Rule2021-27523
Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals; Changes to Medicare Graduate Medical Education Payments for Teaching Hospitals; Changes to Organ Acquisition Payment Policies
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2021
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This final rule with comment period finalizes certain provisions of the fiscal year 2022 IPPS/LTCH PPS proposed rule. These provisions implement policies based on legislative changes relative to Medicare graduate medical education (GME) for teaching hospitals provided by sections 126, 127, and 131 of the Consolidated Appropriations Act (CAA), 2021; and changes, clarifications, and codifications for Medicare organ acquisition payment policies relative to organ procurement organizations (OPOs), transplant hospitals, and donor community hospitals. In addition, this final rule with comment period solicits comments on certain GME issues to inform potential future rulemaking
Full Text
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<title>Federal Register, Volume 86 Issue 245 (Monday, December 27, 2021)</title>
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[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73416-73519]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27523]
[[Page 73415]]
Vol. 86
Monday,
No. 245
December 27, 2021
Part II
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 412 and 413
Medicare Program; Hospital Inpatient Prospective Payment Systems for
Acute Care Hospitals; Changes to Medicare Graduate Medical Education
Payments for Teaching Hospitals; Changes to Organ Acquisition Payment
Policies; Final Rule
Federal Register / Vol. 86 , No. 245 / Monday, December 27, 2021 /
Rules and Regulations
[[Page 73416]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 412 and 413
[CMS-1752-FC3]
RIN 0938-AU44
Medicare Program; Hospital Inpatient Prospective Payment Systems
for Acute Care Hospitals; Changes to Medicare Graduate Medical
Education Payments for Teaching Hospitals; Changes to Organ Acquisition
Payment Policies
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule with comment period.
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SUMMARY: This final rule with comment period finalizes certain
provisions of the fiscal year 2022 IPPS/LTCH PPS proposed rule. These
provisions implement policies based on legislative changes relative to
Medicare graduate medical education (GME) for teaching hospitals
provided by sections 126, 127, and 131 of the Consolidated
Appropriations Act (CAA), 2021; and changes, clarifications, and
codifications for Medicare organ acquisition payment policies relative
to organ procurement organizations (OPOs), transplant hospitals, and
donor community hospitals. In addition, this final rule with comment
period solicits comments on certain GME issues to inform potential
future rulemaking
DATES:
Effective date: This final rule with comment period is effective
February 25, 2022.
Comment date: To be assured consideration, comments on the graduate
medical education provisions discussed in sections II.B.3.b.(5),
II.B.3.d.(2). and II.B.5.e. of this final rule with comment period must
be received at one of the addresses provided below, by February 25,
2022.
ADDRESSES: In commenting, please refer to file code CMS-1752-FC3.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY:
Centers for Medicare & Medicaid Services, Department of Health and
Human Services, Attention: CMS-1752-FC3, P.O. Box 8013, Baltimore, MD
21244-8013.
Please allow sufficient time for mailed comments to be received before
the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY:
Centers for Medicare & Medicaid Services, Department of Health and
Human Services, Attention: CMS-1752-FC3, Mail Stop C4-26-05, 7500
Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Donald Thompson, (410) 786-4487, and Michele Hudson, (410) 786-
4487, Graduate Medical Education Issues.
Katie Lucas, (410) 786-7723, Amanda Michael, (410) 786-5834, and
Kellie Shannon (410) 786-0416, Organ Acquisition Payment Issues.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the search instructions on that website to
view public comments. CMS will not post on <a href="http://Regulations.gov">Regulations.gov</a> public
comments that make threats to individuals or institutions or suggest
that the individual will take actions to harm the individual. CMS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments.
I. Executive Summary and Background
A. Executive Summary
1. Purpose and Legal Authority
Under various statutory authorities, we either discuss continued
program implementation or are making changes to the Medicare IPPS,
other related payment methodologies and programs and other policies and
provisions included in this rule. The purpose of and the statutory
authority(ies) for these changes include, but are not limited to, the
following:
<bullet> Section 1886(d) of the Social Security Act (the Act),
which sets forth a system of payment for the operating costs of acute
care hospital inpatient stays under Medicare Part A (Hospital
Insurance) based on prospectively set rates, including indirect medical
education (IME) payments under section 1886(d)(5)(B) of the Act.
<bullet> The Consolidated Appropriations Act of 2021 relating to
payments to hospitals for direct graduate medical education (GME) and
indirect medical education (IME) costs. Section 1886(a)(4) of the Act,
which specifies that costs of approved educational activities are
excluded from the operating costs of inpatient hospital services.
Hospitals with approved graduate medical education (GME) programs are
paid for the direct costs of GME in accordance with section 1886(h) of
the Act.
<bullet> Organ acquisition costs are reimbursed to transplant
hospitals and kidney acquisition costs are reimbursed to organ
procurement organizations under reasonable cost principles under
section 1861(v) of the Act. Under 42 U.S.C. 273(b), organ procurement
organizations must have an agreement with the Secretary to be
reimbursed under title XVIII of the Social Security Act for the cost to
procure kidneys.
2. Summary of the Provisions
The following is a summary of the provisions in this final rule
with comment period.
a. Implementation of Sections 126, 127, and 131 of the Consolidated
Appropriations Act (CAA) of 2021
We are finalizing provisions to implement sections 126, 127, and
131 of the CAA. Section 126(a) of the CAA amended section 1886(h) of
the Act by adding a new section 1886(h)(9) of the Act requiring the
distribution of additional residency positions to qualifying hospitals.
Section 127 of the CAA amended section 1886(h)(4)(H)(iv) of the Act to
specify that in the case of a hospital not located in a rural area that
established or establishes a medical residency training program (or
rural track) in a rural area, the hospital, and each such hospital
located in a rural area that participates in such a training, is
allowed to receive an adjustment to its full-time equivalent (FTE)
resident limit. Section 131 of the CAA amended section 1886(h)(2)(F) of
the Act to provide an opportunity to hospitals with such extremely low
or $0 per resident amounts (PRAs) that meet certain criteria to reset
and establish new PRAs if the hospital trains resident(s) in a cost
reporting period
[[Page 73417]]
beginning on or after enactment (December 27, 2020) and before the date
that is 5 years after enactment (December 26, 2025). Section 131 of the
CAA also amended section 1886(h)(4)(H)(i) of the Act to provide an
opportunity for hospitals that meet certain criteria and that have very
small FTE resident caps to replace those caps if the Secretary
determines the hospital begins training residents in a new program
beginning on or after enactment (December 27, 2020) and before 5 years
after enactment (December 26, 2025).
In addition, this final rule with comment period solicits comments
on certain issues to inform potential future rulemaking. Specifically,
for the implementation of section 126 of the CAA regarding distribution
of residency slots, we seek comment on using a measure of health care
provided outside of a Health Professional Shortage Area (HPSA) to HPSA
residents (as discussed in section II.B.3.b.(5) of the preamble of this
final rule with comment period). For purposes of prioritizing hospitals
awarded residency positions under section 126, we seek comment on
feasible alternatives to HPSA scores as a proxy for health disparities
(as discussed in section II.B.3.d.(2) of the preamble of this final
rule). In addition, for the implementation of section 131, we seek
comment on the review process to determine eligibility for per resident
amount or full-time equivalent cap resets in situations where a
hospital disagrees with the information on the cost report, in
particular from cost reports that are no longer within the 3-year
reopening period (as discussed in section II.B.5.e. of the preamble of
this final rule).
We refer readers to section II.B.2. of this final rule with comment
period for a summary of the provisions of sections 126, 127, and 131 of
the CAA that we are implementing in this final rule with comment
period.
b. Changes to Organ Acquisition Payment Policy
We proposed changes pertaining to Medicare's share of organ
acquisition costs transplanted into Medicare beneficiaries. We also
proposed changes to longstanding Medicare organ acquisition payment
policies and changes pertaining to charges for services provided to
cadaveric organ donors by donor community hospitals. After considering
the numerous public comments received, at this time, we are not
finalizing our proposal with respect to the organ counting policy for
Medicare's organ acquisition payment purposes and the research organ
counting policy. We are finalizing other longstanding Medicare organ
acquisition payment policies with some modifications. We are also
finalizing rules with respect to Medicare-certified non-transplant
hospitals and transplant hospitals' charges for hospital services
provided to cadaveric donors, effective for cost reporting periods
beginning on or after the effective date of this final rule with
comment period.
3. Summary of Costs, Savings, Benefits, and Transfers
The following table provides a summary of the costs, savings,
benefits associated with the provisions described in section I.A.2. of
this final rule.
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Description of costs, transfers, savings,
Provision description and benefits
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Implementation of Sections Section 1886(h) of the Act, as amended by
126, 127, and 131 of the sections 126, 127, and 131 of the CAA,
Consolidated Appropriations provides for the distribution of
Act (CAA) of 2021. additional residency positions (section
126), promotes a rural hospital GME
funding opportunity (section 127), and
requires resetting PRAs and FTE resident
caps for certain hospitals after hosting
medical resident rotators for short
durations (section 131). We refer
readers to section II.B. of this final
rule with comment period for a summary
of the provisions of sections 126, 127
and 131 that we are implementing in this
final rule. We estimate that our
implementation of section 126 of the CAA
will result in an estimated cost of
approximately $1.830 billion from FY
2023 through FY 2031. We estimate that
our implementation of section 127 of the
CAA will result in an estimated cost of
approximately $0.130 billion from FY
2024 through FY 2031. We estimate our
implementation of section 131 of the CAA
will result in an estimated cost of
approximately $1.380 billion from FY
2022 through FY 2031.
Changes to Organ Acquisition We refer readers to sections II.C.2.a.
Payment Policy. through g. and i through m. and II.C.3.
of this final rule with comment period
for a summary of organ acquisition
payment policies we are implementing in
this final rule. These final policies
are not expected to have an impact on
expenditures. However, the provisions in
sections II.C.2.b., e. and l. of this
final rule with comment period to the
extent that any of these provisions may
have an impact on expenditures, that
impact is not estimable without the
availability of the appropriate cost
information to calculate such impact.
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B. Background
1. Acute Care Hospital Inpatient Prospective Payment System (IPPS)
Section 1886(d) of the Act sets forth a system of payment for the
operating costs of acute care hospital inpatient stays under Medicare
Part A (Hospital Insurance) based on prospectively set rates. Section
1886(g) of the Act requires the Secretary to use a prospective payment
system (PPS) to pay for the capital-related costs of inpatient hospital
services for these ``subsection (d) hospitals.'' Under these PPSs,
Medicare payment for hospital inpatient operating and capital-related
costs is made at predetermined, specific rates for each hospital
discharge. Discharges are classified according to a list of diagnosis-
related groups (DRGs).
The base payment rate is comprised of a standardized amount that is
divided into a labor-related share and a nonlabor-related share. The
labor-related share is adjusted by the wage index applicable to the
area where the hospital is located. If the hospital is located in
Alaska or Hawaii, the nonlabor-related share is adjusted by a cost-of-
living adjustment factor. This base payment rate is multiplied by the
DRG relative weight.
If the hospital is training residents in an approved residency
program(s), it receives a percentage add-on payment for each case paid
under the IPPS, known as the indirect medical education (IME)
adjustment. This percentage varies, depending on the ratio of residents
to beds.
The existing regulations governing payments to hospitals under the
IPPS are located in 42 CFR part 412, subparts A through M. The existing
regulations governing the IME adjustment are located in Sec. 412.105.
[[Page 73418]]
2. Payments for Graduate Medical Education (GME)
Under section 1886(a)(4) of the Act, costs of approved educational
activities are excluded from the operating costs of inpatient hospital
services. Hospitals with approved graduate medical education (GME)
programs are paid for the direct costs of GME in accordance with
section 1886(h) of the Act. The amount of payment for direct GME costs
for a cost reporting period is based on the hospital's number of
residents in that period and the hospital's costs per resident in a
base year. The existing regulations governing direct GME payments to
the various types of hospitals are located in 42 CFR part 413.
3. Issuance of Proposed Rulemaking
In the FY 2022 IPPS/LTCH PPS proposed rule appearing in the May 10,
2021 Federal Register (86 FR 25070), we set forth proposed payment and
policy changes to the Medicare IPPS for FY 2022 operating costs and
capital-related costs of acute care hospitals and certain hospitals and
hospital units that are excluded from IPPS. In addition, we set forth
proposed changes to the payment rates, factors, and other payment and
policy-related changes to programs associated with payment rate
policies under the LTCH PPS for FY 2022.
The following is a general summary of the changes that we proposed
to make related to the provisions addressed in this final rule with
comment period.
In section V. of the preamble of the FY 2022 IPPS/LTCH PPS proposed
rule, we discussed proposed changes to certain provisions of the
regulations in 42 CFR parts 412 and 413, including proposals to
implement provisions of the Consolidated Appropriations Act relating to
payments to hospitals for direct graduate medical education (GME) and
indirect medical education (IME) costs.
Section X. of the preamble of the FY 2022 IPPS/LTCH PPS proposed
rule included proposed changes pertaining to Medicare's share of organ
acquisition costs for organs transplanted into Medicare beneficiaries
and the charges for services provided to cadaveric organ donors by
donor community hospitals and transplants hospitals.
In Appendix A of the FY 2022 IPPS/LTCH PPS proposed rule, we set
forth an analysis of the impact the proposed changes for the provisions
listed would have on affected acute care hospitals, IPPS-excluded
hospitals and other entities.
We received approximately 28,000 timely pieces of correspondence in
response to the FY 2022 IPPS/LTCH PPS proposed rule. Approximately 570
items of the proposed rule's correspondence are addressed in this final
rule with comment period.
We also note that the FY 2022 IPPS/LTCH PPS final rule appeared in
the August 13, 2021 Federal Register (86 FR 44774) and that final rule
included the vast majority of the provisions of the proposed rule. This
final rule with comment period finalizes the graduate medical education
and certain organ acquisition payment policy provisions of the FY 2022
IPPS/LTCH PPS proposed rule. As noted in section II.A. of this final
rule with comment period, we are not addressing the proposed revisions
to the regulations relating to the treatment of section 1115 waiver
days for purposes of the disproportionate share hospital (DSH)
adjustment in this final rule with comment period. We expect to revisit
the issue of section 1115 waiver days in future rulemaking, and we
encourage stakeholders to review any future proposal on this issue and
to submit their comments at that time. As noted in section II.C. of
this final rule with comment period, we are not addressing the proposed
revisions to the Medicare organ counting policy in this final rule with
comment period. We may revisit the Medicare organ counting policy in
future rulemaking, and we encourage stakeholders to review any future
proposal on this issue and to submit their comments at that time.
II. Provisions of the Final Rule With Comment Period
A. Medicare Disproportionate Share Hospital (DSH) Payments: Counting
Days Associated With Section 1115 Demonstration Projects in the
Medicaid Fraction (Sec. 412.106)
In the FY 2022 IPPS/LTCH PPS proposed rule, we proposed revisions
to the regulation relating to the treatment of section 1115 waiver days
for purposes of the DSH adjustment (86 FR 25457 through 25459). In the
FY 2022 IPPS/LTCH PPS final rule, we stated that due to the number and
nature of the comments that we received on our proposal, we intended to
address the public comments in a separate document (86 FR 45249). We
thank the commenters for their input on the proposal, but after further
consideration of the issue, we have determined not to move forward with
the current proposal. We expect to revisit the issue of section 1115
waiver days in future rulemaking, and we encourage stakeholders to
review any future proposal on this issue and to submit their comments
at that time.
B. Payment for Indirect and Direct Graduate Medical Education Costs
(Sec. Sec. 412.105 and 413.75 Through 413.83)
1. Background
Section 1886(h) of the Act, as added by section 9202 of the
Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 (Pub. L.
