed NHSN Dialysis Event Reporting measure, we proposed to
set the performance standard as successfully reporting 12 months of
data from CY 2018.
We sought comments on these proposals. We did not receive any
comments on these proposed policies for setting Performance Standards
for the PY 2020 Reporting Measures.
Final Rule Action: We are finalizing the performance standards for
the Reporting Measures as proposed for the PY 2020 ESRD QIP
5. Scoring the PY 2020 ESRD QIP
a. Scoring Facility Performance on Clinical Measures Based on
Achievement
In the CY 2014 ESRD PPS Final Rule, we finalized a policy for
scoring performance on clinical measures based on achievement (78 FR
72215). Under this methodology, facilities receive points along an
achievement range based on their performance during the performance
period for each measure, which we define as a scale between the
achievement threshold and the benchmark. In determining a facility's
achievement score for each clinical measure under the PY 2020 ESRD QIP,
we proposed to continue using this methodology for all clinical
measures except the ICH CAHPS clinical measure. The facility's
achievement score would be calculated by comparing its performance on
the measure during CY 2018 (the proposed performance period) to the
achievement threshold and benchmark (the 15th and 90th percentiles of
national performance on the measure in CY 2016).
We sought comment on this proposal. We did not receive any comments
on this proposal.
Final Rule Action: We are finalizing our policy for scoring
facility performance on clinical measures based on achievement as
proposed.
b. Scoring Facility Performance on Clinical Measures Based on
Improvement
In the CY 2014 ESRD PPS Final Rule, we finalized a policy for
scoring performance on clinical measures based on improvement (78 FR
72215 through 72216). In determining a facility's improvement score for
each measure under the PY 2020 ESRD QIP, we proposed to continue using
this methodology for all clinical measures except the ICH CAHPS
clinical measure. Under this methodology, facilities receive points
along an improvement range, defined as a scale running between the
improvement threshold and the benchmark. We proposed to define the
improvement threshold as the facility's performance on the measure
during CY 2017. The facility's improvement score would be calculated by
comparing its performance on the measure during CY 2018 (the proposed
performance period) to the improvement threshold and benchmark.
We sought comment on this proposal. The comments and our responses
are set forth below.
Comment: Commenter expressed concerns that the QIP's scoring and
assessment methodology is so complex that facilities are unable to
evaluate their progress in real time so they can take action during the
performance period to strengthen their performance. They urged CMS to
consider ways of simplifying the scoring methodology or to develop a
secure Web site that can provide each facility with an ongoing
scorecard. Another commenter asked that CMS clarify whether a facility
needs a score on either measure in the Safety Domain in order to
receive a TPS for PY 2020.
Response: We thank the commenter and will consider ongoing
scorecards and facility level feedback on a quarterly or semiannual
basis in future rule making. Under our finalized policy for both PY
2019 and PY 2020, facilities need to have a score on at least one
measure in the Clinical Domain and at least one measure in the
Reporting Measure Domain to receive a TPS.
Final Rule Action: After considering the comment received, we will
finalize our policy for scoring facility performance on clinical
measures based on improvement as proposed.
c. Scoring the ICH CAHPS Clinical Measure
In the CY 2015 ESRD PPS final rule, we finalized a policy for
scoring performance on the ICH CAHPS clinical measure based on both
achievement and improvement (79 FR 66209 through

[[Page 77917]]

66210). We did not propose any changes to this policy. Under this
methodology, facilities will receive an achievement score and an
improvement score for each of the three composite measures and three
global ratings in the ICH CAHPS survey instrument. A facility's ICH
CAHPS score will be based on the higher of the facility's achievement
or improvement score for each of the composite measures and global
ratings, and the resulting scores on each of the composite measures and
global ratings will be averaged together to yield an overall score on
the ICH CAHPS clinical measure. For PY 2020, the facility's achievement
score would be calculated by comparing where its performance on each of
the three composite measures and three global ratings during CY 2018
falls relative to the achievement threshold and benchmark for that
measure and rating based on CY 2016 data. The facility's improvement
score would be calculated by comparing its performance on each of the
three composite measures and three global ratings during CY 2018 to its
performance rates on these items during CY 2017.
We sought comments on this proposal.
Final Rule Action: We did not receive comments on our proposal for
scoring the ICH CAHPS Clinical Measure. Accordingly, we will finalize
our policy for scoring the ICH CAHPS Clinical Measure as proposed.
d. Calculating Facility Performance on Reporting Measures
In the CY 2013 ESRD PPS final rule, we finalized policies for
scoring performance on the Anemia Management and Mineral Metabolism
reporting measures in the ESRD QIP (77 FR 67506). We did not propose
any changes to these policies for the PY 2020 ESRD QIP.
In the CY 2015 ESRD PPS final rule, we finalized policies for
scoring performance on the Clinical Depression Screening and Follow-Up,
Pain Assessment and Follow-Up, and NHSN Healthcare Provider Influenza
Vaccination reporting measures (79 FR 66210 through 66211). We did not
propose any changes to these policies.
With respect to the proposed Ultrafiltration Rate and Serum
Phosphorus reporting measures, we proposed to score facilities with a
CMS Certification Number (CCN) Open Date before July 1, 2018 using the
same formula previously finalized for the Mineral Metabolism and Anemia
Management reporting measures (77 FR 67506):
[GRAPHIC] [TIFF OMITTED] TR04NO16.310

As with the Anemia Management and Mineral Metabolism reporting
measures, we would round the result of this formula (with half rounded
up) to generate a measure score from 0-10.
We sought comments on these proposals. We did not receive comments
on these proposals.
Final Rule Action: We did not receive any comments on our proposals
for calculating facility performance on reporting measures.
Accordingly, we will finalize these policies as proposed.
6. Weighting the Clinical Measure Domain, and Weighting the Total
Performance Score
a. Weighting of the Clinical Measure Domain for PY 2020
In light of the proposed removal of the Safety Subdomain from the
Clinical Measure Domain, our policy priorities for quality improvement
for patients with ESRD discussed in section IV.C.6 of the proposed rule
(81 FR 42826), and the criteria finalized in the CY 2015 ESRD PPS Final
Rule used to assign weights to measures in a facility's Clinical
Measure Domain score (79 FR 66214 through 66216), we proposed to weight
the following measures in the following subdomains of the proposed
clinical measure domain as follows (see Table 17):

Table 17--Proposed Clinical Measure Domain Weighting for the PY 2020
ESRD QIP
------------------------------------------------------------------------
Measure weight
in the clinical Measure weight as
Measures/measure topics by domain score percent of TPS
subdomain (proposed for PY (proposed for PY
2020) % 2020) %
------------------------------------------------------------------------
Patient and Family Engagement/Care 40 .................
Coordination Subdomain...........
ICH CAHPS measure............. 25 20
SRR Measure................... 15 12
Clinical Care Subdomain........... 60 .................
STrR measure.................. 11 8.8
Dialysis Adequacy measure..... 18 18.8
Vascular Access Type measure 18 18.8
topic........................
Hypercalcemia measure......... 2 1.6
(Proposed) SHR measure........ 11 8.8
------------------------------------------------------------------------
Note: We proposed that the Clinical Domain make up 80 percent of a
facility's Total Performance Score (TPS) for PY 2020. The percentages
listed in this Table represent the measure weight as a percent of the
Clinical Domain Score.

Specifically, we proposed to reduce the weight of the Safety
Measure Domain in light of validation concerns discussed above in the
context of the proposal to reintroduce the NHSN Dialysis Event
Reporting Measure (see Section (IV)(1)(a) above). For PY 2020 we
proposed to reduce the weight of the Safety Measure Domain from 15
percent

[[Page 77918]]

to 10 percent. In future years of the program, we stated that we may
consider increasing the weight of the NHSN BSI Clinical Measure and/or
the NHSN BSI Measure Topic once we see that facilities are completely
and accurately reporting to NHSN and once we have analyzed the data
from the proposed increased NHSN Data Validation Study. In order to
accommodate the reduction of the weight of the Safety Measure Domain,
we proposed to increase the weight of the Clinical Measure Domain to 80
percent, and to keep the weight of the Reporting Measure Domain at 10
percent.
We also proposed to weight the proposed SHR Clinical Measure at 11
percent of a facility's Clinical Measure Domain score. Facilities have
had significant experience with SHR via public reporting on Dialysis
Facility Compare, and reducing hospitalizations is a top policy goal
for CMS. Further, increasing the emphasis on outcome measures is an
additional policy goal of CMS, for reasons discussed above. For these
reasons, we believe it is appropriate to weight the proposed SHR
Clinical Measure at 11 percent of a facility's Clinical Measure Domain
score.
Next, we proposed to decrease the weight of the Hypercalcemia
clinical measure within the Clinical Care Subdomain to 2 percent of a
facility's clinical domain score. We proposed to do so at this time to
accommodate the weight assigned to the proposed SHR measure. The
Hypercalcemia clinical measure was recently re-endorsed at NQF with a
reserved status because there was very little room for improvement and
facility scores on the measure are very high overall. Although this is
true, the Hypercalcemia clinical measure does not meet the criterion
for being topped out in the ESRD QIP (as described in section IV.D. of
the proposed rule (81 FR 42833)). Therefore, despite its limited value
for assessing facility performance, we decided not to propose to remove
the Hypercalcemia clinical measure from the ESRD QIP measure set, but
rather to significantly reduce its weight in the clinical subdomain
because it provides some indication of the quality of care furnished to
patients by facilities.
Finally, to accommodate the proposed addition of the SHR Clinical
Measure beginning in PY 2020 and the proposed reduction in weight of
the Hypercalcemia measure, we proposed to reduce the weights of the
following measures by 1 percentage point each from what we proposed for
PY 2019, within the Clinical Measure Domain: ICH CAHPS, SRR, STrR,
Dialysis Adequacy, and Vascular Access Type. As illustrated in Table
10, these minor reductions in the weights of these measures in the
Clinical Measure Domain would be counterbalanced by the increase in the
overall percent of the TPS that we proposed to make to the Clinical
Measure Domain, such that the proposed weights for these measures as a
percentage of the TPS will remain as constant as possible from PY 2019
to PY 2020. Accordingly, this proposal would generally maintain the
percentage of the TPS assigned to these measures.
We sought comments on these proposals. The comments and our
responses to are set forth below.
Comment: Another commenter pointed out an error in the VAT measure
weight as a percent of the TPS for PY 2020 in Table 10 of the proposed
rule (81 FR 42841), reproduced as Table 17 above. Specifically, the
table in the proposed rule indicated that the VAT measure topic would
be weighted as 18.8 percent of the TPS in PY 2020, however both Table
10 and Figure 6 indicated the combined VAT measure will be weighted as
18.0 percent of the Clinical Measure Domain. Commenter's analysis found
that the 18.0 percent combined VAT weight and the 80 percent Clinical
Domain Weight results in a combined VAT measure that would comprise
14.4 percent of the TPS rather than 18.8 percent.
Response: We thank commenters for bringing this calculation error
to our attention. We acknowledge that our calculation was incorrect.
The column showing the weights within the clinical measure domain was
correct but when we calculated the measure weights as a percent of the
TPS, we miscalculated the weight of the VAT measure. The column showing
measure weights as a percent of the TPS is provided for illustrative
purposes only. We note, however, that we are not finalizing the weights
as proposed. Section IV.E.5.b of this rule describes the policy and
weighting that we are finalizing for PY 2020.
Comment: One commenter requested that CMS assign less weight to the
ICH CAHPS measure because of the subjective nature of the survey. They
argued that administering it twice a year may become bothersome to
patients, thus leading to less honest and less valid responses, and
fewer responses in general.
Response: We believe that the subjective nature of the ICH CAHPS
survey should not factor into the weight assigned to the measure within
the Clinical Measure Domain. Response to the ICH CAHPS Survey is
completely voluntary. Patients may refuse to respond if they find the
survey bothersome or if they do not wish to respond for any other
reason. The survey data reflects the reported experiences of the
respondents. The fact that the data may be subjective does not mean
that it is incorrect. Instead the survey reflects the patients'
perspectives on their care, and we continue to believe that this
measure is vitally important because it is the only measure in the ESRD
QIP which measures the patients' experience of the care they receive.
Final Rule Action: In response to the comments received, we are not
finalizing the weighting as proposed. Instead, we are finalizing a
revised weighting structure. Specifically, for PY 2020 we are
finalizing that the Clinical Measure Domain will continue to comprise
75 percent of the TPS, the Safety Measure Domain will comprise 15
percent of the TPS and the Reporting Measure Domain will comprise 10
percent of the TPS. Table 18 below shows the weights being finalized
for PY 2020.
b. Weighting the Total Performance Score
We continue to believe that while the reporting measures are
valuable, the clinical measures evaluate actual patient care and
therefore justify a higher combined weight (78 FR 72217). We proposed
to reduce the weight of the Safety Measure Domain from 15 percent of a
facility's TPS for PY 2019 to 10 percent of a facility's TPS for PY
2020. We are gradually reducing the weight of this Safety Measure
Domain over the course of 2 years because we believe it is important to
reduce the weight of the Domain in light validation concerns, but it is
important to maintain as much consistency as possible in the QIP
Scoring Methodology from year to year.
We proposed that for PY 2020, to be eligible to receive a TPS, a
facility must be eligible to be scored on at least one measure in the
Clinical Measure Domain and at least one measure in the Reporting
Measure Domain.
We sought comments on these proposals. The comments and our
responses for these proposals are set forth below.
Comment: One commenter did not support CMS's proposed modifications
to the weighting of the safety measure domain and clinical measure
domain for PY 2020 because they do not believe addition of the proposed
Safety Measure Domain is necessary. They also argued that CMS is
proposing too many measures that focus little attention on patient
outcomes and recommended

[[Page 77919]]

that CMS evaluate the existing and proposed measures for PY 2020 and
remove those that are less relevant to quality of care.
Response: We thank commenter for their recommendations. We are not
finalizing the weighting of the safety measure domain and clinical
measure domain as proposed and instead we are finalizing a revised
weighting structure. We believe it is crucial to emphasize the
importance of the NHSN BSI Measure Topic so that facilities prioritize
their efforts to accurately and completely report to NHSN their
Dialysis Event data, while at the same time mount significant efforts
to reduce bloodstream infections. Accordingly, we are going to maintain
the Safety Measure Domain at 15 percent of the TPS for PY 2020. We have
prioritized outcome measures for inclusion in the ESRD QIP, and we will
continue to try identifying appropriate outcome measures, specified for
use in dialysis facilities, which we believe will contribute to
improved patient outcomes. We have clearly identified criteria for use
when determining which measures should be removed from the program. At
this time, we are not proposing to remove any measures from the ESRD
QIP's measure set.
Comment: A commenter recommended that CMS maintain the Safety
Measure Domain at 15 percent of the TPS for PY 2020, arguing that the
reintroduction of the NHSN Dialysis Event Reporting Measure compensates
for any concerns regarding the validity of the NHSN BSI Clinical
Measure, along with the more robust data validation methodology.
Commenter argued that lowering the weight of the Safety Measure Domain
would dis-incentivize reporting to NHSN.
Response: We thank the commenter for their recommendation and we
agree that for PY 2020, in order to ensure that facilities continue to
be appropriately incentivized both for reporting to NHSN, through the
NHSN Dialysis Event Reporting Measure, and for continued efforts to
reduce infections among their patients, through the NHSN BSI Clinical
Measure, we should maintain the Safety Measure Domain at 15 percent of
the TPS rather than reducing the weight of that Domain to 10 percent in
PY 2020. By maintaining the Safety Measure Domain at a higher
percentage of the TPS, we are ensuring that facilities continue to
report complete and accurate data beyond PY 2019. Therefore, we have
provided updated weights for the Clinical Measure Domain for PY 2020 in
Table 18.

Table 18--Finalized Clinical Measure Domain Weighting for the PY 2020
ESRD QIP
------------------------------------------------------------------------
Measure weight
in the clinical Measure weight as
Measures/measure topics by domain score percent of TPS
subdomain (proposed for PY (updated)
2020) (%)
------------------------------------------------------------------------
Patient and Family Engagement/Care 40 .................
Coordination Subdomain...........
ICH CAHPS measure............. 25 18.75
SRR Measure................... 15 11.25
Clinical Care Subdomain........... 60 .................
STrR measure.................. 11 8.25
Dialysis Adequacy measure..... 18 13.5
Vascular Access Type measure 18 13.5
topic........................
Hypercalcemia measure......... 2 1.5
SHR measure................... 11 8.25
------------------------------------------------------------------------
Note: We initially proposed that the Clinical Domain make up 80 percent
of a facility's TPS for PY 2020. We are finalizing a different
weighting structure: For PY 2020 we are maintaining the Clinical
Domain at 75 percent of a facility's TPS. The percentages listed in
this Table represent the measure weight as a percent of the Clinical
Domain Score.

Final Rule Action: After consideration of the comments received, we
are not finalizing these policies as proposed. Instead, as discussed
above, we are finalizing the weighting structure shown in Table 18
above. We are going to maintain the Safety Measure Domain at 15 percent
of a facility's TPS for PY 2020. Accordingly, the measure weights in
the Clinical Measure Domain Score have not changed but the Measure
Weights as a Percent of TPS have changed as shown. We believe this
change to our proposal will ensure that facilities continue to be
appropriately incentivized both for reporting to NHSN and for continued
efforts to reduce infections among their patients.
7. Example of the PY 2020 ESRD QIP Scoring Methodology
In this section, we provide an example to illustrate the scoring
methodology for PY 2020. Figures 6-9 illustrate how to calculate the
Clinical Measure Domain score, the Reporting Measure Domain score, the
Safety Measure Domain score, and the TPS. Figure 10 illustrates the
full scoring methodology for PY 2020. Note that for this example,
Facility A, a hypothetical facility, has performed very well. Figure 6
illustrates the methodology used to calculate the Clinical Measure
Domain score for Facility A.

[[Page 77920]]

[GRAPHIC] [TIFF OMITTED] TR04NO16.311

Figure 7 illustrates the general methodology for calculating the
Reporting Measure Domain score for Facility A.

[[Page 77921]]

[GRAPHIC] [TIFF OMITTED] TR04NO16.312

Figure 8 illustrates the methodology used for calculating the
Safety Measure Domain score for Facility A.

[[Page 77922]]

[GRAPHIC] [TIFF OMITTED] TR04NO16.313

Figure 9 illustrates the methodology used to calculate the TPS for
Facility A.
[GRAPHIC] [TIFF OMITTED] TR04NO16.314

[[Page 77923]]

Figure 10 illustrates the full scoring methodology for PY 2020.
[GRAPHIC] [TIFF OMITTED] TR04NO16.315

We received comments on the Figures provided in this example. The
comments and our responses are set forth below.
Comment: Two commenters identified calculation errors in Figure 7
of the proposed rule (81 FR 42843) and requested clarification.
Specifically, commenters pointed out that each of the six measures in
the Reporting Domain should be weighted as 16.67 percent rather than 14
percent, as presented in Figure 7 of the CY 2017 ESRD PPS proposed
rule.
Response: We thank the commenters for bringing this calculation
error to our attention. Figure 11 below has been updated to correct the
calculation errors which appeared in the proposed rule.

[[Page 77924]]

[GRAPHIC] [TIFF OMITTED] TR04NO16.316

Additionally, in light of the weighting structure we are finalizing
for PY 2020, we have created an updated figure, Figure 12 below,
showing the weights we are finalizing. For PY 2020, the Safety Measure
Domain will comprise 15 percent of the TPS, the Clinical Measure Domain
will make up 75 percent of the TPS and the Reporting Measure Domain
will make up 10 percent of the TPS.

[[Page 77925]]

[GRAPHIC] [TIFF OMITTED] TR04NO16.317

8. Minimum Data for Scoring Measures for the PY 2020 ESRD QIP
Our policy is to score facilities on clinical and reporting
measures for which they have a minimum number of qualifying patients
during the performance period. With the exception of the Standardized
Readmission Ratio, Standardized Hospitalization Ratio, Standardized
Transfusion Ratio, and ICH CAHPS clinical measures, a facility must
treat at least 11 qualifying cases during the performance period in
order to be scored on a clinical or reporting measure. A facility must
have at least 11 index discharges to be eligible to receive a score on
the SRR clinical measure, 10 patient-years at risk to be eligible to
receive a score on the STrR clinical measure, and 5 patient-years at
risk to be eligible to receive a score on the SHR clinical measure. In
order to receive a score on the ICH CAHPS clinical measure, a facility
must have treated at least 30 survey-eligible patients during the
eligibility period and receive 30 completed surveys during the
performance period. We did not propose to change these minimum data
policies for the measures that we proposed to continue including in the
PY 2019 ESRD QIP measure set. For the proposed Ultrafiltration Rate and
Serum Phosphorus Reporting Measures, we also proposed that facilities
with at least 11 qualifying patients will receive a score on the
measure. We believe that setting the case minimum at 11 for these
reporting measures strikes the appropriate balance between the need to
maximize data collection and the need to not unduly burden or penalize
small facilities. We further believe that setting the case minimum at
11 is appropriate because this aligns with case minimum policy for the
vast majority of the reporting measures in the ESRD QIP.
Under our current policy, we begin counting the number of months
for which a facility is open on the first day of the month after the
facility's CMS Certification Number (CCN) Open Date. Only facilities
with a CCN Open Date before July 1, 2018 would be eligible to be scored
on the Anemia Management, Mineral Metabolism, Pain Assessment and
Follow-Up, Clinical Depression Screening and Follow-Up reporting
measures, and only facilities with a CCN Open Date before January 1,
2018 would be eligible to be scored on the NHSN Bloodstream Infection
Clinical Measure, ICH CAHPS Clinical Measure, and NHSN Healthcare
Personnel Influenza Vaccination reporting measure. We further proposed
that, consistent with our CCN Open Date policy for other reporting
measures, facilities with a CCN Open Date after July 1, 2018, would not
be eligible to receive a score on the Ultrafiltration Rate Reporting
Measure because of the difficulties these facilities may face in
meeting the requirements of this measure due to the short period of
time left in the performance period.

[[Page 77926]]

Table 19 displays the proposed patient minimum requirements for
each of the measures, as well as the proposed CCN Open Dates after
which a facility would not be eligible to receive a score on a
reporting measure.

Table 19--Proposed Minimum Data Requirements for the PY 2020 ESRD QIP
----------------------------------------------------------------------------------------------------------------
Minimum data
Measure requirements CCN open date Small facility adjuster
----------------------------------------------------------------------------------------------------------------
Dialysis Adequacy (Clinical)......... 11 qualifying patients. N/A.................... 11-25 qualifying
patients.
Vascular Access Type: Catheter 11 qualifying patients. N/A.................... 11-25 qualifying
(Clinical). patients.
Vascular Access Type: Fistula 11 qualifying patients. N/A.................... 11-25 qualifying
(Clinical). patients.
Hypercalcemia (Clinical)............. 11 qualifying patients. N/A.................... 11-25 qualifying
patients.
NHSN Bloodstream Infection (Clinical) 11 qualifying patients. On or before January 1, 11-25 qualifying
2018. patients.
NHSN Dialysis Event (Reporting)...... 11 qualifying patients. On or before January 1, N/A.
2018.
SRR (Clinical)....................... 11 index discharges.... N/A.................... 11-41 index discharges.
STrR (Clinical)...................... 10 patient-years at N/A.................... 10-21 patient-years at
risk. risk.
SHR (Clinical)....................... 5 patient-years at risk N/A.................... 5-14 patient-years at
risk.
ICH CAHPS (Clinical)................. Facilities with 30 or On or before January 1, N/A.
more survey-eligible 2018.
patients during the
calendar year
preceding the
performance period
must submit survey
results. Facilities
will not receive a
score if they do not
obtain a total of at
least 30 completed
surveys during the
performance period..
Anemia Management (Reporting)........ 11 qualifying patients. Before July 1, 2018.... N/A.
Serum Phosphorus (Reporting)......... 11 qualifying patients. Before July 1, 2018.... N/A.
Depression Screening and Follow-Up 11 qualifying patients. Before July 1, 2018.... N/A.
(Reporting).
Pain Assessment and Follow-Up 11 qualifying patients. Before July 1, 2017.... N/A.
(Reporting).
NHSN Healthcare Personnel Influenza N/A.................... Before January 1, 2018. N/A.
Vaccination (Reporting).
Ultrafiltration Rate (Reporting)..... 11 qualifying patients. Before July 1, 2018.... N/A.
----------------------------------------------------------------------------------------------------------------

We sought comments on these proposals. The comments and our
responses for these proposals are set forth below.
Comment: Several commenters expressed concerns about the numbers
included in the Minimum Data Table (Table 11) in the proposed rule (81
FR 42846) because of the effect on small facilities with very small
sample sizes. Commenters asserted that performance scores for many such
facilities are random and may not reflect actual performance. One
commenter requested additional detail from CMS so they can better
understand CMS's rationale for these values and for the unit of
analysis. They pointed out that NQF considered patients as the unit of
analysis for reliability testing, while CMS proposed to use patient-
years at risk as the unit of analysis in the QIP. Commenters argued
that these values are too low and will result in too much random
volatility in performance scoring under the QIP. Commenters urged CMS
to adopt consistent criteria for the establishment of minimum data
requirements and ranges for the SFA, particularly for the Standardized
Ratio Measures, and mentioned that the NQF uses 0.7 as a recommended
IUR value to limit random noise as much as possible. Several commenters
specifically urged CMS to set the minimum data requirement for each
measure at the sample size at which the IUR reaches 0.70.
Alternatively, if CMS does not choose to implement this change, they
recommended that the top end of the SFA range be set at a sample size
adequate to reach an IUR of 0.7 so that enough of the observed result
for each measure is due to actual performance rather than to random
``noise'' due to small sample numbers.
Commenters offered the STrR as an example of the problem with the
small sample sizes used. This measure was found to have very low
reliability, particularly for small facilities. The IUR for facilities
with sample sizes below 46 patients was about 0.4, suggesting that 60
percent of inter-facility difference was due to random noise rather
than underlying performance. The SFA in this case only raises the
scores for very small facilities but does not offset the substantial
effect of random variation for small sample sizes.
Response: We thank the commenters for their recommendations. We
recognize the importance of the scientific standard of measure
reliability, and note that the STrR satisfied this condition. All
components of measure reliability were reviewed in detail at the NQF
ESRD Standing Committee's meeting in June, 2016. The reliability result
reported in the NQF submission showing the overall IURs of 0.60-0.66
across all facilities was determined acceptable by the NQF Standing
Committee as the measure passed on the reliability criterion, and
passed on scientific acceptability overall. The evaluation and voting
process and result adhered to consensus development guidelines in the
evaluation, thereby reinforcing acceptance of the reliability results.
Given the established effect of sample size on IUR calculations, it
is expected that large facilities will have a higher IUR and that
smaller facilities will have lower IUR values for any given measure.
Reliability results by facility size were not required by NQF. However,
the decision to include reliability based on tertiles of facility size
was intended to enhance interpretation of the detail provided in the
measure submission.
Regarding the commenter's recommendation to use an IUR of 0.7, we
are not aware of any formal or prescriptive NQF guideline or standard

[[Page 77927]]

that sets or requires this test result value as a minimum threshold for
passing reliability. The commenter may be referring to a non-peer
reviewed prior RAND Report referenced by NQF as an example of signal to
noise method that can be used for reliability testing. Additionally,
there is no formal required threshold identified by NQF, as
demonstrated in the endorsement of other quality metrics that have a
range of reliability statistics, several of which are below the
threshold of 0.7. Specifically, the STrR reliability results are
comparable to the reliability test results for other NQF-endorsed risk
adjusted outcome measures used in public reporting. For example, four
NQF endorsed, cause-specific hospital mortality measures demonstrated
similar levels of reliability (for example, #0229 Heart Failure
Measure, ICC: 0.55; #0468 Pneumonia Mortality Measure, ICC: 0.79; #1893
COPD Mortality Measure, ICC: 0.51; #2558 CABG Mortality Measure, ICC:
0.32).
Final Rule Action: After consideration of the comments received, we
are finalizing these policies as proposed. For the reasons described
above, at this time, we do not believe it would be appropriate to
establish a minimum IUR threshold.
9. Payment Reductions for the PY 2020 ESRD QIP
Section 1881(h)(3)(A)(ii) of the Act requires the Secretary to
ensure that the application of the scoring methodology results in an
appropriate distribution of payment reductions across facilities, such
that facilities achieving the lowest TPSs receive the largest payment
reductions. We proposed that, for the PY 2020 ESRD QIP, a facility will
not receive a payment reduction if it achieves a minimum TPS that is
equal to or greater than the total of the points it would have received
if:
It performed at the performance standard for each clinical
measure; and
It received the number of points for each reporting
measure that corresponds to the 50th percentile of facility performance
on each of the PY 2018 reporting measures.

We noted this proposed policy for PY 2020 is identical to the policy
finalized for PY 2019 and we recognized that we were not proposing a
policy regarding the inclusion of measures for which we were not able
to establish a numerical value for the performance standard through the
rulemaking process before the beginning of the performance period in
the PY 2019 minimum TPS. We stated that we did not propose such a
policy because no measures in the proposed PY 2020 measure set meet
this criterion. However, should we choose to adopt a clinical measure
in future rulemaking without the baseline data required to calculate a
performance standard before the beginning of the performance period, we
stated that we would propose a criterion accounting for that measure in
the minimum TPS for the applicable payment year at that time.
The PY 2018 program is the most recent year for which we will have
calculated final measure scores before the beginning of the performance
period for PY 2020 (that is, CY 2018). Because we have not yet
calculated final measure scores, we are unable to determine the 50th
percentile of facility performance on the PY 2018 reporting measures.
We will publish that value in the CY 2018 ESRD PPS final rule once we
have calculated final measure scores for the PY 2018 program.
Section 1881(h)(3)(A)(ii) of the Act requires that facilities
achieving the lowest TPSs receive the largest payment reductions. In
the CY 2014 ESRD PPS final rule (78 FR 72223 through 72224), we
finalized a payment reduction scale for PY 2016 and future payment
years: For every 10 points a facility falls below the minimum TPS, the
facility would receive an additional 0.5 percent reduction on its ESRD
PPS payments for PY 2016 and future payment years, with a maximum
reduction of 2.0 percent. We did not propose any changes to this policy
for the PY 2020 ESRD QIP.
Because we are not yet able to calculate the performance standards
for each of the clinical measures, we are also not able to calculate a
proposed minimum TPS at this time. We will publish the minimum TPS,
based on data from CY 2016 and the first part of CY 2017, in the CY
2018 ESRD PPS final rule.
We sought comments on this proposal regarding our policy to
determine payment reductions for PY 2020.
Final Rule Action: We did not receive comments on this proposal.
Accordingly, we are finalizing this policy as proposed.

