CMS releases 2009 OPPS final rule

Bryn Evans , November 3, 2008

Less restrictive conditions for coverage (CfC) for ambulatory surgery centers (ASC), new composite APCs, and revised definitions for new and established patients are among the provisions of the outpatient prospective payment system (OPPS) final rule for calendar year (CY) 2009. CMS released the 2009 OPPS final rule as a display copy on October 31.

In a CMS news release, CMS Acting Administrator Kerry Weems says, "In this final rule, we are continuing to pay appropriately for care while working with healthcare providers as we look for ways to make sure beneficiaries who come in for treatment of one complaint don't leave with two as a result of adverse events during their outpatient visits."

The rule also establishes new CfCs for ASCs that reflect current ASC practice by focusing on the care provided to patients and the impact of that care on patient outcomes. The final rule defines an ASC as a distinct entity that operates exclusively for the purpose of providing surgical services to patients not requiring hospitalization and in which the expected duration of services would not exceed 24 hours following an admission.

A news release on the Web site of the Ambulatory Surgery Center Association says the CfCs are less restrictive than a revision CMS proposed last year.

Jugna Shah, MPH, president of Nimitt Consulting in Washington, DC, says her quick review of the final rule indicates that CMS appears to have moved forward with the majority of its proposals, despite concerns expressed by numerous commenters on sensitive issues, such as the creation of new imaging composite APCs and further decreases in drug reimbursement.

Packaging and composite APCs
CMS continues to expand its concepts of packaging and composite APCs as mechanisms to promote provider efficiency. "This is clearly evidenced by CMS' tone throughout the rule and, in particular, with its finalization of the multiple imaging composite APCs, the elimination of the IVIG pre-administration HCPCS G0332 separate payment, and its persistence in keeping all diagnostic radiopharmaceuticals packaged despite well-thought-out arguments brought forth by commenters," says Shah.

CMS has decided to move forward with its multiple imaging composite methodology, which means it will provide a single composite APC payment each time a hospital bills more than one procedure from an imaging family on a single date of service. Shah says providers should examine the financial impact of this measure by evaluating the number and types of imaging services they regularly provide on a given date of service, as CMS is not distinguishing between multiple services provided on the same date of service in the same session and multiple services provided on the same day at two different sessions.

Separately payable drugs
Shah notes that although CMS has shown an interest in further exploring the pharmacy stakeholder proposal to allocate a portion of packaged drug costs to cover pharmacy overhead costs, it has not moved forward with this for 2009 and instead has finalized its proposal that all separately payable drugs will be paid at average sales price (ASP) plus 4%.

This additional decrease in separately payable drug reimbursement is disappointing given the compelling arguments that provider and industry groups have made highlighting that ASP plus 4% in no way comes close to covering both the drug acquisition and pharmacy overhead cost," Shah says. "[It] could leave hospitals facing a larger than expected financial impact, especially when taken together with a number of the other changes CMS has finalized for 2009."

However, CMS abandoned its proposal to create two new costs centers for drugs—drugs with low overhead costs and drugs with high overhead costs—in response to commenter objections. "This is good news indeed and it's great that so many providers and industry organizations commented, and that CMS listened," says Shah.

E/M visit codes
For 2009, CMS has chosen to maintain the use of evaluation and management (E/M) CPT codes distinguishing between new and established patients, while acknowledging the merits of many commenter suggestions. However, the agency has revised the definitions of new and established patients.

"This is a really a mixed bag of news for providers," says Shah. "Providers have to continue living with a distinction that most hospitals don't seem to support, but at least CMS has revised the definition, which should make the reporting of new vs. established patients easier."

Quality reporting
Four new measures for outpatient quality reporting appear in the final rule. These are all for imaging, and CMS states that it can compute the quality measure/score based on claims data.

Editor's note: for more information on the CY 2009 proposed rule for the OPPS, go to the CMS Web site. For more information on the ASC payment system, visit The 2009 OPPS final rule will be published in the November 18 Federal Register.

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