99-272) and as currently implemented in the regulations at 42 CFR
413.75 through 413.83, establishes a methodology for determining
payments to hospitals for the direct costs of approved graduate medical
education (GME) programs. Section 1886(h)(2) of the Act sets forth a
methodology for determining a hospital-specific base-period per
resident amount (PRA) that is calculated by dividing a hospital's
allowable direct costs of GME in a base period by its number of full-
time equivalent (FTE) residents in the base period. The base period is,
for most hospitals, the hospital's cost reporting period beginning in
FY 1984 (that is, October 1, 1983 through September 30, 1984). The base
year PRA is updated annually for inflation. In general, Medicare direct
GME payments are calculated by multiplying the hospital's updated PRA
by the weighted number of FTE residents working in all areas of the
hospital complex (and at nonprovider sites, when applicable), and the
hospital's Medicare share of total inpatient days.
Section 1886(d)(5)(B) of the Act provides for a payment adjustment
known as the indirect medical education (IME) adjustment under the IPPS
for hospitals that have residents in an approved GME program, in order
to account for the higher indirect patient care costs of teaching
hospitals relative to nonteaching hospitals. The regulations regarding
the calculation of this additional payment are located at 42 CFR
412.105. The hospital's IME adjustment applied to the DRG payments is
calculated based on the ratio of the hospital's number of FTE residents
training in either the inpatient or outpatient departments of the IPPS
hospital to the number of inpatient hospital beds.
The calculation of both direct GME payments and the IME payment
adjustment is affected by the number of FTE residents that a hospital
is allowed to count. Generally, the greater the number of FTE residents
a hospital counts, the greater the amount of Medicare direct GME and
IME payments the hospital will receive. In an attempt to end the
implicit incentive for hospitals to increase the number of FTE
residents, Congress, through the Balanced Budget Act of 1997 (Pub. L.
[[Page 73419]]
105-33), established a limit on the number of allopathic and
osteopathic residents that a hospital could include in its FTE resident
count for direct GME and IME payment purposes. Under section
1886(h)(4)(F) of the Act, for cost reporting periods beginning on or
after October 1, 1997, a hospital's unweighted FTE count of residents
for purposes of direct GME may not exceed the hospital's unweighted FTE
count for direct GME in its most recent cost reporting period ending on
or before December 31, 1996. Under section 1886(d)(5)(B)(v) of the Act,
a similar limit based on the FTE count for IME during that cost
reporting period is applied, effective for discharges occurring on or
after October 1, 1997. Dental and podiatric residents are not included
in this statutorily mandated cap.
Section 422 of Public Law 108-173, the Medicare Modernization Act
(MMA), provided for the redistribution of unused residency positions
effective for portions of cost reporting periods beginning on or after
July 1, 2005. The policy implementing section 422 of the MMA was
included in the August 11, 2004 FY 2005 IPPS final rule (69 FR 49112
through 49169).
The Affordable Care Act made a number of statutory changes relating
to the determination of a hospital's FTE resident limit for direct GME
and IME payment purposes and the manner in which FTE resident limits
are calculated and applied to hospitals under certain circumstances.
Section 5503(a)(4) of the Affordable Care Act added a new section
1886(h)(8) to the Act to provide for the reduction in FTE resident caps
for direct GME under Medicare for certain hospitals training fewer
residents than their caps, and to authorize the redistribution of the
estimated number of excess FTE resident slots to other qualified
hospitals. In addition, section 5503(b) of the Affordable Care Act
amended section 1886(d)(5)(B)(v) of the Act to require the application
of the section 1886(h)(8) of the Act provisions in the same manner to
the IME FTE resident caps. The policy implementing section 5503 of the
Affordable Care Act was included in the November 24, 2010 CY 2011 OPPS/
ASC final rule with comment period (75 FR 72147 through 72212) and the
FY 2013 IPPS/LTCH PPS final rule (77 FR 53424 through 53434). Section
5506(a) of the Affordable Care Act amended section 1886(h)(4)(H) of the
Act to add a new clause (vi) that instructs the Secretary to establish
a process by regulation under which, in the event a teaching hospital
closes, the Secretary will permanently increase the FTE resident caps
for hospitals that meet certain criteria up to the number of the closed
hospital's FTE resident caps. The policy implementing section 5506 of
the Affordable Care Act was included in the November 24, 2010 CY 2011
OPPS/ASC final rule with comment period (75 FR 72212 through 72238),
the FY 2013 IPPS/LTCH PPS final rule (77 FR 53434 through 53448), and
the FY 2015 IPPS/LTCH final rule (79 FR 50122 through 50140).
2. Provisions of the Consolidated Appropriations Act, 2021
The Consolidated Appropriations Act, 2021 (CAA), division CC,
contained 3 provisions affecting Medicare direct GME and IME payments
to teaching hospitals. Section 126 of the CAA makes available 1,000 new
Medicare-funded GME positions (but not more than 200 new positions for
a fiscal year), to be distributed beginning in fiscal year 2023, with
priority given to hospitals in 4 statutorily-specified categories.
Section 127 of the CAA makes statutory changes relating to the
determination of both an urban and rural hospital's FTE resident limit
for direct GME and IME payment purposes with regard to residents
training in an accredited rural training track (RTT), and the 3-year
rolling average set out at section 1886(h)(4)(G)(i) of the Act used to
calculate payments for these hospitals. Section 131 of the CAA makes
statutory changes to the determination of direct GME PRAs and direct
GME and IME FTE resident limits of hospitals that hosted a small number
of residents for a short duration. We provided detailed proposals for
implementing these three CAA provisions in the FY 2022 IPPS/LTCH PPS
proposed rule (86 FR 25502 through 25523). In this section of this
final rule with comment period, we discuss our proposals, respond to
public comments received, and provide our final policies.
3. Distribution of Additional Residency Positions Under the Provisions
of Section 126 of Division CC of the Consolidated Appropriations Act,
2021 (CAA)
a. Overview
As discussed in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR
25503 through 25504), section 126(a) of the CAA amended section 1886(h)
of the Act by adding a new section 1886(h)(9) of the Act requiring the
distribution of additional residency positions to qualifying hospitals.
Section 1886(h)(9)(A) of the Act requires that for FY 2023, and for
each succeeding fiscal year until the aggregate number of full-time
equivalent (FTE) residency positions distributed is equal to 1,000, the
Secretary shall initiate separate rounds of applications from hospitals
for these additional residency positions. The Secretary is required,
subject to certain provisions in the law, to increase the otherwise
applicable resident limit for each qualifying hospital that submits a
timely application by the number of positions that may be approved by
the Secretary for that hospital. The Secretary is required to notify
hospitals of the number of positions distributed to them by January 31
of the fiscal year of the increase, and the increase is effective
beginning July 1 of that fiscal year. Section 1886(h)(9)(A) of the Act
also limits the aggregate number of such positions made available in a
single fiscal year across all hospitals to no more than 200.
In determining the qualifying hospitals for which an increase is
provided, section 1886(h)(9)(B) of the Act requires the Secretary to
take into account the ``demonstrated likelihood'' of the hospital
filling the positions made available within the first 5 training years
beginning after the date the increase would be effective, as determined
by the Secretary.
Section 1886(h)(9)(B) of the Act also requires a minimum
distribution for certain categories of hospitals. Specifically, the
Secretary is required to distribute at least 10 percent of the
aggregate number of total residency positions available to each of four
categories of hospitals. Stated briefly, and discussed in greater
detail later in this final rule with comment period, the categories are
as follows: (1) Hospitals located in rural areas or that are treated as
being located in a rural area (pursuant to sections 1886(d)(2)(D) and
1886(d)(8)(E) of the Act); (2) hospitals in which the reference
resident level of the hospital is greater than the otherwise applicable
resident limit; (3) hospitals in states with new medical schools or
additional locations and branches of existing medical schools; and (4)
hospitals that serve areas designated as Health Professional Shortage
Areas (HPSAs). Section 1886(h)(9)(F)(ii) of the Act defines a
qualifying hospital as a hospital in one of these four categories.
Section 1886(h)(9)(C) of the Act places certain limitations on the
distribution of the residency positions. First, a hospital may not
receive more than 25 additional FTE residency positions in total.
Second, no increase in the otherwise applicable resident limit of a
hospital may be made unless the hospital agrees to increase the total
number of FTE residency positions under the approved medical residency
[[Page 73420]]
training program of the hospital by the number of positions made
available to that hospital.
b. Determinations Required for the Distribution of Residency Positions
(1) Determination That a Hospital Has a ``Demonstrated Likelihood'' of
Filling the Positions
Section 1886(h)(9)(B)(i) of the Act directs the Secretary to take
into account the ``demonstrated likelihood'' of the hospital filling
the positions made available within the first 5 training years
beginning after the date the increase would be effective, as determined
by the Secretary.
Section 1886(h)(9)(A)(iii)(II) of the Act requires that the
increase would be effective beginning July 1 of the fiscal year of the
increase. For FY 2023, this means the additional positions would be
effective July 1, 2023.
In the FY 2022 IPPS/LTCH PPS proposed rule, we proposed that the
application deadline for the additional positions available for a
fiscal year would be January 31 of the prior fiscal year. However, as
discussed later in this final rule with comment period, we are
finalizing a deadline of March 31, such that the application deadline
for the additional positions available for a fiscal year will be March
31 of the prior fiscal year. Accordingly, for FY 2023, all references
in section II.B.3. of this final rule with comment period to the
application deadline are references to the application deadline of
March 31, 2022.
We proposed that a hospital would show a ``demonstrated
likelihood'' of filling the additional positions (sometimes
equivalently referred to as slots) for which it applies by
demonstrating that it does not have sufficient room under its current
FTE resident cap(s) to accommodate a planned new program or expansion
of an existing program.
In order to demonstrate that it does not have sufficient room under
its current FTE resident cap(s), we proposed that a hospital would be
required to submit copies of its most recently submitted Worksheets E,
Part A and E-4 from the Medicare cost report (CMS-Form-2552-10) as part
of its application for an increase to its FTE resident cap.
We proposed that a hospital would demonstrate and attest to a
planned new program or expansion of an existing program by meeting at
least one of the following two criteria:
<bullet<ls-thn-eq> ``Demonstrated Likelihood'' Criterion 1 (New
Residency Program). The hospital does not have sufficient room under
its FTE resident cap, and the hospital intends to use the additional
FTEs as part of a new residency program that it intends to establish on
or after the date the increase would be effective (that is, a new
program that begins training residents at any point within the
hospital's first 5 training years beginning on or after the date the
increase would be effective).
Under ``Demonstrated Likelihood'' Criterion 1, we proposed that the
hospital would be required to meet at least one of the following
conditions as part of its application:
[squ] Application for approval of the new residency program has
been submitted to the ACGME or the American Board of Medical
Specialties (ABMS) by the application deadline for that year.
[squ] The hospital has submitted an institutional review document
or program information form concerning the new residency program in an
application for approval of the new program by the application deadline
for that year.
[squ] The hospital has received written correspondence by the
application deadline for that year from the ACGME or ABMS acknowledging
receipt of the application for the new residency program, or other
types of communication from the accrediting bodies concerning the new
program approval process (such as notification of site visit).
<bullet<ls-thn-eq> ``Demonstrated Likelihood'' Criterion 2
(Expansion of an Existing Residency Program). The hospital does not
have sufficient room under its FTE resident cap, and the hospital
intends to use the additional FTEs to expand an existing residency
training program within the hospital's first 5 training years beginning
on or after the date the increase would be effective. Under
``Demonstrated Likelihood'' Criterion 2, we proposed that the hospital
would be required to meet at least one of the following conditions as
part of its application:
[squ] The hospital has approval by the application deadline from an
appropriate accrediting body (the ACGME or ABMS) to expand the number
of FTE residents in the program.
[squ] The hospital has submitted by the application deadline an
institutional review document or program information form for the
expansion of the existing residency training program.
Under ``Demonstrated Likelihood'' Criterion 2, we proposed that the
hospital would be applying for an increase in its FTE resident cap in
order to expand an existing residency program. We proposed that this
would mean that as of the application deadline the hospital was either
already training residents in this program, or, if the program existed
at another hospital as of that date, the residents would begin to
rotate at the applying hospital on or after the effective date of the
increase.
We note that section 1886(h)(9)(C)(ii) of the Act requires that if
a hospital is awarded positions, that hospital must increase the number
of its residency positions by the amount the hospital's FTE resident
caps are increased based on the newly awarded positions under section
126 of CAA. We therefore proposed that a hospital must, as part of its
application, attest to increase the number of its residency positions
by the amount the hospital's FTE resident caps are increased based on
any newly awarded positions.
We present a summary of the public comments and our responses to
our proposals related to the determination that a hospital has a
``demonstrated likelihood'' of filling the positions awarded under
section 126 of the CAA.
Comment: Several commenters expressed support for our proposed
``Demonstrated Likelihood'' criteria.
Response: We thank the commenters for their support.
Comment: A commenter supported our proposal to award additional
residency positions only for newly-created positions, rather than for
existing positions that a hospital may already be funding in excess of
its statutory FTE caps. Conversely, another commenter expressed concern
that hospitals training residents over their caps are neglected by our
proposed ``Demonstrated Likelihood'' criteria. This commenter
questioned why such hospitals were not being prioritized in the
distribution of additional residency positions, given the commenter's
belief that there is almost certain likelihood that additional
residency positions awarded to these hospitals would be immediately
filled and utilized.
Response: Section 1886(h)(9)(C)(ii) of the Act, as added by section
126 of the CAA, prohibits an increase in the otherwise applicable
resident limit of a hospital unless the hospital agrees to increase its
total number of FTE residency positions. Our proposed ``Demonstrated
Likelihood'' criteria thus reflect the requirements set forth in the
statute, which preclude the use of additional residency positions to
fund existing positions. In response to the comment that hospitals that
do not have sufficient room under their current FTE resident cap(s)
(that is, hospitals that are training at or above their Medicare GME
cap(s) and do not have any remaining
[[Page 73421]]
Medicare funding for positions to train additional FTE residents)
should be prioritized in the distribution of additional residency
positions, we note, as discussed in this section, that HPSA scores,
while not a perfect measure, provide the best prioritization approach
available at this time. In addition, and as discussed later in this
section, in order to be eligible for prioritization based on HPSA
scores, hospitals must first qualify under one or more of Category One,
Category Two, Category Three, or Category Four. Category Two consists
of hospitals in which the reference resident level of the hospital is
greater than the otherwise applicable resident limit. Therefore,
hospitals that do not have sufficient room under their current FTE
resident caps, may qualify to be prioritized for the distribution of
additional residency positions based on our prioritization of
applications from hospitals based on HPSA score final policy, discussed
further in this section.
Comment: A commenter suggested that hospitals should be able to
meet the ``demonstrated likelihood'' requirement by showing that the
number of residency positions currently filled for one or more programs
at the hospital is less than the number of residents for which those
programs have been accredited by the ACGME. Another commenter made a
similar point by requesting that the number of residency positions
distributed to a hospital take into account the hospital's ability to
use those residency positions immediately through existing programs.
Another commenter stated that the reason a hospital has unfilled
accredited residency positions may be that the hospital would be unable
to train the full complement of residents without exceeding its FTE
caps; the commenter added that such hospitals would not actually need
to establish a new residency program or expand an existing program in
order to quickly put any additional residency positions awarded to them
to use.
Response: We agree that a hospital should be able to meet the
``demonstrated likelihood'' requirement by showing that it has
unfilled, previously accredited positions in its residency program, and
that it is now seeking to fill those positions, as long as the hospital
does not have sufficient room under its FTE resident cap(s) for the
planned expansion. Therefore, we are modifying ``Demonstrated
Likelihood'' Criterion 2 (Expansion of an Existing Residency Program)
to include the scenario where a hospital currently has unfilled
positions in its residency program that have previously been approved
by the ACGME and is now seeking to fill those positions.
Comment: Several commenters recommended that rural hospitals should
only be awarded additional residency positions for the purpose of
expanding existing programs, since such hospitals can already receive a
cap adjustment whenever they establish a new program.
Response: We believe rural hospitals should be given the option of
receiving a permanent cap increase for a new program either under
section 126 of the CAA, or under the existing 5-year cap-building
process (42 CFR 413.70(e)). A rural hospital making this decision
should carefully consider which option is more appropriate to its
specific scenario.