F. Future Policies and Measures Under Consideration

As we continue to refine the ESRD QIP's policies and measures, we
are evaluating different methods of ensuring that facilities strive for
continuous improvement in their delivery of care to patients with ESRD.
We also seek to refine our scoring methodology in an effort to make it
easier for facilities and the ESRD community to understand. For future
rulemaking, we are considering several policies and measures, and we
are seeking comments on each of these policies and measures.
As discussed in section IV.E.2.b.i. above, we proposed to adopt the
Standardized Hospitalization Ratio (SHR) Clinical measure and calculate
performance rates for that measure in accordance with NQF-endorsed,
Measures Application Partnership reviewed specifications. Similarly,
performance rates for the SRR and STrR will continue to be calculated
in accordance with NQF-endorsed, Measures Application Partnership
reviewed specifications. Stakeholders have expressed that for most
standardized ratio measures, rates are easier to understand than
ratios. (The exception is the NHSN BSI Clinical Measure, which is
intentionally expressed as a ratio, and cannot be transformed into a
rate without distorting the underlying results.) For future years of
the QIP, we are considering a proposal to express the ratios as rates
instead, for the SRR and STrR measures. Specifically, we would not
propose any changes to the manner in which performance rates themselves
are calculated, but would propose to calculate rates by multiplying the
facility's ratio for each of these measures by the national raw rate of
events (also known as the median), which is specific to the measure
each year. We are also considering reporting national performance
standards and individual facility performance rates as rates, as
opposed to ratios, for these measures. Similarly, we are considering a
proposal to use rates, as opposed to ratios, when calculating facility
improvement scores for these measures.
In PY 2019, we proposed to adopt a patient-level influenza
immunization reporting measure that could be used to calculate a future
clinical measure based on either ``ESRD Vaccination--Full-Season
Influenza Vaccination'' (Measures Application Partnership #XDEFM) or
NQF #0226: ``Influenza Immunization in the ESRD Population (Facility
Level).'' We continue to believe that it is important to include a
clinical measure on patient-level influenza vaccination in the ESRD
QIP. However, we did not propose to add a patient-level influenza
immunization reporting measure into the ESRD QIP. Nevertheless, data
elements were recently amended in CROWNWeb to support data collection
for either of the two potential clinical measures on patient-level
influenza (that is, Measures Application Partnership #XDEFM and NQF
#0226). We will continue to collect these data and conduct detailed
analyses to determine whether either of these clinical

[[Page 77928]]

measures would be appropriate for future inclusion in the ESRD QIP.
As part of our effort to continuously improve the ESRD QIP, we are
also working on developing additional, robust measures that provide
valid assessments of the quality of care furnished to ESRD patients by
ESRD facilities. Some measures we are considering developing for future
inclusion in the ESRD QIP measure set include a Standardized Mortality
Ratio (SMR) measure, a measure examining utilization of hospital
Emergency Departments, a measure examining medication reconciliation
efforts, and a measure examining kidney transplants in patients with
ESRD.
We sought comments on these issues, including whether data for a
patient-level influenza immunization clinical measure should be
collected through CROWNWeb or through NHSN.
Comment: Commenters supported CMS's future policy for consideration
which would allow for the use of rates rather than ratios for the SRR
and STrR measures because they are easier to understand and because the
current ratio measures have a wide range of uncertainty that does not
provide an accurate view of a facility's performance when the ratio is
reduced to a single number. One commenter argued that this approach
will improve accuracy, transparency and clinical relevance. They
recommended that CMS use the year-over-year difference between
normalized rates, currently available from DFR data until they can be
replaced by risk-standardized rate measures.
Despite support for the general concept, several commenters urged
CMS to carefully consider the methodology used if it is decided to
convert ratios to rates. They suggested that the use of the national
median rate as the conversion factor would be potentially misleading in
certain regions of the country where typical performance varies
significantly from the national rate.
One commenter offered two simulations of possible methodologies to
convert rates to ratios: First, using the median rate to convert the
ratio to a rate; second, using the mean rate to convert the ratio to a
rate. In both of these scenarios, QIP scores remained identical--
dialysis facilities received the same scores regardless of the ratio or
rate methodology. The commenter concluded that they would likely
support this proposal but would need to see additional analyses
regarding the methodology to be used.
Response: We thank commenters for their suggestions and for sharing
the two simulations provided. We will take their suggestions into
consideration as we consider the possibility of introducing this policy
in future years of the ESRD QIP. If we consider proposing this policy
for future years of the program, we will share the proposed methodology
through rulemaking.
Comment: A commenter stated that they would likely support a
proposal to report national performance standards and individual
facility performance as rates, as opposed to ratios, but they would
need to see the complete proposal first. They also supported CMS's
discussion about possibly using rates instead of ratios for the
readmissions and transfusion measures because the current ratios are
problematic in that they have a wide range of uncertainty that does not
provide an accurate view of a facility's performance when the ratio is
reduced to a single number. There are also problems with regard to the
reliability of a standardized ratio. Commenter suggested that CMS could
immediately switch to rates and encouraged the Agency to use the year-
over-year difference between normalized rates currently available from
DFR data until they can be replaced by risk standardized rate measures.
Commenter also suggested that the use of the national median rate as
the conversion factor for ratios may be misleading in parts of the
country where typical performance varies significantly from the
national rate. Using rates instead of ratios would make the measure
results more meaningful by expressing results in terms that have
intrinsic meaning.
Response: We thank the commenter for sharing their suggestions and
concerns, which we will carefully consider as we consider the
possibility of introducing this policy in future years of the ESRD QIP
program.
Comment: One commenter recommended that CMS consider calculating
rates in the same manner currently utilized in DFC rather than by
calculating a ratio and then converting it into a rate because the
latter approach may be methodologically flawed and create unnecessary
complexity.
Response: We thank commenter for their suggestion and, as we
continue to consider the possibility of introducing this policy in
future years of the ESRD QIP, we will consider the feasibility of
calculating rates in the same manner currently utilized in DFC.
Comment: Commenters submitted a great deal of feedback on the
possible introduction of an influenza immunization measure in the ESRD
QIP. One commenter pointed out that despite recommendations, vaccines
are consistently underutilized in the adult population and urged CMS to
consider developing and implementing a comprehensive composite measure
for all vaccines recommended for ESRD Patients, as such a measure would
be of great benefit to ESRD patients and to the ESRD QIP.
Alternatively, they recommended that CMS consider including reporting
measures for pneumococcal and hepatitis B vaccination in addition to
the existing and proposed Influenza vaccination measures. Several
commenters stated that they would support the adoption of NQF #0226,
Influenza Immunization in the ESRD Population, in the QIP because it
fully aligns with NQF's specifications for influenza vaccinations, and
because it is endorsed by the NQF. They also appreciate that the
measure is standardized with NQF's 2008 immunization report which set
the measurement timeframe as October 1 through March 31, or when the
vaccine becomes available. They expressed serious concerns about MUC
#XDEFM for several reasons. First, it does not follow the NQF
specifications for a measurement timeframe of October 1 through March
31 or when the vaccine became available,'' and second it has not been
fully tested or specified. They added that scientific acceptability
should be considered an essential component of a measure's properties
and that measure developers should be required to show that data
elements can be reliably reported and that the measure is valid.
Commenters also supported the proposal to use CROWNWeb to collect
patient-level influenza clinical measure data, because KCQA specified
and tested the patient-level influenza measure using facility data with
the intention that such data would be submitted through CROWNWeb. They
added that using NHSN would introduce another factor that would require
reliability and validity testing as well as increasing the burden on
dialysis facilities because of manual entry issues. They strongly
recommended that if CMS does add a patient-level influenza immunization
clinical measure, it should add NQF #0226 unchanged and collect the
data through CROWNWeb.
Response: We thank commenters for their support and for their
suggestions regarding the potential future introduction of a patient-
level influenza immunization measure into the ESRD QIP for future years
of the program. We will take their suggestions into consideration as we
evaluate options.
Comment: Several commenters supported the influenza vaccination
reporting measure for future

[[Page 77929]]

consideration in the QIP and suggested that NHSN be used to collect
data for the measure for consistency, ease of use, and access purposes.
Given that the NHSN HCP Influenza vaccination measure is already
collected in NHSN, adding the patient-level measure to the existing
reporting system would provide consistency and continuity for
facilities. Additionally, commenters pointed out that state health
departments, LDO's and ESRD Networks can gain access to the data
reported in NHSN and continued use of this system would more easily
facilitate sharing of data with other entities engaged in the oversight
of infection prevention. One commenter added that if NHSN is used to
collect data, it will serve as a single repository for influenza
vaccination data, and therefore could be used by regulatory agencies
and local health departments who are able to access the data and use it
for quality improvement and other public health purposes. One commenter
also recommended that CMS consider adding an additional incentive for
facilities that report vaccination rates, above the proposed required
vaccination information.
Response: We thank commenters for their support, and we will take
their suggestions into consideration as we consider the feasibility of
introducing a patient-level influenza immunization measure into the
ESRD QIP's measure set in future years of the program.
Comment: One commenter expressed concerns about the potential use
of Measures Application Partnership #XDEFM as the basis for a future
clinical measure because it does not follow the NQF standardized
specifications for a measurement timeframe and given that the vaccine
is often available in late July or early August, omitting patients who
were vaccinated before October 1 unfairly penalizes those facilities
who are able to obtain the vaccine early and serves as a disincentive
to early and thorough vaccination.
Another commenter disagreed with CMS's concerns that NQF #0226
would exclude patients who die from influenza, but might not have died
if they had been vaccinated. The measure specifications do not include
such an exclusion and in fact the measure excludes unvaccinated
patients who die prior to March 31. This exclusion does not penalize
facilities for patients who could still have received a vaccination
within the timeframe specified by the Agency's own measurement
timeframe. The commenter recommended setting the denominator such that
it is aligned with the NHSN protocol and NQF specifications and that
CMS clearly state that the CDC would determine the date when a vaccine
is made available each year.
Response: We thank commenters for sharing their suggestions
regarding the future potential introduction of either NQF #0226 or
Measures Application Partnership #XDEFM, and we will take them into
consideration when considering the future adoption of a patient-level
influenza immunization measure.
Comment: Commenters submitted a great deal of feedback on the
possible introduction of a Standardized Mortality Ratio measure in the
ESRD QIP. Several commenters stated that they would potentially support
the adoption of an SMR measure into the QIP but expressed a few
concerns with the measure. Two commenters stressed that any mortality
measure would need to be carefully tailored to the actions of the
dialysis facility and they recommended that CMS work more closely with
stakeholders to establish an appropriate measure that focuses on year-
over-year, facility-specific improvement before considering its
addition into the QIP, particularly in light of the decision of the
NQF's Renal Standing Committee not to recommend the revised SMR
Measure. Commenters urged CMS to update the SMR Specifications to make
them less ambiguous and more precise, and they argued that the 1-year
period is inappropriate based on the testing data. Instead, they
recommended at minimum a 4-year period and they encouraged CMS to
consider including a larger list of relevant prevalent comorbidities as
identifiable in Medicare claims data because they feel it's important
to adapt the SHR and SMR in a way that takes into account the effect
that such comorbidities have on hospitalization and mortality rates.
Commenters appreciated that the introduction of an SMR measure in the
QIP would promote high quality care for ESRD patients and recommended
that the measure reflect a rolling average of facility performance due
to the potential for a small number of outliers to impact facility
performance substantially on the measure and further recommended that
the measure include an adjuster for small facilities so that those with
small sample sizes are not inappropriately penalized. Finally, they
recommended that CMS adopt an NQF-endorsed SMR measure.
Response: We thank the commenters for sharing their suggestions
regarding the potential implementation of a Standardized Mortality
Ratio Measure in future years of the ESRD QIP. We will take these
comments and suggestions into consideration as we consider whether to
propose such a measure in the future.
Comment: Commenters provided a great deal of feedback regarding the
possible introduction of a Transplant Measure in future years of the
ESRD QIP. One commenter agreed that referrals and patient education
about transplants are important concepts to measure, but stated that
they could not support the two transplant-related wait list measures
proposed by a recent TEP because they are not appropriate for the QIP
based upon the most recent specifications released by CMS because they
measure the success of being waitlisted and attribute that to dialysis
facilities when that responsibility rests solely with the transplant
center. Instead, the commenter recommended that CMS focus efforts on
developing measures related to patient education, referral to a
transplant center, initiation of the waitlist evaluation process, or
completion of the waitlist evaluation process, and care coordination.
Another commenter had specific concerns about the proposed future
adoption of a transplant measure. Specifically, they argued that
transplants carry a level of risk that patients must assume, so it is
important to require that all patients be assessed for transplant,
however commenter expressed concern with the expectation that a
percentage of a facility's patients be required to actively pursue a
transplant. Another commenter stated that as CMS moves toward a more
bundled care environment, it is important for the ESRD QIP to implement
a transplant measure. They added that it would be beneficial to track
and report the number of transplant patients, number of transplants,
and the employment status of these patients in order to identify key
indicators and best practices to help patients get transplanted and
retain employment.
Response: We thank the commenters for sharing their suggestions
regarding the potential implementation of a Transplant Measure in
future years of the ESRD QIP. We will take these comments and
suggestions into consideration as we consider whether to propose such a
measure in the future.
Comment: Commenters agreed that emergency department (ED) visits
are an important marker of healthcare utilization and cautiously
supported the concept of measuring Emergency Department Utilization but
added that it would be a complex measure which would require careful
construction and risk modeling. One commenter stated that without more
information about the potential emergency department utilization
measure, they could not

[[Page 77930]]

support such a measure for inclusion in the QIP. Another commenter
stated that any such measure would need to include dialysis-related
emergency room visits. Commenters stated that much work would need to
be done to appropriately construct an ED visit measure for dialysis
facility accountability and that such a measure would need to include
risk modeling to account for many factors that may influence the
frequency of ED visit. It would need to account for the fact that there
are a wide variety of circumstances that lead to ED visits, many of
which are completely beyond the control or the knowledge of the
facility at the time they are occurring. Commenters stressed that CMS
will need to carefully consider the specifications for the measure as
certain facilities may not be able to achieve low rates of unnecessary
patient utilization of the ED. They provided two examples: A facility
that is only open three days a week should not be penalized if their
patients utilize the ED on a day that they are not open. Second,
patients in urban settings may live close enough to the hospital that
they have the option to go home and see if their illness subsides
sufficiently without having to go to a hospital ED, while patients in
rural settings may not have that option. Facilities in more rural
settings should not be penalized simply because their patients live in
rural settings and feel the need to go to the ED out of an abundance of
caution.
Response: We thank the commenters for sharing their suggestions
regarding the potential implementation of an ED Utilization measure in
future years of the ESRD QIP. We will take these comments and
suggestions into consideration as we consider whether to propose such a
measure in the future.
Comment: Many commenters supported CMS's proposal to consider the
inclusion of a Medication Reconciliation measure in future years of the
ESRD QIP, and specifically stated that they would support the adoption
of NQF #2988: Medication Reconciliation for Patients Receiving Care at
Dialysis Facilities, which is currently under evaluation by the NQF
Patient Safety Standing Committee. They supported this measure because
it is an important patient safety process for patients with ESRD given
that many of them have multiple prescriptions and because it would help
providers identify unnecessary medications, duplicate therapies or
incorrect dosages, thus reducing the risk of patients experiencing
adverse drug events. One commenter added that such a measure would
incentivize providers to perform medication reconciliation across the
continuum of care and would increase the focus on patient safety,
resulting in improved patient outcomes.
Response: We thank the commenters for their support and input and
will take their recommendations into consideration as we proceed with
our measure development work.
Comment: One commenter stated that, provided they are outcome
measures, rather than process measures, they would support all of the
following measures for consideration in future payment years of the
ESRD QIP: The SMR Measure, an ED Utilization Measure, a Medication
Reconciliation measure, and a measure examining kidney transplants in
ESRD patients.
Response: We thank commenter for their support of these measures
under future consideration.
Comment: A commenter argued that future pediatric measure
development should consider the entire pediatric population, beyond
Medicare beneficiaries and include the full range of pediatric patients
without regard to provider in order to ensure the greatest knowledge of
their health status and to provide meaningful and appropriate data
about the quality of pediatric care. The commenter also urged CMS to
examine the appropriateness of including measures that evaluate adult
and pediatric patients together and to work on finding measures that
are more appropriate for assessing small numbers of pediatric patients
who are dialyzed at adult facilities.
Response: We thank the commenter for their suggestions and we agree
that it is vitally important to measure the care being provided for
pediatric patients, both in pediatric facilities and in facilities that
treat adult and pediatric patients together. Unfortunately, in large
part due to the small numbers of pediatric patients, there are
currently very few measures available that focus on the care furnished
to pediatric patients with ESRD. For example, as we noted in the CY
2015 ESRD PPS Final Rule (79 FR 66172), using 2013 data, there were
only 10 facilities that were eligible to receive a score on the
Pediatric Hemodialysis Adequacy measure. We will continue to work with
the ESRD community to identify measures for inclusion in the ESRD QIP
that examine the care of this vulnerable population.
Comment: One commenter urged CMS to reinstitute a measure
establishing a minimal standard for anemia management to ensure that
patients are neither over-treated nor under-treated.
Response: When we retired the Hemoglobin Less Than 10 g/dL measure,
we did so for important clinical reasons which we continue to believe
warrant including this measure only as a Reporting Measure and not as a
Clinical Measure (76 FR 70257). Specifically, we could not identify a
specific hemoglobin lower bound level that has been proven safe for all
patients treated with ESAs. Additionally, at the time the measure was
retired, we discussed with the FDA our proposal to retire the
Hemoglobin Greater than 10 g/dL measure starting in PY 2013. Because
the measure encouraged providers/facilities to keep hemoglobin above 10
g/dL, the FDA agreed that retiring the measure was consistent with the
new labeling for ESAs approved by the FDA. We are also not aware of,
nor have any stakeholders noted, any studies that identify a specific
hemoglobin level which should be maintained to increase quality of life
or minimize transfusions or hospitalizations. However, if any new
evidence or studies emerge, we will take such evidence into
consideration in adopting future measures for the ESRD QIP. Factors
that impact anemia management, including optimal iron stores, dialysis
adequacy, avoidance of infections, reduction of inflammation, and other
factors should be addressed by the health care team to improve patient
health. We urge patients and providers to work together to achieve
optimal hemoglobin levels for each individual patient. We will continue
to monitor and evaluate practice patterns and outcomes for all segments
of the Medicare ESRD population as we develop and refine our
measurement of the quality of anemia management.
Comment: A commenter urged CMS to consider developing quality
measures for use with patients with AKI. Some of their specific
recommendations were to develop a Kt/V measure specific for AKI
patients with a target of 3.9. They also recommended a BSI measure
specific to AKI patients, arguing that AKI patients should not be
included in the same measure pool as ESRD patients given that they have
a higher risk of infections and have additional complex complications.
Finally, they urged CMS to develop patient-reported outcomes measures
specific to AKI patients, including assessments of patient
satisfaction.
Response: We thank the commenter for their recommendations. We
agree that patients with AKI must be ensured a high quality of care,
however given the measures that are currently available for use in
Dialysis Facilities, we are unable to measure care for patients with
AKI at this time. The quality measures

[[Page 77931]]

currently in use in the ESRD QIP specifically include patients with
end-stage renal disease and are not designed to measure the care of
patients with AKI. In the event that measures are developed that
include patients with AKI, we will consider the feasibility of
including those measures in our measure set in future years of the
program.
Comment: One commenter argued that recovery time is an important
and powerful indicator of day-to-day quality of life and is associated
with patient survival and recommended that CMS start collecting and
reporting data on recovery time as a meaningful clinical outcomes
measure.
Response: We thank the commenter for their suggestion and we agree
that recovery time is an important and powerful indicator of the
quality of life of patients with ESRD. However, at this time, we are
not aware of any clinical quality measures that are available to
measure this important outcome. Should one become available, we will
consider the feasibility of including it in the measure set for the
ESRD QIP in future years of the program.

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

A. Background

Section 1847(a) of the Social Security Act (the Act), as amended by
section 302(b)(1) of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA) (Pub. L. 108-173), requires the
Secretary of the Department of Health and Human Services (the
Secretary) to establish and implement the Competitive Bidding Program
(CBP) in Competitive Bidding Areas (CBAs) throughout the United States
for contract award purposes for the furnishing of certain competitively
priced Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) items and services. The programs, mandated by section 1847(a)
of the Act, are collectively referred to as the ``Medicare DMEPOS
Competitive Bidding Program.'' The 2007 DMEPOS competitive bidding
final rule (Medicare Program; Competitive Acquisition for Certain
DMEPOS and Other Issues published in the April 10, 2007 Federal
Register (72 FR 17992)), established CBPs for certain Medicare Part B
covered items of DMEPOS throughout the United States. The CBP, which
was phased in over several years, utilizes bids submitted by DMEPOS
suppliers to establish applicable payment amounts under Medicare Part B
for certain DMEPOS items and services.
Section 1847(a)(1)(G) of the Act, as added by section 522(a) of the
Medicare Access and CHIP Reauthorization Act of 2015 (Pub. L. 114-10)
(MACRA), now requires a bid surety bond for bidding entities. Section
1847(a)(1)(G) of the Act, as added by section 522(a) of MACRA, provides
that, with respect to rounds of competitions under section 1847
beginning not earlier than January 1, 2017 and not later than January
1, 2019, a bidding entity may not submit a bid for a CBA unless, as of
the deadline for bid submission, the entity has (1) obtained a bid
surety bond, in the range of $50,000 to $100,000, in a form specified
by the Secretary consistent with subparagraph (H) of section
1847(a)(1), and (2) provided the Secretary with proof of having
obtained the bid surety bond for each CBA in which the entity submits
its bid(s). Section 1847(a)(1)(H)(i) provides that in the event that a
bidding entity is offered a contract for any product category for a
CBA, and its composite bid for such product category and area was at or
below the median composite bid rate for all bidding entities included
in the calculation of the single payment amount(s) for the product
category and CBA, and the entity does not accept the contract offered,
the bid surety bond(s) for the applicable CBAs will be forfeited and
CMS will collect on the bid surety bond(s). In instances where a
bidding entity does not meet the bid forfeiture conditions for any
product category for a CBA as specified in section 1847(a)(1)(H)(i) of
the Act, then the bid surety bond liability submitted by the entity for
the CBA will be returned to the bidding entity within 90 days of the
public announcement of the contract suppliers for such product category
and area.
Section 522 of MACRA further amended section 1847(b)(2)(A) of the
Act by adding clause (v) to the conditions that a bidding entity must
meet in order for the Secretary to award a contract to any entity under
a competition conducted in a CBA to furnish items and services. Section
1847(b)(2)(A)(v) of the Act adds the requirement that the bidding
entity must meet applicable State licensure requirements in order to be
eligible for a DMEPOS CBP contract award. We note, however, that this
does not reflect a change in policy as CMS already requires contract
suppliers to meet applicable State licensure requirements in order to
be eligible for a contract award.

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the DMEPOS CBP

[[Page 77932]]

submit a bid for a CBA unless, as of the deadline for bid submission,
the entity has obtained a bid surety bond for the CBA (81 FR 42879).
Proposed Sec. 414.412(h)(1) would specify that the bond must be
obtained from an authorized surety. An authorized surety is a surety
that has been issued a Certificate of Authority by the U.S. Department
of the Treasury as an acceptable surety on Federal bonds and the
certificate has neither expired nor been revoked (81 FR 42879).
At proposed Sec. 414.412(h)(2) ``Bid Surety Bond requirements,''
we proposed that a bid surety bond contain the following information:
(1) The name of the bidding entity as the principal/obligor; (2) The
name and National Association of Insurance Commissioners number of the
authorized surety; (3) CMS as the named obligee; (4) The conditions of
the bond as specified in the proposed rule at (h)(3); (5) The CBA
covered by the bond; (6) The bond number; (7) The date of issuance; and
(8) The bid bond value of $100,000 (81 FR 42879).
Section 1847(a)(1)(G) of the Act permits CMS to determine the
amount of the bond within a range of $50,000 to $100,000. We proposed
setting the bid surety bond amount at $100,000 for each CBA in which a
bidding entity submits a bid (81 FR 42879). This requirement is
intended to ensure that bidding entities accept a contract offer(s)
when their composite bid(s) is at or below the median composite bid
rate used in the calculation of the single payment amounts. The CBP has
historically had a contract acceptance rate exceeding 90 percent, and
we believe that this acceptance rate will increase with this rule. We
considered whether a lower bid surety bond amount would be appropriate
for a particular subset of suppliers, for example, small suppliers as
defined by Sec. 414.402, and therefore, specifically solicited
comments on whether to establish a lower bid surety bond amount for
certain types of suppliers (81 FR 42848).
Proposed Sec. 414.412(h)(3) specifies conditions for forfeiture of
the bid surety bond and return of the bond liability (81 FR 42879).
Pursuant to section 1847(a)(1)(H) of the Act, when (1) a bidding entity
is offered a contract for any product category in a CBA, (2) the
entity's composite bid is at or below the median composite bid rate for
all bidding entities included in the calculation of the single payment
amounts for the product category and CBA, and (3) the entity does not
accept the contract offer, then the entity's bid surety bond for that
CBA will be forfeited and CMS will collect on it. When the bidding
entity does not meet these forfeiture conditions, the bid bond
liability will be returned within 90 days of the public announcement of
the contract suppliers for the CBA. The provision at proposed Sec.
414.412(h) requires CMS to notify a bidding entity when it does not
meet the bid forfeiture conditions and as a result CMS will not collect
on the bid surety bond (81 FR 42879).
We proposed that bidding entities that provide a falsified bid
surety bond would be prohibited from participation in the current round
of the CBP in which they submitted a bid and from bidding in the next
round of the CBP. Additionally, offending suppliers would be referred
to the Office of Inspector General and Department of Justice for
further investigation. We also proposed that if we find that a bidding
entity has accepted a contract offer and then breached the contract in
order to avoid bid surety bond forfeiture, the breach would result in a
termination of the contract and preclusion from the next round of
competition in the CBP. These proposed penalties are included in
proposed Sec. 414.412(h)(4).
We sought comments on these proposals. We note that we did not
receive any comments on whether a lower bid surety bond amount would be
appropriate for a particular subset of suppliers, for example, small
suppliers, as defined at Sec. 414.402.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: A majority of commenters supported setting the bid surety
bond amount at $50,000, with some commenters suggesting that the bid
surety bond amount could be raised in the future if necessary. One
commenter stated that this is a ``new requirement'' and that ``little
is known about how [bid surety bonds] will work''. Another commenter
stated that they do not ``know of any real-life experience'' with
obtaining a bid surety bond. Another commenter stated that due to the
unknown nature and specifics regarding the new bid surety bond, the
requirement of $100,000 per CBA would be ``administratively burdensome
to qualify for and obtain the [bid surety] bond.'' A commenter
suggested that the large expenditure potentially required by suppliers
bidding in multiple CBAs could ``deter some highly qualified suppliers
from choosing to participate in the bidding process.''
Response: We agree with commenters that there may be unknown
variables associated with obtaining this new bid surety bond, as well
as the potential financial and administrative burdens that will be
placed on bidders. We believe that a lower bid surety bond amount would
be appropriate to encourage continued participation of bidders in the
CBP and are therefore revising the bid surety bond amount to $50,000 in
the final rule. While we acknowledge that there will be a number of
entities that are required to make large expenditures in order to
obtain a bid surety bond for each CBA in which they are submitting a
bid, we anticipate that this revision on the bid surety bond amount
from $100,000 to $50,000 will reduce that overall burden on all
suppliers. We intend to monitor the implementation of the bid surety
bond requirement and will consider increasing the bid surety bond
amount in future rulemaking if necessary.
Comment: Several commenters proposed setting the bid surety bond
amount higher for National Mail Order (NMO) suppliers with a suggested
range from $100,000 to $1,000,000 since the NMO has a ``national
scope'' and that NMO suppliers ``operate nationally.''
Response: We appreciate the comments suggesting that NMO suppliers
should be required to obtain a higher bid surety bond amount since they
provide competitively bid items nationwide. MACRA section 522(a)
requires CMS to set the bid surety bond requirement in a competitive
acquisition area within a range of $50,000 to $100,000. We proposed to
implement the requirement to obtain a bid surety bond for each CBA in
the manner required by MACRA. We proposed that the bid surety bond
amount be applied in a consistent manner and will not vary by CBA. A
``nationwide competitive bidding area'' is defined in regulation at
Sec. 414.402 as a CBA that includes the United States, its
Territories, and the District of Columbia. In the proposed rule, we did
not contemplate setting a different bid surety bond amount for the NMO
competition since the NMO competition, by definition, is a single CBA
(emphasis added) and the NMO competition is not a specific subset of
suppliers. The contract acceptance rate for the original NMO
competition and the NMO Recompete were 95 percent and 100 percent,
respectively. This indicates to us that a higher bid surety bond amount
for an NMO competition is not necessary at this time. Furthermore, the
highest bid surety bond amount we are permitted to set under section
522(a) of MACRA is $100,000. In this final rule, we will be setting the
bond amount at $50,000 for all suppliers.