Comment: A commenter expressed concern that many small rural
hospitals would be unlikely to meet the proposed requirements for
residency positions under ``Demonstrated Likelihood'' Criterion 2
(Expansion of an Existing Residency Program), since such hospitals
often restrict the size of their programs for reasons other than
funding, for example, because of teaching capacity or recruiting
challenges. The commenter stated that only large rural hospitals with
established programs would be likely to meet the proposed requirements
under ``Demonstrated Likelihood'' Criterion 2.
Response: We appreciate the concerns raised by the commenter about
unique challenges that may be faced by small rural hospitals. However,
the statute requires us to take into account the ``demonstrated
likelihood'' of a hospital filling the positions. Expansion of an
existing program is a valid way for a hospital to demonstrate the
likelihood of filling the positions. We note that since we are adopting
a criterion that 50 percent of the program's training take place in the
HPSA and not at the applicant hospital as proposed (which is discussed
in section II.B.3.d. of this final rule with comment period), a rural
hospital may be able to more easily partner with other participating
training sites to meet the 50 percent criterion and be able to apply
(and meet the requirements for ``demonstrated likelihood'') for the
amount of FTEs that will be training at its (the rural) hospital.
Comment: Several commenters requested that we update our proposed
``Demonstrated Likelihood'' criteria to be consistent with the
terminology currently used by the ACGME and the ABMS. Specifically,
commenters noted that the ACGME ``accredits'' new residency programs,
whereas we used the term ``approval'' in our proposed criteria. In
addition, the ACGME no longer employs the terms ``institutional review
document'' or ``program information form.'' Rather, if an existing
ACGME-accredited program seeks to expand, the program director would
submit a request to the relevant specialty Review Committee for a
permanent complement increase. Finally, commenters noted that ACGME
accreditation deadlines occur multiple times per year, whereas in our
proposal we referred to requirements that must be satisfied ``by the
application deadline for that year''.
Response: We thank commenters for bringing the terminology issues
to our attention and are revising the language accordingly as
summarized below. However, we believe that the commenters have
misinterpreted our references to the ``application deadline'' as
references to the ACGME accreditation deadlines. In the context of our
proposed ``Demonstrated Likelihood'' criteria, the ``application
deadline'' refers to the deadline for submitting applications to CMS
for additional residency positions under section 126 of the CAA, not
the deadline for submitting program materials to the ACGME or the ABMS,
as the commenters stated. We are therefore also clarifying that the
phrase ``application deadline'' used in this context refers to the
deadline for submitting applications under section 126 of the CAA for a
given fiscal year. (As noted previously, in this final rule with
comment period we are revising this deadline to March 31 of the prior
fiscal year.)
In summary, after consideration of the public comments received, we
are finalizing our proposed policy regarding the determination that a
hospital has demonstrated a likelihood of filling the positions for
``Demonstrated Likelihood'' Criterion 1 (New Residency Program) with
modifications. Under the policy finalized in this final rule with
comment period, as we proposed, a hospital will show a ``demonstrated
likelihood'' of filling the additional positions (sometimes
equivalently referred to as slots) for which it applies by
demonstrating that it does not have sufficient room under its current
FTE resident cap(s) to accommodate a planned new program or expansion
of an existing program. To do so, as we proposed, we are finalizing a
policy that a hospital will submit copies of its most recently
submitted Worksheets E, Part A and E-4 from the Medicare cost report
(CMS-Form-2552-10) as part of its application for an increase to its
FTE resident cap, and will demonstrate and attest to a planned new
program or
[[Page 73422]]
expansion of an existing program by meeting at least one of two
``Demonstrated Likelihood'' criteria.
Specifically, we are finalizing the following for ``Demonstrated
Likelihood'' Criterion 1:
<bullet<ls-thn-eq> ``Demonstrated Likelihood'' Criterion 1 (New
Residency Program). The hospital does not have sufficient room under
its FTE resident cap, and the hospital intends to use the additional
FTEs as part of a new residency program that it intends to establish on
or after the date the increase would be effective (that is, a new
program that begins training residents at any point within the
hospital's first 5 training years beginning on or after the date the
increase would be effective). Under ``Demonstrated Likelihood''
Criterion 1, the hospital will be required to meet at least one of the
following conditions as part of its application:
[squ] Application for accreditation of the new residency program
has been submitted to the ACGME (or application for approval of the new
residency program has been submitted to the ABMS) by the application
deadline.
[squ] The hospital has received written correspondence from the
ACGME (or ABMS) acknowledging receipt of the application for the new
residency program, or other types of communication concerning the new
program accreditation or approval process (such as notification of site
visit) by the application deadline.
For ``Demonstrated Likelihood'' Criterion 2, we are finalizing the
following:
<bullet<ls-thn-eq> ``Demonstrated Likelihood'' Criterion 2
(Expansion of an Existing Residency Program). The hospital does not
have sufficient room under its FTE resident cap, and the hospital
intends to use the additional FTEs to expand an existing residency
training program within the hospital's first 5 training years beginning
on or after the date the increase would be effective. Under
``Demonstrated Likelihood'' criterion 2, the hospital will be required
to meet at least one of the following conditions as part of its
application:
[squ] The hospital has received approval by the application
deadline from an appropriate accrediting body (the ACGME or ABMS) to
expand the number of FTE residents in the program.
[squ] The hospital has submitted a request by the application
deadline for a permanent complement increase of the existing residency
program.
[squ] The hospital currently has unfilled positions in its
residency program that have previously been approved by the ACGME and
is now seeking to fill those positions.
We are also finalizing, as we proposed, a policy that under
``Demonstrated Likelihood'' Criterion 2, the hospital is applying for
an increase in its FTE resident cap because it is expanding an existing
residency program. This means that as of the application deadline the
hospital is either already training residents in this program, or, if
the program exists at another hospital as of that date, the residents
will begin to rotate at the applying hospital on or after the effective
date of the increase. In addition, we note that section
1886(h)(9)(C)(ii) of the Act requires that if a hospital is awarded
positions, that hospital must increase the number of its residency
positions by the amount the hospital's FTE resident caps will increase,
based on the newly awarded positions under section 126 of CAA.
Therefore, we will require that a hospital must, as part of its
application, attest to increase the number of its residency positions
by the amount the hospital's FTE resident caps are increased based on
any newly awarded positions in accordance with the provisions of
section 1886(h)(9)(B)(i) of the Act.
(2) Determination of Hospitals That Are Located in a Rural Area or Are
Treated as Being Located in a Rural Area (Category One)
Section 1886(h)(9)(B)(ii) of the Act requires the Secretary to
distribute not less than 10 percent of resident positions available for
distribution to each of four categories of hospitals. Under section
1886(h)(9)(B)(ii)(I) of the Act, the first of these categories consists
of hospitals that are located in a rural area (as defined in section
1886(d)(2)(D) of the Act) or are treated as being located in a rural
area pursuant to section 1886(d)(8)(E) of the Act. We refer to this
category as Category One.
Section 1886(d)(2)(D)(ii) of the Act defines a rural area as any
area outside a Metropolitan Statistical Area (MSA). Under the existing
regulations at Sec. 412.64(b)(1)(ii), an ``urban area'' means an MSA
or a Metropolitan Division (in the case where a Metropolitan
Statistical Area is divided into Metropolitan Divisions), as defined by
the Office of Management and Budget. Under existing Sec.
412.64(b)(1)(ii)(C), a ``rural area'' means any area outside an urban
area. Since FY 2005, we no longer use the term MSA, but instead use the
term Core-Based Statistical Area (CBSA). Certain CBSAs are designated
as urban, while those not designated as urban are considered rural. For
purposes of section 1886(h)(9)(B)(ii) of the Act, in the FY 2022 IPPS/
LTCH PPS proposed rule (86 FR 25504), we proposed that a hospital with
its main campus located in an area outside of an urban CBSA would be
considered a rural hospital. We note that this definition of ``rural
area'' is consistent with our policy concerning designation of rural
areas for wage index purposes.
Similar to our historical wage index policy of cross walking
counties to CBSAs, CMS proposed to use the County to CBSA Crosswalk and
Urban CBSAs and Constituent Counties for Acute Care Hospitals File, or
successor files containing similar information, from the most recent FY
IPPS final rule (or correction notice if applicable) to determine if a
hospital is a rural hospital. (This file is available on the CMS
website in approximately August of the year prior to the year of the
application deadline. Under the file's current format, blank cells in
Columns D and E indicate an area outside of a CBSA.)
Under section 1886(d)(8)(E) of the Act, a subsection (d) hospital
(that is, generally, an IPPS hospital) that is physically located in an
urban area is treated as being located in a rural area for purposes of
payment under the IPPS if it meets criteria specified in section
1886(d)(8)(E)(ii) of the Act, as implemented in the regulations at
Sec. 412.103. Under these regulations, a hospital may apply to CMS to
be treated as located in a rural area for purposes of payment under the
IPPS.
Given the fixed number of available residency positions, it is
necessary to establish a deadline by which a hospital must be treated
as being located in a rural area for purposes of Category One. We
proposed to use Table 2, or a successor table containing similar
information, posted with the most recent IPPS final rule (or correction
notice if applicable) to determine whether a hospital is reclassified
to rural under Sec. 412.103. If a hospital is not listed as
reclassified to rural on Table 2, but has been subsequently approved by
the CMS Regional Office to be treated as being located in a rural area
for purposes of payment under the IPPS as of the application deadline
for additional positions for the fiscal year, we proposed that the
hospital must submit its approval letter with its application in order
to be treated as being located in a rural area for purposes of Category
One.
In this section we present a summary of the public comments and our
responses to our proposals related to the determination of hospitals
that are located in a rural area or are treated as
[[Page 73423]]
being located in a rural area (Category One).
Comment: Several commenters expressed support for our proposed
definition of Category One hospitals.
Response: We thank the commenters for their support.
Comment: A commenter supported our proposed definition of a rural
area, but suggested that we expand it to include certain locations
within MSAs that are considered rural by the Federal Office of Rural
Health Policy. The same commenter recommended that we assign a lower
priority to geographically urban hospitals that have been reclassified
as rural for wage index purposes, stating that this reclassification is
done for payment equity purposes and does not make such facilities
rural in any meaningful sense.
Response: Our proposed definition of a rural area is consistent
with how that term is employed in the context of the Medicare statute.
In particular, it is consistent with section 1886(h)(9)(B)(ii)(I) of
the Act, as added by section 126 of the CAA, which refers specifically
to the definition of a rural area at section 1886(d)(2)(D) of the Act.
Furthermore, as we stated in the FY 2022 IPPS/LTCH PPS proposed rule,
our definition is consistent with our policy concerning designation of
rural areas for other purposes, including the wage index. For these
reasons, we are not amending our definition of rural for purposes of
section 126 of the CAA.
With respect to the commenter's second point concerning rural
reclassifications, we believe that the commenter may have
misinterpreted our proposal. The commenter referred specifically to
urban hospitals that have been reclassified as rural for wage index
purposes. We believe that the commenter was referring to hospitals that
have been reclassified as rural by the Medicare Geographic
Classification Review Board (MGCRB). Under section 1886(d)(10) of the
Act, as implemented at 42 CFR 412.230, the MGCRB may change the
classification of a hospital for purposes of the wage index only.
However, the legislation directs the Secretary to consider hospitals
that are treated as being located in a rural area pursuant to section
1886(d)(8)(E) of the Act, which is a separate provision. Section
1886(d)(8)(E) of the Act, as implemented at Sec. 412.103, is
applicable beyond the calculation of the wage index. In particular,
under Sec. 412.103(a)(1), an urban hospital may apply to be
reclassified as rural if it is located in a rural census tract of an
MSA as determined by the Federal Office of Rural Health Policy. We
believe that this is the same criterion that the commenter requested be
consider in expanding our proposed definition of a rural area.
Additionally, because section 1886(h)(9)(B)(ii)(I) of the Act
references both hospitals that are located in a rural area (as defined
in section 1886(d)(2)(D) of the Act) and those that are treated as
being located in a rural area pursuant to section 1886(d)(8)(E) of the
Act, we read the statutory language as intending for both groups of
hospitals to receive equal treatment.
With respect to hospitals that have reclassified as rural under
Sec. 412.103 (section 1886(d)(8)(E) of the Act), we note that
consistent with our past application of rural reclassification to GME
payment policies, these hospitals are considered rural for IME payment
purposes and urban for direct GME payment purposes. However, we believe
the inclusion of these hospitals under section 126 of the CAA is
intended only to deem these hospitals as eligible recipients of the
additional slots being distributed under section 126 of the CAA. We do
not believe section 126 of the CAA limits urban hospitals that have
reclassified as rural to only receiving IME FTE residency positions. As
such, these hospitals are eligible for both direct GME and IME FTE
residency positions under section 126 of the CAA.
Comment: Several commenters requested that we clarify whether rural
referral centers are included in the definition of hospitals that are
located in a rural area or are treated as being located in a rural
area.
Response: Generally, in order to qualify for rural referral center
(RRC) status under the criteria set forth at 42 CFR 412.96, a hospital
must be rural, that is, either located in a rural area, or treated as
being located in a rural area under section 1886(d)(8)(E) of the Act.
Most RRCs would therefore qualify under Category One as defined
previously in this final rule with comment period. However, we permit
hospitals that previously qualified as an RRC but lost their status due
to the Office of Management and Budget (OMB) redesignation of the
county in which they are located from rural to urban to be reinstated
as an RRC (August 1, 2000 IPPS final rule (65 FR 47054, 47089)).
Currently, there are a relatively small number of hospitals with RRC
status that are neither located in a rural area nor treated as being
located in a rural area under section 1886(d)(8)(E) of the Act
(approximately 11 percent). We are clarifying that such hospitals,
despite their status as RRCs, would not qualify under Category One.
Comment: A commenter expressed concern that, as a result of our
proposal to use the County to CBSA Crosswalk and Urban CBSAs and
Constituent Counties for Acute Care Hospitals File, urban hospitals
reclassified to rural may still be able to claim treatment as rural
hospitals despite being located well within a CBSA. The same commenter
also suggested what they characterized as a grammatical edit to our
definition of rural for purposes of Category One. In the proposed rule,
we proposed that a hospital with its main campus located in an area
outside of an urban CBSA is a rural hospital. The commenter recommended
that we revise this language to state that a hospital would be
considered located in a rural area, or treated as such, if its main
campus was located in an area outside of an urban CBSA and was
classified as a rural hospital (that is, not reclassified as urban).
The commenter added that this restriction would avoid allowing large
urban rural referral centers to expand an existing program and take
these residency positions from geographically rural hospitals, which
would thwart what the commenter believes to be the legislative intent
of the statute.
Response: We believe the commenter is referring to hospitals that
are located in urban CBSAs and have been reclassified as rural under
section 1886(d)(8)(E) of the Act, as implemented in the regulations at
42 CFR 412.103. As discussed previously, the statute explicitly refers
to such reclassified hospitals among the categories of qualifying
hospitals in section 1886(h)(9)(B)(ii)(I) of the Act. The preamble
language cited by the commenter, and to which a grammatical edit was
suggested, is only part of our proposed definition, which also includes
hospitals reclassified as rural, as required by the statute. We further
note that, as we proposed, such hospitals would not be identified using
the County to CBSA Crosswalk and Urban CBSAs and Constituent Counties
for Acute Care Hospitals File, but rather by consulting Table 2, or a
successor table containing similar information, posted with the most
recent IPPS/LTCH PPS final rule (or correction notice if applicable).
If a hospital is not listed as reclassified to rural on Table 2, but
has been subsequently approved by the CMS Regional Office to be treated
as being located in a rural area for purposes of payment under the IPPS
as of the application deadline for additional positions for the fiscal
year, the hospital must submit its approval letter with its application
in order to be treated as being located in a rural area for purposes of
Category One.
It also appears that the commenter may have conflated two distinct
[[Page 73424]]
categories of hospitals, namely, urban hospitals reclassified as rural
under Sec. 412.103, and RRCs, which are governed by the regulations at
Sec. 412.96. While an urban hospital reclassified as rural may elect
to apply for RRC status if it meets the criteria set forth at Sec.
412.96, such assignment is not automatic, and many RRCs are in fact
geographically rural. Thus, as explained previously, many, but not all,
RRCs may qualify as rural hospitals for purposes of section 126 of the
CAA, depending on whether they otherwise satisfy the criteria for
Category One.
Comment: A commenter, located in an urban area within a largely
rural state, requested that CMS reconsider our proposed definition of
hospitals located in rural areas or treated as being located in rural
areas. Another commenter, stated that despite being located in a rural
area and serving a mostly rural population, they would not qualify
under Category One since the zip code of the hospital itself is not
located in a HPSA.
Response: In response to the first commenter, we refer to the
language of section 1886(h)(9)(B)(ii)(I) of the Act concerning rural
hospitals, and note that a hospital located in an urban area cannot
qualify under this category (Category One) unless it has reclassified
as rural in accordance with the regulations at 42 CFR 412.103. We
believe that the second commenter has conflated our proposals regarding
two distinct statutory categories, namely, Category One (rural
hospitals) and Category Four (hospitals that serve HPSAs). In response,
we are clarifying that a hospital located in a rural area, or that is
treated as being located in a rural area, qualifies under Category One
whether or not it is physically located in a HPSA.
Comment: A commenter requested that the states of Hawaii and
Alaska, in addition to the U.S. territories of Guam, American Samoa,
Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S.
Virgin Islands, be recognized as rural for any federal definition. The
commenter stated that these areas face significant health care
challenges as they are non-contiguous and distant from the rest of the
United States, and that their health care systems are isolated and
vulnerable.
Response: Designating the states of Hawaii and Alaska, in addition
to the U.S. territories of Guam, American Samoa, Commonwealth of the
Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, as
rural for any federal definition is beyond the scope of this
rulemaking. We note that hospitals in these states and territories that
are located in a rural area or are treated as being located in a rural
area, as applicable, are eligible to apply for residency positions
under section 126.
Comment: A commenter stated that we should revise our proposed
definition of Category One to include the requirement that the majority
of residents' training should take place in a rural area. The commenter
argued that, if the goal is to train more physicians to remain and
serve in communities of need, then the greatest priority should be
given to hospitals and systems that themselves are located in rural
areas, and in fact serve rural communities. According to the commenter,
this should include caveats that the training itself take place in a
``rural MSA,'' and residency positions should not be awarded to an
organization that has a facility located in a rural MSA if that
facility would not be the primary place of training.
Response: We agree with the commenter that the training and
retention of physicians in rural and underserved areas is an important
goal. However, the law requires that hospitals that are located in a
rural area (as defined in section 1886(d)(2)(D) of the Act) or are
treated as being located in a rural area pursuant to section
1886(d)(8)(E) of the Act are qualifying hospitals. Prioritization of
applications is a separate issue from the definition of Category One
(and is discussed in section II.B.3.d. of this final rule with comment
period).
After review of the public comments received, we are finalizing our
proposal regarding the determination of hospitals that are located in a
rural area or are treated as being located in a rural area (Category
One) as proposed, without modification.
(3) Determination of Hospitals for Which the Reference Resident Level
of the Hospital is Greater Than the Otherwise Applicable Resident Limit
(Category Two)
Under section 1886(h)(9)(B)(ii)(II) of the Act, the second category
consists of hospitals in which the reference resident level of the
hospital (as specified in section 1886(h)(9)(F)(iii) of the Act) is
greater than the otherwise applicable resident limit. We refer to this
category as Category Two.
Under section 1886(h)(9)(F)(iii) of the Act, the term `reference
resident level' means, with respect to a hospital, the resident level
for the most recent cost reporting period of the hospital ending on or
before the date of enactment of section 1886(h)(9) of the Act, December
27, 2020, for which a cost report has been settled (or, if not,
submitted (subject to audit)), as discussed in the FY 2022 IPPS/LTCH
PPS proposed rule (86 FR 25505).
Under section 1886(h)(9)(F)(iii) of the Act, the term `resident
level' has the meaning given such term in paragraph (7)(C)(i). That
section defines ``resident level'' as with respect to a hospital, the
total number of full-time equivalent residents, before the application
of weighting factors (as determined under paragraph (4)), in the fields
of allopathic and osteopathic medicine for the hospital.
Under section 1886(h)(9)(F)(i) of the Act, the term `otherwise
applicable resident limit' means, with respect to a hospital, the limit
otherwise applicable under subparagraphs (F)(i) and (H) of paragraph
(4) on the resident level for the hospital determined without regard to
the changes made by this provision of CAA 2021, but taking into account
section 1886(h)(7)(A), (7)(B), (8)(A), and (8)(B) of the Act. These
paragraphs all address the distribution of positions and redistribution
of unused positions.
In the CY 2011 OPPS final rule with comment period, we previously
interpreted these terms when we implemented section 5503 of the
Affordable Care Act. Under section 1886(h)(8)(H)(i) of the Act (as
interpreted in the CY 2011 OPPS final rule (75 FR 46391)), the
``reference resident level'' generally refers to the number of
unweighted allopathic and osteopathic FTE residents who are training at
a hospital in a given cost reporting period. That is, the ``reference
resident level'' refers to a hospital's allopathic and osteopathic FTE
resident count for a specific period. The definition can vary based on
what calculation is being performed to determine the correct allopathic
and osteopathic FTE resident count (see, for example, 42 CFR
413.79(c)(1)(ii)). As noted previously, section 126 of the CAA, under
new section 1886(h)(9)(F)(iii) of the Act defines the ``reference
resident level'' as coming from the most recent cost reporting period
of the hospital ending on or before the date of enactment of the CAA
(that is, December 27, 2020).
Under new section 1886(h)(9)(F)(i) of the Act, the term ``otherwise
applicable resident limit'' is defined as ``the limit otherwise
applicable under subparagraphs (F)(i) and (H) of paragraph (4) on the
resident level for the hospital determined without regard to this
paragraph but taking into account paragraphs (7)(A), (7)(B), (8)(A),
and (8)(B).'' In the FY 2022 IPPS/LTCH PPS proposed rule (86 FR 25505),
we proposed to define this as the hospital's 1996 cap during its
reference year,
[[Page 73425]]
adjusted for the following: New programs as defined at Sec. 413.79(e);
participation in a Medicare GME affiliation agreement as defined at
Sec. Sec. 413.75(b) and 413.79(f); participation in an Emergency
Medicare GME affiliation agreement as defined at Sec. 413.79(f);
participation in a hospital merger; whether an urban hospital has a
separately accredited rural training track program as defined at Sec.
413.79(k); applicable decreases or increases under section 422 of the
MMA, applicable decreases or increases under section 5503 of the
Affordable Care Act, and applicable increases under section 5506 of the
Affordable Care Act.
Regarding the term ``resident level'', in the CY 2011 OPPS final
rule (75 FR 46391) we indicated that we generally refer to a hospital's
number of unweighted allopathic and osteopathic FTE residents in a
particular period as the hospital's resident level, which we proposed
to define consistently with the definition in section 126 of the CAA;
that is, the ``resident level'' under section 1886(h)(7)(c)(i) of the
Act, which is defined as the total number of full-time equivalent
residents, before the application of weighting factors (as determined
under paragraph (4)), in the fields of allopathic and osteopathic
medicine for the hospital.
For the purposes of section 126 of the CAA we proposed that the
definitions of the terms ``otherwise applicable resident level,''
``reference resident level,'' and ``resident level'' should be as
similar as possible to the definitions those terms have in the
regulations at Sec. 413.79(c) as developed in the CY 2011 OPPS
rulemaking.
The following is a summary of the public comments and our responses
to our proposals related to the determination of hospitals for which
the reference resident level of the hospital is greater than the
otherwise applicable resident limit (Category Two).
Comment: Several commenters expressed support for our proposed
definition of Category Two hospitals.
Response: We thank the commenters for their support.
Comment: A few commenters requested that we clarify that a hospital
qualifies under Category Two if it is over its direct GME cap, its IME
cap, or both. Some commenters added that such an interpretation would
be consistent with our implementation of the distribution process under
section 5503 of Public Law 111-148.
Response: We are clarifying that a hospital qualifies for direct
GME residency positions under Category Two if it is over its direct GME
cap; qualifies for IME residency positions under Category Two if it is
over its IME cap; and qualifies for both direct GME and IME residency
positions if it is over both its direct GME and IME caps. Furthermore,
we are clarifying that a hospital may only apply for direct GME and/or
IME residency positions if it does not have sufficient room to start a
new program or expand an existing program under its existing direct GME
and/or IME caps, respectively. For example, if a hospital has
sufficient room under its IME cap to expand an existing program, but
not under its direct GME cap, that hospital may only apply for direct
GME residency positions, but not IME residency positions, to facilitate
the planned expansion.
Comment: A commenter expressed concern that Category Two may bias
financing decisions toward larger hospitals that are more likely to be
able to support residency positions in excess of their caps due to the
training of more self-sustaining subspecialty physicians.
Response: While we acknowledge the commenter's concern, we note
that hospitals training residents in excess of their otherwise
applicable resident limit or caps, are included among qualifying
hospitals as defined by the statute, which also requires that we
distribute at least 10 percent of the aggregate number of additional
residency positions to hospitals that qualify under this category.
After review of the public comments received, we are finalizing our
proposal regarding the determination of hospitals for which the
reference resident level of the hospital is greater than the otherwise
applicable resident limit (Category Two) as proposed, without
modification.
(4) Determination of Hospitals Located in States With New Medical
Schools, or Additional Locations and Branch Campuses (Category Three)
The third category specified in section 1886(h)(9)(B)(ii) of the
Act, as added by section 126 of CAA, consists of hospitals located in
States with new medical schools that received `Candidate School' status
from the Liaison Committee on Medical Education (LCME) or that received
`Pre-Accreditation' status from the American Osteopathic Association
(AOA) Commission on Osteopathic College Accreditation (the COCA) on or
after January 1, 2000, and that have achieved or continue to progress
toward `Full Accreditation' status (as such term is defined by the
LCME) or toward `Accreditation' status (as such term is defined by the
COCA); or additional locations and branch campuses established on or
after January 1, 2000, by medical schools with `Full Accreditation'
status (as such term is defined by LCME) or `Accreditation' status (as
such term is defined by the COCA). We note that the statutory language
is specific with respect to these definitions. We refer to this
category as Category Three.
Based on research and assistance received from LCME and the COCA,
we understand that each accrediting body administers a multi-step
process for applicant medical schools to progress to fully accredited
status within the first few years after they are established and begin
training students. LCME grants candidate status to an applicant medical
education program after it reviews and approves the medical school's
data collection instrument and planning self-study; at this point, it
determines that the school is ready for a survey visit, and the
preliminary accreditation survey visit is scheduled. After that visit,
LCME reviews the survey team's preliminary survey report and determines
whether or not sufficient progress toward compliance with accreditation
standards has been made and satisfactory plans for the medical
education program have been developed.
If LCME grants preliminary accreditation status, the school may
begin accepting applications for enrollment. During the second year of
the school's charter class, a school with preliminary accreditation
status may submit information and receive a survey site visit to
determine whether it meets criteria for provisional accreditation
status. Finally, LCME grants full accreditation status to schools with
provisional accreditation status, typically in the fourth teaching
year, after determining the school is in compliance with or has made
significant progress toward attaining compliance with all full
accreditation standards.
LCME defines a regional campus, comparable to ``additional
locations and branch campuses'' in section 1886(h)(9)(B)(ii)(III)(bb)
of the Act, as a site distinct from the main campus of the medical
school where students spend at least 1 full year of the curriculum.
Regional campuses of a medical education program receive accreditation
status through the main campus of the program and are not separately
accredited.
The COCA may grant pre-accreditation status to a proposed college
of osteopathic medicine (COM) that has achieved candidate status and
meets the standards of pre-accreditation status. The pre-accreditation
process starts with the submission of a pre-
[[Page 73426]]
accreditation self-study by a proposed COM; COCA staff then reviews the
submission and conducts a site visit to examine the proposed COM's
compliance with accreditation standards. Following the site visit, the
COCA reviews the site visit report and other submitted information and
grants pre-accreditation status to a proposed COM that meets the pre-
accreditation standards. Once a proposed COM receives pre-accreditation
status, it may begin to recruit, accept applications from, and admit
prospective students. We note that prior to 2017, the COCA used the
term ``provisional status'' instead of ``pre-accreditation status.''
The COCA may grant accreditation status to a COM that has achieved
pre-accreditation status and meets the standards for accreditation.
These accreditation statuses include accreditation with exceptional
outcome, accreditation, accreditation with heightened monitoring,
accreditation with warning, and accreditation with probation. Any
accreditation status constitutes full accreditation, in contrast to
pre-accreditation status or candidate status, which do not constitute
full accreditation status.
The COCA defines a branch campus as a geographically separate
location apart from the COM's main campus that is: Permanent in nature;
offers courses in educational programming leading to a doctorate in
osteopathic medicine; has its own faculty and administrative or
supervisory organization; and maintains its own budgetary and hiring
authority. A COM that establishes a branch location must apply for and
receive separate approval from the COCA; the application process has
four steps: A written application and branch campus self-study, a
progress report, a revised branch campus self-study and site visit, and
a final, pre-operational site visit.
The COCA defines an additional location as a location that is
geographically separate from the main campus of a COM, but unlike a
branch location, shares administration, faculty, curriculum, and
budgetary authority with the main campus. Additional locations receive
accreditation through the main campus of the COM following the review
of documents and a survey site visit, after which a COM may enroll
students in the additional location.
Based on information gathered from LCME and the COCA about new
medical schools, additional locations and branch campuses, in the FY
2022 IPPS/LTCH PPS proposed rule (86 FR 25506), we proposed that
hospitals located in the following 35 States and 1 territory, referred
to as Category Three States, would be considered Category Three
hospitals: Alabama, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana,
Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi,
Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina,
Ohio, Oklahoma, Pennsylvania, Puerto Rico, South Carolina, Tennessee,
Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin. We
further stated that if a hospital is located in a state not listed
here, but believes the state in which it is located should be on this
list, the hospital could submit a formal comment on the proposed rule
to make a change to this list, or could provide documentation with
submission of its application to CMS that the state in which it is
located has a medical school or additional location or branch campus of
a medical school established on or after January 1, 2000. Pursuant to
the statutory language, all hospitals in such states are eligible for
consideration; the hospitals, themselves, do not need to meet the
conditions of section 1886(h)(9)(B)(ii)(III)(aa) or (bb) of the Act in
order to be considered.
Comment: Several commenters expressed support for our proposed
definition of Category Three hospitals.
Response: We thank the commenters for their support.
In addition, we did not receive any comments requesting that a
state be added to the list of Category Three states.
Therefore, after review of the public comments received, we are
finalizing our proposal regarding the determination of hospitals
located in states with new medical schools, or additional locations and
branch campuses (Category Three) as proposed, without modification.
(5) Determination of Hospitals That Serve Areas Designated as Health
Professional Shortage Areas Under Section 332(a)(1)(A) of the Public
Health Service Act (Category Four)
The fourth category specified in the law consists of hospitals that
serve areas designated as health professional shortage areas under
section 332(a)(1)(A) of the Public Health Service Act (PHSA), as
determined by the Secretary. We refer to this category as Category
Four.
The Health Resources and Services Administration (HRSA) designates
certain areas as health professional shortage areas (HPSAs). Section
332(a)(1)(A) of the PHSA, states that a ``health professional shortage
area'' is ``an area in an urban or rural area (which need not conform
to the geographic boundaries of a political subdivision and which is a
rational area for the delivery of health services) which the Secretary
determines has a health manpower shortage''. HRSA designates HPSAs for
primary care, mental health, and dental health.
A geographic area may be designated as a HPSA under section
332(a)(1)(A) of the PHSA only on the basis of a shortage of services
for the entire population within that area (a ``geographic HPSA'').
Subsequent clauses of 332(a)(1) refer to other types of HPSAs, to which
we will return later in this final rule with comment period. The
geographic area to which a geographic HPSA is assigned may be a single
county, multiple counties, a county subdivision, census tract, or a
group of census tracts.