[[Page 77933]]

Comment: One commenter suggested implementing stronger penalties
for submission of false bid surety bonds such as a prohibition from
participation in all future rounds of the CBP.
Response: We did not propose to prohibit an entity from
participation in all future rounds of the CBP in this rulemaking and do
not think it is necessary at this time because we believe that
referring bidding entities that provide a falsified bid surety bond to
the Office of the Inspector General and Department of Justice for
further investigation is sufficient.
Comment: A commenter inquired as to why the bid surety bond was
only required until January 1, 2019.
Response: This commenter's interpretation that the bid surety bond
is only required until January 1, 2019 is incorrect. Section
1847(a)(1)(G) of the Act provides that the bid bond requirement is
applicable to rounds of competition beginning not earlier than January
1, 2017 and not later than January 1, 2019. Thus, the bid surety bond
will be required by bidders submitting bids starting with the Round 1
2019 competition.
Comment: Several commenters suggested that CMS create a limit on
either the amount of bid surety bonds required to be purchased by an
entity, or the amount of bid surety bonds that could be forfeited by an
entity in the event of default.
Response: Section 1847(a)(1)(G) of the Act does not provide us with
the authority to limit the number of bid surety bonds purchased by an
entity or to place a cap on the forfeiture amount. Section
1847(a)(1)(G) of the Act explicitly states that a bid surety bond must
be purchased for each competitive acquisition area in which a bidder is
submitting a bid.
Comment: One commenter suggested that CMS add a provision that sets
forth the discharge of the authorized surety more explicitly.
Response: For purposes of responding to this comment, we are
assuming that the term discharge refers to the return of the bid surety
bond liability. We will issue guidance (for example, in the Request for
Bids instructions) prior to the opening of the bidding window on the
mechanism for the return of the bid surety bond liability to the
bidding entity.
Final Rule Action: As a result of the comments received regarding
the bid surety bond requirement, and our reevaluation of the potential
impact to the CBP, in this final rule we are adopting a lower amount of
$50,000 for the bid surety bond instead of $100,000 for each CBA and
revising Sec. 414.412(h)(2)(i)(H) accordingly. We agree that there are
a number of unknown variables associated with bid surety bonds and
there will be financial and administrative burdens that will be placed
on bidders. Therefore, we have revised the bid surety bond amount to
$50,000. After considering the comments and for the reasons we set
forth previously, the provisions at Sec. 414.412 (h)(1) through
(h)(2)(i)(G) for bid surety bonds will be finalized. However, we have
updated Sec. 414.412(h)(2)(i)(D) to reference Sec. 414.412(h)(3),
which specifies the conditions of the bond. In addition, proposed Sec.
414.412(h)(3) through (4) will be finalized as proposed.
2. State Licensure Requirement
We proposed to revise Sec. 414.414(b)(3), ``Conditions for
awarding contracts,'' to align with 1847(b)(2)(A) of the Act, as
amended by section 522(b) of MACRA (81 FR 42848). The amendment to the
Act states that ``[t]he Secretary may not award a contract to any
entity under the competition conducted in an [sic] competitive
acquisition area . . . to furnish such items or services unless the
Secretary finds . . . [t]he entity meets applicable State licensure
requirements.'' The regulation at Sec. 414.414(b)(3) stated that
``[e]ach supplier must have all State and local licenses required to
perform the services identified in the request for bids.'' Therefore,
we proposed revisions to Sec. 414.414(b)(3) to align with the language
of section 1847(b)(2)(A) of the Act as revised by section 522(b) of
MACRA, to state that a contract will not be awarded to a bidding entity
unless the entity meets applicable State licensure requirements (81 FR
42878). We noted, however, that this does not reflect a change in
policy asSec. 414.414(b)(3) already requires suppliers to have
applicable State and local licenses (81 FR 42848).
We sought comments on these proposals. The comments and our
responses to the comments regarding these proposals are set forth
below.
Comment: One commenter stated that ``state licensure for DMEPOS
will add an extra layer of unnecessary regulation. Currently, we must
also be accredited which costs thousands of dollars for the privilege
just to have a license.''
Response: We are not adding requirements or additional layers of
regulation. Suppliers currently are required to have applicable state
and local licenses under Sec. 414.414(b)(3). The regulation we are
finalizing at Sec. 414.414(b)(3) simply captures the language of
section 1847(b)(2)(A)(v) of the Act, as added by section 522 of MACRA,
which prohibits CMS from awarding a contract to any entity in a CBA
unless those requirements are met (81 FR 42848). Therefore, the change
we are adopting in this final rule does not represent a change in
policy.
Comment: We received a number of comments on our proposed revisions
to Sec. 414.414(b)(3) that were beyond the scope of the proposed
rulemaking.
Response: These comments were beyond the scope of the proposed
rulemaking, therefore, we will not be addressing these comments in our
final rule.
Final Rule Action: We are finalizing Sec. 414.414(b)(3) as
proposed, to state that a contract may not be awarded to a bidding
entity unless the entity meets applicable State licensure requirements.
This action does not place a new burden on suppliers nor does it
represent a change in policy as CMS currently requires suppliers to be
in compliance with all State and local licenses. The final regulation
makes it explicit that CMS may not award a contract to any entity in a
CBA unless the entity meets applicable State licensure requirements, as
required by section 522(b) of MACRA.
3. Appeals Process for a DMEPOS Competitive Bidding Breach of Contract
Action
We believe DMEPOS suppliers should have the option to appeal all
actions that CMS may take for breaches of contract. As a result, we
proposed revising Sec. 414.423, Appeals Process for Termination of
Competitive Bidding Contract, to expand the appeals process for
suppliers who have been sent a notice of a breach of contract stating
that CMS intends to take one or more of the actions described in Sec.
414.422(g)(2) as a result of the breach (81 FR 42848). While we
recognize that we have the authority to take one or more actions
specified in Sec. 414.422(g)(2), the current appeals process is
available for one of those actions, specifically, contract termination.
Therefore, the proposed revisions would expand Sec. 414.423 to allow
appeal rights for each action specified in Sec. 414.422(g)(2) for a
breach of contract (81 FR 42848). If a supplier's notice of breach of
contract includes more than one breach of contract action CMS would
take, and the supplier chooses to appeal more than one action, CMS
would make separate decisions for each breach of contract action after
reviewing the hearing officer's recommendation (81 FR 42849). We also
proposed revisions to Sec. 414.422(g)(2) to remove the breach of
contract actions of (1) requiring a contract supplier to submit a
corrective action plan; and (2)

[[Page 77934]]

revoking the supplier number of the contract supplier (81 FR 42849). We
proposed removing Sec. 414.423(g)(2)(i) because a corrective action
plan is already a part of the formal appeals process outlined in Sec.
414.423, and therefore, unnecessary to list as an action CMS can impose
on contract suppliers that it considers to be in breach (81 FR 42849).
We also proposed removing the supplier number revocation action at
Sec. 414.422(g)(2)(v) because the DMEPOS CBP does not have the
authority to revoke a DMEPOS supplier's Medicare billing number (81 FR
42849). Furthermore, we proposed revising this section to state that
CMS will specify in the notice of breach of contract which actions it
is taking as a result of the breach of contract (81 FR 42849).
Proposed revisions were made throughout Sec. 414.423 to extend the
appeals process to any breach of contract actions described in proposed
Sec. 414.422(g)(2) that we might take as a result of the breach,
rather than just contract termination actions (81 FR 42849). We also
proposed removing the references to termination throughout Sec.
414.423 and instead cross-reference all of the breach of contract
actions in proposed Sec. 414.422(g)(2) (81 FR 42849).
In proposed revisions to Sec. 414.423(a), we proposed deleting the
language indicating that termination decisions made under this section
are final and binding as this reference is not inclusive of all breach
of contract actions, and the finality of a decision is correctly
addressed in paragraph (k)(4) of this section (81 FR 42878).
In the proposed revisions to Sec. 414.423(b)(1), we proposed
deleting the phrase ``either in part or in whole'' because Sec.
414.422(g)(1) specifies that any deviation from contract requirements
constitutes a breach of contract (81 FR 42878). In addition, we
proposed removing the requirement that the breach of contract notice to
the supplier be delivered by certified mail from Sec. 414.423(b)(1) to
allow CMS the flexibility to use other secure methods for notifying
suppliers (81 FR 42878). We also proposed changes to Sec. 414.423
(b)(2)(i) and (ii) (81 FR 42878). The revised Sec. 414.423(b)(2)(i)
states that the notice of breach of contract would include the details
of the breach of contract, while Sec. 414.423(b)(2)(ii) requires CMS
to include the action or actions that it is taking as a result of the
breach of contract and the timeframes associated with each breach of
contract action in the notice (81 FR 42878). For example, when a notice
of breach of contract includes an action of preclusion, the effective
date of the preclusion would be the date specified in the letter and
the timeframe of the preclusion will specify the round of the CBP from
which the supplier is precluded. We also proposed to add language to
paragraph (b)(2)(vi) to specify that the effective date of the action
or actions that CMS would take is the date specified by CMS in the
notice of breach of contract, or 45 days from the date of the notice of
breach of contract unless a timely hearing request has been filed or a
CAP has been submitted within 30 days of the date of the notice of
breach of contract where CMS allows a supplier to submit a CAP (81 FR
42878-79).
We proposed revising Sec. 414.423(c)(2)(ii) to specify that the
subsequent notice of breach of contract may, at CMS' discretion, allow
the supplier to submit another written CAP pursuant to Sec.
414.423(c)(1)(i) (81 FR 42879). We proposed to revise Sec.
414.423(e)(3) to clarify that CMS retains the option to offer the
supplier an opportunity to submit another CAP, if CMS deems
appropriate, in situations where CMS has already accepted a prior CAP
(81 FR 42879).
Proposed revisions to Sec. 414.423(f)(5) explain that in the event
the supplier fails to timely request a hearing, the breach of contract
action or actions specified in the notice of breach of contract would
take effect 45 days from the date of the notice of breach of contract
(81 FR 42879). Proposed revisions to Sec. 414.423(g)(3) were made to
clarify that the hearing scheduling notice must be sent to all parties,
not just the supplier (81 FR 42879).
We proposed revising Sec. 414.423(j) to clarify that the hearing
officer would issue separate recommendations for each breach of
contract action in situations where there is more than one breach of
contract action presented at the hearing (81 FR 42880).
In Sec. 414.423(k), we proposed specifying that CMS would make
separate decisions for each recommendation when the hearing officer
issues multiple recommendations (81 FR 42880). In addition, we proposed
revisions to this paragraph to expand CMS' final determination process,
clarifying that the notice of CMS' decision would be sent to the
supplier and the hearing officer and would indicate whether any breach
of contract actions included in the notice of breach of contract still
apply and will be effectuated, and would indicate the effective date of
the breach of contract action, if applicable (81 FR 42880). We also
proposed expanding on Sec. 414.423(l), effect of breach of contract
action or actions, to specify effects of all contract actions described
in Sec. 414.422(g)(2) (81 FR 42880). In addition, we proposed adding
proposed Sec. 414.423(l)(1), effect of contract suspension, to outline
the supplier's requirements regarding furnishing items and
reimbursement for the duration of the contract suspension, as well as
the details regarding the supplier's obligation to notify beneficiaries
(81 FR 42880). We also proposed adding proposed Sec. 414.423(l)(3) (81
FR 42880), effect of preclusion, to specify that a supplier who is
precluded would not be allowed to participate in a specific round of
the CBP, which would be identified in the original notice of breach of
contract. Additionally, we proposed adding proposed Sec.
414.423(l)(4), effect of other remedies allowed by law, to state if CMS
decides to impose other remedies under Sec. 414.422(g)(2)(iv), the
details of the remedies would be included in the notice of breach of
contract (81 FR 42880). Proposed Sec. 414.423(l) also specifies the
steps suppliers must take to notify beneficiaries after CMS takes the
contract action or actions described in Sec. 414.422(g)(2) (81 FR
42880). Lastly, we proposed to remove language from Sec.
414.423(l)(2), effect of contract termination, to avoid confusion as to
which supplier is providing notice to the beneficiary (81 FR 42880).
We sought comments on these proposals. The comments and our
responses to the comments regarding these proposals are set forth
below.
Comment: Numerous commenters suggested that notification of breach
of contract should be sent via a manner that provided a ``verifiable
and guarantee receipt.'' Some commenters suggested retaining certified
mail in additional to the proposed secure manner.
Response: We will send a breach of contract notification to
contract supplier via electronic means in the future once we have this
functional capability. Specifically, contract suppliers will receive an
email notifying them to check their secure inbox located in CMS' secure
online portal for the DMEPOS CBP (currently known as ``Connexion'').
Once a supplier logs in to retrieve the notice, the audit logs will
record the download history for the document (for example, user name
date/time stamp, etc.). However, until the portal has this
functionality, we will continue to provide suppliers with notification
through certified mail. We will provide advanced notice to contract
suppliers when the transition to electronic breach of contract
notifications occurs.
Comment: One commenter stated that in the breach of contract
hearing

[[Page 77935]]

scheduling notice CMS should ``clearly state the parties that would
receive the notice in addition to the supplier.''
Response: The supplier and CMS are the parties to the hearing (and
the parties may have representatives appear on their behalf). We do not
find it necessary, however, to further describe these parties in the
breach of contract hearing scheduling notice or make this delineation
within the text of Sec. 414.423.
Comment: One commenter stated that CMS should address the problem
of binding bids by exercising its general contracting authority to
include in each competitive bidding contract severe financial penalties
for any supplier that does not provide services after signing a
contract. This penalty should also be referenced as part of the appeals
process policies.
Response: We have adopted regulations to take one or more of the
breach of contract actions outlined in Sec. 414.422(g)(2) against
contract suppliers that accept competitive bidding contracts and fail
to meet the terms of the contracts. We believe those actions are
appropriate and we are not considering other types of penalties at this
time.
Final Rule Action: After considering the comments and for the
reasons we discussed previously, we are finalizing the proposed changes
to Sec. 414.423 to expand the breach of contract appeals process to
all breach of contract actions that CMS may take pursuant to Sec.
414.422(g)(2). We are also finalizing Sec. 414.422(g)(2) to adopt the
proposed changes to the breach of contract actions that CMS may take
when a supplier is in breach of its competitive bidding contract (81 FR
42949). We are removing the word ``only'' from Sec. 414.423(c)(2)(ii)
to clarify when suppliers may submit a CAP. CMS proposed affording
suppliers the opportunity to submit a CAP, at CMS' discretion, when the
supplier receives a subsequent notice of breach of contract action (81
FR 42849). Removing ``only'' from this section clarifies that CMS may
accept a CAP in response to a subsequent termination notice and not
just the initial termination notice. This final regulation provides
suppliers who are in breach of contract the opportunity to appeal any
breach of contact action that CMS may take rather than only having the
opportunity to appeal a contract termination action. This provides
greater transparency to suppliers and affords CMS greater flexibility
in managing suppliers that are in breach of their competitive bidding
contract. Also, in Sec. 414.423(c)(2)(ii), we are changing ``paragraph
(1)(i)'' to ``paragraph (c)(1)(i)'' to make the paragraph reference
more clear.
In the final rule we are also making a revision to Sec. 414.402,
Definitions, for the term ``hearing officer''. In the revised
definition, we are removing the references to ``termination'' and
replacing those references with ``breach of contract'' to align with
the final changes to Sec. 414.423 that we are adopting in this final
rule, as well as deleting the abbreviation ``(HO)'', which is no longer
used in Sec. 414.423 As we discuss in section XII. ``Waiver of
Proposed Rulemaking,'' because these revisions to Sec. 414.202 are
technical in nature, to align the definition of hearing officer with
the terminology and process finalized in Sec. 414.423, we find good
cause to waive notice and comment rulemaking for this definition
revision.

VI. Method for Adjusting DMEPOS Fee Schedule Amounts for Similar Items
With Different Features Using Information From Competitive Bidding
Programs (CBPs)

A. Background

1. Fee Schedule Payment Basis for Certain DMEPOS
Section 1834(a) of the Social Security Act (the Act) governs
payment for durable medical equipment (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 is 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); and
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 as prosthetic devices in accordance with
section 1861(s)(8) of the Act and paid for on a fee schedule basis and
enteral nutrients under the Medicare DMEPOS Competitive Bidding Program
(CBP), as authorized under section 1847(a)(2)(B) of the Act. 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, was provided in the July 11, 2014
proposed rule at 79 FR 40275 through 40277.
2. DMEPOS Competitive Bidding Programs Payment Rules
Section 1847(a) of the Act, as amended by section 302(b)(1) of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA) (Pub. L. 108-173), requires the Secretary to establish and
implement CBPs in competitive bidding areas (CBAs) throughout the
United States for contract award purposes for the furnishing of certain
competitively priced DMEPOS items and services. The programs mandated
by section 1847(a) of the Act are collectively referred to as the
``Medicare DMEPOS Competitive Bidding Program.'' Section 1847(a)(2) of
the Act provides that the items and services to which competitive
bidding applies are:
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; and
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 class III devices under the Federal
Food, Drug, and Cosmetics Act and Group 3 or higher complex
rehabilitative power wheelchairs and related accessories when furnished
with such wheelchairs. Sections 1847(a) and (b) of the Act specify
certain requirements and conditions for implementation of the Medicare
DMEPOS CBP.
3. Methodologies for Adjusting Payment Amounts Using Information From
the DMEPOS Competitive Bidding Program
Below is a summary of the three general methodologies used in
adjusting payment amounts for DMEPOS items in areas that are not CBAs
using information from the DMEPOS CBP.

[[Page 77936]]

Also summarized are the processes for updating adjusted fee schedule
amounts and for addressing the impact of unbalanced bidding on SPAs
when adjusting payment amounts using information from the DMEPOS CBPs.
We published a final rule titled ``Medicare Program; End-Stage Renal
Disease Prospective Payment System, Quality Incentive Program, and
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies'' on
November 6, 2014 (hereinafter, the CY 2015 final rule), in which we
adopted these methodologies (79 FR 66223 through 66233). We also issued
program instructions on these methodologies in Transmittal #3350,
(Change Request # 9239), issued on September 11, 2015 and Transmittal
#3416, (Change Request # 9431) issued on November 23, 2015. The CBP
product categories, HCPCS codes and single payment amounts (SPAs)
included in the CBPs are available on the Competitive Bidding
Implementation Contractor (CBIC) Web site: http://www.dmecompetitivebid.com/palmetto/cbic.nsf/DocsCat/Home.
Section 1834(a)(1)(F)(ii) of the Act provides the Secretary with
the authority to use information from the DMEPOS CBPs to adjust the DME
payment amounts for covered items furnished on or after January 1,
2011, in areas where competitive bidding is not implemented for the
items. Similar authority exists at section 1834(h)(1)(H)(ii) of the Act
for OTS orthotics. Also, section 1842(s)(3)(B) of the Act provides
authority for making adjustments to the fee schedule amounts for
enteral nutrients, equipment, and supplies (enteral nutrition) based on
information from CBPs. Section 1834(a)(1)(F)(ii) of the Act also
requires adjustments to the payment amounts for all DME items subject
to competitive bidding furnished in areas where CBPs have not been
implemented on or after January 1, 2016.
For items furnished on or after January 1, 2016, section
1834(a)(1)(F)(iii) of the Act requires us to continue to make such
adjustments to DME payment amounts where CBPs have not been implemented
as additional covered items are phased in or information is updated as
contracts are re-competed. Section 1834(a)(1)(G) of the Act requires
that the methodology used to adjust payment amounts for DME and OTS
orthotics using information from the CBPs be promulgated through notice
and comment rulemaking. Also, section 1834(a)(1)(G) of the Act requires
that we consider the ``costs of items and services in areas in which
such provisions [sections 1834(a)(1)(F)(ii) and 1834(h)(1)(H)(ii)]
would be applied compared to the payment rates for such items and
services in competitive acquisition [competitive bidding] areas.''
a. Adjusted Fee Schedule Amounts for Areas Within the Contiguous United
States
Pursuant to Sec. 414.210(g)(1), CMS determines a regional price
for DME items or services for each state in the contiguous United
States and the District of Columbia equal to the un-weighted average of
the single payment amounts (SPAs) for an item or service for CBAs that
are fully or partially located in the same region that contains the
state or the District of Columbia. CMS uses the regional prices to
determine a national average price equal to the un-weighted average of
the regional prices. The regional SPAs (RSPAs) cannot be greater than
110 percent of the national average price (national ceiling) or less
than 90 percent of the national average price (national floor). This
methodology applies to enteral nutrition and most DME items furnished
in the contiguous United States (that is, items that are included in
more than 10 CBAs).
The fee schedule amounts for areas defined as rural areas for the
purposes of the CBP are adjusted to 110 percent of the national average
price described above. The regulations at Sec. 414.202 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 area (MSA). 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 the
authority provided by section 1847(a)(3)(A) of the Act at the time the
rules at Sec. 414.210(g) are applied.
b. Adjusted Fee Schedule Amounts for Areas Outside the Contiguous
United States
Pursuant to Sec. 414.210(g)(2), in areas outside the contiguous
United States (that is, noncontiguous areas such as Alaska, Guam, and
Hawaii), the fee schedule amounts are reduced to the greater of the
average of SPAs for the item or service for CBAs outside the contiguous
United States (currently only applicable to Honolulu, Hawaii) or the
national ceiling amounts calculated for an item or service based on
RSPAs for CBAs within the contiguous United States.
c. Adjusted Fee Schedule Amounts for Items Included in 10 or Fewer CBAs
Pursuant to Sec. 414.210(g)(3), for DME items included in ten or
fewer CBAs, the fee schedule amounts for the items are reduced to 110
percent of the un-weighted average of the SPAs from the ten or fewer
CBAs. This methodology applies to all areas within and outside the
contiguous United States.
d. Updating Adjusted Fee Schedule Amounts
Section 1834(a)(1)(F)(ii) of the Act requires the Secretary to use
information from the CBP to adjust the DMEPOS payment amounts for items
furnished on or after January 1, 2016, and section 1834(a)(1)(F)(iii)
requires the Secretary to continue to make such adjustments as
additional covered items are phased in or information is updated as
competitive bidding contracts are recompeted. In accordance with Sec.
414.210(g)(8), the adjusted fee schedule amounts are revised when an
SPA for an item or service is updated following one or more new
competitions and as other items are added to CBPs. DMEPOS fee schedule
amounts that are adjusted using SPAs will not be subject to the annual
DMEPOS covered item update and will only be updated when SPAs from the
CBP are updated. Updates to the SPAs may occur at the end of a contract
period as contracts are recompeted, as additional items are added to
the CBP, or as new CBAs are added. In cases where adjustments to the
fee schedule amounts are made using any of the methodologies described
above, and the adjustments are based solely on the SPAs from CBPs that
are no longer in effect, the SPAs are updated before being used to
adjust the fee schedule amounts. The SPAs are adjusted based on the
percentage change in the Consumer Price Index for all Urban Consumers
(CPI-U) over the course of time described in Sec. 414.210(g)(4). For
example, if the adjustments were to be effective January 1, 2017, the
SPAs from CBPs no longer in effect would be updated based on the
percentage change in the CPI-U from the mid-point of the last year the
SPAs were in effect to June 30, 2016, the month ending 6 months prior
to the date the initial fee schedule reductions go into effect.
Following the initial adjustment, if the adjustments continue to be
based solely on the SPAs that are no longer in effect, the SPAs will be
updated every 12 months using the CPI-U for the 12-month period ending
6 months prior to the date the updated payment adjustments would go
into effect.

[[Page 77937]]

e. Method for Avoiding HCPCS Price Inversions When Adjusting Fee
Schedule Amounts Using Information From the DMEPOS Competitive Bidding
Program
In our CY 2015 final rule (79 FR 66263), we adopted a method to
address unbalanced bidding, which is a situation that results in price
inversions under CBPs. We added Sec. 414.210(g)(6) to the regulations
for certain limited situations where bidding for similar but different
enteral infusion pumps and standard power wheelchairs resulted in the
SPAs for higher utilized items with additional features (for example,
an enteral infusion pump with an alarm or a Group 2 power wheelchair)
being less than the SPAs for lower utilized items without those
additional features (for example, an enteral infusion pump without an
alarm or Group 1 power wheelchair). A Group 2 power wheelchair is
faster, travels further, and climbs higher obstacles than a Group 1
power wheelchair. Under CBPs, when similar items with different
features are included in the same product category, the HCPCS code with
higher beneficiary utilization at the time of the competition receives
a higher weight and the bid for this item has a greater impact on the
supplier's composite bid as well as the competitiveness of the
supplier's overall bid for the product category (PC) within the CBP as
compared to the bid for the less frequently utilized item. If, at the
time the competition takes place under the CBP, the item with the
additional features is priced higher and over time is utilized more
than the other similar items without these features, it could result in
unbalanced bidding, which in turn causes the item without the
additional features to receive a higher single payment amount under the
CBP than the item with the additional features. This situation results
in a price inversion, where the higher weighted and higher priced item
at the time of the competition becomes the lower priced item in the CBP
following the competition. Unbalanced bidding can occur when a bidder
has a higher incentive to submit a lower bid for one item than another
due to the fact that the item has a higher weight and therefore a
greater effect on the supplier's composite bid for the product category
than the other item. Our current regulation at Sec. 414.210(g)(6) for
adjusting DMEPOS fee schedule amounts paid in non-CBAs using
information from CBPs includes methodologies to address price
inversions for power wheelchairs and enteral infusion pumps only. This
rule limits SPAs for items without additional features (for example, an
enteral infusion pump without an alarm) to the SPAs for items with the
additional features (for example, an enteral infusion pump with an
alarm) prior to using these SPAs to adjust fee schedule amounts.
For example, if most of the utilization or allowed services for
standard power wheelchairs are for higher paying Group 2 wheelchairs
than Group 1 wheelchairs at the time the competition occurs, the bids
for the Group 2 wheelchairs have a greater impact on the supplier's
composite bid and chances of being offered a contract. Therefore the
supplier has a much greater incentive to make a lower bid for the Group
2 wheelchairs relative to the fee schedule payment than they do for the
Group 1 wheelchairs. If, for example, Medicare is paying $450 per month
for a Group 2 wheelchair at the time of the competition and a Group 2
wheelchair has a high weight, while Medicare is paying $350 per month
for the Group 1 version of the same wheelchair at the time of the
competition and the Group 1 wheelchair has a very low weight, the bids
for the two items could be unbalanced or inverted whereby the bid
submitted for the Group 2 wheelchair is $250 (44 percent below the fee
schedule amount for the item) while the bid submitted for the Group 1
wheelchair is $300 (14 percent below the fee schedule amount for the
item). A price inversion therefore results where Medicare previously
paid $450 for one item and now pays $250, and previously paid $350 for
another item for which it now pays $300. The item weight under the CBP
results in Medicare paying more for a Group 1 power wheelchair than a
higher-performing Group 2 power wheelchair.
In the CY 2015 proposed rule published on July 11, 2014 in the
Federal Register (79 FR 40208) (hereinafter, CY 2015 proposed rule), we
referred to an additional feature that one item has and another item
does not have as a ``hierarchal'' feature, meaning that one item
provides an additional, incremental service that the other item does
not provide (79 FR 40287). For example, HCPCS code B9002 describes an
enteral infusion pump with an alarm, while code B9000 describes an
enteral infusion pump without an alarm. Code B9002 describes an item
that provides an additional service (an alarm) and the alarm was
referred to as a hierarchal feature, meaning the item with the alarm
provides an item and service above what the item without the alarm
provides. Commenters believed the term ``hierarchal feature'' should be
better defined (79 FR 66231). We agreed and finalized the rule only for
the specific scenarios addressed in the CY 2015 proposed rule, namely,
enteral infusion pumps and standard power wheelchairs. Therefore, the
final regulation at Sec. 414.210(g)(6)(i) specifically requires that
in situations where a SPA for an enteral infusion pump without alarm is
greater than the SPA in the same CBA for an enteral infusion pump with
alarm, the SPA for the enteral infusion pump without alarm is adjusted
to equal the SPA for the enteral infusion pump with alarm prior to
applying the payment adjustment methodologies for these items in non-
CBAs. We also adopted regulations at Sec. 414.210(g)(6)(ii) through
(v) to address bid inversion for standard power wheelchairs. In the CY
2015 final rule at 79 FR 66231, we stated that we would consider
whether to add a definition of hierarchal feature, or to apply the rule
we proposed to other items not identified in the final rule through
future notice and comment rulemaking.

B. Summary of the Proposed Provisions on the Method for Adjusting
DMEPOS Fee Schedule Amounts for Similar Items With Different Features
Using Information From Competitive Bidding Programs

[[Page 77938]]

Different Features using Information from Competitive Bidding Programs,
we proposed changes to the methodologies for adjusting fee schedule
amounts for DMEPOS items using information from CBPs and for submitting
bids and establishing single payment amounts under the CBPs for certain
groupings of similar items with different features.
After performing a review of all HCPCS codes in the CBPs in order
to comply with our commitment to consider whether to apply the
regulation at Sec. 414.210(g)(6) to other cases of price inversion
that resulted from unbalanced bidding that were not identified or
addressed in the CY 2015 final rule (79 FR 66231), we found a
significant number of price inversions resulting from the 2016 DMEPOS
CBP Round 2 Recompete for contract periods beginning July 1, 2016. The
items affected included transcutaneous electrical nerve stimulation
(TENS) devices, walkers, hospital beds, power wheelchairs, group 2
support surfaces (mattresses and overlays), enteral infusion pumps, and
seat lift mechanisms. As a result of our review, we proposed a rule
that would expand the provisions of Sec. 414.210(g)(6) to address
these and other price inversions.
To perform our review, we examined instances within the HCPCS where
there are multiple codes for an item (for example, a walker) that are
distinguished by the addition of features (for example, folding walker
versus rigid walker or wheels versus no wheels) which may experience
price inversions. Our review included all groupings of similar items
with different features within each of the product categories. We have
included the HCPCS codes describing groupings of similar items that
would be subject to this final rule and the features associated with
each code below:

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

------------------------------------------------------------------------
Enteral Infusion Pumps
B9000......................... Pump without alarm.
B9002......................... Pump with alarm.
Hospital Beds
E0250......................... Fixed Height With Mattress & Side
Rails.
E0251......................... Fixed Height With Side Rails.
E0255......................... Variable Height With Mattress & Side
Rails.
E0256......................... Variable Height With Side Rails.
E0260......................... Semi-Electric With Mattress & Side
Rails.
E0261......................... Semi-Electric With Side Rails.
E0290......................... Fixed Height With Mattress.
E0291......................... Fixed Height.
E0292......................... Variable Height With Mattress.
E0293......................... Variable Height.
E0294......................... Semi-Electric With Mattress.
E0295......................... Semi-Electric.
E0301......................... Heavy Duty Extra Wide With Side
Rails.
E0302......................... Extra Heavy Duty Extra Wide With
Side Rails.
E0303......................... Heavy Duty Extra Wide With Mattress
& Side Rails.
E0304......................... Extra Heavy Duty Extra Wide With
Mattress & Side Rails.
Mattresses and Overlays
E0277......................... Powered mattress.
E0371......................... Powered overlay.
E0372......................... Non-powered overlay.
E0373......................... Non-powered mattress.
Power Wheelchairs
K0813......................... Group 1 Sling Seat, Portable.
K0814......................... Group 1 Captains Chair, Portable.
K0815......................... Group 1 Sling Seat.
K0816......................... Group 1 Captains Chair, Standard
Weight.
K0820......................... Group 2 Sling Seat, Portable.
K0821......................... Group 2 Captains Chair, Portable.
K0822......................... Group 2 Sling Seat, Standard Weight.
K0823......................... Group 2 Captains Chair, Standard
Weight.
Seat Lift Mechanisms
E0627......................... Electric.
E0628......................... Electric.
E0629......................... Non-electric.
Transcutaneous Electrical Nerve
Stimulation (Tens) Devices
E0720......................... Two leads.
E0730......................... Four leads.
Walkers
E0130......................... Rigid.
E0135......................... Folding.
E0141......................... Rigid With Wheels.
E0143......................... Folding With Wheels.
------------------------------------------------------------------------

As shown in Table 20, under the 2015 DMEPOS fee schedule, Medicare
pays more for walkers with wheels than walkers without wheels. The same
is true for walkers that fold as compared to walkers that do not fold.
Walkers that are rigid and do not fold are very rarely used and have
extremely low utilization, and a walker that folds and has wheels is
used much more frequently than a walker that folds but does not have
wheels.

[[Page 77939]]

Table 20--Average of 2015 DMEPOS Fee Schedule Amounts for Purchase of Walkers
----------------------------------------------------------------------------------------------------------------
Average 2015 fee
Code Item schedule amount 2014 Allowed
\1\ services
----------------------------------------------------------------------------------------------------------------
E0130.................................. Rigid Walker without Wheels.. $64.97 59
E0135.................................. Folding Walker without Wheels 78.97 5,053
E0141.................................. Rigid Walker with Wheels..... 107.89 455
E0143.................................. Folding Walker with Wheels... 111.69 95,939
----------------------------------------------------------------------------------------------------------------
\1\ Average of 2015 fee schedule amounts for all areas.

Under the DMEPOS CBP, because the folding walker without wheels
(E0135) are used more frequently than the rigid walker without wheels
(E0130), code E0135 receives a higher weight than code E0130. In
addition, under the 2015 fee schedule, Medicare pays more for code
E0135 than code E0130. Weights are assigned to individual items (HCPCS
codes) within a product category (for example, standard mobility
equipment) under the DMEPOS CBP for the purpose of calculating a
composite bid for each supplier submitting bids for that product
category in a CBA. The weights are based on the beneficiary utilization
rate using national data when compared to other items in the same
product category. The beneficiary utilization rate of an item captures
the total allowed services for the item from Medicare claims submitted
for the item on a national basis. A supplier's bid for each item in the
product category is multiplied by the weight assigned to the item, and
the sum of these calculations equals the supplier's composite bid.
Contracts are offered to eligible suppliers with the lowest composite
bids. Therefore, the higher the weight for an item in a product
category, the more the bid for that item will affect the supplier's
composite bid and chances of being offered a contract for that product
category. Conversely, the lower the weight for an item in a product
category, the less the bid for that item will affect the supplier's
composite bid and chances of being offered a contract for that product
category.
Similarly, because the folding walker with wheels (E0143) is used
more frequently than the rigid walker with wheels (E0141), and more
frequently than the walkers without wheels (E0130 and E0135), it
receives a higher weight under the DMEPOS CBP than all three codes for
the less expensive, less frequently utilized codes with fewer features:
Codes E0130, E0135, and E0141. Under the 2015 fee schedule, Medicare
pays more for code E0143 than codes E0130 (rigid walkers without
wheels), E0135 (folding walkers without wheels) or E0141 (rigid walkers
with wheels). Under the Round 2 Recompete, the fact that code E0143
(folding walkers with wheels) received a far greater weight than the
other walkers that either did not fold, did not have wheels, or had
neither feature resulted in price inversions as illustrated in Table
21. The first price inversion involves a rigid walker without wheels
(E0130). A rigid walker without wheels has lower fee schedule amounts
on average and a lower weight than a folding walker without wheels
(E0135), yet under competitive bidding, it has a greater SPA than the
folding walker. The second price inversion involves a rigid walker with
wheels (E0141), which has lower fee schedule amounts on average and a
lower weight than a folding walker with wheels (E0143), but has a
greater SPA than the folding walker with wheels under competitive
bidding. The third price inversion involves a rigid walker without
wheels (E0130), which has a greater SPA than a folding walker with
wheels despite having lower fee schedule amounts on average and a lower
weight than the folding walker with wheels (E0143).