As we noted in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR
25506), section 126 of the CAA does not explicitly address the question
of how HPSAs for different medical specialties should factor into
determining which hospitals serve areas designated as HPSAs. In our
consideration of this question, we began by examining the use of HPSAs
in the HPSA Physician Bonus Program authorized under section 1833(m) of
the Act. This program is relevant because Congress established the
program as an incentive to attract new physicians to medically
underserved communities and to encourage physicians in those areas to
remain there (69 FR 47517 through 47518).
The HPSA Physician Bonus Program was created by Section 4043 of the
Omnibus Budget Reconciliation Act (OBRA) of 1987, which added section
1833(m) to the Act. It provides incentive payments to physicians who
furnish services to an individual in an area that is designated as a
HPSA. Originally, under section 1833(m) of the Act, a 5 percent payment
was added, beginning January 1, 1989, to the amounts otherwise payable
to physicians who furnish services to Medicare patients in designated
HPSAs. Section 6102 of OBRA 1989 further amended section 1833(m) of the
Act to raise the amount of this incentive payment from 5 percent to 10
percent for services furnished after December 31, 1990. The OBRA 1989
amendment also expanded eligible service areas to include both rural
and urban HPSAs.
We first examined the role of primary care geographic HPSAs in the
HPSA Physician Bonus program. Physicians furnishing services in a
primary care geographic HPSA are eligible to receive the bonus payments
and the payments apply to all physicians who perform covered services
within a primary care
[[Page 73427]]
geographic HPSA, regardless of specialty. Similarly, section 126 of the
CAA does not explicitly distinguish between physician specialties for
purposes of allocating the additional residency positions. Therefore,
in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR 25507), we proposed
that primary care geographic HPSAs would be considered in determining
what hospitals qualify under Category Four and that hospitals that have
main campuses or provider-based facilities in these HPSAs may apply for
additional residency positions for any specialty. We also note CMS used
primary care HPSAs for the allocation of residency positions for
purposes of section 5503 of the Affordable Care Act (75 FR 72147).
We next considered the use under the HPSA Physician Bonus Program
of areas that are solely mental health geographic HPSAs and not also
primary care geographic HPSAs. We will refer to these areas as mental
health only geographic HPSAs. The HPSA Physician Bonus Program provides
incentive payments for services provided in mental health only
geographic HPSAs, but only for services provided by psychiatry provider
specialties. The distinction between primary care geographic HPSAs, in
which all physician provider specialties, including psychiatry provider
specialties, receive the incentive payments, and mental health only
geographic HPSAs, in which only psychiatry provider specialties receive
the incentive payments, is relevant to the question of how mental
health only geographic HPSAs should factor into determining hospitals
that serve areas designated as HPSAs for purposes of section 126 of the
CAA. We believe that it is appropriate to incorporate this feature of
the HPSA Physician Bonus Program as well, and proposed to use mental
health only geographic HPSAs for mental health providers accordingly in
the determination of hospitals that serve areas designated as HPSAs.
Thus, we proposed that hospitals that only have main campuses or
provider-based facilities in mental health only geographic HPSAs could
only apply for residency positions for psychiatry residency programs.
We next considered dental geographic HPSAs. Under section
1886(h)(4)(F) of the Act, for cost reporting periods beginning on or
after October 1, 1997, a hospital's unweighted FTE count of allopathic
and osteopathic residents for purposes of direct GME may not exceed the
hospital's unweighted FTE count for direct GME in its most recent cost
reporting period ending on or before December 31, 1996. Under section
1886(d)(5)(B)(v) of the Act, a similar limit based on the FTE count for
IME during the same cost reporting period is applied effective for
discharges occurring on or after October 1, 1997. Given that dental
residents are not included in this statutory cap and that section 126
of the CAA distributes additional residency positions in the context of
the statutory cap, we did not propose that dental geographic HPSAs
should factor into the determination of whether a hospital serves a
HPSA for purposes of section 126 of the CAA.
In summary, we proposed to consider geographic HPSAs for primary
care and mental health providers for purposes of determining hospitals
that serve areas designated as HPSAs. We proposed that hospitals that
only have campuses or provider-based facilities in mental health only
geographic HPSAs could only apply for positions for psychiatry
residency programs. We did not propose to consider dental HPSAs as
dental FTE residents are not subject to a hospital's IME and direct GME
caps.
We next considered what hospitals serving areas designated as
primary care or mental health HPSAs means for purposes of Category
Four. As with the question regarding the role of primary care, mental
health, and dental HPSAs, section 126 of the CAA does not explicitly
address this question.
As discussed in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR
25507), there are many possible interpretations of what hospitals that
serve areas designated as primary care or mental health HPSAs means for
purposes of Category Four. The most expansive interpretation might be
that this refers to the universe of hospitals where each hospital
provides care to at least one patient that resides in a HPSA without
regard to the location of the main campus of the hospital or of its
other patient care locations. This interpretation could be made less
expansive by developing a relative or absolute threshold for the number
of patients of the hospital that reside in HPSAs. It could also be made
less expansive by considering whether the physical location of the main
campus of the hospital and/or its other patient care locations are
inside of or proximate to a HPSA.
In considering this issue, we prioritized objective factors that
would maximize distribution of GME positions to residency programs
serving underserved populations. (See section V.J.2.a.(4). of the
preamble of the FY 2022 IPPS/LTCH PPS proposed rule for a further
discussion of our proposals for prioritizing care to underserved
populations.) To this end, we proposed that a hospital could qualify
under Category Four if it had its main campus or a provider-based
facility (under 42 CFR 413.65) physically located in a primary care or
mental health only geographic HPSA. Additionally, as part of the
qualification requirements under Category Four, in the residency
program for which the hospital was applying, we proposed that at least
50 percent of the residents' training time over the duration of the
program would have to occur at those locations in the HPSA. We stated
in the proposed rule that we believed it was important to avoid the
possibility that a hospital with provider-based facilities in multiple
locations, some of which may not be located in a HPSA, uses an
additional residency position mostly or entirely to serve populations
that face no health service shortage.
We proposed that a Category Four hospital submit an attestation,
signed and dated by an officer or administrator of the hospital who
signs the hospital's Medicare cost report, that it has its main campus
or a provider-based facility (under 42 CFR 413.65) physically located
in a primary care or mental health only geographic HPSA, and in the
program for which the hospital is applying, at least 50 percent of the
residents' training time over the duration of the program occurs at
those locations in the HPSA.
For example under our proposal, Hospital A applies under Category
Four for a psychiatry residency program. Its main campus is located in
a non-HPSA area and it has one provider-based facility located in a
mental health only geographic HPSA. Hospital A must attest that
residents training in the psychiatry residency program spend at least
50 percent of the duration of their training in the program at its
provider-based facility located in the mental health only geographic
HPSA.
As another example, Hospital B applies for a residency program. Its
main campus is located in a primary care geographic HPSA and it has two
provider-based facilities, one in the same geographic HPSA as the main
campus and one in a non-HPSA area. Hospital B must attest that
residents training in the program will spend at least 50 percent of the
duration of their training in the program on the main campus or at the
provider-based facility located in the geographic HPSA, combined (for
example, 30 percent of the time on the main campus and 20 percent at
the provider-based facility).
The following is a summary of the public comments and our responses
to our proposals related to Category Four qualification requirements.
[[Page 73428]]
Comment: Many commenters objected to the proposed requirement that
a hospital or provider-based facilities be located in a primary care or
mental health only geographic HPSA to be eligible under Category Four.
Several commenters expressed concern that our proposed definition of
Category Four limits hospitals from eligibility and that as a result,
only a small number of hospitals would qualify for residency positions
awarded under section 126 of the CAA. Other commenters argued that this
constraint does not take into account that many geographic HPSA
residents rely on health services provided outside of their HPSA. A
commenter noted this is particularly true of certain specialty care
services, such as mental health services, for which HPSA-residing
patients are referred to academic medical centers located in urban
areas. Several commenters suggested that it is for this reason that the
statutory language describes hospitals that serve HPSAs rather than
explicitly limiting eligibility under this category to hospitals
physically located within the geographic boundaries of HPSAs.
Many commenters believe Category Four should be interpreted to more
generally include hospitals that play a meaningful role in providing
health services to residents of shortage areas. These commenters
suggested we modify our proposal to include both hospitals located
within HPSAs and those within a reasonable distance of one. Several
commenters provided specific recommendations on what would be
considered within a reasonable distance of a HPSA, such as within one
mile, 10 miles, 20 miles, and 25 miles. In addition, a commenter
requested that CMS revise our proposed definition of Category Four so
that a hospital may be eligible for section 126 of the CAA residency
positions on the basis of serving either a geographic or ``population''
HPSA (the following link includes a brief description of HPSAs: <a href="https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#hpsas">https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#hpsas</a>).
Another commenter noted that some underserved communities do not
qualify for geographic or population HPSAs because of their proximity
to wealthier areas, but face provider shortages that deserve
recognition under Category Four. Some commenters recommended that we
define Category Four in terms of the measure of the hospital's patient
population that reside within geographic HPSAs, using either an
absolute or proportionate threshold. A commenter requested flexibility
in the data sources that hospitals may use to demonstrate they are
serving or will at some point serve HPSA populations, including data
from other government agencies and non-profit organizations.
Many commenters opposed the proposed requirement that to qualify
under Category Four, at least 50 percent of residents' training time in
the program must occur in facilities located in the geographic HPSA.
According to some commenters, this requirement would impede teaching
hospitals' ability to structure programs to best meet the needs of the
patients and communities they serve as well as to satisfy
administrative obligations, including accreditation standards.
Commenters also stated that the requirement that 50 percent or more of
residents' time be spent in a HPSA, often in rural areas, would not be
possible since supervising physicians and training schedules must be
focused on population centers with patient and condition mixes that are
necessary for training. A few commenters explained that the proposed 50
percent requirement, in addition to the proposed requirement that
hospitals or their facilities be physically located in a HPSA to
qualify under Category Four, is too restrictive to meet the policy goal
of directing new residency positions to areas that provide services to
underserved populations and does not meet congressional intent.
Several commenters, while supporting the proposed requirement that
50 percent of resident training time in programs take place in
locations in the HPSA, requested that nonprovider settings where
hospitals may count training time for IME and direct GME purposes be
counted. Commenters stated that community settings, such as critical
access hospitals, Federally Qualified Health Centers (FQHCs), and rural
health clinics (RHCs), are important contributors to the provision of
services in HPSAs and to residency training. Several commenters added
that, in their view, it was Congress's intent that FTEs awarded under
section 126 of the CAA train at nonprovider settings in addition to
hospital main campuses and provider-based facilities.
Several commenters were opposed to the proposed 50 percent training
time requirement because they believe it would impose a recordkeeping
burden on hospitals that administer residency programs. A few
commenters noted that normally, resident rotations are reported in the
Intern and Resident Reporting System (IRIS) in aggregate, whereas the
proposed 50 percent training time requirement would demand individual
resident tracking and reporting. Commenters stated that to attest to
meeting the requirement, teaching hospitals would need to develop a new
system and process to document and track section 126 of the CAA funded
residents that is separate from the system and process used to track
residents funded by other sources.
A commenter requested clarification on whether the proposed
requirement that residents spend 50 percent or more of their training
time in a geographic HPSA in order for the hospital to be eligible
under Category Four is based on all residents in aggregate or to
individual residents.
Response: We appreciate commenters' feedback and concerns regarding
the eligibility requirements under Category Four. After further
consideration, as discussed in greater detail later in this section, we
are modifying certain aspects of our proposal in response to public
comments. These modifications are intended to provide additional
flexibilities in meeting these requirements, while still targeting
Category Four eligibility to hospitals that are most clearly serving
HPSAs. We are persuaded by commenters' arguments and agree that
training in settings other than hospital settings is consistent with
our goal of maximizing distribution of GME positions to residency
programs serving underserved populations, including serving those in
community settings, and should be counted toward meeting Category Four
eligibility requirements. Therefore, we are modifying our proposal. Any
and all program training that occurs in a geographic HPSA at scheduled
program training sites that are physically located in that HPSA and
treat the HPSA's population, including nonprovider settings and
Veterans Affairs facilities, will count towards meeting the 50 percent
training requirement to qualify under Category Four. In addition,
because we are revising our proposed definition of Category Four to
allow all of these settings to be qualifying training sites, an
applicant hospital (including any provider-based facilities) itself
will not be required to be physically located in a geographic HPSA in
order to be eligible under Category Four as proposed. Rather, as long
as the hospital participates in training residents in a program where
at least 50 percent of the training time occurs at scheduled training
site(s) that are physically located in a geographic HPSA, that hospital
is considered to be eligible under Category Four. We believe these
changes will provide additional flexibility for teaching hospitals to
design programs to effectively serve patients and communities and meet
any administrative requirements while
[[Page 73429]]
targeting Category Four eligibility to hospitals that are most clearly
serving HPSAs.
Consider an example where Hospitals A, B, and C participate in
training residents in an approved family medicine program. The program
also has Training Site 1 as part of the rotation schedule (could be a
nonprovider setting, a Veterans Affairs facility, or another community
setting). Hospitals A and B are located in a primary care geographic
HPSA as is Training Site 1. Hospital C is not located in the HPSA.
Residents in the family medicine program spend 40 percent of their
training time at Hospitals A and B, 40 percent of their training time
at Hospital C, and 20 percent of their time training at Training Site
1. Since at least 50 percent of the program's total training time is
spent training at facilities located in the primary care geographic
HPSA, Hospitals A, B, and C all qualify under Category Four.
We appreciate commenters' suggestions to expand the proposed
requirement for Category Four beyond a hospital's training sites that
are physically located in HPSAs to include those within a certain
distance of a HPSA. While we believe a distance or proximity threshold
may warrant further consideration in the future for Category Four, we
note the suggested distances by some commenters ranged anywhere between
one mile to 25 miles. Based on these comments, a single uniform
distance threshold may not always be appropriate in the context of
section 126 of the CAA. For example, a single fixed mileage threshold
may not equitably address tertiary care situations because hospitals
providing equivalent tertiary care to residents of HPSAs may be located
varying distances from those HPSAs. At this time, we believe the
requirement that at least 50 percent of training time occurs at
training sites that are physically located in a geographic HPSAs
targets Category Four eligibility for hospitals that are most clearly
serving HPSAs.
We also appreciate comments recommending that we consider the
measure of a hospital's patient population that resides within a HPSA
to determine whether a hospital serves a HPSA, as well as the
suggestion of using different data sources to establish whether a
hospital serves a HPSA. We believe there should be a consistent method
used for hospitals to demonstrate that they meet the definition of
Category Four. We note, simultaneously allowing the use of different
data sources to establish whether a hospital serves a HPSA would mean
that we might compare applications supported by different data
collection methods, different definitions, or different data
altogether. As discussed earlier, at this time we believe requiring
that at least 50 percent of the training time of the program the
hospital participates in occurs at training site(s) that are physically
located in a geographic HPSA targets Category Four eligibility to
hospitals that are most clearly serving HPSAs. However, we continue to
welcome further feedback on the dependence of geographic HPSA residents
on health services provided outside of their HPSA and are seeking
comment on appropriate summary measures of where HPSA residents seek
medical care as a feasible alternative for potential use in future
rulemaking.
With regard to commenters' concern that the proposed definition of
Category Four would limit the pool of eligible applicants relative to
more expansive definitions, we appreciate the feedback. However, we do
not believe the goal of Category Four should be to create the most
expansive eligibility pool possible. Targeting Category Four
eligibility to hospitals that are clearly serving HPSAs (as discussed
previously) is entirely consistent with this statutory eligibility
criterion and our policy objectives for section 126 of the CAA
regarding medically underserved communities. In addition, as stated
previously, we are seeking comments on potential alternative feasible
definitions of Category Four to inform future rulemaking.
With regard to the request to include population HPSAs in the
definition of Category Four, we note that section 1886(h)(9)(B)(ii)(IV)
of the Act specifies that Category Four consists of hospitals that
serve areas designated as health professional shortage areas under
section 332(a)(1)(A) of the PHSA, as determined by the Secretary.