Table 21--Round 2 (2016) Price Inversions for Purchase of Walkers
----------------------------------------------------------------------------------------------------------------
Code Item 2015 Fee \1\ Avg SPA \2\
----------------------------------------------------------------------------------------------------------------
E0130...................................... Rigid Walker without Wheels.. $64.97 $47.23
E0135...................................... Folding Walker without Wheels 78.97 43.05
E0141...................................... Rigid Walker with Wheels..... 107.89 75.03
E0143...................................... Folding Walker with Wheels... 111.69 45.92
----------------------------------------------------------------------------------------------------------------
\1\ Average of 2015 fee schedule amounts for all areas.
\2\ Average of Round 2 2016 SPAs.

In all cases, Medicare pays a higher payment for walkers with
wheels than walkers without wheels under the fee schedule. This
differential in payment amounts is significant because it reflects the
fact that the walker with wheels has a feature that likely resulted in
higher fee schedule amounts for this item, making it more costly than
the same type of walker without the addition of wheels. Rather than
defining the ability of a walker to fold or the presence of wheels as a
``hierarchal'' feature, it can simply be noted that under the fee
schedule, Medicare pays more for walkers with the ability to fold than
walkers without the ability to fold and that Medicare pays more for
walkers with wheels than for walkers without wheels.
If the items with additional features are more expensive and are
also utilized more than the items without the features, a price
inversion can result in a CBA due to the item weights and how they
factor into the composite bids, as described above. Therefore, we
proposed to adopt a definition of price inversion in our regulations at
proposed Sec. 414.402 as any situation where the following occurs: (a)
One item (HCPCS code) in a grouping of similar items (for example,
walkers, enteral infusion pumps, or power wheelchairs) in a product
category includes a feature that another, similar item in the same
product category does not have (for example, wheels, an alarm, or Group
2 performance); (b) the average of the 2015 fee schedule amounts (or
initial, unadjusted fee schedule amounts for subsequent years for new
items) for the code with the feature is higher than the average of the
2015 fee schedule amounts for the code without the feature; and (c)
following a competition, the SPA for the code with the feature is lower
than the SPA for the item without

[[Page 77940]]

that feature (81 FR 42877). We proposed to classify this circumstance
as a price inversion under competitive bidding that would be adjusted
prior to revising the fee schedule amounts for the items (81 FR 42854).
For this adjustment, we considered two methodologies.
The first method we considered for addressing price inversions
(method 1) uses the methodologies at 42 CFR 414.210(g)(6) and limits
the SPA for the code without the feature to the SPA for the code with
the feature before the SPA is used to adjust the fee schedule amounts
for the item (81 FR 42854). For example, under the Round 2 Recompete,
the SPA for code E0141 for the South Haven-Olive Branch, MS CBA is
$106.52. Code E0143 describes the same type of walker, but code E0143
walkers fold, while code E0141 walkers are rigid and do not fold.
However, under the Round 2 Recompete, the SPA for code E0143 (wheeled
walkers that fold) for the South Haven-Olive Branch, MS CBA is $44.00,
or $62.52 less than the SPA for E0141 (wheeled walkers that do not
fold). The average of the 2015 fee schedule amounts for codes E0141 and
E0143 are $107.89 and $111.69, respectively. Altogether, since (a) one
walker in a product category includes a feature that another, similar
walker in the same product category does not have (in this situation,
the ability to fold); (b) the average of the 2015 fee schedule amounts
for the folding walker (E0143) is higher than the average of the 2015
fee schedule amounts for the rigid walker (EO141); and (c) the SPA for
the folding walker ($44.50) is lower than the SPA for the rigid walker
($106.52), these items would meet the proposed definition of a price
inversion under the DMEPOS CBP. Under method 1, the SPA of $106.52 for
code E0141 in this CBA would be adjusted to the SPA of $44.00 for code
E0143 in this CBA, so that $44.00, rather than $106.52, would be used
for this CBA in computing the regional price for code E0141 described
in Sec. 414.210(g)(1)(i) under the method used to adjust the fee
schedule amounts for code E0141. To further illustrate how method 1
would work, the 2016 SPAs for codes E0130, E0135, E0141, and E0143 for
the Akron, Ohio CBA, and the amounts they would be adjusted to before
applying the fee schedule adjustment methodologies are listed in Table
22 below.

Table 22--Adjustment of 2016 SPAs for Purchase of Walkers for Akron, OH To Eliminate Price Inversions With
Method 1
----------------------------------------------------------------------------------------------------------------
Adjusted
Code Item 2015 Fee \1\ 2016 SPA amount \2\
----------------------------------------------------------------------------------------------------------------
E0130........................... Rigid Walker without Wheels... $64.97 $50.85 $44.88
E0135........................... Folding Walker without Wheels. 78.97 44.88 n/a
E0141........................... Rigid Walker with Wheels...... 107.89 84.82 48.62
E0143........................... Folding Walker with Wheels.... 111.69 48.62 n/a
----------------------------------------------------------------------------------------------------------------
\1\ Average of 2015 fee schedule amounts for all areas.
\2\ The SPA would be adjusted to this amount before making adjustments to the fee schedule.

The method 1 approach is currently used for enteral infusion pumps
and standard power wheelchairs at Sec. 414.210(g)(6), and each price
inversion correction is made for a set of two items, as described in
the regulation. For example, Sec. 414.210(g)(6)(ii) states that in
situations where a single payment amount in a CBA for a Group 1,
standard, sling/solid seat and back power wheelchair is greater than
the single payment amount in the same CBA for a Group 2, standard,
sling/solid seat and back power wheelchair, the single payment amount
for the Group 1, standard, sling/solid seat and back power wheelchair
is adjusted to be equal to the single payment amount for the Group 2,
standard, sling/solid seat and back power wheelchair prior to applying
the payment adjustment methodologies in the section. We stated in the
proposed rule that, if method 1 is finalized, we would indicate that
additional price inversions involving additional sets of two items to
which this rule would apply would be identified in a table in the
preamble of the final rule (81 FR 42854). An example of such a table is
provided below in Table 23 using codes for walkers, seat lift
mechanisms, and TENS devices:

Table 23--Additional Price Inversions Subject to 42 CFR 414.210(g)(6)
----------------------------------------------------------------------------------------------------------------
Code without Code with
Item feature(s) feature(s) Feature(s) Adjustment
----------------------------------------------------------------------------------------------------------------
Walker........................ E0130 E0135 Folding.......... E0130 SPA adjusted
not to exceed (NTE)
SPA for E0135.
Walker........................ E0141 E0143 Folding.......... E0141 SPA adjusted
NTE SPA for E0143.
Walker........................ E0130 E0143 Folding, Wheels.. E0130 SPA adjusted
NTE SPA for E0143.
Walker........................ E0135 E0143 Wheels........... E0135 SPA adjusted
NTE SPA for E0143.
Seat Lift..................... E0629 E0627 \1\ Powered.......... E0629 SPA adjusted
NTE SPA for E0627.
Seat Lift..................... E0629 E0628 \1\ Powered.......... E0629 SPA adjusted
NTE SPA for E0628.
TENS.......................... E0720 E0730 Two Additional E0720 SPA adjusted
Leads. NTE SPA for E0730.
----------------------------------------------------------------------------------------------------------------
\1\ Codes E0627 and E0628 both describe powered electric seat lift mechanisms. Code E0627 describes powered seat
lift mechanisms incorporated into non-covered seat lift chairs.

The second method we considered and proposed (method 2) would limit
the SPAs in situations where price inversions occur so that the SPAs
for all of the similar items, both with and without certain features,
are limited to the weighted average of the SPAs for the items based on
the item weights assigned under competitive bidding (81 FR 42855). This
approach would factor in the supplier bids for the lower volume and
higher volume items. This would establish one payment for similar types
of items that incorporates the volume and weights for items furnished

[[Page 77941]]

prior to the unbalanced bidding and resulting price inversions. To
illustrate how method 2 would work, the 2016 SPAs for codes E0130,
E0135, E0141, and E0143 for the Vancouver, WA CBA, and the amounts they
would be adjusted to before applying the fee schedule adjustment
methodologies using the weights from Round 2 Recompete are listed in
Table 24.

Table 24--Adjustment of 2016 SPAs for Purchase of Walkers for Vancouver, WA To Eliminate Price Inversions Method
2
----------------------------------------------------------------------------------------------------------------
Round 2
Code Item 2015 Fee \1\ 2016 SPA recompete item Adjusted
weight (%) amount \2\
----------------------------------------------------------------------------------------------------------------
E0130................... Rigid Walker without $64.97 $51.62 0.1 $45.53
Wheels.
E0135................... Folding Walker without 78.97 47.65 4.8 45.53
Wheels.
E0141................... Rigid Walker with 107.89 81.62 0.5 45.53
Wheels.
E0143................... Folding Walker with 111.69 45.22 94.6 45.53
Wheels.
----------------------------------------------------------------------------------------------------------------
\1\ Average of 2015 fee schedule amounts for all areas.
\2\ The SPA would be adjusted to this amount before making adjustments to the fee schedule.

The item weights from the Round 2 Recompete for the four walker
codes in this subcategory of walkers in the table above are 0.1 percent
for E0130, 4.8 percent for E0135, 0.5 percent for E0141, and 94.6
percent for E0143. The weighted average of the SPA for the four walker
codes would be $45.53 ($51.62 x 0.001 + $47.65 x 0.048 + $81.62 x 0.005
+ $45.22 x 0.946). This weighted average SPA would be used to adjust
the fee schedule amounts for these four codes rather than simply
limiting the SPAs for E0135 and E0143 in Table 16 above. This method
uses item weights in a product category to adjust the SPA before making
adjustments to the fee schedule amount. In accordance with the proposed
definition of a price inversion, (a) E0135 and E0143 include features
that other, similar walkers in the same product category do not (the
ability to fold); (b) the average of the 2015 fee schedule amounts for
the folding walkers (E0135 & E0143) are higher than the average of the
2015 fee schedule amounts for the rigid walkers (E0130 & E0141); and
(c) the 2016 SPAs for the folding walkers were less than the SPAs for
the respective rigid walkers. Therefore, the SPA for code E0130 is
higher than the SPA for code E0135, the SPAs for codes E0141 and E0143
were inverted such that the SPA for code E0141 is higher than the SPA
for code E0143, and the SPAs for codes E0135 and E0143 were inverted
such that the SPA for code E0135 is higher than the SPA for code E0143.
Under the proposed method 2, these three price inversions would be
addressed so that the SPAs for all of the similar items described by
codes E0130, E0135, E0141, and E0143 in this CBA would be adjusted to
the weighted average of the SPAs for these codes for similar items in
this CBA. As a result, the adjusted SPA of $45.53 rather than $51.62,
$47.65, $81.62, and $45.22, would be used to compute the regional price
for codes E0130, E0135, E0141, and E0143, respectively, using method 2
to adjust the fee schedule amounts for these items and in accordance
with Sec. 414.210(g)(1)(i).
Although we believe that both method 1 and method 2 would correct
inverted SPAs, method 1 simply limits the amount paid for the item
without a feature(s) to the item with the feature(s), while method 2
factors in the SPAs for all of the items. Therefore, if the cost of an
item without a feature was actually more than the cost of an item with
a feature (for example, for volume discounts for the item with the
feature drives the price down below the price for the item without the
feature), method 1 would not allow the higher cost of the item without
the feature to be factored into the payment made to the suppliers of
the items. Therefore, we proposed to use method 2 because it took into
account the supplier bids for all of the similar items when
establishing the payment amounts used to adjust fees; and therefore,
factors in contemporary information relative to bids and supplier
information for various items with different features and costs (81 FR
42855). The SPAs established based on supplier bids for all of the
similar items are used to calculate the weighted average. If, for some
reason, the market costs for an item without a feature are actually
higher than the market costs for an item with the feature, due to
economies of scale, supply and demand, or other economic factors, these
costs are accounted for in the weighted average of the SPAs established
for each of the similar items. Under method 1, the SPA for the lower
weight item without a feature is limited to the SPA for the higher
weight item with the feature, and so potential cost inversions driven
by market forces or supplier costs are not accounted for in
establishing the adjusted payment amounts. We solicited comments on
both method 2, which we proposed, and method 1, which we considered.
In summary, we proposed to expand use of the method at Sec.
414.210(g)(6) to other situations where price inversions occur under
CBPs. First, we proposed to revise 42 CFR 414.402 to add the definition
of price inversion as any situation where the following occurs (81 FR
42856, 42877):
One item (HCPCS code) in a grouping of similar items (for
example, walkers, enteral infusion pumps or power wheelchairs) in a
product category includes a feature that another, similar item in the
same product category does not have (for example, wheels, alarm, or
Group 2 performance);
The average of the 2015 fee schedule amounts (or initial,
unadjusted fee schedule amounts for subsequent years for new items) for
the code with the feature is higher than the average of the 2015 fee
schedule amounts for the code without the feature; and
The SPA in any year after and including 2016 for the code
with the feature is lower than the SPA for the code without that
feature.
Second, we proposed to revise Sec. 414.210(g)(6) to specify that,
in situations where price inversions occur under a CBP, the SPAs for
the items would be adjusted before applying the fee schedule adjustment
methodologies under Sec. 414.210(g) (81 FR 42877). We proposed that
the adjustments to the SPAs would be made using method 2 described
above (81 FR 42855). We also proposed changes to the regulation text at
Sec. 414.210(g)(6) to reflect use of method 2 to adjust the SPAs for
all of the similar items where price inversions have occurred, both
with and without certain features, so that they are limited to the
weighted average of the SPAs for

[[Page 77942]]

the items in the product category in the CBA before applying the fee
schedule adjustment methodologies under Sec. 414.210(g) (81 FR 42856,
42877). We proposed to apply this rule to price inversions as defined
in the proposed rule for the groupings of similar items listed in the
Table 18 of the proposed rule and identified again below in Table 25
(81 FR 42856). For the purpose of calculating the weighted average at
proposed Sec. 414.210(g)(6)(iii), we proposed to add a definition of
``total nationwide allowed services'' at Sec. 414.202, to mean the
total number of services allowed for an item furnished in all states,
territories, and the District of Columbia where Medicare beneficiaries
reside and can receive covered DMEPOS items and services (81 FR 42856,
42877). We proposed to define the weight for each code in a grouping of
similar items at Sec. 414.210(g)(6)(iii) for purposes of calculating
the weighted average as the proportion of the total nationwide allowed
services for the code for claims with dates of service in calendar year
2012 relative to the total nationwide allowed services for each of the
other codes in the grouping of similar items for claims with dates of
service in calendar year 2012. We proposed to use data from calendar
year 2012 because this is the most recent calendar year that includes
data for items furnished before implementation of Round 2 of the CBP
and the beginning of the price inversions (81 FR 42856). The weights
reflect the frequency that covered items in a grouping of similar items
were furnished in calendar year 2012 on a national basis relative to
other items in the grouping.

Table 25--Groupings of Similar Items
------------------------------------------------------------------------
Grouping of similar items HCPCS codes \1\
------------------------------------------------------------------------
Enteral Infusion Pumps................. B9000, B9002.
Hospital Beds.......................... E0250, E0251, E0255, E0256,
E0260, E0261, E0290, E0291,
E0292, E0293, E0294, E0295,
E0301, E0302, E0303, E0304.
Mattresses and Overlays................ E0277, E0371, E0372, E0373.
Power Wheelchairs...................... K0813, K0814, K0815, K0816,
K0820, K0821, K0822, K0823.
Seat Lift Mechanisms................... E0627, E0628, E0629.
TENS Devices........................... E0720, E0730.
Walkers................................ E0130, E0135, E0141, E0143.
------------------------------------------------------------------------
\1\ The descriptions for each HCPCS code are available at: https://www.cms.gov/Medicare/Coding/HCPCSReleaseCodeSets/Alpha-Numeric-HCPCS.html.

C. Response to Comments on the Method for Adjusting DMEPOS Fee Schedule
Amounts for Similar Items With Different Features Using Information
From Competitive Bidding Programs

We solicited comments on the method for adjusting DMEPOS fee
schedule amounts for similar items with different features using
information from competitive bidding programs and received 8 public
comments on our proposals, including comments from DMEPOS manufacturers
and suppliers.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Some commenters suggested there are underlying/additional
issues to price inversions and suggest that CMS analyze the history of
the product group and how payment rates for the applicable codes were
originally established. Comments suggested other factors may have
caused price inversions such as the method used to ``gap-fill'' fee
schedule amounts for items when the data mandated by the statute for
calculating the fee schedule amounts does not exist, awarding contracts
under the CBP based on composite bids (individual bids for items
multiplied by item weights), and establishing single payment amounts
under the CBP based on the median of bids submitted. Some commenters
suggested that these underlying issues should be addressed and the
competitions re-competed in order to address the situation.
Response: We appreciate the comments but do not agree with these
comments. The fee schedule amounts for walkers, TENS devices, and
hospital bed codes E0250 through E0261 were established based on
average reasonable charges from 1986 and 1987 as mandated by section
1834(a) of the Act. The fee schedule amounts for these items, based on
supplier's average reasonable charges, are higher as more features are
added to the items (for example wheels, folding, 4 lead rather than 2
lead, with mattress, variable height, and semi-electric). The fee
schedule amounts for hospital beds without side rails (for example
E0294) were gap-filled using the fee schedule amounts for hospital beds
with side rails (for example E0260) and subtracting the fee schedule
amounts for side rails (E0305 and E0310). We do not agree that the
establishment of fee schedule amounts contributed to price inversions
since the fee schedule amounts increased with addition of a feature
when fees were established under both the reasonable charge and gap-
filling methodologies. The fee schedule amounts for heavy duty hospital
beds (E0301 thru E0304) were established based on manufacturer
suggested retail prices and are higher than the fee schedule amounts
for the standard weight versions of these beds to reflect the ability
to accommodate heavier patients. The fee schedule amounts for electric
and non-electric seat lift mechanisms are very similar, with the fee
schedule amounts for electric seat lift mechanisms being slightly
higher than the fee schedule amounts for the seat lift mechanisms
without the power feature. The fee schedule amounts for power
wheelchairs are based on manufacturer suggested retail prices and in no
case does the fee schedule amount for a Group 1 power wheelchair exceed
the fee schedule amount for the Group 2 version of the same type of
power wheelchair. The fee schedule amounts for enteral infusion pumps
(code B9000 for the pump without alarm and code B9002 for the pump with
alarm) are the same. For hospital beds, power wheelchairs, and enteral
infusion pumps, in no case was a fee schedule amount for an item
without a feature established so that it exceeded the fee schedule
amount for an item with the feature. For this reason, we do not believe
that the methods used to establish fee schedules contributed to price
inversions. The fee schedule amounts for Group 2 support surfaces
(mattresses and overlays) are addressed below. We do not believe that
using composite bids to select contract suppliers for contract award or
median bids to establish single payment

[[Page 77943]]

amounts under the competitive bidding program are underlying causes for
the price inversions.
Establishing single payment amounts based on the median of bids (as
opposed to the highest bid) is applied consistently to each item in the
product category and reflects the bids of all of the winning suppliers
rather than just one. It is also similar to how the DME fee schedule
amounts were initially established for each item, either based on
average reasonable charges or average supplier prices (as opposed to
the highest charge or price). We fail to see how establishing SPAs
under the CBP using median bid amounts is an underlying cause of price
inversions. We believe that use of composite bids is necessary when a
competition under the CBP is for a group of items versus a single item.
It is the method used to determine which bids are the most competitive
(that is, generate the most savings) for the items in the product
category as a whole. Use of a composite bid would not be necessary if
the competition under the program were for a single item (for example,
for one HCPCS code for oxygen and oxygen equipment used to bill and
receive payment for all items and services furnished on a monthly basis
related to oxygen and oxygen equipment). Therefore, we do not believe
price inversions are caused by use of composite bids and item weights
alone. Based on our analysis and the examples we discussed previously,
we believe the problem results when there are multiple codes for items
that can be substituted for one another because they serve the same
general purpose (for example, standard power wheelchairs), but have
different item weights that may vary significantly. As discussed in the
proposed rule, price inversions result under the CBP when different
item weights are assigned to similar items with different features
within the product category. To prevent this from occurring under
future competitions, we proposed, and as discussed in this final rule,
an alternative ``lead item'' bidding method addressed in the section on
submitting bids and determining single payment amounts for certain
groupings of similar items with different features under the DMEPOS CBP
(81 FR 42862).
In the interim period before this new bidding method, which we are
adopting in this final rule, can be implemented, we must maintain the
current contracts and payment amounts currently in effect, as required
by section 1847(a) of the Act. We do not believe that other changes are
necessary to address price inversions during this interim period. Under
the final regulation, we will adjust inverted SPA prices prior to
adjusting the fee schedule amounts for items that have been
specifically listed in the rule.
Comment: Some commenters suggested that a definition be established
for a ``grouping of similar items or products'' to require that all
items included in the grouping be comprised of items with the exact
same features or some subset of those features. A few commenters
suggested further sub-groupings of items into smaller groups with
similar features, such as a separate grouping for heavy duty hospital
beds. These commenters also suggested that a definition be established
for ``product feature(s)'' to require that feature(s) differentiating
products within the group subject to the rule provide additional
functional or clinical necessity.
Response: We appreciate the comments but do not agree that either
definition is necessary because this specific groupings of items and
the specific items within each grouping that would be subject to the
proposed rule were listed in the proposed rule, and the definition of
price inversion was included in the proposed rule, to identify
situations where the SPA's for these items would be considered
inverted.
We do not believe that a definition of product feature(s) is needed
because we believe that situations where one item includes a certain
feature and another item does not include that feature is clear, and
generally Medicare should not pay more for the item without the feature
than with a feature under any circumstances. Items without features
should be paid less or equal to an item with a feature because the
addition of a feature adds value to an item. We believe, for example,
the Medicare payment rate for a non-electric hospital bed with side
rails and mattress should not be higher than the payment rate for a
semi-electric hospital bed with side rails and mattress. The Medicare
program would be paying more for less features such as the non-electric
bed. Likewise, we believe the Medicare payment rate for a semi-electric
hospital bed without a mattress should not be higher than the Medicare
payment rate for a semi-electric hospital bed with a mattress.
We do not believe that establishing smaller ``subgroupings'' of
items is necessary because the groupings of items, relate to the items
where existing price inversions have been identified for two or more of
the codes in at least one CBA. In some cases, a code in a grouping may
not be involved in a price inversion with another code in the grouping,
and no adjustment is therefore necessary to adjust the difference in
the SPAs for the two codes. In the case of heavy duty hospital beds, we
have not determined that any price inversions have occurred where the
SPA for a standard weight bed exceeds the SPA for a heavy duty version
of the same bed. As such, there would be no situation where an SPA for
a heavy duty bed will be adjusted using a weighted average of an SPA
for a standard weight bed and an SPA for a heavy duty bed. The price
inversions that have occurred for heavy duty beds within the grouping
of codes for hospital beds have involved situations where the SPA for a
heavy duty bed without a mattress is higher than the SPA for the same
type of heavy duty bed with a mattress (the exact same feature). The
changes we are finalizing to the regulation for addressing this
situation are to adjust the SPAs for both heavy duty beds based on the
weighted average of the SPAs for both heavy duty beds. The SPAs for
standard weight beds would not be affected by this adjustment.
Therefore, we are finalizing as we proposed.
Comment: Some commenters believe that that the grouping for
mattresses and overlays (HCPCS codes E0277, E0371, E0372 and E0373)
should not be subject to the rule. The commenters believe that there
may be valid reasons why the cost of a non-powered mattress or overlay
falling under the general category of Group 2 support surfaces may be
higher than the costs of a powered mattress or overlay falling under
the general category of Group 2 support surfaces. For example, a non-
powered mattress or overlay product cannot be billed to Medicare until
it has been classified under a HCPCS code by the Medicare Pricing, Data
Analysis, and Coding (PDAC) contractor. These are costs that a powered
mattress or overlay system do not incur. The commenters stated that
there is no evidence that the powered systems are more effective or are
superior to the non-powered mattresses and overlays.
Response: We appreciate the comments, however we do not agree. The
fee schedule amounts for all four codes for Group 2 support surfaces
(E0277, E0371, E0372, and E0373) were established from 1992 to 1996
using the same gap-filling methodology. Manufacturer suggested retail
prices were used from the same general timeframe for various products
falling under each code. The fee schedule amounts for the Group 2
overlays (E0371 and E0372) established in 1996 initially as codes K0413
and K0414, respectively, and non-powered mattress (E0373) established
in 1997 initially as

[[Page 77944]]

code K0464, did not exceed the fee schedule amounts for powered
mattress code E0277, but would have been limited to the fees for code
E0277 if they had exceeded those amounts. The position of CMS in 1996
and 1997 and today is that the fee schedule amounts for overlays should
not exceed the fee schedule amounts for mattresses, and that the fee
schedule amounts for a non-powered Group 2 mattress should not exceed
the fee schedule amounts for a powered Group 2 mattress. The addition
of power or a complete mattress rather than an overlay that sits on top
of a standard mattress are recognized as additional features. This
position is supported by the structure of fee schedule amounts for
Group 1 support surfaces calculated using average reasonable charges
from 1986 and 1987. The fee schedule amounts for Group 1 mattresses are
higher than the fee schedule amounts for Group 1 overlays, and fee
schedule amounts for powered overlays are higher than the fee schedule
amounts for non-powered overlays. We believe our proposal, which we are
finalizing as proposed, provides a solution to address price inversions
for this grouping of items that is necessary to avoid the risk of
beneficiaries receiving items with less functionality (for example, a
non-powered overlay), and preventing access to items with more
functionality (for example, a powered mattress system), only because
the payment amounts for the non-powered items are higher than the
payment amounts for the powered items, or, as has occurred in 128 out
of 130 competitive bidding areas, because the payment amounts for a
non-power overlay (a support surface that is neither powered, nor
mattress size) are higher than the payment amounts for a powered
mattress system. The cost incurred to have a product code verified by
the PDAC under codes E0371 or E0373 is a one-time, insignificant cost
and prevents products from being classified as Group 1 products paid
below $200 under the current fee schedule rather than Group 2 products
paid at fee schedule amounts exceeding $3,000 under the current fee
schedule.
Comment: Four of the eight commenters provided comments regarding
the method to be used for adjusting SPAs in situations where price
inversions have occurred. Three commenters preferred the proposed
method 2, where a weighted average of the SPAs for the items involved
in the price inversion is used to establish the payment amount for all
of the items. The commenters favored this method because it takes into
account the SPAs and supplier bids for all of the items involved in the
price inversion rather than simply limiting the SPA for the lower
volume item without a certain feature(s) to the higher volume item with
the feature(s). One commenter preferred alternative method 1, where the
SPA for the lower volume item without a certain feature(s) is limited
to the SPA for the higher volume item with the feature(s). Method 1 is
the method in the regulations that currently addresses price inversions
for enteral infusion pumps and standard power wheelchairs. This
commenter stated that since method 2 calculates a weighted average
single payment amount using the item volume weights for groupings for
similar items assigned under competitive bidding, it has the potential
to compound unintended consequences with the assumption that current
pricing and volume using ``total nationwide allowed services'' for
multiple products will be balanced by a weighted average.
Response: We agree with the three commenters that method 2 should
be used rather than method 1 for the reasons noted above. The weighted
average approach takes into account the supplier's bids for all of the
items in the grouping of items and therefore addresses the commenter's
concerns that the supplier bids for the lower volume items be taken
into account in setting the payment amounts for the items. We do not
understand what the commenter that favored method 1 versus method 2
means by ``compounding unintended consequences'' and so it is not clear
why the commenter suggested method 1 over method 2.
Final Rule Action: After consideration of comments received on the
proposed rule and for the reasons we set forth previously, we are
finalizing the proposed revisions to Sec. 414.210(g)(6), with two
technical changes. As a result of the administrative HCPCS editorial
process, code B9000 for enteral infusion pumps without alarm is
discontinued, effective January 1, 2017. Since only one code (B9002),
rather than a group of codes, will remain in the HCPCS for enteral
infusion pumps, there will no longer be multiple codes for this
category of items, and so the proposed grouping of enteral infusion
pumps is being removed from this section and therefore, not being
finalized. Similarly, a decision was made to discontinue HCPCS code
E0628 for electric seat lift mechanisms, effective January 1, 2017, and
therefore this code is being removed from the grouping of seat lift
mechanisms in this section and not being finalized in the regulation.
We are also finalizing the proposed definitions at Sec. 414.402 of
``price inversion'' and ``total nationwide allowed services.''

VII. Submitting Bids and Determining Single Payment Amounts for Certain
Groupings of Similar Items With Different Features Under the Durable
Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)
Competitive Bidding Program (CBP)

A. Background on the DMEPOS CBP

Medicare pays for most DMEPOS furnished after January 1, 1989,
pursuant to fee schedule methodologies set forth in sections 1834 and
1842 of the Social Security Act (the Act). Specifically, subsections
(a) and (h) of section 1834 and subsection (s) of section 1842 of the
Act provide that Medicare payment for these items is equal to 80
percent of the lesser of the actual charge for the item or a fee
schedule amount for the item. The regulations implementing these
provisions are located at 42 CFR part 414, subparts C and D.
Section 1847(a) of the Act, as amended by section 302(b)(1) of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA) (Pub. L. 108-173), requires the Secretary to establish and
implement CBPs in competitive bidding areas (CBAs) throughout the
United States for contract award purposes for the furnishing of certain
competitively priced DMEPOS items and services. Section 1847(b)(5) of
the Act directs the Secretary to base the SPA for each item or service
in each CBA on the bids submitted and accepted in the CBP. For
competitively bid items, the SPAs have replaced the fee schedule
payment methodology. Section 1847(b)(5) of the Act provides that
Medicare payment for these 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. Section 1847(b)(2)(A)(iii) of the Act prohibits the
Secretary from awarding a contract to an entity in a CBA unless the
Secretary finds that the total amounts to be paid to contractors in a
CBA are expected to be less than the total amounts that would otherwise
be paid. This requirement aims to guarantee savings to both the
Medicare program and its beneficiaries.
We implemented CBPs in 9 Round 1 metropolitan statistical areas on
January 1, 2011, and an additional 91 Round 2 metropolitan statistical
areas on July 1, 2013. Bids are submitted during a 60-day bidding
period allowing suppliers adequate time to prepare and submit

[[Page 77945]]

their bids. We then evaluated each submission and awarded contracts to
qualified suppliers in accordance with the requirements of section
1847(b)(2) of the Act, Sec. 414.414, which specifies conditions for
awarding contracts, and Sec. 414.416, which specifies how single
payment amounts are established.