Paragraph (A) of section 332(a)(1) of the PHSA describes a geographic
HPSA, as explained previously and in the proposed rule (86 FR 25506). A
population HPSA is described by paragraph (B) of section 332(a)(1), as
explained in section II.B.3.d. of this final rule with comment period
and section V.J.2.a.(4).(a). of the preamble of the FY 2022 IPPS/LTCH
PPS proposed rule (86 FR 25508). Therefore, we are not revising the
definition of Category Four to include population HPSAs as requested by
the commenter.
In response to comments that including a training time requirement
for qualification falls outside of the legislative intent of section
126 of the CAA, we disagree. The statute at 1886(h)(9)(B)(2)(IV) limits
Category Four eligibility to hospitals that serve areas designated as
HPSAs under section 332(a)(1)(A) of the PHSA, as determined by the
Secretary. As discussed in the proposed rule and in line with the
Administration's support for advancing health equity in underserved
communities, targeting Category Four eligibility to hospitals serving
HPSAs is consistent with this statutory eligibility criterion and our
policy objectives. We also note, as stated previously, we are seeking
comment on potential alternative definitions of Category Four to inform
future rulemaking.
We disagree with the comments that a minimum rotation time
requirement imposes a significant tracking or reporting requirement. We
do not expect hospitals to establish entirely new training tracks or
administrative structures to accommodate FTE slots awarded under
section 126 of the CAA. Hospitals regularly develop rotation schedules
to facilitate residents' training at participating sites and a
program's participating site information is generally readily available
on the ACGME website. As such, we are specifying that the percentage of
training time that residents in the program spend in the HPSA for
purposes of Category Four is required to be substantiated, utilizing
resident rotation schedules (or similar documentation). Regarding IRIS,
we do not expect the existing reporting requirements to change for
hospitals that receive these residential slots. We note that the 50
percent requirement applies to the program in its entirety, not to
individual residents. As such, hospitals would not need to track the
training time of individual residents to ensure each individual
resident spends 50 percent or more of their training time in a
geographic HPSA, so long as the program in its entirety meets the
requirement.
Comment: Several commenters objected to our approach to address the
issue of how specialties factor into determining which hospitals serve
areas designated as HPSAs. Commenters stated that our use of the HPSA
Physician Bonus Program as a model for addressing this question is
flawed because hospitals do not respond to incentives and cannot
relocate to new areas or establish new operations in the same manner as
individual physicians and physician practices. Additionally, commenters
stated that unlike the bonus payments in the HPSA Physician Bonus
Program, the proposed size of the FTE awards will be insufficient to
incentivize the establishment of new training programs in HPSAs.
[[Page 73430]]
Response: While we agree that the HPSA Physician Bonus Program and
the Category Four eligibility of hospitals for additional GME residency
positions target different types of entities, one being physicians and
the other physician training programs, as we discussed in the proposed
rule the policy objective underlying each is to strengthen the
physician workforce in underserved areas. We therefore disagree with
the comment that one is an unsuitable template upon which to build the
other. However, as discussed in greater detail later in this section,
we agree with commenters that the proposed 1.0 FTE per year limitation
on FTE awards with no assurance of follow-on awards would be an
insufficient incentive to encourage many hospitals to expand an
existing or establish a new training program. As such, we are
finalizing a policy to increase maximum award sizes to 5.0 FTEs per
hospital per year, which we discuss in more detail in section
II.B.3.c.(2). of this final rule with comment period.
Comment: Several commenters stated that hospital applications
associated with mental health only geographic HPSAs should not be
limited to psychiatry training programs. The commenters stated that
provider shortages in mental health only geographic HPSAs are not
limited to psychiatric services and the expansion of service
availability in any specialty would help address community health care
challenges.
A commenter objected to our inclusion of mental health only
geographic HPSAs in the definition for Category Four. Instead, the
commenter believed that eligibility under Category Four should only be
met when a hospital's main campus or other facilities are in a primary
care geographic HPSA. The commenter also stated that the new resident
slots should only be used to fund training for primary care residents.
Response: We appreciate the comments requesting that hospitals not
be limited to psychiatry training programs for hospitals that apply
under mental health only geographic HPSAs for Category Four. While we
understand that such an expansion could help address health care
challenges in underserved communities, we have no direct evidence of a
shortage of other specialties in mental health only geographic HPSAs
nor do we have a method at this time to uniformly measure a shortage of
other, non-psychiatric specialty providers in mental health only
geographic HPSAs. As we discussed in the proposed rule and previously,
the HPSA Physician Bonus Program provides incentive payments for
services provided in mental health only geographic HPSAs, but only for
services provided by psychiatry provider specialties. We continue to
believe that it is appropriate to use mental health only geographic
HPSAs for mental health providers in the determination of hospitals
that serve areas designated as HPSAs. Therefore, we disagree with the
comment that we should exclude mental health only geographic HPSAs from
the definition of Category Four and limit residency positions to
primary care training programs. However, we also believe it is equally
important to advance health equity in physical and mental health
services in underserved areas. Therefore, we are therefore modifying
our policy in this final rule with comment period to include
psychiatric subspecialty residency programs in addition to psychiatric
residency programs within the mental health only geographic HPSA
category.
Therefore, in this final rule with comment period, specific to
mental health only geographic HPSAs, we are finalizing the policy that
if a hospital participates in training residents in a psychiatric or a
psychiatric subspecialty program, where at least 50 percent of the
program's training time occurs in a training site(s) in the HPSA, the
hospital is eligible under Category Four.
Comment: Several commenters expressed support for our proposed
definition of Category Four hospitals.
Response: We thank the commenters for their support.
In summary, after consideration of and in response to the public
comments received, we are finalizing our proposed requirements for
determining eligibility under Category Four with modification in this
final rule with comment period. Under our final policy, an applicant
hospital qualifies under Category Four if it participates in training
residents in a program in which the residents rotate for at least 50
percent of their training time to a training site(s) physically located
in a primary care or mental health only geographic HPSA. Specific to
mental health only geographic HPSAs, the program must be a psychiatric
or a psychiatric subspecialty program. In addition, under this final
policy, as proposed, a Category Four hospital must submit an
attestation, signed and dated by an officer or administrator of the
hospital who signs the hospital's Medicare cost report, that it meets
the 50 percent requirement. We did not receive any comments on our
proposal not to consider dental HPSAs, as dental FTE residents are not
subject to a hospital's IME and direct GME caps. We are finalizing that
policy as proposed.
(6) Determination of Qualifying Hospitals
Section 1886(h)(9)(F)(ii) of the Act defines a qualifying hospital
as a hospital described in any of the subclauses (I) through (IV) of
subparagraph (B)(ii). As such, we proposed that a qualifying hospital
is a Category One, Category Two, Category Three, or Category Four
hospital, or one that meets the definitions of more than one of these
categories.
The following is a summary of the public comments and our responses
to our proposals related to the determination of qualifying hospitals.
Comment: A commenter supported our proposal for determining which
hospitals are considered qualifying hospitals. Specifically, hospitals
that meet the definitions of Category One, Category Two, Category
Three, or Category Four, or hospitals that meet the definitions of more
than one of these categories, are eligible for section 126 of the CAA
residency positions.
Response: We thank the commenter for their support.
Comment: A commenter stated that the Department of Veterans Affairs
should be included in future planning and evaluation of a more refined
distribution approach for future years.
Response: We thank the commenter for the feedback. We note that
residency positions distributed under section 126 will not be
distributed to Veterans Affairs hospitals. These hospitals are eligible
for GME payments through the Veterans Access, Choice, and
Accountability Act GME Expansion. However, we note that when
considering the percentage of program training time that occurs in a
HPSA for purposes of section 126, training time occurring at a Veterans
Affairs facility physically located in a HPSA will be included in that
percentage.
Comment: Several commenters recommended adding eligibility criteria
that would allow hospitals not meeting any of the definitions of
Categories One through Four to qualify for residency positions awarded
under section 126 of the CAA. Commenters recommended including the
following eligibility categories: Small hospitals with fewer than 250
beds, hospitals with single residency programs, Indian health care
providers, safety-net providers, and hospitals that host residency
programs whose graduates later practice in either predominantly rural
states or states with a large proportion of rational service areas
designated as HPSAs.
[[Page 73431]]
Response: We appreciate the commenters' feedback and input on
qualifying criteria. Section 1886(h)(9)(F)(ii) restricts eligibility to
the four categories discussed previously. However, we agree with
commenters that including hospitals with fewer than 250 beds in our
final policy, may be useful in further prioritizing residency positions
in certain instances. We refer commenters to the discussion in section
II.B.3.d.(2). of this final rule with comment period, where we
incorporate the suggested bed limit into our final policy. We also
welcome further comment regarding whether the remaining priority
hospitals or hospital characteristics identified by commenters should
be addressed in other aspects of our policy in future years.
Comment: A commenter requested that we issue a list of hospitals
that are likeliest to obtain additional residency positions under our
finalized criteria. The commenter stated that advance signaling of
which hospitals are likely to receive FTE awards will help them plan
for contingent expansions of existing programs or establishment of new
programs.
Response: We thank the commenter for the feedback. While we
understand that significant planning resources are required to
establish and expand training programs, we cannot anticipate changes to
training program rotations between now and the start of the 2023
program year that will affect applications or predict which hospitals
have determined that it is in their interest to expand their training
programs with distributions under section 126 of the CAA and will
apply. Therefore, we are unable to provide a list of hospitals that are
likeliest to be awarded residency positions before awards are made.
However, we intend to make available relevant information regarding the
distribution of positions at the completion of the distribution
process.
After consideration of comments received, we are finalizing our
policy related to the determination of qualifying hospitals as
proposed, without modification. Specifically, a qualifying hospital is
a Category One, Category Two, Category Three, or Category Four
hospital, or one that meets the definitions of more than one of these
categories.
c. Number of Residency Positions Made Available to Hospitals and
Limitation on Individual Hospitals
(1) Number of Residency Positions Made Available to Hospitals
Section 1886(h)(9)(A)(ii)(II) limits the aggregate number of total
new residency positions made available in a single fiscal year across
all hospitals to no more than 200. In order to provide these additional
residency positions to hospitals as quickly as possible, in the FY 2022
IPPS/LTCH PPS proposed rule (86 FR 25508), we proposed to make 200
residency positions available for FY 2023 and each subsequent year.
In this section, we present a summary of the public comments and
our responses to our proposals related to the number of residency
positions made available to hospitals.
Comment: A number of commenters supported our proposal to make 200
residency positions available for FY 2023 and each subsequent year. A
commenter recommended that we distribute all 200 residency positions
each year even if fewer than 200 facilities apply, by allowing
additional FTEs to be assigned to hospitals that do not apply; the
commenter stated that this would fulfill the intent of Congress that
200 residency positions are distributed in each of the years.
Response: We thank the commenters for their support. With respect
to the suggestion that we distribute all 200 residency positions each
year even if fewer than 200 facilities apply, section 1886(h)(9)(A)(i)
of the Act, as added by section 126 of the CAA, makes it clear that, in
order to receive additional FTEs, a hospital must submit a timely
application. The law does not grant us the authority to distribute
residency positions to hospitals that do not apply. We also note that
section 1886(h)(9)(A)(ii)(II) of the Act states that the aggregate
number of residency positions made available shall not exceed 200 for a
fiscal year; it does not require that all 200 residency positions to be
distributed each year if there are insufficient numbers of applicant
hospitals. Although we do not expect that there will be an insufficient
number of applicant hospitals we intend to track progress in meeting
all statutory requirements and evaluate the need for potential
modifications in future rulemaking.
Comment: A few commenters expressed support for the statutory limit
on the aggregate number of residency positions. Conversely, a commenter
stated that the distribution of 200 residency positions per year across
potentially 50 states will likely have minimal impact, particularly
after a 25-year wait given that caps were implemented based on the
number of FTE residents hospitals trained in 1996.
Response: The limit on the aggregate number of residency positions
made available each year is set by the statute at 200.
Comment: A commenter was concerned about the impact of the
distribution of residency positions under section 126 of the CAA on
Medicaid. The commenter stated that the immediate impact on Medicaid in
its state is unclear as it is uncertain how many of the new residency
positions will be awarded to hospitals in its state. However, the
commenter further noted that since hospitals awarded residency
positions under section 126 will likely be incurring new medical
education costs, Medicaid expenditures would increase.
Response: We are clarifying that residency positions under section
126 of the CAA are related to Medicare GME payments, not Medicaid.
However, to the extent hospitals awarded residency positions under
section 126 and the partial Medicare funding of new residency positions
in that state might indirectly be associated with additional
expenditures under that state's Medicaid program, any additional
Medicaid expenditures that might occur are inestimable because it is
unknown what hospitals in what states will apply and be awarded
additional residency positions under section 126.
After consideration of comments received, we are finalizing our
policy related to the number of residency positions made available to
hospitals as proposed, without modification. Specifically, the
aggregate number of total residency positions made available in a
single fiscal year across all hospitals will be limited to no more than
200. Additionally, in order to provide these additional residency
positions to hospitals as quickly as possible, we are making 200
residency positions available for FY 2023 and each subsequent year.
(2) Limitation on Individual Hospitals
As discussed in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR
25508), we expect the demand from hospitals for the aggregate number of
total residency positions made available for each fiscal year to
significantly exceed the 200 maximum. For example, there are currently
over 300 teaching hospitals that have their main campus located in a
primary care or mental health only geographic HPSA. In that same
proposed rule, we stated that we expect the majority of these hospitals
[[Page 73432]]
would apply for additional residency positions because they would
qualify under our proposed Category Four. Even if we were to
exclusively allocate the maximum 200 positions permitted under the
statute each year to these hospitals, which are only a subset of
Category Four hospitals (and Category Four itself is only one of four
categories), it would still be insufficient to award even 1.0 FTE to
each hospital each year. Therefore, in order to make additional
residency positions available to more hospitals each year, we proposed
to limit the increase in the number of residency positions made
available to each individual hospital to no more than 1.0 FTE each
year. We note that the proposal was not 1.0 FTE for each program at a
hospital each year, but rather 1.0 FTE for each hospital each year.
As noted earlier, section 1886(h)(9)(C)(i) of the Act places
certain limitations on the distribution of the residency positions, one
of which is that a hospital may not receive more than 25 additional FTE
residency positions. Under our proposed 1.0 FTE limitation per hospital
per year, no hospital would receive more than 25 additional FTE
residency positions. Rather, under the proposed 1.0 FTE limitation,
hospitals would receive a maximum of 5 additional FTE residency
positions.
The following is a summary of the public comments and our responses
to our proposals related to the limitation on individual hospitals.
Comment: A commenter supported our proposal to limit the size of
awards to 1.0 FTE per hospital per year. This commenter stated that the
more stringent limit was warranted since the demand for additional
residency positions will far exceed the total number of residency
positions available, and applying a 1.0 FTE limit would promote the
distribution of additional residency positions across a wider range of
qualifying hospitals. Furthermore, the commenter recommended that, in
subsequent distribution cycles, we prioritize applications from
hospitals that have not yet received residency positions, so that no
hospital would be awarded a second residency position until all other
qualifying hospitals have received their first award.
Response: We thank the commenter for their support, however, as we
explain in this section, we are modifying our policy in this final rule
with comment period to allow hospitals to receive up to 5.0 FTEs per
year. Regarding the recommendation that in subsequent distribution
cycles, we prioritize applications from hospitals that have not yet
received residency positions, we will take this recommendation under
consideration for potential future rulemaking.
Comment: A commenter requested CMS clarify whether or not the
proposal would distribute 1.0 FTE for the duration of a program, which
equates to 3-5 residency positions per FTE, without requiring hospitals
to reapply each year; for example, a hospital applying for a 3-year
Family Medicine program would receive 3 residency positions total,
while a hospital applying for a 5-year General Surgery program would
receive 5 residency positions. Similarly, another commenter stated that
they support our proposed limit and requested that in addition to the
proposal, the FTE be financed for the duration of their training rather
than a separate FTE being awarded for each year of training, and that
this consideration be taken into account in determining the aggregate
limit of 1,000 FTEs.