B. Summary of the Proposed Provisions on Submitting Bids and
Determining Single Payment Amounts for Certain Groupings of Similar
Items With Different Features Under the DMEPOS Competitive Bidding
Program

The proposed rule, titled ``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 42802 through
42880), was published in the Federal Register on June 30, 2016, with a
comment period that ended on August 23, 2016. Under the heading of
Submitting Bids and Determining Single Payment Amounts for Certain
Groupings of Similar Items with Different Features under the DMEPOS
CBP, we proposed to establish an alternative bidding method in proposed
Sec. 414.412(d)(2) that could be used to avoid price inversions
discussed above in section VI of the proposed rule (81 FR 42877). Under
this alternative bidding method, one item in the grouping of similar
items would be the lead item for the grouping for bidding purposes. The
item in the grouping with the highest allowed services during a
specified base period, as detailed below, would be considered the lead
item of the grouping (8 FR 42858 through 42859). For purposes of this
final rule, the lead item bidding method described below only applies
to the groupings of similar items with different features identified in
this rule, and does not apply to other items not listed in this rule
that may be in the same product category as the items listed in this
rule.
For each grouping of similar items, we proposed that the supplier's
bid for the lead item would be used as the basis for calculating the
SPAs for the other items within that grouping, based on the ratio of
the average of the fee schedule amounts for each item for all areas
nationwide in 2015, to the average of the fee schedule amounts for the
lead item for all areas nationwide in 2015 (81 FR 42859, 42878). In
proposed Sec. 414.412(d)(2), we proposed to use the fee schedule
amounts for 2015 for the purpose of maintaining the relative difference
in fee schedule amounts for the items in each grouping as it existed
prior to any adjustments being made to the amounts based on information
from the CBPs (81 FR 42877). This is to avoid the impact of price
inversions that have occurred in pricing items under the CBP from
affecting the relative difference in fee schedule amounts for the
items. Under the CBP, we found price inversions for groupings of
similar items within the following categories: Standard power
wheelchairs, walkers, hospital beds, enteral infusion pumps, TENS
devices, support surface mattresses and overlays and seat lift
mechanisms. These groupings of similar items are a subset of similar
items with different features identified in this rule, as opposed to
entire product categories.
Under the proposed lead item bidding method, a supplier submits one
bid amount for furnishing all of the items in the grouping (for
example, standard power wheelchairs), rather than submitting bid
amounts for each individual HCPCS code describing each different item
(81 FR 48259). The competitive bidding item in this case (for example,
standard power wheelchairs) is a combination of HCPCS codes (for
example, K0813 thru K0829) for power wheelchairs with different
features (Group 1/Group 2, portable/standard weight/heavy duty weight/
very heavy duty weight/extra heavy duty weight, sling seat/captains
chair). Suppliers submitting bids under the method will understand that
if their bid is in the winning range, it would be used to establish the
single payment amounts for all of the codes in the grouping. Suppliers
will therefore take into account the cost of furnishing all of the
items described by the various codes when determining their bid amount
for the lead item. Thus, to avoid cases of price inversions, the
supplier is submitting a bid for an item (for example, standard power
wheelchair), and for lead item bidding purposes, an ``item'' is a
product that is identified by a combination of codes, as described in
Sec. 414.402. We also believe that the proposed lead item bidding
method would greatly reduce the burden on suppliers of formulating and
submitting multiple bids for similar items because it would require
less time to enter their bids and would reduce the chances of keying
errors when submitting bids. The lead item bidding method is intended
to prevent future price inversions for a grouping of similar items,
including codes for items (for example, total electric hospital beds)
where price inversions have not occurred thus far, but where we believe
price inversions would be likely based on information about the fee
schedule amounts and the utilization of these items. By applying the
lead item bidding method to all hospital beds, including total electric
hospital beds, this prevents price inversions from occurring for all
hospital beds. We also believe it is a more efficient method for
implementing CBPs and pricing.
To identify the lead item, we proposed using allowed services from
calendar year 2012 for the first time this bidding method is used for
specific items in specific CBAs (81 FR 42859). We did not observe price
inversions under the Round 1 competitions and contracts that were in
effect from January 2011 through December 2013. The price inversions
began with the Round 2 competitions and contracts that began on July 1,
2013; therefore, we proposed using data for allowed services from
calendar year 2012 to ensure that the effects of price inversions do
not impact the utilization of the various items that is used to
identify the lead item. Once this bidding method has been used in all
competitions for an item (for example, standard power wheelchairs), we
proposed that the lead item would be identified for future competitions
based on allowed services for the items at the time the subsequent
competitions take place rather than the allowed services from calendar
year 2012. For example, using allowed services from calendar year 2012
is necessary to identify the lead items initially since utilization of
items for years subsequent to 2012 could be affected by the price
inversions that began with the Round 2 competitions and contracts on
July 1, 2013. Once the lead item bidding method is implemented for a
grouping of similar items, and the price inversions are eliminated,
utilization of items for years subsequent to the point at which the
price inversions are eliminated can be used for the purpose of
identifying the lead item because they would not be affected by price
inversions. This will also help to prevent price inversions in adjusted
fee schedule amounts using competitive bidding SPAs. We proposed to
announce which items would be subject to this bidding method at the
start of each competition in each CBA where

[[Page 77946]]

this bidding method is used (81 FR 42859).
The following Tables 26, 27, and 28 show how the lead item for
three groupings of similar items (standard power wheelchairs, walkers,
and hospital beds, respectively) would be identified using 2012 allowed
services and how the SPAs would be established based on the method
described above. Under the proposal, when bidding for the lead item, a
supplier is bidding to furnish the entire grouping of similar items. In
the tables below, the lead items identified would be the lead items in
initial competitions where the lead item bidding method is used. The
first proposed category for lead item bidding is standard power
wheelchairs (81 FR 42860).

Table 26--Lead Item Bidding for Standard Power Wheelchairs and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
K0823 (lead item).................. Group 2 Captains Chair, 1,108,971 $578.51 1.00
Standard Weight.
K0825.............................. Group 2 Captains Chair, 122,422 637.40 1.10
Heavy Duty.
K0822.............................. Group 2 Sling Seat, 99,597 574.73 0.99
Standard Weight.
K0824.............................. Group 2 Sling Seat, Heavy 10,609 696.23 1.20
Duty.
K0827.............................. Group 2 Captains Chair, 6,683 766.42 1.32
Very Heavy Duty.
K0814.............................. Group 1 Captains Chair, 6,287 443.98 0.77
Portable.
K0816.............................. Group 1 Captains Chair, 2,176 484.14 0.84
Standard Weight.
K0826.............................. Group 2 Sling Seat, Very 1,063 901.38 1.56
Heavy Duty.
K0821.............................. Group 2 Captains Chair, 1,048 475.55 0.82
Portable.
K0813.............................. Group 1 Sling Seat, 771 346.83 0.60
Portable.
K0815.............................. Group 1 Sling Seat......... 545 505.52 0.87
K0828.............................. Group 2 Sling Seat, Extra 114 993.20 1.72
Heavy Duty.
K0829.............................. Group 2 Captains Chair, 105 912.06 1.58
Extra Heavy Duty.
K0820.............................. Group 2 Sling Seat, 46 370.46 0.64
Portable.
----------------------------------------------------------------------------------------------------------------

Rather than submitting 14 individual bids for each of the 14 items,
the supplier would submit one bid for the lead item. The SPA for lead
item K0823 would be based on the median of the bids for this code,
following the rules laid out in Sec. 414.416(b) and for calculating
rental amounts pursuant to Sec. 414.408(h)(2). The SPAs for the other
items would be based on the relative difference in fees for the other
items as compared to the lead item. For example, if the SPA for code
K0823 is $300.00, the SPA for code K0825 would be equal to $330.00, or
$300.00 multiplied by 1.1. Similarly, if the SPA for code K0823 is
$300.00, the SPA for code K0816 would be equal to $252.00, or $300.00
multiplied by 0.84. Suppliers submitting bids would be educated in
advance that their bid for code K0823 is a bid for all 14 codes and
bidding suppliers would factor this into their decision on what amount
to submit as their bid for the lead item. This would avoid price
inversions and would carry over the relative difference in item weight
that establishes Medicare payment amounts for standard power
wheelchairs under the fee schedule into the CBPs. The second proposed
category for lead item bidding is walkers as shown in Table 27 below.
Under our proposal, when bidding for the lead item, a supplier is
bidding to furnish the entire grouping (81 FR 42860).

Table 27--Lead Item Bidding for Walkers and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 purchase Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
E0143 (lead item).................. Folding With Wheels........ 958,112 $111.69 1.00
E0135.............................. Folding.................... 56,399 78.97 0.71
E0149.............................. Heavy Duty With Wheels..... 23,144 214.34 1.92
E0141.............................. Rigid With Wheels.......... 6,319 107.89 0.97
E0148.............................. Heavy Duty................. 4,366 122.02 1.09
E0147.............................. Heavy Duty With Braking & 4,066 551.98 4.94
Variable Wheel Resistance.
E0140.............................. With Trunk Support......... 1,483 346.38 3.10
E0144.............................. Enclosed With Wheels & Seat 1,275 305.95 2.74
E0130.............................. Rigid...................... 788 64.97 0.58
----------------------------------------------------------------------------------------------------------------

Rather than submitting 9 individual bids for each of the 9 items,
the supplier would submit one bid for the lead item. The SPA for lead
item E0143 would be based on the median of the bids for this code,
following the rules laid out in Sec. 414.416(b) and for calculating
rental and purchase amounts per Sec. 414.408(f) and (h)(7). We
proposed to include a new Sec. 414.416(b)(3) that would include the
lead item bidding method (81 FR 42860, 42878). The SPAs for the other
items would be based on the relative difference in fees for the item
compared to the lead item, following the rules for inexpensive or
routinely purchased items at Sec. 414.408(f) and (h)(7), and, for
E0144, following the rules for capped rental items at Sec.
414.408(h)(1). For example, if the SPA for purchase for code E0143 is
$80.00, Medicare payment for rental of E0143 would be $8.00 per month
in accordance with Sec. 414.408(h)(7), and the SPA for purchase of
E0143 used would be $60.00. The SPAs for code E0135 would be equal to
$56.80 ($80.00 multiplied by 0.71), for purchase of a new E0135 walker,
$5.68 per month for rental of E0135, and $42.60 for purchase of a used
E0135 walker. The SPAs for rental of code E0144 would be equal to
$21.92 ($8.00 multiplied by 2.74) for rental

[[Page 77947]]

months 1 through 3, and $16.44 for rental months 4 through 13.
Suppliers submitting bids would be educated in advance that their bid
for code E0143 is a bid for all 9 codes and bidding suppliers would
factor this into their decision on what amount to submit as their bid
for the lead item. This would avoid price inversions and would carry
over the relative difference in item weights that establish Medicare
payment amounts for walkers under the fee schedule into the CBPs.
The third proposed category for lead item bidding is hospital beds
as shown in Table 28. Under the proposal, when bidding for the lead
item, a supplier is bidding to furnish the entire grouping (81 FR 42860
through 42861).

Table 28--Lead Item Bidding for Hospital Beds and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
E0260 (lead item).................. Semi-Electric With Mattress 2,201,430 $134.38 1.00
& Side Rails.
E0261.............................. Semi-Electric With Side 109,727 124.20 0.92
Rails.
E0303.............................. Heavy Duty Extra Wide With 47,795 284.67 2.12
Mattress & Side Rails.
E0265.............................. Total Electric With 37,584 185.75 1.38
Mattress & Side Rails.
E0255.............................. Variable Height With 25,003 108.10 0.80
Mattress & Side Rails.
E0250.............................. Fixed Height With Mattress 15,075 88.95 0.66
& Side Rails.
E0295.............................. Semi-Electric.............. 15,056 113.78 0.85
E0294.............................. Semi-Electric With Mattress 9,446 119.93 0.89
E0301.............................. Heavy Duty Extra Wide With 6,075 252.96 1.88
Side Rails.
E0256.............................. Variable Height With Side 4,135 76.53 0.57
Rails.
E0304.............................. Extra Heavy Duty Extra Wide 2,448 737.98 5.49
With Mattress & Side Rails.
E0266.............................. Total Electric With Side 1,969 166.51 1.24
Rails.
E0251.............................. Fixed Height With Side 1,463 68.26 0.51
Rails.
E0297.............................. Total Electric............. 957 129.68 0.97
E0296.............................. Total Electric With 955 148.29 1.10
Mattress.
E0302.............................. Extra Heavy Duty Extra Wide 732 685.28 5.10
With Side Rails.
E0292.............................. Variable Height With 305 76.97 0.57
Mattress.
E0293.............................. Variable Height............ 189 65.29 0.49
E0290.............................. Fixed Height With Mattress. 64 67.29 0.50
E0291.............................. Fixed Height............... 7 48.85 0.36
----------------------------------------------------------------------------------------------------------------

Rather than submitting 20 individual bids for each of the 20 items,
the supplier would submit one bid for the lead item. The SPA for lead
item E0260 would be based on the median of the bids for this code,
following the rules laid out in Sec. 414.416(b) and for calculating
rental amounts per Sec. 414.408(h)(1). The SPAs for the other items
would be based on the relative difference in the average of the 2015
fee schedule amounts for the item compared to the lead item. For
example, if the SPA for code E0260 is $75.00, the SPA for code E0261
would be equal to $69.00, or $75.00 multiplied by 0.92. Suppliers
submitting bids would be educated in advance that their bid for code
E0260 is a bid for all 20 codes and bidding suppliers would factor this
into their decision on what amount to submit as their bid for the lead
item.
The fourth through seventh proposed categories for lead item
bidding are as are shown in Table 29, Table 30, Table 31 and Table 32.
Under our proposal, when bidding for the lead item, a supplier is
bidding to furnish the entire grouping (81 FR 42861).

Table 29--Lead Item Bidding for Enteral Infusion Pumps and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
B9002 (lead item).................. Pump with alarm............ 265,890 $121.70 1.00
B9000.............................. Pump without alarm......... 935 115.47 0.95
----------------------------------------------------------------------------------------------------------------

Table 30--Lead Item Bidding for TENS Devices and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
E0730 (lead item).................. 4 lead..................... 267,428 $402.70 1.00
E0720.............................. 2 lead..................... 46,238 388.83 0.97
----------------------------------------------------------------------------------------------------------------

Table 31--Lead Item Bidding for Support Surface Mattress/Overlay and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
E0277 (lead item).................. Powered mattress........... 139,240 $663.22 1.00

[[Page 77948]]

E0372.............................. Powered air mattress 2,076 505.82 0.76
overlay.
E0371.............................. Nonpowered mattress overlay 1,444 416.85 0.63
E0373.............................. Nonpowered mattress........ 716 576.84 0.87
----------------------------------------------------------------------------------------------------------------

Table 32--Lead Item Bidding for Seat Lift Devices and Relative Difference in Fees
----------------------------------------------------------------------------------------------------------------
Allowed Average of
HCPCS Features services for 2015 rental Fee relative
2012 fees to lead item
----------------------------------------------------------------------------------------------------------------
E0627 (lead item).................. Electric, in chair *....... 49,162 $372.22 1.00
E0629.............................. Non-electric............... 5,901 366.70 0.99
E0628.............................. Electric................... 5,091 372.22 1.00
----------------------------------------------------------------------------------------------------------------
* Chair excluded from coverage by section 1861(n) of the Act.

In summary, we proposed to revise Sec. 414.412(d) to add this
bidding method as an alternative to the current method for submitting
bid amounts for each item in the seven groupings of similar items
identified above (81 FR 42862). Suppliers participating in future CBPs
may be required to use this method when submitting bids for these
groups of similar items. Also, we proposed to revise Sec.
414.416(b)(3) to add the method for calculating SPAs for items within
each grouping of similar items based on the SPAs for lead items within
each grouping of similar items (81 FR 42878). We believe that the
proposed method would better accomplish the CBP objectives, which
include reducing the amount Medicare pays for DMEPOS and limiting the
financial burden on beneficiaries by reducing their out-of-pocket
expenses for DMEPOS they obtain through the CBP (72 FR 17996).
We believe this approach to bidding would safeguard beneficiaries
from receiving items with fewer features simply because of the price
inversions. We also believe that the proposed lead item bidding method
would greatly reduce the burden on suppliers of formulating and
submitting multiple bids for similar items because it would require
less time to enter bids and would reduce the chances of keying errors
when submitting bids. Finally, we believe this approach would safeguard
beneficiaries and the Medicare Trust Fund from paying higher amounts
for items with fewer features.

C. Response to Comments on Submitting Bids and Determining Single
Payment Amounts for Certain Groupings of Similar Items With Different
Features Under the DMEPOS Competitive Bidding Program

We solicited comments on this section. We received 4 public
comments on our proposals from medical device manufacturers and
suppliers.
The comments and our responses to the comments for these proposals
are set forth below.
Comment: One commenter believes that the lead item bidding method
does not align with Congressional intent for basing payment for items
under the competitive bidding program on bids submitted and accepted
for a single item.
Response: We believe that single payment amounts under the program
are based on bids submitted and accepted for covered items and services
described in section 1847(a)(2) of the Act. DMEPOS items and services
are also described by HCPCS codes, which group covered items and
services into categories for billing purposes. For the purpose of
implementing the DMEPOS competitive bidding program, the definition of
``item'' at Sec. 414.402 states that an item is a product that is
identified by a HCPCS code or a combination of codes and/or modifiers.
Therefore, we maintain that under the DMEPOS competitive bidding
program, an item can be a group of HCPCS codes, such as a group of
codes for similar items with different features under the proposed lead
item bidding method. Under the lead item bidding method, suppliers take
into account the cost of furnishing all of the covered items and
services into their bid for the lead item, just as they would take into
account the cost of furnishing a range of covered items and services
described by a single HCPCS code, as HCPCS codes rarely describe a
single DMEPOS product. One alternative to the lead item bidding method
for eliminating price inversions under the DMEPOS competitive bidding
program is to eliminate the multiple codes from the HCPCS for similar
items with different features and establish a single code that
describes all the items and services (for example, one codes for
``hospital bed, any type, includes all related accessories''). This is
a long term alternative we can consider in the future to address price
inversions if we determine that there is no need for multiple codes for
similar items.
Comment: One commenter believes that it is unreasonable to keep
constant the relative price difference among items under the fee
schedule, as product prices could vary over time due to market factors
and other reasons.
Response: We appreciate these comments, but do not agree that the
lead item bidding method would prevent suppliers from accounting for
changes in costs for the items over time or that it is unreasonable to
keep the relative difference in prices constant for the items and
services identified in the proposed rule. If, for example, the costs of
Group 1 power wheelchairs increases over time, suppliers can take these
costs into account in submitting their bid for the lead item, a Group 2
power wheelchair, as their bid is used to calculate the payment amounts
for all of the items in the grouping of similar items. If the costs of
Group 1 power wheelchairs increases to the point where they cost more
than a Group 2 power wheelchair, the supplier can elect to furnish the
lower cost Group 2 power wheelchair instead, since this

[[Page 77949]]

product would also meet the needs of the beneficiary. Or, alternatively
as a long term solution if we determine that there is not a need for
multiple codes for the similar items with different features can be
eliminated from the HCPCS and a single code can be established that
describes all the items and services (for example, standard power
wheelchair, any type). This would address the issue of price inversions
as well, and the supplier would take into account the cost of
furnishing the different types of standard power wheelchairs into their
bid for the single code, just as they would under the lead item bidding
method.
Comment: Commenters suggested that (1) other factors other than
allowed services should be considered when determining lead items such
as allowed payment amounts for HCPCS codes and (2) CMS analyze features
defined in the existing HCPCS codes and (3) CMS segregate products that
exceed the code requirements in clinically or functionally relevant
ways to ensure beneficiaries don't lose access to necessary features.
Response: We appreciate the comments but do not agree. These
comments are based on the assumption that the presence or absence of a
feature (for example, heavy duty versus non-heavy duty) is not
sufficient to determine a pricing order for similar items (for example,
hospital beds). As we indicated in the section for the method for
adjusting DMEPOS fee schedule amounts for similar items with different
features using information from CBPs, we do not believe that a Medicare
fee schedule amount for an item without a certain feature(s) should
exceed the Medicare fee schedule amount for the item with that
feature(s). If products within a HCPCS code exceed the code
requirements in clinically or functionally relevant ways, consideration
can be made to revise the HCPCS codes to separately identify these
products.
Comment: One commenter wants CMS to make the process of determining
the groupings and the lead item transparent and open for industry or
stakeholder input.
Response: We believe that the proposed rule is transparent in
identifying the groupings of similar items and the lead item. We
included a proposed definition of price inversion, a listing of codes
representing groupings of similar items, and a method for determining
the lead item in each grouping.
Comment: One commenter wants CMS to consider the highest Medicare
fee schedule amounts for the items when deciding upon a lead item.
Response: We appreciate the comments but do not agree. We believe
the item with the most allowed services of any item in a group is the
item that is used most often and therefore should be considered the
lead item since it is likely to be the one that suppliers furnish more
than any of the other items in the group of similar items. The item
with the highest fee schedule amount may not be the item that suppliers
furnish more than any of the other items in the group of similar items;
however, in many cases the item with the highest fee schedule amount is
also the item with the most allowed services of any item in the group
of similar items.
Comment: One commenter specifically suggested that CMS consider
heavy-duty items as a separate grouping when determining the lead item
because they believed heavy duty items were more costly.
Response: We believe that that the presence or absence of a feature
can be used to determine the pricing order for similar items with
different features. We believe that all hospital beds are similar items
used for the same purpose and that the heavy duty feature (the ability
to accommodate heavier patients) is clearly an additional feature. We
see no reason to single out this feature (heavy duty) from other
features as warranting a separate category of hospital beds. There is
no evidence that heavy-duty items are more costly than the grouping of
hospital beds. We believe it is more efficient to include these items
in the grouping of hospital beds so that suppliers do not have to enter
additional bids for these items, increasing the chance of keying
errors.
Final Rule Action: After consideration of comments received on the
proposed rule and for the reasons we articulated, we are finalizing our
final policy for submitting bids and determining single payment amounts
for certain groupings of similar items with different features under
the DMEPOS CBP (alternative bidding methodology), with two technical
changes. We are finalizing the provisions of Sec. 414.412 to add the
lead item bidding method described above to prevent price inversions
under the DMEPOS CBPs. This method would only replace the current
method of bidding for select groups of similar items identified in the
final regulation. A decision was made as part of the administrative
HCPCS editorial process to discontinue code B9000 for enteral infusion
pumps without alarm, effective January 1, 2017. Since only one code
(B9002), rather than a group of codes, will remain in the HCPCS for
enteral infusion pumps, there will no longer be multiple codes for this
category of items, and so the proposed grouping of enteral infusion
pumps is being removed and not being finalized in Sec. 414.412(d).
Similarly, a decision was made to discontinue HCPCS code E0628 for
electric seat lift mechanisms, effective January 1, 2017, and therefore
this code is being removed from the grouping of seat lift mechanisms
and not being finalized in Sec. 414.412(d).

VIII. Bid Limits for Individual Items Under the Durable Medical
Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Competitive
Bidding Program (CBP)

A. Background

Under the DMEPOS CBP, Medicare sets payment amounts for selected
DMEPOS items and services furnished to beneficiaries in CBAs based on
bids submitted and accepted by Medicare. Section 1847(b)(5) of the Act
provides that Medicare payment for these 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. Section 1847(b)(2)(A)(iii) of
the Act prohibits the Secretary from awarding a contract to an entity
unless the Secretary finds that the total amounts to be paid to
contractors in a CBA are expected to be less than the total amounts
that would otherwise be paid. This requirement guarantees savings to
both the Medicare program and its beneficiaries. The CBP also includes
provisions to ensure beneficiary access to quality DMEPOS items and
services: Section 1847 of the Act directs the Secretary to award
contracts to entities only after a finding that the entities meet
applicable quality and financial standards and beneficiary access to a
choice of multiple suppliers in the area is maintained.
We implemented Round 1 of the DMEPOS CBP on January 1, 2011, and
the Round 1 Recompete on January 1, 2014. Round 2 of the DMEPOS CBP and
the national mail order program were implemented on July 1, 2013, and
Round 2 and national mail order Recompete were implemented on July 1,
2016. The programs phased in under Round 1 and 2 are in place in
approximately 100 metropolitan statistical areas (MSAs) throughout the
nation, including Honolulu, Hawaii. A 60-day bidding window allows
bidders adequate time to prepare and submit their bids. Section 414.412
specifies the rules for submission of bids under a CBP. Each bid
submission is evaluated

[[Page 77950]]

and contracts are awarded to qualified suppliers in accordance with the
requirements of section 1847(b)(2) of the Act and Sec. 414.414, which
specifies conditions for awarding contracts.
Sections 1847(b)(6)(A)(i) and (b)(6)(A)(ii) of the Act provide that
payment will not be made under Medicare Part B for items and services
furnished under a CBP unless the supplier has submitted a bid to
furnish those items and has been awarded a contract. Therefore, in
order for a supplier that furnishes competitively bid items in a CBA to
receive payment for those items, the supplier must have submitted a bid
to furnish those particular items and must have been awarded a contract
to do so.
The April 10, 2007 final rule titled, ``Medicare Program;
Competitive Acquisition for Certain Durable Medical Equipment,
Prosthetics, Orthotics, and Supplies (DMEPOS) and Other Issues'',
finalized requirements for providers to submit bids under the DMEPOS
CBP (Sec. 414.412(b)) (72 FR 17992, 18088). Section 414.412 outlines
the requirements associated with submitting bids under the competitive
bidding process. Furthermore, Sec. 414.412(b)(2) states that 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 or
subpart D of part 414, which is the fee schedule amount. Therefore,
under our current policy, bid amounts that are submitted under the CBP
cannot exceed the fee schedule amount. Contracts cannot be awarded in a
CBA if total payments under the contracts are expected to be greater
than what would otherwise be paid. In the preamble of the CY 2015 final
rule that implemented the methodologies to adjust fee schedule amounts
using information from CBPs, we indicated that the adjusted fee
schedule amounts become the new bid limits (79 FR 66232).
Sections 1834(a)(1)(F)(ii) and (iii), 1834(h)(2)(H)(ii), and
1842(s)(3)(B) of the Act mandate adjustments to the fee schedule
amounts for certain DMEPOS items furnished on or after January 1, 2016,
in areas that are not CBAs, based on information from CBPs. Section
1842(s)(3)(B) of the Act also provides authority for making adjustments
to the fee schedule amounts for enteral nutrients, equipment, and
supplies (enteral nutrition) based on information from the CBPs. In the
CY 2015 final rule (79 FR 66223), we finalized the methodologies for
adjusting DMEPOS fee schedule amounts using information from CBPs at
Sec. 414.210(g).

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the Bid Limits for Individual Items Under the Durable
Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)
Competitive Bidding Program (CBP)

[[Page 77951]]

determine if total payments to contract suppliers in an area are
expected to be less than would otherwise be paid.
In summary, we proposed to revise Sec. 414.412(b) to specify that
the bids submitted for each individual item of DMEPOS other than drugs
cannot exceed the fee schedule amounts established in accordance with
sections 1834(a), 1834(h), or 1842(s) of the Act for DME, off-the-shelf
(OTS) orthotics, and enteral nutrition, respectively, as if adjustments
to these amounts based on information from CBPs had not been made (81
FR 42863). Specifically, the bid limits for DME would be based on the
2015 fee schedule amounts established in accordance with section
1834(a)(1)(B)(ii) of the Act, prior to application of section
1834(a)(1)(F)(ii) and (iii) of the Act, but updated for subsequent
years based on the factors provided at section 1834(a)(14) of the Act.
In other words, the bid limits would be based on fee schedule amounts
established in accordance with section 1834(a), without applying the
adjustments mandated by section 1834(a)(1)(F)(ii) of the Act. The bid
limits for OTS orthotics would also be based on the 2015 fee schedule
amounts established in accordance with section 1834(h)(1)(B)(ii) of the
Act, prior to application of section 1834(h)(1)(H), but updated for
subsequent years based on the factors provided at section 1834(h)(4) of
the Act. In other words, the bid limits would be based on fee schedule
amounts established in accordance with section 1834(h), without
applying the adjustments authorized by section 1834(h)(1)(H) of the
Act. The bid limits for enteral nutrients, equipment, and supplies
(enteral nutrition) would be based on the 2015 fee schedule amounts
established in accordance with section 1842(s)(1) of the Act, prior to
application of section 1842(s)(3), but updated for subsequent years
based on the factors provided at section 1842(s)(1)(B)(ii) of the Act.
In other words, the bid limits would be based on fee schedule amounts
established in accordance with section 1842(s)(1), without applying the
adjustments authorized by section 1842(s)(3)(B) of the Act (81 FR
42863).
Finally, with respect to the alternative bidding rules proposed in
section VII. above, when evaluating bids for a grouping of similar
items in a product category submitted in the form of a single bid for
the highest volume item in the grouping, or lead item, we proposed to
use the weighted average fee schedule amounts for the grouping of
similar items in order to establish the bid limit for the purpose of
implementing this proposed provision (81 FR 42863). We proposed to
revise Sec. 414.412(b)(2) to use total nationwide allowed services for
all areas for the individual items, initially from calendar year 2012,
to weight the fee schedule amount for each item for the purpose of
determining a bid limit for the lead item based on the weighted average
fee schedule amounts for the entire grouping of similar items. This
would ensure that the payment amounts established under the CBPs do not
exceed the fee schedule amounts that would otherwise apply to the
grouping of similar items as a whole. As discussed in the proposed
rule, Table 33 below illustrates the data that would be used to
calculate the bid limit for the lead item (code E0143) in the grouping
of walkers for a CBA located in the state of Maryland using 2015 fee
schedule amounts for illustration purposes. The item weight for each
code is based on 2012 total nationwide allowed services for the code
divided by total nationwide allowed services for 2012 for all of the
codes in the grouping (81 FR 42864).

Table 33--Data Used To Calculate Bid Limit for Lead Item for Walkers for Maryland
----------------------------------------------------------------------------------------------------------------
Total
nationwide
HCPCS Features allowed 2015 purchase Item weight
services for fees (MD)
2012
----------------------------------------------------------------------------------------------------------------
E0143 (lead item).................. Folding With Wheels........ 958,112 $115.02 0.90734
E0135.............................. Folding.................... 56,399 77.51 0.05341
E0149.............................. Heavy Duty With Wheels..... 23,144 213.53 0.02192
E0141.............................. Rigid With Wheels.......... 6,319 110.30 0.00598
E0148.............................. Heavy Duty................. 4,366 121.56 0.00413
E0147.............................. Heavy Duty With Braking & 4,066 549.90 0.00385
Variable Wheel Resistance.
E0140.............................. With Trunk Support......... 1,483 345.08 0.00140
E0144.............................. Enclosed With Wheels & Seat 1,275 304.80 0.00121
E0130.............................. Rigid...................... 788 67.19 0.00075
-----------------------------------------------
Total.......................... ........................... 1,055,952
----------------------------------------------------------------------------------------------------------------

Summing the 2015 fee schedule amounts multiplied by the weights for
each item results in a bid limit of $117.37 for lead item E0143. Bids
submitted for the lead item E0143 for walkers for a CBA located in the
state of Maryland would not be able to exceed $117.37 in this example.
We therefore proposed to amend Sec. 414.412(b) to establish this
method for determining bid limits for lead items identified in
accordance with section Sec. 414.412(d)(2) in section VII. B and as
referenced also in the proposed rule (81 FR 42864, 42877), which we are
now finalizing.

C. Response to Comments on Bid Limits for Individual Items Under the
Durable Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) Competitive Bidding Program (CBP)

We solicited comments and we received approximately 13 public
comments on our proposals, including comments from medical device
manufacturers, suppliers, advocacy groups and coalitions, and the
Medicare Payment Advisory Committee (MedPAC).
The comments and our responses to the comments for these proposals
are set forth below.
Comment: Most commenters supported the bid limit provision that was
proposed. MedPAC suggested that some adjustment to reflect competitive
bid results should be factored in to the bid limit rather than using
the unadjusted 2015 fee schedule amounts, but did not suggest what
adjustment should be factored into the bid limits. In addition,
commenters stated that the fee schedule amounts should continue to be
adjusted in all parts of the country to take into account the
information from the CBP.
Response: We agree with commenters with the proposed provision on
the bid

[[Page 77952]]

limit to use the unadjusted 2015 fee schedule amounts. This will allow
suppliers to factor in both increases and decreases in SPA. We believe
the comment from MedPAC is reasonable; however, a specific
recommendation for adjusting the bid limits based on this general
comment was not provided. Therefore, we do not have a specific
recommendation in the comments that we can act upon in establishing the
final rule.
Final Rule Action: After consideration of comments received on the
proposed rule and for the reasons we discussed previously, we are
finalizing the proposed Sec. 414.412(b), without changes. This would
allow suppliers to take into account both decreases and increases in
costs in determining their bids, while ensuring that payments under the
CBPs do not exceed the amounts that would otherwise be paid had the
DMEPOS CBP not been implemented.

IX. Access to Care Issues for DME

A. Background

The Medicare and Medicaid programs generally serve distinct
populations, but more than ten million individuals (``dual eligible
beneficiaries'') were enrolled in both programs in 2014.\12\ As a
group, dual eligible beneficiaries comprise a population with complex
chronic care needs and functional impairments.\13\ Compared to
Medicare-only or Medicaid-only beneficiaries, dual eligible
beneficiaries are more likely to experience multiple chronic health
conditions, mental illness, functional limitations, and cognitive
impairments.
---------------------------------------------------------------------------

\12\ Data Analysis Brief: Medicare-Medicaid Dual Enrollment from
2006 through 2013, Medicare-Medicaid Coordination Office (MMCO),
Centers for Medicare and Medicaid Services, December 2014 at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-,Medicaid-Coordination-Office/Downloads/DualEnrollment20062013.pdf.
\13\ Overall these individuals have higher prevalence of many
conditions (including, but not limited to diabetes, pulmonary
disease, stroke, Alzheimer's disease, and mental illness) than their
Medicare-only and Medicaid-only peers. Medicare-Medicaid enrollees'
health costs are four times greater than all other people with
Medicare. Medicare Medicaid Enrollee State Profile: The National
Summary--2008, Centers for Medicare and Medicaid Services at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/Downloads/2008NationalSummary.pdf.
---------------------------------------------------------------------------

Both Medicare and Medicaid cover Durable Medical Equipment (DME),
which can be essential to dual eligible beneficiaries' mobility,
respiratory function, and activities of daily living. However, the
programs' different eligibility, coverage, and supplier rules can
impact access to medically-appropriate DME and repairs of existing
equipment for the population enrolled in both benefits.

B. Summary of Public Comments, and Responses to Comments on Access to
Care Issues for DME

C. Provisions of Request for Information

CMS sought to examine how overlapping but differing coverage
standards for DME under Medicare and Medicaid may affect access to care
for beneficiaries and administrative processes for providers and
suppliers. In response to a May 2011 Request for Information, CMS
received over one hundred comments from a range of stakeholders
regarding 29 areas of program alignment opportunities, including
DME.\14\ In the intervening years, CMS has continued to engage
stakeholders--including beneficiaries, payers, suppliers, and states--
to understand opportunities and challenges caused by differing program
requirements.
---------------------------------------------------------------------------

\14\ https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/Downloads/FederalRegisterNoticeforComment052011.pdf.
---------------------------------------------------------------------------

According to stakeholders, a common barrier to DME access stems
from conflicting approval processes among Medicare and Medicaid that
can leave suppliers uncertain about whether and how either program will
cover items. Medicare is the primary payer for DME and other medical
benefits covered by both programs. Medicaid typically pays Medicare
cost-sharing amounts and may cover DME that Medicare does not,
including certain specialized equipment that promotes independent
living. Medicaid pays secondary to most other legally liable payers,
including Medicare, and requires those payers to pay to the limit of
their legal liability before any Medicaid payment is available. Many of
the Medicare requirements related to DME, including the definition and
scope of the benefit, are mandated by the statute; therefore, we do not
have the authority to bypass or alter these requirements. Medicare
generally only processes claims after the equipment is delivered.
Because suppliers lack assurance regarding how Medicare or Medicaid
will cover DME at the point of sale--and dual eligible beneficiaries
cannot pay out-of-pocket up front--suppliers may refuse to provide
needed DME.
Other barriers may emerge for beneficiaries who have Medicaid first
and get DME prior to enrolling in Medicare. Stakeholders report that
many individuals may have difficulty getting coverage for repairs on
equipment obtained through Medicaid coverage, since Medicare will only
pay for repairs after making a new medical necessity determination.
Additionally, not all Medicaid-approved DME suppliers are Medicare-
approved suppliers, meaning beneficiaries may need to change suppliers
after enrolling in Medicare.
CMS requested to receive additional information to help target
efforts to promote timely access to DME benefits for people dually
eligible for Medicare and Medicaid.
We requested public input on the following issues related to DME
access for dual eligible beneficiaries:
Obstacles to timely receipt of needed DME and repairs due
to conflicting program requirements.
Challenges or opportunities faced by Medicaid
beneficiaries who newly qualify for Medicare, including challenges
related to new and preexisting items, repairs, and providers.
The percentage of Medicare competitive bidding contractors
in the state which accept Medicaid.
The role of prior authorization policies under either
program and

[[Page 77953]]

whether these policies offer suppliers sufficient advance notice
regarding coverage.
Impacts on beneficiaries from delayed access to needed
equipment and repairs.
If access problems are more pronounced for certain
categories of equipment, the categories of DME for which the access
problems arise the most frequently or are most difficult to resolve.
Challenges faced by suppliers in meeting different
supporting documentation and submission requirements.
Other prevalent access challenges due to DME program
misalignments.
We also invited feedback regarding potential regulatory or
legislative reforms to address DME program misalignments including:
State Medicaid program policies that promote coordination
of benefits and afford beneficiaries full access to benefits.
Strategies to promote access to timely, effective repairs,
including from suppliers who that did not originally furnish the
equipment.
Policies to address challenges faced when beneficiaries
transition from Medicaid-only to dual eligible status.
Other ways to promote timely DME access for dual eligible
beneficiaries, without introducing new program integrity risks or
increasing total expenditures in either Medicare or Medicaid.
We requested specific examples to be included, when possible, while
avoiding the transmission of protected information, and to include a
point of contact who can provide additional information upon request.
The comments and our response to the comments for issues related to
DME access for dual eligible beneficiaries are set forth below.
Comments: Overall the comments reinforced that dual eligible
beneficiaries face numerous challenges navigating the two programs to
obtain new DME and repairs of existing equipment. Several commenters
stated that the general lack of Medicaid reimbursement for the Medicare
deductibles and coinsurances for Qualified Medicare Beneficiaries (that
is, due to states opting for the ``lessor of'' policy, in which they
may opt to only cover those costs to the extent that Medicaid payment
rate exceeds what Medicare pays for the same item) results in supplier
reluctance to serve dual eligible beneficiaries generally. Several
commenters pointed out that beneficiaries with complex needs often need
to use multiple suppliers to obtain all needed items, as well as face
long wait times to receive items. Some commenters gave examples of
beneficiaries unable to access needed DME due to limited supplier
options with limited inventory, especially in rural and small
communities. A few commenters offered examples of how beneficiaries
face difficulties obtaining and repairing equipment while in a skilled
nursing facility, which may delay discharge to the community. A few
commenters reported problems obtaining repairs and backup equipment
when necessary. Some commenters raised concerns about challenges that
arise when suppliers selected through Medicare's competitive bidding
program do not accept Medicaid.
In addition to elaborating on the challenges faced, a number of
commenters suggested potential changes to the administration of
Medicare and Medicaid DME benefits. With respect to Medicare, some
commenters suggested that CMS require that DME suppliers accept
Medicaid as a condition of being selected in Medicare's competitive
bidding program. One commenter suggested expansions to the Advance
Determination of Medicare Coverage (ADMC) policy related to certain
replacement parts. Many commenters support certain Medicare payment
changes to promote easier access to needed repairs. Some commenters
suggested establishing a Medicare transition policy for DME similar to
the Part D transition policy that would cover suppliers and certain
DME.
Commenters also suggested changes to Medicaid administrative
processes. Many commenters suggested a Medicaid prior authorization
process that assures suppliers of Medicaid coverage if Medicare were to
deny coverage. A few commenters suggested clarifying that Medicare
denial should not be required for items Medicare never covers. Finally,
some commenters suggested that any such changes apply as well to
Medicaid managed care organizations that enroll dual eligible
beneficiaries and are contracted to provide Medicaid DME coverage.
Response: We appreciate the range and depth of comments and
suggestions we received. We will consider these comments carefully as
we contemplate future policies. We are also exploring ways to share
best practices with the State Medicaid Agencies to promote more
efficient and effective ``wrap around'' coverage at the state level.

X. Comprehensive End-Stage Renal Disease Care Model and Future Payment
Models

A. Background

The Comprehensive ESRD Care (CEC) Model is a CMS test of a
dialysis-specific Accountable Care Organization (ACO) model. In the
model, dialysis clinics, nephrologists and other providers join
together to create an End-Stage Renal Disease (ESRD) Seamless Care
Organization (ESCO) to coordinate care for aligned beneficiaries. ESCOs
are accountable for clinical quality outcomes and financial outcomes
measured by Medicare Part A and B spending, including all spending on
dialysis services for their aligned ESRD beneficiaries. This model
encourages dialysis providers to think beyond their traditional roles
in care delivery and supports them as they provide patient-centered
care that will address beneficiaries' health needs, both in and outside
of the dialysis clinic.
CMS sought input on innovative approaches to care delivery and
financing for beneficiaries with ESRD. We explained that this input
could include ideas related to innovations that would go above and
beyond the Comprehensive ESRD Care CEC Model with regard to financial
incentives, populations or providers engaged, or the scale of change,
among other topics. We stated that we would consider information
received as we developed future payment models in this area, and as we
launched solicitation for a second round of entry into the CEC Model to
begin on January 1, 2017.

B. Summary of the Proposed Provisions, Public Comments, and Responses
to Comments on the Comprehensive End-Stage Renal Disease Care Model and
Future Payment Models

[[Page 77954]]

23, 2016. In that proposed rule, for the Comprehensive End-Stage Renal
Disease Care Model and Future Payment Models, we sought comments on a
range of issues affecting the development of alternative payment model
(APM) and advanced APM related to the care of beneficiaries with kidney
disease. We received approximately 21 public comments, including
comments from ESRD facilities; national renal groups, nephrologists and
patient organizations; patients and care partners; manufacturers; and
nurses.
We also noted a solicitation for new entrants to the CEC model,
which has since closed. New ESCOs will be announced on or before
January 1, 2017, when they begin participation in the model.

C. Provisions of the Notice

Section 1115A of the Social Security Act (the Act), as added by
section 3021 of the Affordable Care Act, authorizes the Innovation
Center to test innovative payment and service delivery models that
reduce spending under Medicare, Medicaid or The Children's Health
Insurance Program (CHIP), while preserving or enhancing the quality of
care. We sought public input to gather responses to the following
questions that will help us to develop and refine innovative payment
models related to kidney care.
Questions:
1. How could participants in alternative payment models (APMs) and
advanced APMs coordinate care for beneficiaries with chronic kidney
disease and to improve their transition into dialysis?
2. How could participants in APMs and advanced APMs target key
interventions for beneficiaries at different stages of chronic kidney
disease?
3. How could participants in APMs and advanced APMs better promote
increased rates of renal transplantation?
4. How could CMS build on the CEC Model or develop alternative
approaches for improving the quality of care and reducing costs for
ESRD beneficiaries?
5. Are there specific innovations that are most appropriate for
smaller dialysis organizations?
6. How could primary-care based models better integrate with APMs
or advanced APMs focused on kidney care to help prevent development of
chronic kidney disease in patients and progression to ESRD? Primary-
care based models may include patient-centered medical homes or other
APMs.
7. How could APMs and advanced APMs help reduce disparities in
rates of chronic kidney disease (CKD)/ESRD and adverse outcomes among
racial/ethnic minorities?
8. Are there innovative ways APMs and advanced APMs can facilitate
changes in care delivery to improve the quality of life for CKD and
ESRD patients?
9. Are there specific innovations that are most appropriate for
evaluating patients for suitability for home dialysis and promoting its
use in appropriate populations?
10. Are there specific innovations that could most effectively be
tested in a potential mandatory model?
Additional information on the Comprehensive ESRD Care Model is
located at: innovation.cms.gov/initiatives/comprehensive-ESRD-care.
The comments and our responses to the comments are set forth below.
Comment: Several commenters recognized the potential value of APM
and advanced APM in the care of beneficiaries with CKD, ESRD and renal
transplant. Commenters discussed the structures that might be most
effective for such models, as well as the role of payment incentives,
quality measures, and waivers of existing regulations. Several
commenters identified attributes of existing models and programs that
would be helpful in such models. In addition, several commenters
described optimal care patterns around the beneficiaries' transition
from CKD to ESRD and renal replacement therapy or transplant.
Response: We thank commenters for their suggestions and input. We
agree that there are a number of opportunities to improve the care of
and reduce the costs associated with beneficiaries with kidney disease
and we appreciate the detailed suggestions offered for such
improvement, however, we are not finalizing at this time. We intend to
develop and address comments in future rulemaking.

XI. Technical Correction for 42 CFR 413.194 and 413.215

In the CY 2013 ESRD PPS final rule (77 FR 67520), we revised Sec.
413.89(h)(3) to set forth the percentage reduction in allowable bad
debt payment required by section 1861(v)(1)(W) of the Act for ESRD
facilities for cost reporting periods beginning during fiscal year
2013, fiscal year 2014 and subsequent fiscal years. We also revised
Sec. 413.89(h)(3) to set forth the applicability of the cap on bad
debt reimbursement to ESRD facilities for cost reporting periods
beginning between October 1, 2012 and December 31, 2012. In addition,
in that rule, we removed and reserved Sec. 413.178, since there were
revised provisions set out at Sec. 413.89.
As a part of these revisions, we intended to correct the cross-
reference in Sec. Sec. 413.194 and 413.215 so that Sec. 413.89(h)(3)
was referenced instead of Sec. 413.178. We inadvertently omitted the
regulations text that would have made those changes. Therefore, we
proposed a technical correction to revise the regulations text at
Sec. Sec. 413.194 and 413.215 to correct the cross-reference to the
Medicare bad debt reimbursement regulation, so that Sec. Sec. 413.194
and 413.215 would reference 42 CFR 413.89(h)(3) instead of the current
outdated reference to Sec. 413.178.
We did not receive any comments on our proposed technical
correction to revise the regulations text at Sec. Sec. 413.194 and
413.215, therefore, we are finalizing this revision as proposed.

XII. Waiver of Proposed Rulemaking

We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite public comment prior to a rule taking
effect in accordance with section 553(b) of the Administrative
Procedure Act (APA) (5 U.S.C. 553(b)) and section 1871(b)(1) of the
Act. We can waive this procedure, however, if the agency finds that the
notice and comment procedure is impracticable, unnecessary, or contrary
to the public interest and incorporates a statement of the finding and
reasons in the rule. See section 553(b)(B) of the APA and section
1871(b)(2)(C) of the Act.
We find it unnecessary to undertake notice and comment rulemaking
in this instance for the additional changes we are making to the
definition of ``hearing officer'' in Sec. 414.402, because these are
merely technical edits in order to conform the definition to the
revised regulation we are finalizing at Sec. 414.423, which was
promulgated under the notice and comment rulemaking procedures.
Removing the reference to ``contract terminations'' and the
abbreviation ``(HO)'' under the existing definition of ``hearing
officer'' will reconcile the definition with the terminology and
appeals process we are adopting in this final rule and thus, makes
additional notice and comment unnecessary. Therefore, under section
553(b)(B) and section 1871(b)(1) of the Act, for good cause, we waive
notice and comment procedures.

XIII. Advancing Health Information Exchange

HHS has a number of initiatives designed to improve health and
health care quality through the adoption of health information
technology (health

[[Page 77955]]

IT) and nationwide health information exchange. As discussed in the
August 2013 Statement ``Principles and Strategies for Accelerating
Health Information Exchange'' (available at http://www.healthit.gov/sites/default/files/acceleratinghieprinciples_strategy.pdf), HHS
believes that all individuals, their families, their healthcare and
social service providers, and payers should have consistent and timely
access to health information in a standardized format that can be
securely exchanged between the patient, providers, and others involved
in the individual's care. Health IT that facilitates the secure,
efficient, and effective sharing and use of health-related information
when and where it is needed is an important tool for settings across
the continuum of care, including ESRD facilities.
The Office of the National Coordinator for Health Information
Technology (ONC) has released a document entitled ``Connecting Health
and Care for the Nation: A Shared Nationwide Interoperability Roadmap
Version 1.0 (Roadmap) (available at https://www.healthit.gov/sites/default/files/hie-interoperability/nationwide-interoperability-roadmap-final-version-1.0.pdf) which describes barriers to interoperability
across the current health IT landscape, the desired future state that
the industry believes will be necessary to enable a learning health
system, and a suggested path for moving from the current state to the
desired future state. In the near term, the Roadmap focuses on actions
that will enable a majority of individuals and providers across the
care continuum to send, receive, find and use a common set of
electronic clinical information at the nationwide level by the end of
2017. Moreover, the vision described in the Roadmap significantly
expands the types of electronic health information, information
sources, and information users well beyond clinical information derived
from electronic health records (EHRs). This shared strategy is intended
to reflect important actions that both public and private sector
stakeholders can take to enable nationwide interoperability of
electronic health information such as: (1) Establishing a coordinated
governance framework and process for nationwide health IT
interoperability; (2) improving technical standards and implementation
guidance for sharing and using a common clinical data set; (3)
enhancing incentives for sharing electronic health information
according to common technical standards, starting with a common
clinical data set; and (4) clarifying privacy and security requirements
that enable interoperability.
In addition, ONC has released the 2016 Interoperability Standards
Advisory (available at https://www.healthit.gov/sites/default/files/2016-interoperability-standards-advisory-final-508.pdf), which provides
a list of the best available standards and implementation
specifications to enable priority health information exchange
functions. Providers, payers, and vendors are encouraged to take these
``best available standards'' into account as they implement
interoperable health information exchange across the continuum of care.
We encourage stakeholders to utilize health information exchange
and certified health IT to effectively and efficiently help providers
improve internal care delivery practices, support management of care
across the continuum, enable the reporting of electronically specified
clinical quality measures, and improve efficiencies and reduce
unnecessary costs. As adoption of certified health IT increases and
interoperability standards continue to mature, HHS will seek to
reinforce standards through relevant policies and programs.

XV. Collection of Information Requirements

A. Legislative Requirement for Solicitation of Comments

Under the Paperwork Reduction Act of 1995, we are required to
provide 30-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.

B. Requirements in Regulation Text

In section II and III of this final rule, we include changes to the
regulatory text for the ESRD PPS in CY 2017 as well as the inclusion of
subpart K to part 494 for AKI. However, we note that those changes do
not impose any new information collection requirements.
In section V of this final rule, we discussed changes to the DMEPOS
Competitive Bidding Program. Section V.B.1 discusses the changes to the
program relative to the bid surety bond requirements imposed at Sec.
414.412. As a result of the new bid surety bond requirements, we have
revised the information collection request (ICR) associated with the
DMEPOS Competitive Bidding Program. The ICR is currently approved under
OMB control number 0938-1016 (CMS-10169). Specifically, we have revised
Form A (Application for DMEPOS Competitive Bidding Program) in the ICR
to account for the new bid surety bond requirements. The revised form
was under development and not available for public review and comment
when the DMEPOS Competitive Bidding Program proposed rule published.
Therefore, we have published a separate 60-day Federal Register notice
to announce the changes to the ICR. The notice published on October 14,
2016 (81 FR 71100). The notice contains instructions on how to both
obtain copies of and submit comments on the revised ICR. Copies of the
revised ICR can be obtained at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing-Items/CMS-10169.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending. At the
conclusion of the 60-day public comment period, we will review all
public comments (if applicable) and then publish a 30-day Federal
Register notice to announce the submission to OMB as well as another
public comment period.

C. Additional Information Collection Requirements

This final rule does not impose any new information collection
requirements in the regulation text, as specified above. However, this
final rule does make reference to several associated information
collections that are not discussed in the regulation text contained in
this document. The following is a discussion of these information
collections.
1. ESRD QIP
a. Wage Estimates
In the CY 2016 ESRD PPS Final Rule (80 FR 69069), we stated that it
was reasonable to assume that Medical Records and Health Information
Technicians, who are responsible for organizing and managing health

[[Page 77956]]

information data,\15\ are the individuals tasked with submitting
measure data to CROWNWeb and NHSN for purposes of the Data Validation
Studies rather than a Registered Nurse, whose duties are centered on
providing and coordinating care for patients.\16\ The mean hourly wage
of a Medical Records and Health Information Technician is $18.68 per
hour. Under OMB Circular 76-A, in calculating direct labor, agencies
should not only include salaries and wages, but also ``other
entitlements'' such as fringe benefits.\17\ This Circular provides that
the civilian position full fringe benefit cost factor is 36.25 percent.
Therefore, using these assumptions, we estimate an hourly labor cost of
$25.45 as the basis of the wage estimates for all collection of
information calculations in the ESRD QIP.
---------------------------------------------------------------------------

\15\ http://www.bls/gov/ooh/healthcare/medical-records-and-health-information-technicians.htm.
\16\ http://www.bls.gov/ooh/healthcare/registered-nurses.htm.
\17\ http://www.whitehouse.gov/omb/circulars_a076_a76_incl_tech_correction.
---------------------------------------------------------------------------

b. Time Required To Submit Data Based on Reporting Requirements
In the CY 2016 ESRD PPS Final Rule (80 FR 69070), we estimated that
the time required to submit measure data using CROWNWeb is 2.5 minutes
per data element submitted, which takes into account the small
percentage of data that is manually reported, as well as the human
interventions required to modify batch submission files such that they
meet CROWNWeb's internal data validation requirements.
c. Data Validation Requirements for the PY 2019 ESRD QIP
In our proposed rule (81 FR 42867), we outlined our data validation
proposal for PY 2019. Specifically, for the CROWNWeb validation, we
proposed to randomly sample records from 300 facilities as part of our
continuing pilot data-validation program. Each sampled facility would
be required to produce approximately 10 records, and the sampled
facilities will be reimbursed by our validation contractor for the
costs associated with copying and mailing the requested records. The
burden associated with these validation requirements is the time and
effort necessary to submit the requested records to a CMS contractor.
We estimate that it will take each facility approximately 2.5 hours to
comply with this requirement. If 300 facilities are asked to submit
records, we estimate that the total combined annual burden for these
facilities will be 750 hours (300 facilities x 2.5 hours). Since we
anticipate that Medical Records and Health Information Technicians or
similar administrative staff would submit this data, we estimate that
the aggregate cost of the CROWNWeb data validation would be
approximately $19,088 (750 hours x $25.45/hour) total of approximately
$64 ($19,088/300 facilities) per facility in the sample. The burden
associated with these requirements is captured in an information
collection request (OMB control number 0938-1289).
Under the proposed data validation study for validating data
reported to the NHSN Dialysis Event Module, we proposed to randomly
select 35 facilities. A CMS contractor will send these facilities
requests for medical records for all patients with ``candidate events''
during the evaluation period. Overall, we estimate that, on average,
quarterly lists will include two positive blood cultures per facility,
but we recognize these estimates may vary considerably from facility to
facility. We estimate that it will take each facility approximately 60
minutes to comply with this requirement (30 minutes from each of the
two quarters in the evaluation period). If 35 facilities are asked to
submit records, we estimate that the total combined annual burden for
these facilities will be 35 hours (35 facilities x 1 hour). Since we
anticipate that Medical Records and Health Information Technicians or
similar administrative staff would submit this data, we estimate that
the aggregate cost of the NHSN data validation would be $890.75 (35
hours x $25.45/hour) total of $25.45 ($890.75/35 facilities) per
facility in the sample. The burden associated with these requirements
is captured in an information collection request (OMB control number
0938-NEW).
d. Ultrafiltration Rate Reporting Measure
We proposed to include, beginning with the PY 2020 ESRD QIP, a
reporting measure requiring facilities to report in CROWNWeb an
ultrafiltration rate at least once per month for each qualifying
patient. We estimate the burden associated with this measure to be the
time and effort necessary for facilities to collect and submit the
information required for the Ultrafiltration Rate Reporting Measure. We
estimated that approximately 6,454 facilities will treat 548,430 ESRD
patients nationwide in PY 2020. The Ultrafiltration Rate Reporting
Measure requires facilities to report 13 elements per patient per month
(156 elements per patient per year) and we estimate it will take
facilities approximately 0.042 hours (2.5 minutes) to submit data for
each data element. Therefore, the estimated total annual burden
associated with reporting this measure in PY 2020 is approximately
3,593,313 hours (548,430 ESRD patients nationwide x 156 data elements/
year x 0.042 hours per element), or approximately 553 hours per
facility. We anticipate that Medical Records and Health Information
Technicians or similar administrative staff will be responsible for
this reporting. We therefore believe the cost for all ESRD facilities
to comply with the reporting requirements associated with the
ultrafiltration rate reporting measure would be approximately
$91,449,815.80 (3,593,313 x $25.45/hour), or $14,082.20 per facility.
The burden associated with these requirements is captured in an
information collection request (OMB control number 0938-NEW).
We sought comments on the Collection of Information proposals and
did not receive any comments. Therefore, we are finalizing as proposed.

XVI. Economic Analyses

A. Regulatory Impact Analysis

1. Introduction
We have examined the impacts of this rule 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) and the Congressional Review Act (5 U.S.C. 804(2).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). 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

[[Page 77957]]

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). This rule is not economically significant within the meaning of
section 3(f)(1) of the Executive Order, since it does not meet the $100
million threshold. However, OMB has determined that the actions are
significant within the meaning of section 3(f)(4) of the Executive
Order. Therefore, OMB has reviewed these final regulations, and the
Departments have provided the following assessment of their impact.
We sought comments on the Regulatory Impact Analysis but did not
receive any comments. Therefore we are not making any changes at this
time and are finalizing as proposed.
2. Statement of Need
This rule finalizes a number of annual updates and several policy
changes to the ESRD PPS in CY 2017. The annual updates include the CY
2017 wage index values, the wage index budget-neutrality adjustment
factor, and outlier payment threshold amounts. In addition to these
annual updates, we are changing the home dialysis training policy.
Failure to publish this final rule by November 1, 2016, would result in
ESRD facilities not receiving appropriate payments in CY 2017 for renal
dialysis services furnished to ESRD patients in accordance with section
1861(s)(2)(F) of the Act.
This rule finalizes the provisions in TPEA which provide for
coverage and payment for renal dialysis services furnished by ESRD
facilities to individuals with AKI. Failure to publish this final rule
by November 1, 2016 would result in a failure to comply with the
requirements of the Act, as added by the TPEA, including ESRD
facilities not receiving payment for furnishing renal dialysis services
to patients with AKI.
This rule finalizes requirements for the ESRD QIP, including
adopting a measure set for the PY 2020 program, as directed by section
1881(h) of the Act. Failure to finalize requirements for the PY 2020
ESRD QIP would prevent continuation of the ESRD QIP beyond PY 2019. In
addition, finalizing requirements for the PY 2020 ESRD QIP provides
facilities with more time to review and fully understand new measures
before their implementation in the ESRD QIP.
This rule finalizes a requirement for the DMEPOS CBP for bid surety
bonds and state licensure in accordance with section 1847 of the Act,
as amended by section 522(a) of MACRA. The rule also finalizes an
appeals process for all breach of contract actions CMS may take.
This rule also finalizes a method for adjusting DMEPOS fee schedule
amounts for similar items with different features using information
from the DMEPOS CBPs, a method for determining single payment amounts
for similar items with different features under the DMEPOS CBPs, and
revising bid limits for individual items under DMEPOS CBP.
3. Overall Impact
We estimate that the finalized revisions to the ESRD PPS will
result in an increase of approximately $80 million in payments to ESRD
facilities in CY 2017, which includes the amount associated with
updates to the outlier thresholds, home dialysis training policy, and
updates to the wage index. We estimate approximately $2.0 million that
would now be paid to ESRD facilities for dialysis treatments provided
to AKI beneficiaries.
For PY 2019, we anticipate that the new burdens associated with the
collection of information requirements will be approximately $21
thousand, totaling an overall impact of approximately $15.5 million as
a result of the PY 2019 ESRD QIP.\18\ For PY 2020, we estimate that the
final requirements related to the ESRD QIP will cost approximately $91
million dollars, and the payment reductions will result in a total
impact of approximately $22 million across all facilities, resulting in
a total impact from the proposed ESRD QIP of approximately $113
million.
---------------------------------------------------------------------------

\18\ We note that the aggregate impact of the PY 2018 ESRD QIP
was included in the CY 2015 ESRD PPS final rule (79 FR 66256 through
66258). The previously finalized aggregate impact of $15.5 million
reflects the PY 2019 estimated payment reductions and the collection
of information requirements for the NHSN Healthcare Personnel
Influenza Vaccination reporting measure.
---------------------------------------------------------------------------

As explained previously in this final rule, we anticipate that
DMEPOS CBP bidding entities will be impacted by the bid surety bond
requirement. Bidding entities will be required to purchase and provide
proof of a bid surety bond for each CBA in which they bid. We estimate
that the total cost for all bidding suppliers in Round 2019 will be
$13,000,000. The state licensure requirement will have no new impact on
the supplier community because this is already a basic supplier
eligibility requirement at Sec. 414.414(b)(3), and the appeals process
for breach of contract actions may have a beneficial, positive impact
on suppliers.
Overall, the bid surety bond requirement may have a positive
financial impact on the CBP as we anticipate that the requirement will
provide an additional incentive for bidding entities to submit
substantiated bids. However, there will be an administrative burden for
implementation of the bid surety bond requirement for CMS. We expect
minimal administrative costs associated with the state licensure and
appeals process for breach of DMEPOS CBP contract proposed rules.
We do not anticipate that the DMEPOS Competitive Bidding
regulations we are finalizing will have an impact on Medicare
beneficiaries.
We estimate that our final methodology for adjusting DMEPOS fee
schedule amounts for similar items with different features using
information from the DMEPOS CBPs, changes for determining single
payment amounts for similar items with different features under the
DMEPOS CBPs, and revisions to the bid limits for items under the DMEPOS
CBP will have no significant impact on the suppliers, beneficiaries,
Part B trust fund and economy as a whole.