Response: We believe that the commenters have misconstrued our
proposal, and that they are interpreting the term ``FTE'' to refer to
the funding necessary to support one resident in each program year of a
residency training program for the length of the program. On the
contrary, the term ``FTE'' refers to the funding necessary to support
one resident during a single year of training; this is the sense in
which we employed the term in our proposal as written in the FY 2022
IPPS/LTCH PPS proposed rule, as well as in previous rulemaking cycles.
We did not propose to distribute additional residency positions in
blocks of 3.0-5.0 FTEs in the manner requested by the commenters.
However, as we explain later in this section, we are modifying our
policy in this final rule with comment period to allow hospitals to
receive up to 5.0 FTEs per application year.
Comment: Many commenters strongly objected to our proposal to limit
the size of awards to 1.0 FTE per hospital per year. Several commenters
argued that the proposal is contrary to congressional intent, and that
CMS was overstepping its authority by imposing a limit more stringent
than what is specified in the law. Others stated that the proposed
limit is inconsistent with the overall goal of increasing residency
training levels, especially in rural areas, and that the proposal could
significantly lessen the potential impact of the new legislation. A
commenter worried that the nationwide physician shortage may be further
exacerbated by the proposal to limit the size of awards to 1.0 FTE per
year, and stated that it may not be capable of producing trained
physicians to keep up with the need, if the cost burden for the
residency training programs is not further shared with Medicare.
Many commenters argued that an award of 1.0 FTE per hospital per
year would be insufficient to establish a new residency program or
meaningfully expand an existing program. With respect to new programs,
commenters observed that the ACGME Program Requirements specify a
minimum complement of two to four residents in each program year for
most specialties. They argued that the minimum cohort size is intended
to ensure an appropriate learning environment and to provide residents
with a sufficient shared clinical and educational experience that
promotes peer learning, teamwork, and coordination of care.
Accordingly, some commenters feared that the proposed limit would
threaten program continuity and disrupt the training of residents.
Moreover, a commenter observed that many programs are dependent on
other specialties for the education of residents, and that the proposed
limit would hinder an institution's ability to support new or expanded
residency programs as a result of their inability to simultaneously
expand residencies in the specialties that support those programs.
Several commenters were concerned that the proposed limit would not
be economically feasible for many institutions, particularly smaller
hospitals. A commenter estimated that five additional residency
positions over 5 years might be sufficient to support some new
fellowship programs, but would likely be insufficient to support even
half of the FTEs for most new residency programs. Another commenter
stated that receiving financial support for only one year of training
would be untenable for most smaller institutions, and that only large
hospitals with multiple programs could absorb the full cost of
expanding a program by one resident per program year. Such
considerations led a commenter to conclude that under our proposal the
costs of starting or expanding a residency program would outweigh the
benefits, while several others predicted that it would discourage small
hospitals from submitting applications altogether.
Numerous commenters worried that the proposal would result in an
onerous and unpredictable annual application process, which again would
disproportionately burden smaller hospitals. They observed that
hospitals would be forced to submit applications year after year with
no guarantee of
[[Page 73433]]
receiving awards in subsequent rounds and thus no guarantee of being
able to fund a residency position for the full length of a program. As
an example, a commenter envisioned the scenario of a hospital that
receives 1.0 FTE to establish a new residency program and does not
qualify for additional residency positions in subsequent years;
assuming a program duration of 3 years and a cohort size of four
residents, such a hospital might be responsible for self-funding 11.0
additional FTEs in order to run the new program. Another commenter
worried that hospitals may be forced to relocate residents if they are
unable to secure funding for future years.
Several commenters also maintained that the proposed limit would
particularly disadvantage hospitals in rural and underserved areas. A
commenter stated that many such hospitals have consistently operated
over their caps, often to their severe financial detriment; these
hospitals are especially in need of financial assistance, and the
proposed limit establishes a detrimental ceiling on the level of
support they would be able to receive. As a result, the commenter
concluded, our proposal would be likely to favor hospitals located in
densely-populated urban areas. Another commenter added that an award of
1.0 FTE per year would risk limiting residency positions to existing
programs, and would therefore disadvantage small institutions that are
seeking to become teaching hospitals.
Commenters suggested various alternatives to our proposed limit of
1.0 FTE per hospital per year, with several saying that we should
adhere to the statutory maximum of 25.0 FTEs. Among the most common
recommendations was that we should tie the size of the award to the
duration of the program for which a hospital is applying: For example,
a hospital applying for a Family Medicine program would receive 3.0
FTEs total (1.0 FTE x 3 years of training), while a hospital applying
for a General Surgery program would receive 5.0 FTEs (1.0 FTE x 5 years
of training). Several commenters stated that this should be considered
a minimum allocation, and expressed their preference for a maximum
award of 15.0 FTEs total, which would allow a hospital to meaningfully
expand one or more programs over 5 years. Other recommendations we
received include: Distributing at least 3.0 FTEs per hospital per year;
at least 3.0 FTEs per year for new programs, and 1.0 FTE per year for
existing programs; at least 5.0 FTEs per year, with a commenter again
suggesting that the amount could be different for new and existing
programs; awarding residency positions in groupings or blocks of 4.0
FTEs; awarding up to 10.0 FTEs per hospital per year; and allowing
hospitals to apply for up to three programs and no more than 15.0 FTEs
each year.
Several commenters recommended that, if we retain the limit of 1.0
FTE per hospital per year, then we should streamline the application
process to make it less burdensome and unpredictable for hospitals. All
of these commenters suggested that hospitals that receive an award in a
given fiscal year should be guaranteed to receive awards in subsequent
application cycles, up to a certain minimum amount, which might be
based on the duration of the training program. Such hospitals might be
permitted to apply for all of their residency positions up front,
without being required to submit further applications, or they might
have the option of resubmitting less detailed applications in future
years. Some commenters noted that under this model the minimum award
might not be guaranteed in instances where a hospital initially applies
for a program in one of the later application cycles, for example for
FY 2026, assuming that all 1,000 residency positions are distributed
over the course of 5 fiscal years. A commenter stated that, at a
minimum, CMS should provide more clarity on the number of residency
positions awarded over time to reduce the need for annual applications
and to allow hospitals to better plan for their GME programs.
Response: We disagree with commenters who asserted that our
proposed limitation of 1.0 FTE per hospital per year is contrary to
congressional intent. Section 1886(h)(9)(C)(i) of the Act specifies
that a hospital may not receive more than 25 additional full-time
equivalent residency positions under the provisions of section 126 of
the CAA; it does not specify a minimum award size, and leaves the
Secretary broad latitude in determining the number of residency
positions that will be distributed to individual hospitals.
However, after reviewing comments received, in particular the
comments which expressed concern that our proposed limitation would be
insufficient to establish a new program or meaningfully expand an
existing program, that it would be impractical for many institutions,
and that it would result in an unpredictable and burdensome application
process, we have reconsidered our proposal. Therefore, in this final
rule with comment period, we are modifying our proposal to adjust the
size of the award to the length of the program for which a hospital is
applying. Specifically, the maximum award amount is contingent on the
length of the program for which a hospital is applying, with up to 1.0
FTE being awarded per program year, not to exceed a program length of 5
years or 5.0 FTEs. For example, a hospital applying to train residents
in a program in which the length of the program is 3 years may request
up to 3.0 FTEs per fiscal year.
We understand that in many cases a limit of 5.0 FTEs per hospital
per year may not be sufficient for a hospital to fully fund Medicare's
portion of a new program or planned expansion of an existing program;
however, we believe that the increased limitation will provide a
meaningful level of financial support to hospitals that would otherwise
have to rely solely on their own resources to develop their GME
infrastructure. Based on the comments we received, we believe that a
limitation of 5.0 FTEs per hospital per year will be a sufficient
amount to fully fund at least one resident in each program year for
most specialties.
We note that if a hospital is applying for a program which has more
than one participating site, the hospital should only request the FTE
amount (not to exceed 1.0 FTE per program year) associated with the
training time at its facilities (including any nonprovider settings
consistent with 42 CFR 413.78).
Given the limited number of residency positions available and the
number of hospitals expected to apply, our focus under this
modification continues to be on hospitals that are applying to
establish or expand a single residency program. Therefore, we are
finalizing our proposal that a hospital may not submit more than one
application in any fiscal year. We continue to expect that a hospital
would choose to apply for a program that serves the HPSA with the
highest score among its programs, but a hospital is not required to do
so. Hospitals that receive awards in a given round of applications will
be able to reapply in subsequent years, either for the same program or
for a different program, but with no guarantee of receiving additional
residency positions.
With respect to hospitals that are seeking to become teaching
hospitals, we note that such hospitals are also eligible to establish a
cap(s) under 42 CFR 413.79(e). We refer these hospitals to section
II.B.5. of this final rule with comment period where we discuss the
implementation of section 131 of the CAA, specifically the 1.0 FTE cost
reporting threshold. We note that a
[[Page 73434]]
hospital that trains residents for the first time in an existing
program or a new program will have a per resident amount (PRA)
established for direct GME payment purposes, consistent with the
regulations at 42 CFR 413.77(e). Such a hospital will also have a
cap(s) established if the program in which it trains residents is a new
program. We refer these hospitals to the August 31, 2012 Federal
Register (77 FR 53416 through 53424), where we discuss the 5-year cap
building period for new teaching hospitals.
Comment: Several commenters recommended that the limit on the
number of residency positions should be adjusted to reflect the
demonstrated need of individual hospitals. For instance, a commenter
believed that hospitals in areas of great medical need should be
allowed to receive more than 1.0 FTE per year; another commenter argued
that, since the need for residency positions and full-time employees is
not uniform across HPSAs, hospitals should not be subjected to a
uniform cap on the size of their awards. A commenter stated that the
limit should apply only to hospitals that do not qualify under any of
the four statutory priority categories.
Response: We appreciate the commenters' concern for hospitals
located in areas of high need, and believe these concerns are addressed
by the statutory requirement which specifies that hospitals may qualify
for additional residency positions by serving HPSAs, and that at least
10 percent of the aggregate number of residency positions should be
distributed to hospitals in this category. In addition, as explained
previously, we are modifying our policy in this final rule with comment
period to allow hospitals to receive up to 5.0 FTEs per fiscal year.
With respect to the suggestion that the limit should apply only to
hospitals that do not qualify under any of the four statutory priority
categories, we note that section 1886(h)(9)(A)(i) of the Act directs
the Secretary to distribute additional residency positions to
qualifying hospitals, while section 1886(h)(9)(F)(ii) of the Act
defines the term ``qualifying hospital'' as a hospital that satisfies
the criteria of at least one of the four categories of hospitals
described in subclauses (I) through (IV) of subparagraph (B)(ii). In
other words, a hospital that does not qualify under any of the
statutory categories would not be eligible to apply for and receive
additional residency positions under section 126 of the CAA.
Comment: A few commenters recommended that CMS should delay the
implementation of the proposed limitation on individual hospitals and
evaluate the results of the first round of applications to determine
whether a limit below the statutory maximum is warranted.
Response: As explained previously, we are modifying our policy in
this final rule with comment period to allow hospitals to receive up to
5.0 FTEs per year. Under this modification to allow up to 5.0 FTEs, our
focus continues to be a single program given the limited number of
residency positions available and the number of hospitals we expect to
apply. Therefore, we are finalizing our proposal that a hospital may
not submit more than one application in any fiscal year. We continue to
expect that a hospital would choose to apply for a program that serves
the HPSA with the highest score among its programs, but a hospital is
not required to do so. We plan to evaluate the results of the first
round of applications and to consider whether any changes to the
limitation on individual hospitals should be adopted in future
rulemaking.
Additionally, as noted in the proposed rule and earlier in this
section, section 1886(h)(9)(C)(i) of the Act places certain limitations
on the distribution of the residency positions, one of which is that a
hospital may not receive more than 25 additional FTE residency
positions. Under our final policy to allow hospitals to receive up to
5.0 FTEs per year, no hospital would receive more than 25 additional
FTE residency positions.
Comment: In considering our proposed limit of 1.0 FTE per hospital
per year, a commenter stated that our proposal to prorate residency
positions in case the number of hospitals with the same HPSA score
exceeds the number of remaining residency positions will diminish the
value of awards and increase the likelihood that the costs of creating
a new program or expanding one would outweigh the benefits. Several
commenters recommended that in case of a tie, rather than prorating
residency positions, we should prioritize hospitals that are training
residents in excess of their statutory FTE caps.
Response: We thank the commenters for their suggestions. As
explained previously, we are modifying our policy in this final rule
with comment period to allow hospitals to receive up to 5.0 FTEs per
year. We refer the commenters to our discussion of our final policy to
distribute residency positions, including our policy should there be a
situation where the number of FTEs requested by hospitals with the same
HPSA score, exceeds the number of remaining positions, in section
II.B.3.d.(2). of this final rule with comment period.
In summary, we are modifying our proposal to account for the size
of a hospital's award to the length of the program for which the
hospital is applying, with a maximum award of 5.0 FTEs per hospital per
year. We are also finalizing the portion of our proposal that a
hospital may not submit more than one application in any fiscal year.
d. Prioritization of Applications From Hospitals for Residency Programs
That Serve Underserved Populations
(1) Use of Geographic HPSAs and Population HPSAs
The Executive Order on ``Ensuring an Equitable Pandemic Response
and Recovery'' noted that the COVID-19 pandemic has exposed and
exacerbated severe and pervasive health and social inequities in
America (see <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-ensuring-an-equitable-pandemic-response-and-recovery/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-ensuring-an-equitable-pandemic-response-and-recovery/</a>.) As we stated in the FY 2022 IPPS/LTCH PPS
proposed rule (86 FR 25508), in order to help address these exposed
health inequities longer term, we believe that it would be appropriate
to prioritize the applications from hospitals that will use the
additional residency positions under section 126 of the CAA in
residency programs serving underserved populations.
This prioritization was already partially reflected in our proposed
definition of Category Four, where we discussed maximizing the number
of GME positions distributed to residency programs serving underserved
populations in geographic HPSAs designated by HRSA under PHSA section
332(a)(1)(A). However, under PHSA section 332(a)(1)(B), HRSA also
designates HPSAs on the basis of a shortage of services for a specific
subset of the population (``population HPSAs'') rather than the entire
population in an area as is the case in geographic HPSAs. These
population subsets include, but are not limited to: Low-income
populations, Medicaid-eligible populations, Native American
populations, homeless populations, and migrant farmworker populations.
(For information on the location and types of population HPSAs see
<a href="https://data.hrsa.gov/tools/shortage-area/hpsa-find">https://data.hrsa.gov/tools/shortage-area/hpsa-find</a>).
In order to more fully address health inequities for underserved
populations, we believe that it also would be appropriate to prioritize
the applications from hospitals that serve
[[Page 73435]]
the specific designated underserved population of a population HPSA.
We have already discussed our proposed definition in Category Four
of hospitals that serve the populations of geographic HPSAs. Similar to
that approach, in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR
25508), we proposed that a hospital would be considered to serve a
population HPSA if it has its main campus or a provider-based facility
(under 42 CFR 413.65) physically located in a primary care or mental
health population HPSA, and any such locations serve the designated
underserved population of that HPSA. Additionally, we proposed that, as
part of the qualification requirements under Category Four, in the
residency program for which the hospital is applying, at least 50
percent of the residents' training time over the duration of the
program must occur at those locations in the HPSA. As with geographic
HPSAs, we believe it is important to avoid the possibility that a
hospital with provider-based facilities in multiple locations, some of
which may not be located in a population HPSA or serve the designated
population of that HPSA, uses an additional residency position mostly
or entirely to serve populations that face no health service shortage.
Also similar to our proposed use of geographic HPSAs, we proposed
that hospitals that only have main campuses or provider-based
facilities in mental health only population HPSAs may only apply for
positions for psychiatry residency programs.