B. Detailed Economic Analysis

1. CY 2017 End-Stage Renal Disease Prospective Payment System
a. Effects on ESRD Facilities
To understand the impact of the changes affecting payments to
different categories of ESRD facilities, it is necessary to compare
estimated payments in CY 2016 to estimated payments in CY 2017. To
estimate the impact among various types of ESRD facilities, it is
imperative that the estimates of payments in CY 2016 and CY 2017
contain similar inputs. Therefore, we simulated payments only for those
ESRD facilities for which we are able to calculate both current
payments and new payments.
For this final rule, we used the June 2016 update of CY 2015
National Claims History file as a basis for Medicare dialysis
treatments and payments under the ESRD PPS. We updated the 2015 claims
to 2016 and 2017 using various updates. The updates to the ESRD PPS
base rate are described in section II.B.3 of this final rule. Table 34
shows the impact of the estimated CY 2017 ESRD

[[Page 77958]]

payments compared to estimated payments to ESRD facilities in CY 2016.

Table 34--Impact of Changes in Payment to ESRD Facilities for CY 2017 Final Rule
[Impact of changes in payments to ESRD Facilities for CY 2017 ESRD final rule]
[Percent change in total payments to ESRD facilities (both program and beneficiaries)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effect of total 2017
proposed changes
Effect of 2017 Effect of 2017 Effect of 2017 (outlier, wage
Number of Number of changes in changes in changes in indexes, training
Facility Type Facilities treatments (in outlier policy wage indexes payment rate adjustment and
millions) (%) (%) update (%) routine updates to
the payment rate)
(%)
A B C D E F
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Facilities.................................... 6,542 44.5 0.2 0.0 0.55 0.73
Type:
Freestanding.................................. 6,106 42.0 0.2 0.0 0.55 0.7
Hospital based................................ 436 2.5 0.3 0.1 0.55 0.9
Ownership Type:
Large dialysis organization................... 4,606 31.7 0.2 0.0 0.55 0.7
Regional chain................................ 999 6.9 0.2 0.0 0.54 0.7
Independent................................... 578 3.9 0.1 0.0 0.54 0.7
Hospital based \1\............................ 358 2.1 0.3 0.1 0.55 0.9
Geographic Location:
Rural......................................... 1,225 6.4 0.2 0.1 0.54 0.9
Urban......................................... 5,317 38.2 0.2 0.0 0.55 0.7
Census Region:
1East North Central........................... 1,056 6.2 0.2 -0.1 0.55 0.7
East South Central............................ 528 3.3 0.2 -0.1 0.54 0.7
Middle Atlantic............................... 713 5.5 0.2 -0.1 0.54 0.7
Mountain...................................... 375 2.2 0.1 -0.1 0.55 0.5
New England................................... 183 1.4 0.2 -0.5 0.56 0.2
Pacific \2\................................... 790 6.3 0.1 0.5 0.55 1.2
Puerto Rico and Virgin Islands................ 51 0.3 0.2 -0.3 0.54 0.5
South Atlantic................................ 1,485 10.5 0.2 -0.2 0.56 0.6
West North Central............................ 473 2.3 0.2 0.0 0.56 0.7
West South Central............................ 888 6.4 0.2 0.1 0.54 0.8
Facility Size:
Less than 4,000 treatments \3\................ 1,414 3.2 0.2 0.1 0.57 0.8
4,000 to 9,999 treatments..................... 2,424 12.3 0.2 0.0 0.54 0.7
10,000 or more treatments..................... 2,683 29.0 0.2 0.0 0.55 0.7
Unknown....................................... 21 0.0 0.3 0.2 0.59 1.0
Percentage of Pediatric Patients:
Less than 2%.................................. 6,435 44.2 0.2 0.0 0.55 0.7
Between 2% and19%............................. 41 0.3 0.2 0.0 0.59 0.7
Between 20% and 49%........................... 9 0.0 0.0 0.2 0.52 0.7
More than 50%................................. 57 0.1 0.0 -0.1 0.52 0.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Includes hospital-based ESRD facilities not reported to have large dialysis organization or regional chain ownership.
\2\ Includes ESRD facilities located in Guam, American Samoa and the Northern Mariana Islands.
\3\ Of the 1,414 ESRD facilities with less than 4,000 treatments, only 352 qualify for the low-volume adjustment. The low-volume adjustment is mandated
by Congress, and is not applied to pediatric patients. The impact to these low-volume facilities is a 0.8 percent increase in payments.
Note: Totals do not necessarily equal the sum of rounded parts, as percentages are multiplicative, not additive.

Column A of the impact table indicates the number of ESRD
facilities for each impact category and column B indicates the number
of dialysis treatments (in millions). The overall effect of the final
changes to the outlier payment policy described in section II.B.3.c of
this final rule is shown in column C. For CY 2017, the impact on all
ESRD facilities as a result of the changes to the outlier payment
policy would be a 0.73 percent increase in estimated payments. Nearly
all ESRD facilities are anticipated to experience a positive effect in
their estimated CY 2017 payments as a result of the outlier policy
changes.
Column D shows the effect of the final CY 2017 wage indices. The
categories of types of facilities in the impact table show changes in
estimated payments ranging from a 0.0 percent decrease to a 0.1 percent
increase due to these updates.
Column E shows the effect of the final ESRD PPS payment rate update
of 0.55 percent. This update reflects the final ESRDB market basket
percentage increase factor for CY 2017 of 2.1 percent, the 1.25 percent
reduction as required by the section 1881(b)(14)(F)(i)(I) of the Act,
and the MFP adjustment of 0.3 percent.
Column F reflects the overall impact, that is, the effects of the
outlier policy changes, the wage index, the effect of the change in the
home dialysis training add-on from $50.16 to $95.60 and the effect of
the payment rate update. We expect that overall ESRD facilities will
experience a 0.73 percent increase in estimated payments in 2017. The
categories of types of facilities in the impact table show impacts
ranging from an increase of 0.7 percent to an increase

[[Page 77959]]

of 0.9 percent in their 2017 estimated payments.
b. Effects on Other Providers
Under the ESRD PPS, Medicare pays ESRD facilities a single bundled
payment for renal dialysis services, which may have been separately
paid to other providers (for example, laboratories, durable medical
equipment suppliers, and pharmacies) by Medicare prior to the
implementation of the ESRD PPS. Therefore, in CY 2017, we estimate that
the ESRD PPS would have zero impact on these other providers.
c. Effects on the Medicare Program
We estimate that Medicare spending (total Medicare program
payments) for ESRD facilities in CY 2017 would be approximately $9.6
billion. This estimate takes into account a projected increase in fee-
for-service Medicare dialysis beneficiary enrollment of 1.4 percent in
CY 2017.
d. Effects on Medicare Beneficiaries
Under the ESRD PPS, beneficiaries are responsible for paying 20
percent of the ESRD PPS payment amount. As a result of the projected
0.73 percent overall increase in the ESRD PPS payment amounts in CY
2017, we estimate that there will be an increase in beneficiary co-
insurance payments of 4.2 percent in CY 2017, which translates to
approximately $10 million.
e. Alternatives Considered
In section II.B.2, we finalized a change to the home dialysis
training add-on based on the average number of hours for PD and HD and
weighted by the percentage of total treatments for each modality. We
considered an approach to update the current training add-on amount
annually using the market basket increase or the wage and price proxy
in the market basket. However, under either approach, the increase to
the training add-on payment was small and would not incentivize home
dialysis training.
2. Coverage and Payment for Renal Dialysis Services Furnished to
Individuals with AKI
a. Effects on ESRD Facilities
We analyzed CY 2015 hospital outpatient claims to identify the
number of treatments furnished historically for AKI patients. We
identified 8,047 outpatient dialysis treatments for beneficiaries with
AKI that were furnished in CY 2015. We then inflated the 8,047
treatments to 2017 values using estimated population growth for fee-for
service non-ESRD beneficiaries. This results in an estimated 8,234
treatments that would now be paid to ESRD facilities for furnishing
dialysis to beneficiaries with AKI. Using the CY 2017 ESRD base rate of
$231.55 and an average wage index multiplier, we estimate approximately
$2.0 million that would now be paid to ESRD facilities for dialysis
treatments provided to AKI beneficiaries.
Ordinarily, we would provide a table showing the impact of this
provision on various categories of ESRD facilities. Because we have no
way to project how many patients with AKI requiring dialysis will
choose to have dialysis treatments at an ESRD facility, we are unable
to provide a table at this time.
We note that in the CY 2017 ESRD PPS proposed rule (81 FR 42870),
we stated that we identified 7,155 outpatient claims with AKI that also
had dialysis treatments that were furnished in CY 2015. This is an
incorrect statement. We should have stated that we identified 7,155
outpatient dialysis treatments for beneficiaries with AKI.
b. Effects on Other Providers
Under section 1834(r) of the Act, as added by section 808(b) of
TPEA, we are finalizing a payment rate for renal dialysis services
furnished by ESRD facilities to beneficiaries with AKI. The only two
Medicare providers authorized to provide these outpatient renal
dialysis services are hospital outpatient departments and ESRD
facilities. The decision about where the renal dialysis services are
furnished is made by the patient and their physician. Therefore, this
proposal will have zero impact on other Medicare providers.
c. Effects on the Medicare Program
We anticipate an estimated $2.0 million being redirected from
hospital outpatient departments to ESRD facilities in CY 2017 as a
result of some AKI patients receiving renal dialysis services in the
ESRD facility at the lower ESRD PPS base rate versus continuing to
receive those services in the hospital outpatient setting.
d. Effects on Medicare Beneficiaries
Currently, beneficiaries have a 20 percent co-insurance obligation
when they receive AKI dialysis in the hospital outpatient setting. When
these services are furnished in an ESRD facility, the patients would
continue to be responsible for a 20 percent co-insurance. Because the
AKI dialysis payment rate paid to ESRD facilities is lower than the
Outpatient Prospective Payment System's payment amount, we would expect
beneficiaries to pay less co-insurance when AKI dialysis is furnished
by ESRD facilities.
e. Alternatives Considered
In section III.B.2 of this final rule, we finalize policy related
to the implementation of section 808(b) of TPEA, which amended section
1834 by adding a new paragraph (r) which provides payment for renal
dialysis services furnished by ESRD facilities to beneficiaries with
AKI. We considered adjusting the AKI payment rate by including the ESRD
PPS case-mix adjustments, other adjustments at 1881(b)(14)(D), as well
as not paying separately for AKI specific drugs and labs. We ultimately
determined that treatment for AKI is substantially different from
treatment for ESRD and the case-mix adjustments applied to ESRD
patients may not be applicable to AKI patients and as such, including
those policies and adjustment would be inappropriate at this time.
3. End-Stage Renal Disease Quality Incentive Program
a. Effects of the PY 2020 ESRD QIP
The ESRD QIP provisions are intended to prevent possible reductions
in the quality of ESRD dialysis facility services provided to
beneficiaries as a result of payment changes under the ESRD PPS.
The methodology that we proposed using to determine a facility's
TPS for the PY 2020 ESRD QIP is described in sections III.F.6 and
III.F.7 of this final rule. Any reductions in ESRD PPS payments as a
result of a facility's performance under the PY 2020 ESRD QIP would
apply to ESRD PPS payments made to the facility in CY 2020.
We estimate that, of the total number of dialysis facilities
(including those not receiving a TPS), approximately 42 percent or
2,710 of the facilities would likely receive a payment reduction in PY
2020. Facilities that do not receive a TPS are not eligible for a
payment reduction.
In conducting our impact assessment, we have assumed that there
will be 6,453 dialysis facilities paid through the PPS. Table 35 shows
the overall estimated distribution of payment reductions resulting from
the PY 2020 ESRD QIP.

Table 35--Estimated Distribution of PY 2020 ESRD QIP Payment Reductions
------------------------------------------------------------------------
Percent of
Payment reduction Number of facilities
facilities (%)
------------------------------------------------------------------------
0.0%.......................................... 3311 55.0
0.5%.......................................... 1538 25.5
1.0%.......................................... 832 13.8

[[Page 77960]]

1.5%.......................................... 269 4.5
2.0%.......................................... 71 1.2
------------------------------------------------------------------------
Note: This table excludes 432 facilities that we estimate will not
receive a payment reduction because they will not report enough data
to receive a Total Performance Score.

To estimate whether or not a facility would receive a payment
reduction in PY 2020, we scored each facility on achievement and
improvement on several measures we have previously finalized and for
which there were available data from CROWNWeb and Medicare claims.
Measures used for the simulation are shown in Table 36.

Table 36--Data Used To Estimate PY 2020 ESRD QIP Payment Reductions
----------------------------------------------------------------------------------------------------------------
Period of time used to
calculate achievement
Measure thresholds, performance Performance period
standards, benchmarks, and
improvement thresholds
----------------------------------------------------------------------------------------------------------------
Vascular Access Type: ........................... .........................................
%Fistula............................ Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
%Catheter........................... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
Kt/V Composite.......................... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
Hypercalcemia........................... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
Standardized Transfusion Ratio.......... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
ICH CAHPS Survey........................ Jan 2015-Dec 2015.......... Jan 2015-Dec 2015.
Standardized Readmission Ratio.......... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
NHSN Bloodstream Infection.............. Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
SHR..................................... Jan 2014-Dec 2014.......... Jan 2015-Dec 2015.
----------------------------------------------------------------------------------------------------------------

Clinical measure topic areas with less than 11 cases for a facility
were not included in that facility's Total Performance Score. Each
facility's Total Performance Score was compared to an estimated minimum
Total Performance Score and an estimated payment reduction table that
were consistent with the proposals outlined in section III.G.9 of this
final rule. Facility reporting measure scores were estimated using
available data from CY 2015. Facilities were required to have a score
on at least one clinical and one reporting measure in order to receive
a Total Performance Score.
To estimate the total payment reductions in PY 2020 for each
facility resulting from the proposed rule, we multiplied the total
Medicare payments to the facility during the 1-year period between
January 2015 and December 2015 by the facility's estimated payment
reduction percentage expected under the ESRD QIP, yielding a total
payment reduction amount for each facility: (Total ESRD payment in
January 2015 through December 2015 times the estimated payment
reduction percentage). For PY 2020, the total payment reduction for all
of the 2,710 facilities expected to receive a reduction is
approximately $32 million ($31,581,441). Further, we estimate that the
total costs associated with the collection of information requirements
for PY 2020 described in section VIII.1.b of this final rule would be
approximately $91 million for all ESRD facilities. As a result, we
estimate that ESRD facilities will experience an aggregate impact of
approximately $123 million ($91,449,815 + $31,581,441= $123,031,256) in
PY 2020, as a result of the PY 2020 ESRD QIP.
Table 37 below shows the estimated impact of the finalized ESRD QIP
payment reductions to all ESRD facilities for PY 2020. The table
details the distribution of ESRD facilities by facility size (both
among facilities considered to be small entities and by number of
treatments per facility), geography (both urban/rural and by region),
and by facility type (hospital based/freestanding facilities). Given
that the time periods used for these calculations will differ from
those we proposed to use for the PY 2020 ESRD QIP, the actual impact of
the PY 2020 ESRD QIP may vary significantly from the values provided
here.
Lastly, we note that the facilities located in the US Territories
and earning a payment penalty are primarily urban, Large Dialysis
Organizations and we wish to confirm that we will work through the ESRD
Networks to address issues of quality of care at these locations.

Table 37--Impact of QIP Payment Reductions to ESRD Facilities for PY 2020
----------------------------------------------------------------------------------------------------------------
Number of Payment
Number of Number of facilities reduction
Number of treatments facilities expected to (percent
facilities 2014 (in with QIP receive a change in
millions) score payment total ESRD
reduction payments)
----------------------------------------------------------------------------------------------------------------
All Facilities.................. 6,453 40.0 6,021 2,710 -0.35
Facility Type:
Freestanding................ 6,022 37.8 5,853 2,661 -0.36
Hospital-based.............. 431 2.2 168 49 -0.22
Ownership Type:

[[Page 77961]]

Large Dialysis.............. 4,541 28.6 4,433 2,025 -0.35
Regional Chain.............. 989 6.2 929 344 -0.27
Independent................. 568 3.5 536 300 -0.53
Hospital-based (non-chain).. 354 1.8 123 41 -0.26
Unknown..................... 1 0.0 0 0 --
Facility Size:
Large Entities.............. 5,530 34.8 5,362 2,369 -0.34
Small Entities \1\.......... 922 5.2 659 341 -0.48
Unknown..................... 1 0.0 0 0 --
Rural Status:
(1) Yes..................... 1,260 6.0 1,146 355 -0.22
(2) No...................... 5,193 34.0 4,875 2,355 -0.38
Census Region:
Northeast................... 881 6.2 785 362 -0.35
Midwest..................... 1,511 7.6 1,356 593 -0.34
South....................... 2,853 18.2 2,744 1,356 -0.39
West........................ 1,143 7.6 1,084 362 -0.25
US Territories \2\.......... 65 0.4 52 37 -0.52
Census Division:
Unknown..................... 1 0.0 0 0 --
East North Central.......... 1,045 5.5 951 471 -0.40
East South Central.......... 522 3.0 515 209 -0.32
Middle Atlantic............. 702 4.9 623 317 -0.40
Mountain.................... 368 2.0 336 83 -0.17
New England................. 182 1.3 164 47 -0.17
Pacific..................... 782 5.7 753 282 -0.28
South Atlantic.............. 1,458 9.4 1,389 771 -0.44
West North Central.......... 469 2.1 406 123 -0.21
West South Central.......... 875 5.8 841 376 -0.36
US Territories \2\.......... 49 0.3 43 31 -0.53
Facility Size (# of total
treatments):
Less than 4,000 treatments.. 1,211 2.7 1,006 376 -0.33
4,000-9,999 treatments...... 2,401 11.0 2,324 938 -0.32
Over 10,000 treatments...... 2,680 26.1 2,603 1,342 -0.38
Unknown..................... 161 0.2 88 54 -0.60
----------------------------------------------------------------------------------------------------------------
\1\ Small Entities include hospital-based and satellite facilities and non-chain facilities based on DFC self-
reported status.
\2\ Includes Puerto Rico and Virgin Islands.

4. DMEPOS Competitive Bidding Bid Surety Bond, State Licensure and
Appeals Process for Breach of DMEPOS Competitive Bidding Program
Contract Actions
a. Effects on Competitive Bidding Program Suppliers
Bid Surety Bonds. It is difficult to estimate the precise financial
impact the bid surety bond requirement will have on competitive bidding
entities as this type of bond is not currently available. Based on our
research of the bond industry, as well as the structure of the existing
CMS DMEPOS surety bond requirement for all DMEPOS suppliers, we
anticipate that the cost to obtain a bid surety bond will be based on a
percentage of the total bond amount. This percentage may be adjusted by
the authorized surety based upon certain criteria such as: (1) The
number of bid surety bonds purchased by a bidding entity, (2) the
credit score of the bidding entity and, (3) the prior contracting
experience the bidding entity has had with the DMEPOS CBP, that is,
history of accepting/rejecting contracts.
For instance, an authorized surety may establish a preliminary
charge amount of 2 percent of the total bond amount to obtain a $50,000
bid surety bond. We anticipate that the authorized surety may adjust
their charge percentage based on the number of CBAs in which a bidding
entity bids, that is, a bulk discount. Bidding entities that purchase
multiple bid surety bonds from the authorized surety would likely
receive a reduced charge per bid surety bond as compared to a bidding
entity that only purchases a single bid surety bond. We also expect
that authorized sureties will evaluate each bidding entity's credit
score(s) to either establish an appropriate charge percentage or to
decide not to issue a bond if the bidding entity's credit score is too
low. Lastly, we anticipate that an authorized surety may also request
documentation from prior rounds of bidding to understand the bidding
entity's experience with contract acceptance. Bidding entities that
have accepted more contract offers in the prior round without any
contract rejections may be viewed by an authorized surety as less risky
than a bidding entity who has rejected numerous contract offers with
few or no contract acceptance.
On January 1, 2019, CMS will be combining all CBAs into a
consolidated round of competition. As a result, we estimate the
aggregate total out of pocket cost for bidding entities to bid in this
competition to be $13,000,000. This estimate is based upon the
approximately 13,000 distinct bidders for CBAs included in both the
Round 2 Recompete and Round 1 2017 multiplied by a $1,000 per bid
surety bond price. Given the unknown variables with this new type of
bond, we sought comments on how the

[[Page 77962]]

authorized sureties will set the purchase amount for bidding entities
in order to finalize a more accurate estimate. We received one comment
which stated that a ``surety will review the capabilities and financial
strength of the bid surety bond applicants and provide bid surety bonds
only to those entities that the surety has determined are capable of
performing the underlying obligation''. Overall, in response to the
comments, we revised the bid bond amount from $100,000 in the proposed
rule to $50,000 in this final rule and use the assumption that purchase
price for a bid surety bond will be approximately $1,000 per CBA. We
believe that there will be many variables that will impact the bidder's
out of pocket cost to purchase a bid surety bond(s) and as such,
believe that by lowering the bid surety bond amount that this will in
turn lower the overall impact and lessen the burden for bidders.
We do anticipate that there will be an impact on small suppliers.
We sought comments on whether we should have a reduced bid surety bond
amount for a particular subset of suppliers, for example, small
suppliers as defined by the CBP. In terms of a small supplier obtaining
a bond, the Small Business Administration (SBA) has a statement on
their Web site stating that their guarantee ``encourages surety
companies to bond small businesses,'' and as such we anticipate that
small suppliers will be able to reach out to the SBA if they encounter
difficulty in obtaining a bond. As a result of the implementation of
the final rule, we anticipate that this requirement may deter some
suppliers from bidding, which would result in a lower number of bids
submitted to the DMEPOS CBP.
State Licensure. Contract suppliers in the CBP are already required
to have the proper state licensure in order to be eligible for a
contract award. We do not anticipate that conforming the language of
the regulation to the language in section 1847(b)(2)(A), as added by
section 522(a) of MACRA, will have any additional impact beyond what is
already being imposed on suppliers.
Appeals Process for Breach of DMEPOS Competitive Bidding Program
Contract Actions. We believe the expansion of the appeal rights for
breach of contract may have a positive impact on contract suppliers by
providing the formal opportunity to appeal any of the actions that CMS
may take as a result of a breach of contract.
b. Effects on the Medicare Program
Bid Surety Bonds. We anticipate that the bid surety bond
requirement will result in bidding entities being more conscientious
when formulating their bid amounts. In addition, given the already high
historic contract acceptance rate exceeding 90 percent per round, we
anticipate that the bid surety bond provision will result in an even
higher rate of contract acceptance.
We anticipate that this regulation may deter some bidding entities
from bidding, which would result in a lower number of bids submitted to
the DMEPOS CBP. This reduction could reduce competition and lead to a
decreased number of contract suppliers and, as a result, less savings
from the program.
Additionally, we expect that there will be an administrative burden
for implementing the bid surety bond requirement, which includes
educating bidding entities, updating CMS bidding and contracting
systems, and verifying that the bonds are valid.
State Licensure. We do not anticipate that conforming the language
of the regulation to the language in section 1847(b)(2)(A), as added by
section 522(a) of MACRA, will have any additional impact beyond what is
already being imposed on suppliers. Therefore, the burden of meeting
this statutory requirement has already been estimated in previous
regulations and this revision to the regulation does not add to the
burden.
Appeals Process for Breach of DMEPOS Competitive Bidding Program
Contract Actions. We expect that there may be some de minimis costs to
expand the appeals process. We anticipate that overall this final rule
will have a positive impact on the program by allowing suppliers a full
appeals process for any breach of contract action that CMS may take
pursuant to Sec. 414.422(g)(2).
c. Effects on Medicare Beneficiaries
The final CBP requirements for bid surety bond, state licensure and
appeals process for breach of contract actions are not expected to have
an impact on Medicare beneficiaries.
d. Alternatives Considered
Section 1847(a)(1)(G) of the Act, as amended by section 522(a) of
MACRA, provides that a bidding entity may not submit a bid for a CBA
unless, as of the deadline for bid submission, the entity has (1)
obtained a bid surety bond, and (2) provided proof of having obtained
the bid surety bond for each CBA associated with its bid(s) in a form
specified by the Secretary. No alternatives to this bid surety bond
requirement were considered. However, while we proposed that the bid
surety bond be in an amount of $100,000, we sought comments on whether
a lower bond amount for a certain subset of bidding entities, for
example, small suppliers as defined by 42 CFR 414.402, would be
appropriate. In finalizing the rule we determined that the bid surety
bond will be set at $50,000 for all bidding entities based on comments
received. No alternatives were considered for the state licensure
requirement, as Sec. 414.414(b)(3) of the regulations already requires
suppliers to have all applicable state and local licenses.
For appeals for breach of contract actions, we believe that it
would be beneficial to expand the appeals process to any of the breach
of contract actions that CMS may take pursuant to Sec. 414.422(g)(2).
The alternative we considered is to retain the current appeals process
for terminations, and allow suppliers to appeal other breach of
contract actions through an informal sub-regulatory process or a
process similar to the existing appeals process. However, in order to
provide an opportunity for notice and comment, we believe that the
better option is to revise the current regulations to allow for a clear
and defined appeals process for any breach of contract action that CMS
may take.
5. Other DMEPOS Provisions
a. Effects of the Method for Adjusting DMEPOS Fee Schedule Amounts for
Similar Items With Different Features Using Information From the DMEPOS
Competitive Bidding Programs
For this final rule, we estimate that the method for adjusting
DMEPOS fee schedule amounts for certain groupings of similar items with
different features using information from the DMEPOS CBPs will generate
small savings by lowering the price of similar items to be equal to the
weighted average of the SPAs for the items based on the item weights
assigned under competitive bidding. The reduced price causes lower
copayments to the beneficiary. We believe our final policy will also
prevent beneficiaries from potentially receiving lower cost items at
higher coinsurance rates. Suppliers will be impacted little by the
methodological change because the final methodology we are adopting has
a small saving attached to it.
b. Effects of the Final Rules Determining Single Payment Amounts for
Similar Items With Different Features Under the DMEPOS Competitive
Bidding Program
In this final rule, we estimate that the method for determining
single payment amounts for certain groupings of similar items with
different features under the

[[Page 77963]]

DMEPOS CBPs will generate small savings by not allowing SPAs for
certain similar items without features to be priced higher than items
with features. Our final policy will benefit beneficiaries who would
have lower coinsurance payments as a result of this proposal. We also
believe this methodology will prevent beneficiaries from potentially
receiving lower cost items at higher coinsurance rates. Suppliers will
have a reduced administrative burden due to the fact that bidding is
simplified.
c. Effects of the Revision to the Bid Limits Under the DMEPOS
Competitive Bidding Program
In this final rule, we estimate the bid limits for items under the
DMEPOS CBP will not have a significant fiscal impact on the Medicare
program because we anticipate little change in Medicare payment due to
the revised bid limits. This revision will provide clearer limits. We
estimate our revision to the bid limits at the unadjusted fee level
would have little fiscal impact in that competitions will continue to
reduce prices. This final rule will benefit suppliers and beneficiaries
because payments will be allowed to fluctuate somewhat to account for
increases in the costs of furnishing items, including newer technology
items.

C. Accounting Statement

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars_a004_a-4), in Table 38, we have
prepared an accounting statement showing the classification of the
transfers and costs associated with the various provisions of this
final rule.

Table 38--Accounting Statement: Classification of Estimated Transfers
and Costs/Savings
------------------------------------------------------------------------
Category Transfers
------------------------------------------------------------------------
ESRD PPS and AKI for CY 2017
------------------------------------------------------------------------
Annualized Monetized Transfers......... $80 million.
From Whom to Whom...................... Federal government to ESRD
providers.
Category Transfers
Increased Beneficiary Co-insurance $10 million.
Payments.
From Whom to Whom...................... Beneficiaries to ESRD
providers.
------------------------------------------------------------------------
ESRD QIP for PY 2019 \19\
------------------------------------------------------------------------
Category Transfers
Annualized Monetized Transfers......... -$15.5 million.
Category Costs
Annualized Monetized ESRD Provider $21 thousand.
Costs.
------------------------------------------------------------------------
ESRD QIP for PY 2020
------------------------------------------------------------------------
Category Transfers
Annualized Monetized Transfers......... -$31 million.
From Whom to Whom...................... Federal government to ESRD
providers.
Category Costs
Annualized Monetized ESRD Provider $91 million.
Costs.
------------------------------------------------------------------------
DME Provisions
------------------------------------------------------------------------

Transfer
---------------------------------------------------------------------
Category Year Discount
Estimates dollar rate
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Transfer on -$1.9....................................... 2016 7%
Beneficiary Cost Sharing (in $Millions). -$1.9....................................... 2016 3%
---------------------------------------------------------------------
From Whom to Whom......................... Beneficiaries to Medicare providers
----------------------------------------------------------------------------------------------------------------
Transfers
---------------------------------------------------------------------
Estimates Year Discount
dollar rate
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Transfer Payments (in -$7.5....................................... 2016 7%
$Millions). -$7.8....................................... 2016 3%
---------------------------------------------------------------------
From Whom to Whom......................... Federal government to Medicare providers.
----------------------------------------------------------------------------------------------------------------

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

\19\ We note that the aggregate impact of the PY 2018 ESRD QIP
was included in the CY 2015 ESRD PPS final rule (79 FR 66256 through
66258). The values presented here capture those previously finalized
impacts plus the collection of information requirements related for
PY 2018 presented in this notice of proposed rulemaking.
---------------------------------------------------------------------------

XVII. 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. Approximately 14 percent of ESRD dialysis
facilities are considered small

[[Page 77964]]

entities according to the Small Business Administration's (SBA) size
standards, which classifies small businesses as those dialysis
facilities having total revenues of less than $38.5 million in any 1
year. Individuals and States are not included in the definitions of a
small entity. For more information on SBA's size standards, see the
Small Business Administration's Web site at http://www.sba.gov/content/small-business-size-standards (Kidney Dialysis Centers are listed as
621492 with a size standard of $38.5 million).
We do not believe ESRD facilities are operated by small government
entities such as counties or towns with populations of 50,000 or less,
and therefore, they are not enumerated or included in this estimated
RFA analysis. Individuals and States are not included in the definition
of a small entity.
For purposes of the RFA, we estimate that approximately 14 percent
of ESRD facilities are small entities as that term is used in the RFA
(which includes small businesses, nonprofit organizations, and small
governmental jurisdictions). This amount is based on the number of ESRD
facilities shown in the ownership category in Table 34. Using the
definitions in this ownership category, we consider the 578 facilities
that are independent and the 358 facilities that are shown as hospital-
based to be small entities. The ESRD facilities that are owned and
operated by LDOs and regional chains would have total revenues of more
than $38.5 million in any year when the total revenues for all
locations are combined for each business (individual LDO or regional
chain), and are not, therefore, included as small entities.
For the ESRD PPS updates in this final rule, a hospital-based ESRD
facility (as defined by ownership type) is estimated to receive a 0.9
percent increase in payments for CY 2017. An independent facility (as
defined by ownership type) is also estimated to receive a 0.7 percent
increase in payments for CY 2017.
We are unable to estimate whether patients will go to ESRD
facilities for AKI dialysis, however, we have estimated there is a
potential for $2.0 million in payment for AKI dialysis treatments that
could potentially be furnished in ESRD facilities. As a result, this
final rule is not estimated to have a significant impact on small
entities.
We estimate that of the 2,710 ESRD facilities expected to receive a
payment reduction in the PY 2020 ESRD QIP, 341 are ESRD small entity
facilities. We present these findings in Table 35 (``Estimated
Distribution of PY 2020 ESRD QIP Payment Reductions'') and Table 37
(``Impact of Proposed QIP Payment Reductions to ESRD Facilities for PY
2020'') above. We estimate that payment reductions will average
approximately $11,653 per facility across the 2,710 facilities
receiving a payment reduction, and $13,675.56 for each small entity
facility. Using our estimates of facility performance, we also
estimated the impact of payment reductions on ESRD small entity
facilities by comparing the total estimated payment reductions for 922
small entity facilities with the aggregate ESRD payments to all small
entity facilities. We estimate that there are a total of 922 small
entity facilities, and that the aggregate ESRD PPS payments to these
facilities will decrease 0.48 percent in PY 2020.
We anticipate that the bid surety bond provision will have an
impact on all suppliers, including small suppliers; therefore, we
requested comments regarding the bid bond amount. No comments were
received from small suppliers. The state licensure and appeal of
preclusion rules are not expected to have an impact on any supplier.
We expect that finalizing our proposals for a method for adjusting
DMEPOS fee schedule amounts for certain groupings of similar items with
different features using information from the DMEPOS CBPs, our final
change for submitting bids for a grouping of two or more similar items
with different features, our final policy for determining single
payment amounts for similar items with different features under the
DMEPOS CBPs, and our revision to the bid limits for items under the
DMEPOS CBP will not have a significant impact on a substantial number
of small suppliers. Although suppliers furnishing items and services
outside CBAs do not have to compete and be awarded contracts in order
to continue furnishing these items and services, the fee schedule
amounts for these items and services will be more equitable using the
proposals established as a result of this rule. We believe that these
rules will have a positive impact on suppliers because it reduces the
burden and time it takes for suppliers to submit bids and data entry.
It will also allow for suppliers to furnish items necessary to
beneficiaries while getting compensated a reasonable payment.
Therefore, the Secretary has determined that this final rule would
not have a significant economic impact on a substantial number of small
entities. We solicited comments on the RFA analysis provided and did
not receive comments.
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. Any
such regulatory impact 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. We do not
believe this final rule will have a significant impact on operations of
a substantial number of small rural hospitals because most dialysis
facilities are freestanding. While there are 139 rural hospital-based
ESRD facilities, we do not know how many of them are based at hospitals
with fewer than 100 beds. However, overall, the 139 rural hospital-
based ESRD facilities will experience an estimated 0.1 percent increase
in payments. As a result, this final rule is not estimated to have a
significant impact on small rural hospitals. Therefore, the Secretary
has determined that this final rule would not have a significant impact
on the operations of a substantial number of small rural hospitals.

XVIII. 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 2016, that
is approximately $146 million. This final rule does not include any
mandates that would impose spending costs on State, local, or Tribal
governments in the aggregate, or by the private sector, of $141
million.

XIX. Federalism Analysis

Executive Order 13132 on Federalism (August 4, 1999) 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. We have reviewed this
final rule under the threshold criteria of Executive Order 13132,
Federalism, and have determined that it will not have substantial
direct effects on the rights, roles, and responsibilities of States,
local or Tribal governments.

[[Page 77965]]

XX. Congressional Review Act

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

List of Subjects

42 CFR Part 413

Health facilities, Kidney diseases, Medicare, Reporting and
recordkeeping requirements.

42 CFR Part 414

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

42 CFR Part 494

Conditions for coverage for end-stage renal disease facilities.

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

PART 413--PRINCIPLES OF REASONABLE COST REIMBURSEMENT; PAYMENT FOR
END-STAGE RENAL DISEASE SERVICES; OPTIONAL PROSPECTIVELY DETERMINED
PAYMENT RATES FOR SKILLED NURSING FACILITIES; PAYMENT FOR ACUTE
KIDNEY INJURY DIALYSIS

0
1. The authority citation for part 413 is revised to read as follows:

Authority: 42 U.S.C. 1302; 42 U.S.C. 1395d(d); 42 U.S.C.
1395f(b); 42 U.S.C. 1395g; 42 U.S.C. 1395l(a), (i), and (n); 42
U.S.C. 1395x(v); 42 U.S.C. 1395hh; 42 U.S.C. 1395rr; 42 U.S.C.
1395tt; 42 U.S.C. 1395ww; sec. 124 of Public Law 106-113, 113 Stat.
1501A- 332; sec. 3201 of Public Law 112-96, 126 Stat. 156; sec. 632
of Public Law 112-240, 126 Stat. 2354; sec. 217 of Public Law 113-
93, 129 Stat. 1040; sec. 204 of Public Law 113-295, 128 Stat. 4010;
and sec. 808 of Public Law 114-27, 129 Stat. 362.

0
2. The heading for part 413 is revised to read as set forth above:

0
3. Section 413.194 is amended by revising paragraph (a)(1) to read as
follows:

Sec. 413.194 Appeals.

(a) * * *
(1) A facility that disputes the amount of its allowable Medicare
bad debts reimbursed by CMS under Sec. 413.89(h)(3) may request review
by the contractor or the Provider Reimbursement Review Board (PRRB) in
accordance with subpart R to part 405 of this chapter.
* * * * *

0
4. Section 413.215 is amended by revising paragraph (b) to read as
follows:

Sec. 413.215 Basis of payment.

* * * * *
(b) In addition to the per-treatment payment amount, as described
in paragraph (a) of this section, the ESRD facility may receive payment
for bad debts of Medicare beneficiaries as specified in Sec.
413.89(h)(3).

0
5. Add subpart K to part 413 to read as follows:
Subpart K--Payment for Acute Kidney Injury (AKI) Dialysis
Sec.
413.370 Scope.
413.371 Definition.
413.372 AKI dialysis payment rate.
413.373 Other adjustments to the AKI dialysis payment rate
413.374 Renal dialysis services included in the AKI dialysis payment
rate
413.375 Notification of changes in rate-setting methodologies and
payment rates.

Subpart K--Payment for Acute Kidney Injury (AKI) Dialysis

Sec. 413.370 Scope.

This subpart implements section 1834(r) of the Act by setting forth
the principles and authorities under which CMS is authorized to
establish a payment amount for renal dialysis services furnished to
beneficiaries with an acute kidney injury in or under the supervision
of an ESRD facility that meets the conditions of coverage in part 494
of this chapter and as defined in Sec. 413.171.

Sec. 413.371 Definition.

For purposes of the subpart, the following definition applies:
Individual with acute kidney injury. The term individual with acute
kidney injury means an individual who has acute loss of renal function
and does not receive renal dialysis services for which payment is made
under section 1881(b)(14) of the Act.

Sec. 413.372 AKI dialysis payment rate.

The amount of payment for AKI dialysis services shall be the base
rate for renal dialysis services determined for such year under section
1881(b)(14), that is, the ESRD base rate as set forth in Sec. 413.220,
updated by the ESRD bundled market basket percentage increase factor
minus a productivity adjustment as set forth in Sec. 413.196(d)(1),
adjusted for wages as set forth in Sec. 413.231, and adjusted by any
other amounts deemed appropriate by the Secretary under Sec. 413.373.

Sec. 413.373 Other adjustments to the AKI dialysis payment rate

The payment rate for AKI dialysis may be adjusted by the Secretary
(on a budget neutral basis for payments under section 1834(r)) by any
other adjustment factor under subparagraph (D) of section 1881(b)(14)
of the Act.

Sec. 413.374 Renal dialysis services included in the AKI dialysis
payment rate

(a) The AKI dialysis payment rate applies to renal dialysis
services (as defined in subparagraph (B) of section 1881(b)(14) of the
Act) furnished under Part B by a renal dialysis facility or provider of
services paid under section 1881(b)(14) of the Act.
(b) Other items and services furnished to beneficiaries with AKI
that are not considered to be renal dialysis services as defined in
Sec. 413.171, but that are related to their dialysis treatment as a
result of their AKI, would be separately payable, that is, drugs,
biologicals, laboratory services, and supplies that ESRD facilities are
certified to furnish and that would otherwise be furnished to a
beneficiary with AKI in a hospital outpatient setting.

Sec. 413.375 Notification of changes in rate-setting methodologies
and payment rates.

(a) Changes to the methodology for payment for renal dialysis
services furnished to beneficiaries with AKI as well as any adjustments
to the AKI payment rate other than wage index will be adopted through
notice and comment rulemaking.
(b) Annual updates in the AKI dialysis payment rate as described in
Sec. 413.372 that do not include those changes described in paragraph
(a) of this section are announced by notice published in the Federal
Register without opportunity for public comment.
(c) Effective for cost reporting periods beginning on or after
January 1, 2017, on an annual basis CMS updates the AKI dialysis
payment rate.

PART 414--PAYMENT FOR PART B MEDICAL AND OTHER HEALTH SERVICES

0
7. The authority citation for part 414 continues to read as follows:

Authority: Secs. 1102, 1871, and 1881(b)(1) of the Social
Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(1)).

0
8. Section 414.210 is amended by revising paragraph (g)(6) to read as
follows:

[[Page 77966]]

Sec. 414.210 General payment rules.

* * * * *
(g) * * *
(6) Adjustments of single payment amounts resulting from price
inversions under the DMEPOS Competitive Bidding Program. (i) In
situations where a price inversion defined in Sec. 414.402 occurs
under the DMEPOS Competitive Bidding Program in a competitive bidding
area (CBA) following a competition for a grouping of similar items
identified in paragraph (g)(6)(ii) of this section, prior to adjusting
the fee schedule amounts under paragraph (g) of this section the single
payment amount for each item in the grouping of similar items in the
CBA is adjusted to be equal to the weighted average of the single
payment amounts for the items in the grouping of similar items in the
CBA.
(ii) The groupings of similar items subject to this rule include--
(A) Hospital beds (HCPCS codes E0250, E0251, E0255, E0256, E0260,
E0261, E0290, E0291, E0292, E0293, E0294, E0295, E0301, E0302, E0303,
and E0304).
(B) Mattresses and overlays (HCPCS codes E0277, E0371, E0372, and
E0373)
(C) Power wheelchairs (HCPCS codes K0813, K0814, K0815, K0816,
K0820, K0821, K0822, and K0823).
(D) Seat lift mechanisms (HCPCS codes E0627 and E0629).
(E) TENS devices (HCPCS codes E0720 and E0730).
(F) Walkers (HCPCS codes E0130, E0135, E0141, and E0143).
(iii) The weight for each item (HCPCS code) used in calculating the
weighted average described in paragraph (g)(6)(ii) of this section is
equal to the proportion of total nationwide allowed services furnished
in calendar year 2012 for the item (HCPCS code) in the grouping of
similar items, relative to the total nationwide allowed services
furnished in calendar year 2012 for each of the other items (HCPCS
codes) in the grouping of similar items.
* * * * *

0
9. Section 414.402 is amended by revising the definition of ``Hearing
officer'' and adding the definitions of ``Bidding entity,'' ``Price
Inversion,'' and ``Total nationwide allowed services'' in alphabetical
order to read as follows:

Sec. 414.402 Definitions.

* * * * *
Bidding entity means the entity whose legal business name is
identified in the ``Form A: Business Organization Information'' section
of the bid.
* * * * *
Hearing officer means an individual, who was not involved with the
CBIC recommendation to take action for a breach of a DMEPOS Competitive
Bidding Program contract, who is designated by CMS to review and make
an unbiased and independent recommendation when there is an appeal of
CMS's initial determination to take action for a breach of a DMEPOS
Competitive Bidding Program contract.
* * * * *
Price inversion means any situation where the following occurs: One
item (HCPCS code) in a grouping of similar items (e.g., walkers,
enteral infusion pumps, or power wheelchairs) in a product category
includes a feature that another, similar item in the same product
category does not have (e.g., wheels, alarm, or Group 2 performance);
the average of the 2015 fee schedule amounts (or initial, unadjusted
fee schedule amounts for subsequent years for new items) for the code
with the feature is higher than the average of the 2015 fee schedule
amounts for the code without the feature; and, following a competition,
the SPA for the code with the feature is lower than the SPA for the
code without that feature.
* * * * *
Total nationwide allowed services means the total number of
services allowed for an item furnished in all states, territories, and
the District of Columbia where Medicare beneficiaries reside and can
receive covered DMEPOS items and services.
* * * * *

0
10. Section 414.412 is amended by revising paragraphs (b)(2) and (d)
and adding paragraph (h) to read as follows:

Sec. 414.412 Submission of bids under a competitive bidding program.

* * * * *
(b) * * *
(2) 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, or
subpart I of this part. 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.
* * * * *
(d) Separate bids. (1) Except as provided in paragraph (d)(2) of
this section, for each product category that a supplier is seeking to
furnish under a Competitive Bidding Program, the supplier must submit a
separate bid for each item in that product category.
(2) An exception to paragraph (d)(1) of this section can be made in
situations where price inversions defined in Sec. 414.402 have
occurred in past competitions for items within groupings of similar
items within a product category. In these situations, an alternative
method for submitting bids for these combinations of codes may be
announced at the time the competition begins. Under this alternative
method, the combination of codes for the similar items is the item for
bidding purposes, as defined under Sec. 414.402. Suppliers submit bids
for the code with the highest total nationwide allowed services for
calendar year 2012 (the ``lead item'') within the grouping of codes for
similar items, and the bids for this code are used to calculate the
single payment amounts for this code in accordance with Sec.
414.416(b)(1). The bids for this code would also be used to calculate
the single payment amounts for the other codes within the grouping of
similar items in accordance with Sec. 414.416(b)(3). For subsequent
competitions, the lead item is identified as the code with the highest
total nationwide allowed services for the most recent and complete
calendar year that precedes the competition. The groupings of similar
items subject to this rule include--
(i) Hospital beds (HCPCS codes E0250, E0251, E0255, E0256, E0260,
E0261, E0266, E0265, E0290, E0291, E0292, E0293, E0294, E0295, E0296,
E0297, E0301, E0302, E0303, and E0304).
(ii) Mattresses and overlays (HCPCS codes E0277, E0371, E0372, and
E0373).
(iii) Power wheelchairs (HCPCS codes K0813, K0814, K0815, K0816,
K0820, K0821, K0822, K0823, K0824, K0825, K0826, K0827, K0828, and
K0829).
(iv) Seat lift mechanisms (HCPCS codes E0627 and E0629).
(v) TENS devices (HCPCS codes E0720 and E0730).
(vi) Walkers (HCPCS codes E0130, E0135, E0140, E0141, E0143, E0144,
E0147, E0148, and E0149).
* * * * *
(h) Requiring bid surety bonds for bidding entities--(1) Bidding
requirements. For competitions beginning on or after January 1, 2017,
and no later than January 1, 2019, a bidding entity may not submit a
bid(s) for a CBA unless it obtains a bid surety bond for the CBA from
an authorized surety on the Department of the

[[Page 77967]]

Treasury's Listing of Certified Companies and provides proof of having
obtained the bond by submitting a copy to CMS by the deadline for bid
submission.
(2) Bid surety bond requirements. (i) The bid surety bond issued
must include at a minimum:
(A) The name of the bidding entity as the principal/obligor;
(B) The name and National Association of Insurance Commissioners
number of the authorized surety;
(C) CMS as the named obligee;
(D) The conditions of the bond as specified in paragraph (h)(3) of
this section;
(E) The CBA covered by the bond;
(F) The bond number;
(G) The date of issuance; and
(H) The bid bond value of $50,000.00.
(ii) The bid surety bond must be maintained until it is either
collected upon due to forfeiture or the liability is returned for not
meeting bid forfeiture conditions.
(3) Forfeiture of bid surety bond. (i) When a bidding entity is
offered a contract for a CBA/product category (``competition'') and its
composite bid for the competition is at or below the median composite
bid rate for all bidding entities included in the calculation of the
single payment amounts within the competition and the bidding entity
does not accept the contract offer, its bid surety bond submitted for
that CBA will be forfeited and CMS will collect on the bond via
Electronic Funds Transfer (EFT) from the respective bonding company. As
one bid surety bond is required for each CBA in which the bidding
entity is submitting a bid, the failure to accept a contract offer for
any product category within the CBA when the entity's bid is at or
below the median composite bid rate will result in forfeiture of the
bid surety bond for that CBA.
(ii) Where the bid(s) does not meet the specified forfeiture
conditions in paragraph (h)(3)(i) of this section, the bid surety bond
liability will be returned within 90 days of the public announcement of
contract suppliers for the CBA. CMS will notify the bidding entity that
it did not meet the specified forfeiture requirements and the bid
surety bond will not be collected by CMS.
(4) Penalties. (i) A bidding entity that has been determined to
have falsified its bid surety bond may be prohibited from participation
in the DMEPOS Competitive Bidding Program for the current round of the
Competitive Bidding Program in which it submitted a bid and also from
participating in the next round of the Competitive Bidding Program.
Offending suppliers will also be referred to the Office of Inspector
General and Department of Justice for further investigation.
(ii) A bidding entity, whose composite bid is at or below the
median composite bid rate, that--
(A) Accepts a contract award; and
(B) Is found to be in breach of contract for nonperformance of the
contract to avoid forfeiture of the bid surety bond will have its
contract terminated and will be precluded from participation in the in
the next round of the DMEPOS Competitive Bidding Program.

0
11. Section 414.414 is amended by revising paragraph (b)(3) to read as
follows:

Sec. 414.414 Conditions for awarding contracts.

* * * * *
(b) * * *
(3) Each supplier must have all State and local licenses required
to perform the services identified in the request for bids. CMS may not
award a contract to any entity in a CBA unless the entity meets
applicable State licensure requirements.
* * * * *

0
12. Section 414.416 is amended by adding paragraph (b)(3) to read as
follows:

Sec. 414.416 Determination of competitive bidding payment amounts.

* * * * *
(b) * * *
(3) In the case of competitions where bids are submitted for an
item that is a combination of codes for similar items within a product
category as identified under Sec. 414.412(d)(2), the single payment
amount for each code within the combination of codes is equal to the
single payment amount for the lead item or code with the highest total
nationwide allowed services multiplied by the ratio of the average of
the 2015 fee schedule amounts for all areas (i.e., all states, the
District of Columbia, Puerto Rico, and the United States Virgin
Islands) for the code to the average of the 2015 fee schedule amounts
for all areas for the lead item.

0
13. Section 414.422 is amended by revising paragraph (g) to read as
follows:

Sec. 414.422 Terms of contracts.

* * * * *
(g) Breach of contract. (1) Any deviation from contract
requirements, including a failure to comply with governmental agency or
licensing organization requirements, constitutes a breach of contract.
(2) In the event a contract supplier breaches its contract, CMS may
take one or more of the following actions, which will be specified in
the notice of breach of contract:
(i) Suspend the contract supplier's contract;
(ii) Terminate the contract;
(iii) Preclude the contract supplier from participating in the
competitive bidding program; or
(iv) Avail itself of other remedies allowed by law.

0
14. Section 414.423 is revised to read as follows:

Sec. 414.423 Appeals process for breach of a DMEPOS competitive
bidding program contract actions.

This section implements an appeals process for suppliers that CMS
has determined are in breach of their Medicare DMEPOS Competitive
Bidding Program contract and where CMS has issued a notice of breach of
contract indicating its intent to take action(s) pursuant to Sec.
414.422(g)(2).
(a) Breach of contract. CMS may take one or more of the actions
specified in Sec. 414.422(g)(2) as a result of a supplier's breach of
their DMEPOS Competitive Bidding Program contract.
(b) Notice of breach of contract--(1) CMS notification. If CMS
determines a supplier to be in breach of its contract, it will notify
the supplier of the breach of contract in a notice of breach of
contract.
(2) Content of the notice of breach of contract. The CMS notice of
breach of contract will include the following:
(i) The details of the breach of contract.
(ii) The action(s) that CMS is taking as a result of the breach of
the contract pursuant to Sec. 414.422(g)(2), and the duration of or
timeframe(s) associated with the action(s), if applicable.
(iii) The right to request a hearing by a CBIC hearing officer and,
depending on the nature of the breach, the supplier may also be allowed
to submit a corrective action plan (CAP) in lieu of requesting a
hearing by a CBIC hearing officer, as specified in paragraph (c)(1)(i)
of this section.
(iv) The address to which the written request for a hearing must be
submitted.
(v) The address to which the CAP must be submitted, if applicable.
(vi) The effective date of the action(s) that CMS is taking is the
date specified by CMS in the notice of breach of contract, or 45 days
from the date of the notice of breach of contract unless:
(A) A timely hearing request has been filed; or
(B) A CAP has been submitted within 30 days of the date of the
notice of breach of contract where CMS allows a supplier to submit a
CAP.

[[Page 77968]]

(c) Corrective action plan (CAP)--(1) Option for a CAP. (i) CMS has
the option to allow a supplier to submit a written CAP to remedy the
deficiencies identified in the notice at its sole discretion, including
where CMS determines that the delay in the effective date of the breach
of contract action(s) caused by allowing a CAP will not cause harm to
beneficiaries. CMS will not allow a CAP if the supplier has been
excluded from any Federal program, debarred by a Federal agency, or
convicted of a healthcare-related crime, or for any other reason
determined by CMS.
(ii) If a supplier chooses not to submit a CAP, if CMS determines
that a supplier's CAP is insufficient, or if CMS does not allow the
supplier the option to submit a CAP, the supplier may request a hearing
on the breach of contract action(s).
(2) Submission of a CAP. (i) If allowed by CMS, a CAP must be
submitted within 30 days from the date on the notice of breach of
contract. If the supplier decides not to submit a CAP the supplier may,
within 30 days of the date on the notice, request a hearing by a CBIC
hearing officer.
(ii) Suppliers will have the opportunity to submit a CAP when they
are first notified that they have been determined to be in breach of
contract. If the CAP is not acceptable to CMS or is not properly
implemented, suppliers will receive a subsequent notice of breach of
contract. The subsequent notice of breach of contract may, at CMS'
discretion, allow the supplier to submit another written CAP pursuant
to paragraph (c)(1)(i) of this section.
(d) The purpose of the CAP. The purpose of the CAP is:
(1) For the supplier to remedy all of the deficiencies that were
identified in the notice of breach of contract.
(2) To identify the timeframes by which the supplier will implement
each of the components of the CAP.
(e) Review of the CAP. (1) The CBIC will review the CAP. Suppliers
may only revise their CAP one time during the review process based on
the deficiencies identified by the CBIC. The CBIC will submit a
recommendation to CMS for each applicable breach of contract action
concerning whether the CAP includes the steps necessary to remedy the
contract deficiencies as identified in the notice of breach of
contract.
(2) If CMS accepts the CAP, including the supplier's designated
timeframe for its completion, the supplier must provide a follow-up
report within 5 days after the supplier has fully implemented the CAP
that verifies that all of the deficiencies identified in the CAP have
been corrected in accordance with the timeframes accepted by CMS.
(3) If the supplier does not implement a CAP that was accepted by
CMS, or if CMS does not accept the CAP submitted by the supplier, then
the supplier will receive a subsequent notice of breach of contract, as
specified in paragraph (b) of this section.
(f) Right to request a hearing by the CBIC Hearing Officer. (1) A
supplier who receives a notice of breach of contract (whether an
initial notice of breach of contract or a subsequent notice of breach
of contract under Sec. 414.422(e)(3)) has the right to request a
hearing before a CBIC hearing officer who was not involved with the
original breach of contract determination.
(2) A supplier that wishes to appeal the breach of contract
action(s) specified in the notice of breach of contract must submit a
written request to the CBIC. The request for a hearing must be received
by the CBIC within 30 days from the date of the notice of breach of
contract.
(3) A request for hearing must be in writing and submitted by an
authorized official of the supplier.
(4) The appeals process for the Medicare DMEPOS Competitive Bidding
Program is not to be used in place of other existing appeals processes
that apply to other parts of Medicare.
(5) If the supplier is given the opportunity to submit a CAP and a
CAP is not submitted and the supplier fails to timely request a
hearing, the breach of contract action(s) will take effect 45 days from
the date of the notice of breach of contract.
(g) The CBIC Hearing Officer schedules and conducts the hearing.
(1) Within 30 days from the receipt of the supplier's timely request
for a hearing the hearing officer will contact the parties to schedule
the hearing.
(2) The hearing may be held in person or by telephone at the
parties' request.
(3) The scheduling notice to the parties must indicate the time and
place for the hearing and must be sent to the parties at least 30 days
before the date of the hearing.
(4) The hearing officer may, on his or her own motion, or at the
request of a party, change the time and place for the hearing, but must
give the parties to the hearing 30 days' notice of the change.
(5) The hearing officer's scheduling notice must provide the
parties to the hearing the following information:
(i) A description of the hearing procedure.
(ii) The specific issues to be resolved.
(iii) The supplier has the burden to prove it is not in violation
of the contract or that the breach of contract action(s) is not
appropriate.
(iv) The opportunity for parties to the hearing to submit
additional evidence to support their positions, if requested by the
hearing officer.
(v) A notification that all evidence submitted, both from the
supplier and CMS, will be provided in preparation for the hearing to
all affected parties at least 15 days prior to the scheduled date of
the hearing.
(h) Burden of proof and evidence submission. (1) The burden of
proof is on the Competitive Bidding Program contract supplier to
demonstrate to the hearing officer with convincing evidence that it has
not breached its contract or that the breach of contract action(s) is
not appropriate.
(2) The supplier's evidence must be submitted with its request for
a hearing.
(3) If the supplier fails to submit the evidence at the time of its
submission, the Medicare DMEPOS supplier is precluded from introducing
new evidence later during the hearing process, unless permitted by the
hearing officer.
(4) CMS also has the opportunity to submit evidence to the hearing
officer within 10 days of receiving the scheduling notice.
(5) The hearing officer will share all evidence submitted by the
supplier and/or CMS, with all parties to the hearing at least 15 days
prior to the scheduled date of the hearing.
(i) Role of the hearing officer. The hearing officer will conduct a
thorough and independent review of the evidence including the
information and documentation submitted for the hearing and other
information that the hearing officer considers pertinent for the
hearing. The role of the hearing officer includes, at a minimum, the
following:
(1) Conduct the hearing and decide the order in which the evidence
and the arguments of the parties are presented;
(2) Determine the rules on admissibility of the evidence;
(3) Examine the witnesses, in addition to the examinations
conducted by CMS and the contract supplier;
(4) The CBIC may assist CMS in the appeals process including being
present at the hearing, testifying as a witness, or performing other,
related ministerial duties;
(5) Determine the rules for requesting documents and other evidence
from other parties;
(6) Ensure a complete record of the hearing is made available to
all parties to the hearing;
(7) Prepare a file of the record of the hearing which includes all
evidence

[[Page 77969]]

submitted as well as any relevant documents identified by the hearing
officer and considered as part of the hearing; and
(8) Comply with all applicable provisions of 42 U.S.C. Title 18 and
related provisions of the Act, the applicable regulations issued by the
Secretary, and manual instructions issued by CMS.
(j) Hearing officer recommendation. (1) The hearing officer will
issue a written recommendation(s) to CMS within 30 days of the close of
the hearing unless an extension has been granted by CMS because the
hearing officer has demonstrated that an extension is needed due to the
complexity of the matter or heavy workload. In situations where there
is more than one breach of contract action presented at the hearing,
the hearing officer will issue separate recommendations for each breach
of contract action.
(2) The recommendation(s) will explain the basis and the rationale
for the hearing officer's recommendation(s).
(3) The hearing officer must include the record of the hearing,
along with all evidence and documents produced during the hearing along
with its recommendation(s).
(k) CMS' final determination. (1) CMS' review of the hearing
officer's recommendation(s) will not allow the supplier to submit new
information.
(2) After reviewing the hearing officer's recommendation(s), CMS'
decision(s) will be made within 30 days from the date of receipt of the
hearing officer's recommendation(s). In situations where there is more
than one breach of contract action presented at the hearing, and the
hearing officer issues multiple recommendations, CMS will render
separate decisions for each breach of contract action.
(3) A notice of CMS' decision will be sent to the supplier and the
hearing officer. The notice will indicate:
(i) If any breach of contract action(s) included in the notice of
breach of contract, specified in paragraph (b)(1) of this section,
still apply and will be effectuated, and
(ii) The effective date for any breach of contract action specified
in paragraph (k)(3)(i) of this section.
(4) This decision(s) is final and binding.
(l) Effect of breach of contract action(s)--(1) Effect of contract
suspension. (i) All locations included in the contract cannot furnish
competitive bid items to beneficiaries within a CBA and the supplier
cannot be reimbursed by Medicare for these items for the duration of
the contract suspension.
(ii) The supplier must notify all beneficiaries who are receiving
rented competitive bid items or competitive bid items on a recurring
basis of the suspension of their contract.
(A) The notice to the beneficiary from the supplier must be
provided within 15 days of receipt of the final notice.
(B) The notice to the beneficiary must inform the beneficiary that
they must select a new contract supplier to furnish these items in
order for Medicare to pay for these items.
(2) Effect of contract termination. (i) All locations included in
the contract can no longer furnish competitive bid items to
beneficiaries within a CBA and the supplier cannot be reimbursed by
Medicare for these items after the effective date of the termination.
(ii) The supplier must notify all beneficiaries, who are receiving
rented competitive bid items or competitive bid items received on a
recurring basis, of the termination of their contract.
(A) The notice to the beneficiary from the supplier must be
provided within 15 days of receipt of the final notice of termination.
(B) The notice to the beneficiary must inform the beneficiary that
they are going to have to select a new contract supplier to furnish
these items in order for Medicare to pay for these items.
(3) Effect of preclusion. A supplier who is precluded will not be
allowed to participate in a specific round of the Competitive Bidding
Program, which will be identified in the original notice of breach of
contract, as specified in paragraph (b)(1) of this section.
(4) Effect of other remedies allowed by law. If CMS decides to
impose other remedies under Sec. 414.422(g)(2)(iv), the details of the
remedies will be included in the notice of breach of contract, as
specified in paragraph (b)(2) of this section.

PART 494--CONDITIONS FOR COVERAGE FOR END-STAGE RENAL DISEASE
FACILITIES

0
15. The authority citation for part 494 continues to read as follows:

Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).

0
16. Amend Sec. 494.1 by revising paragraph (a)(3) and adding paragraph
(a)(7) to read as follows:

Sec. 494.1 Basis and Scope.

(a) * * *
(3) Section 1861(s)(2)(F) of the Act, which describes ``medical and
other health services'' covered under Medicare to include home dialysis
supplies and equipment, self-care home dialysis support services, and
institutional dialysis services and supplies, for items and services
furnished on or after January 1, 2011, renal dialysis services (as
defined in section 1881(b)(14)(B)), including such renal dialysis
services furnished on or after January 1, 2017, by a renal dialysis
facility or provider of services paid under section 1881(b)(14) to an
individual with acute kidney injury (as defined in section 1834(r)(2)).
* * * * *
(7) Section 1861(s)(2)(F) of the Act, which authorizes coverage for
renal dialysis services furnished on or after January 1, 2017 by a
renal dialysis facility or provider of services currently paid under
section 1881(b)(14) of the Act to an individual with AKI.
* * * * *

Dated: October 24, 2016.

Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.
Approved: October 25, 2016.

Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
[FR Doc. 2016-26152 Filed 10-28-16; 4:15 pm]
BILLING CODE 4120-01-P