We proposed that a hospital submit an attestation, signed and dated
by an officer or administrator of the hospital who signs the hospital's
Medicare cost report, that it has its main campus or a provider-based
facility (under 42 CFR 413.65) physically located in a primary care or
mental health population HPSA, any such locations serve the designated
underserved population of that HPSA, and in the program for which the
hospital is applying, the criterion that at least 50 percent of the
residents' training time over the duration of the program occurs at
those locations in the HPSA. We note that there is a difference between
the Category Four qualification ``requirement'' and the prioritization
``criterion'' that 50 percent of a program's training time occur at
training sites physically located in a HPSA. Section
1886(h)(9)(B)(ii)(IV) of the Act specifies that not less than 10
percent of the residency positions distributed shall go to hospitals
that serve areas designated as HPSAs under section 332(a)(1)(A) of the
Public Health Service Act, as determined by the Secretary (that is,
geographic HPSAs, as discussed previously). Since section
1886(h)(9)(B)(ii)(IV) of the Act (referred to as Category Four in this
preamble discussion) requires that not less than 10 percent of
residency positions under section 126 of the CAA be awarded to
hospitals that serve geographic HPSAs, our Category Four policy
includes a ``requirement'' that the applicant hospital participates in
training residents in a program in which the residents rotate for at
least 50 percent of their training time to a training site(s)
physically located in a primary care or mental health only geographic
HPSA, as previously discussed. Separately, hospitals that qualify under
categories One through Four are then subject to the prioritization
criteria, including the ``criterion'' that at least 50 percent of a
program's training time occur at facilities physically located in a
geographic or population HPSA, as described in more detail later in
this section. The HPSA training percentage under the prioritization
``criterion,'' while not required by statute, is consistent with the
Administration's policy to prioritize training programs that have a
higher likelihood of training physicians that will practice in
underserved communities with the greatest need.
In the FY 2022 IPPS/LTCH PPS proposed rule (86 FR 22508 through
25509), we explained that our proposed approach for population-based
HPSAs means that we potentially would be awarding a residency position
for the provision of care that is not exclusively provided to the
designated underserved population for which the shortage exists.
However, in the context of our proposal to use HPSA scores to
prioritize applications by the severity of the shortages, our proposal
to limit the number of additional residency positions awarded to 1.0
FTE per hospital each year, and our proposed criterion that at least 50
percent of the training time over the duration of the program occur at
locations in the HPSA that serve the designated underserved population
of that HPSA, we believe it is sufficient for the residents in a
program to provide care to the designated underserved population of
that HPSA, and it is not necessary for residents to provide care
exclusively to that population.
We note that HRSA also designates certain facilities as HPSAs under
PHSA section 332(a)(1)(C) and the regulations at 42 CFR part 5. The
process for facility HPSA designation is dissimilar from that for
geographic and population HPSAs. Further, a HPSA score for a facility
does not reflect on the adequacy of the health care workforce outside
that facility in a geographic area, and so it is not comparable to
geographic or population HPSAs. Therefore, we did not propose to use
facility HPSA designations for the purposes of this rulemaking.
We also note that there are teaching hospitals that may not have
facilities in areas designated as geographic or population HPSAs, but
that under their Medicare provider agreement operate one or more
facilities that serve areas for which there exists a shortage of
providers. If this is the case, we recommend that a hospital interested
in applying for FTE resident cap positions under this section contact
its state or territorial Primary Care Office (PCO) to receive
information on the HPSA designation process. HRSA maintains cooperative
agreements with the 54 state and territorial PCOs, which conduct needs
assessments and submit applications to HRSA to designate areas as
HPSAs. We refer interested parties to 42 CFR part 5 and 57 FR 2473 for
information on procedures for HPSA designation for primary care and
mental health HPSAs, respectively.
In summary, we are finalizing without modification our proposal to
prioritize applications from qualifying hospitals (that is, hospitals
that qualify under categories One through Four, as previously
described) for residency programs that serve underserved populations in
geographic HPSAs or population HPSAs. In the next section we discuss
our proposal and final policy for the use of HPSA scores for this
purpose.
(2) Use of HPSA Scores for Prioritization
HRSA assigns HPSA scores on a scale of 0 to 25 as a measure of the
severity of a primary care or mental health provider shortage in a
geographic area, with higher scores indicating a more severe health
professional shortage. As we observed in the FY 2022 IPPS/LTCH PPS
proposed rule (86 FR 25509), using HPSA scores to differentiate
applications from hospitals that qualify under categories One through
Four would allow us to optimize the use of the limited number of
additional residency positions under section 126 of the CAA and best
address health inequities by focusing those residency positions on
underserved populations with the most need.
In the proposed rule we stated that, in preparing its application
for an additional residency position for a program, a hospital should
refer to HRSA's HPSA Find Tool (<a href="https://data.hrsa.gov/tools/shortage-area/hpsa-find">https://data.hrsa.gov/tools/shortage-area/hpsa-find</a>) to obtain the HPSA score of the HPSA served by the
program and
[[Page 73436]]
include this score in its application. A HPSA is served by a program if
that program meets the requirements discussed earlier. Given our
proposal to limit the additional positions awarded to individual
hospitals to 1.0 FTE for any given year, we proposed that a hospital
may not submit more than one application in any fiscal year. Given the
limited number of residency positions available and the number of
hospitals we expect to apply, we expect that a hospital would choose to
apply for a program that serves the HPSA with the highest score among
its programs, but a hospital is not required to do so.
We proposed to allocate 1.0 FTE to each hospital with the highest
HPSA score, prorating only in the event that the number of hospitals
with the highest score exceeds the number of residency positions
available. If the number of hospitals with the highest score is less
than the number of residency positions available, each hospital with
the next highest score would receive 1.0 FTE, with proration again
occurring only in the event that the number of hospitals with this
score exceeds the number of positions remaining. We would continue in
this manner, moving on to hospitals with the next highest score until
all available positions are distributed. We noted that, under this
proposal, hospitals applying for residency positions for programs that
do not serve HPSAs would not be categorically excluded, but those
applications would have the lowest priority.
In the proposed rule we included the following as an illustrative
example, assume the following hospitals apply, Hospitals A through HV.
Assume there are 200 additional residency positions available. Under
our proposal, Hospitals A through ET would each get 1.0 FTE, while
Hospitals EU through HV would each get a prorated FTE award of 0.625,
as follows:
----------------------------------------------------------------------------------------------------------------
FTEs
Hospital name HPSA score FTEs awarded distributed/
remaining
----------------------------------------------------------------------------------------------------------------
A-AX (50 hospitals)............................................. 25 1.0 50/150
AY-CV (50 hospitals)............................................ 24 1.0 50/100
CW-ET (50 hospitals)............................................ 21 1.0 50/50
EU-HV (80 hospitals)............................................ 19 0.625 50/0
----------------------------------------------------------------------------------------------------------------
In summary, we proposed that additional residency positions under
section 126 of the CAA would be distributed to hospitals that qualify
under categories One through Four based on the HPSA score of the HPSA
served by the residency program for which each hospital is applying,
with programs serving higher HPSA scores receiving higher
prioritization. Hospitals applying for residency positions for programs
that do not serve HPSAs would not be categorically excluded, but those
applications would have the lowest priority.
In this section, we present a summary of the public comments and
our responses to our proposals related to the prioritization of
applications from hospitals for residency programs that serve
underserved populations.
Comment: Some commenters expressed support for our proposal to use
HPSA scores to prioritize applications from qualifying hospitals and
the policy goal that underlies this approach, specifically that of
addressing health disparities faced by underserved populations.
Commenters supporting our proposal indicated that where residents train
has an impact on where they practice. Some commenters stated that the
proposed methodology is a fair approach to increasing access to care in
rural and underserved areas. Some commenters indicated that the use of
HPSA scores would help improve the distribution of physicians across
the country.
Response: We thank the commenters for their support.
Comment: Some commenters agreed with CMS that a prioritization of
applications by HPSA scores would likely result in the statutory
minimum of at least 10 percent of total residency positions being
awarded to each of the four categories in section 1886(h)(9)(B)(ii) of
the Act. A commenter added that in the event minimum distributions to
each category are not met, minor adjustments can be made to the
methodology without substantially compromising the approach.
Other commenters disagreed and indicated that our proposed approach
would not result in the minimum statutory distributions being met. For
example, some of these commenters believed that our proposed
prioritization approach might result in the minimum only being met for
Category Four.
Response: We thank the commenters for their support. In response to
the commenters that disagreed that our proposed approach would result
in the minimum statutory distributions being met, we are finalizing our
approach, as proposed, to collect information regarding qualification
for all four categories in the application to allow us to track
progress in meeting all statutory requirements, and evaluate the need
to modify the distribution methodology in future rulemaking. However,
we continue to believe that our proposed approach will most likely
result in the statutory minimum 10 percent distributions being met for
all four of the statutory categories by the end of the 5-year
distribution process for the 1,000 FTE slots. Therefore, as described
in more detail later in this section, we are finalizing our proposal
that the residency positions will be distributed to qualifying
applicant hospitals using a method that prioritizes allotments based on
HPSA scores.
Comment: Many commenters objected to some or all of the aspects of
the proposed criterion that at least 50 percent of a program's training
time occur at applicant hospital locations inside a HPSA in order for
CMS to use that HPSA's score to prioritize the section 126 of the CAA
application for that program. Some of these commenters stated that
nonprovider settings inside the HPSA that are not applicant hospital
locations, such as FQHCs and RHCs, are important contributors to care
in the HPSA and training time at these sites should count. Several of
these commenters added that training time in nonprovider settings
counts for other GME purposes.
Other commenters objected to the existence of a minimum training
time criterion inside of a HPSA at all, regardless of what types of
locations. These commenters argued that many HPSA residents rely on
care provided outside of their HPSA. Some commenters noted this is
particularly true for certain specialty care for which HPSA-residing
patients are referred to teaching hospitals located outside the HPSA.
Some of these commenters suggested we modify our proposal to include
training locations within a HPSA and those within a reasonable
[[Page 73437]]
distance of one. Several commenters provided specific recommendations
for a reasonable distance, such as within 1 mile, 10 miles, 20 miles,
or 25 miles. A commenter requested that all Indian and Tribal
facilities be considered for prioritization regardless of where they
are located.
According to some commenters, a minimum training time inside the
HPSA would impede teaching hospitals' ability to structure programs to
best meet the needs of the patients and the communities they serve, as
well as make it difficult to satisfy administrative obligations such as
accreditation standards. For example, some commenters indicated it
would be impossible for some programs to satisfy this criterion because
locations in a HPSA provide insufficient training opportunities for
some specialties, and we would force hospitals to operate programs in
areas that are ill-suited to sustain training programs.
Some commenters were opposed to the minimum training time criterion
because they believe it would impose a recordkeeping burden on
hospitals. A few commenters noted that normally, resident rotations are
reported in IRIS in aggregate, whereas the proposed 50 percent training
time criterion would demand individual resident tracking and reporting.
Commenters stated that to attest to meeting the criterion, teaching
hospitals would need to develop a new system and process to document
and track section 126 of the CAA funded residents that is separate from
the system and process used to track residents funded by other sources.
A commenter requested clarification on whether the minimum training
time criterion is based on all residents in a program in aggregate or
to individual residents.
Response: We appreciate commenters' concerns regarding the proposed
criterion that at least 50 percent of a program's training time occur
at applicant hospital locations inside a HPSA in order for CMS to use
that HPSA's score to prioritize the section 126 of the CAA application
for that program. After consideration of these comments, we are
modifying certain aspects of this prioritization criterion.
After considering the comments received, we agree with commenters
that training should not be limited to hospital settings physically
located in the HPSA to the exclusion of other settings physically
located in the HPSA. For a geographic HPSA, any and all program
training based on resident rotation schedules (or similar
documentation) that occurs in the HPSA at program training sites that
are physically located in the HPSA and treat the HPSA's population,
including nonprovider settings and Veterans Affairs facilities, will
count towards meeting the 50 percent training criterion. For a
population HPSA, any and all program training based on resident
rotation schedules (or similar documentation) that occurs in the HPSA
at program training sites that are physically located in the HPSA and
treat the HPSA's designated population, including nonprovider settings
and Veterans Affairs facilities, will count towards meeting the 50
percent training criterion.
We disagree with commenters who objected to the existence of a
minimum training time criterion inside of a HPSA at all. We acknowledge
that many HPSA residents receive care provided outside of their HPSA in
areas where the physician shortages are less severe. However, with the
limited FTE slots available under section 126 of the CAA we are
choosing at this time to prioritize in a clear way the care provided
inside of HPSAs in order to increase the likelihood of residents
choosing to practice in areas with more severe shortages. We seek
comment to inform potential future rulemaking on incorporating a
measure of care provided outside of a HPSA to HPSA residents into the
section 126 of the CAA methodology.
We have considered the comment suggesting that all Indian and
Tribal facilities be considered for prioritization regardless of where
they are located. Given the unique relationship between the Medicare
program and Indian and Tribal facilities, and the health care
disparities that exist for the Indian and Tribal populations served by
these facilities, we believe it would be appropriate to also prioritize
applications for programs where the residents rotate into these
facilities. Specifically, for purposes of prioritization we will allow
the training time spent in Indian and Tribal facilities outside of a
HPSA to count towards the minimum training time criterion for that
HPSA, up to a maximum of 45 percentage points of the 50 percentage
points required.
We disagree with the commenters who claimed that the minimum
training time criterion inside the HPSA forces a hospital to
restructure its residency programs or operate programs that include
training opportunities in areas that cannot support them. Section 126
of the CAA is a voluntary program. Hospitals can choose to apply for
additional residency positions or not. We developed a prioritization
methodology because we anticipate that the number of FTE slots
requested will exceed the number available. If that were not the case
the minimum training time criterion would have no effect since even
applications at the lowest priority level (that is, applications for
programs that do not meet the minimum training time criterion for any
HPSA) would receive the number of FTE slots requested assuming all
other applicable requirements were met. We understand that some
commenters disagree with a prioritization method based on HPSA scores,
but that is different from the prioritization method forcing a hospital
to restructure residency programs or operate them in areas that cannot
support them.
As noted in responses to similar comments on Category Four, we also
disagree with the comments that a minimum rotation time criterion
imposes a significant tracking or reporting requirement. We are not
requiring hospitals to establish entirely new administrative structures
to accommodate section 126 of the CAA FTEs. Hospitals regularly develop
rotation schedules to facilitate residents' training at participating
sites and a program's participating site information is generally
readily available on the ACGME website. As such, we are specifying that
the percentage of time that residents in the program spend in the HPSA
and in Indian and Tribal facilities (if applicable) for purposes of
prioritization is required to be based on resident rotation schedules
(or similar documentation).
Regarding IRIS, we do not expect the existing reporting
requirements to change for hospitals that receive section 126 of the
CAA FTEs. In response to the question regarding whether the minimum
training time criterion applies to all residents in aggregate or to
individual residents, the criterion applies to the program in its
entirety, not to individual residents. As such, hospitals are not
expected to track the training time of individual residents so long as
the program in its entirety meets the criterion as demonstrated by the
rotation schedule.
Comment: Many commenters expressed concern about the accuracy of
HPSA scores and appropriateness of their use. Several commenters stated
that HPSA scores are not the most precise measures of barriers to
access to care or health care workforce shortages. A commenter provided
a link to a letter they had written to HRSA on recommendations to
improve their HPSA scoring methodology, including counting residents
and physicians differently in the population to provider ratio,
including an older-adult measure
[[Page 73438]]
in the primary care HPSA score, and taking steps to smooth out the
volatility of HPSA scores to improve predictability for providers in
shortage areas.\1\ Another commenter provided a link to an academic
article that argued HPSAs alone are an insufficient means to guide
policies intended to address complex and interrelated health
challenges.\2\ Some commenters stated that the provider to population
ratio is an important component of HPSA scores while the travel time to
care outside of a HPSA is not. Some commenters argued that HPSA scores
do not provide information on the availability of non-physician
clinicians, such as nurse practitioners and physician assistants, or on
the availability of non-primary care specialties, such as general
surgery. Thus, according to the commenters, the HPSA score reflects an
incomplete picture of physician availability in an area. A commenter
claimed that some states game their HPSA scores or submit faulty data
that incidentally lifts their scores. A commenter referenced HRSA's
June 2020 RFI that sought ideas on improving its HPSA scoring
methodology as an acknowledgment that the current system does not
accurately capture local access to care challenges.
---------------------------------------------------------------------------
\1\ <a href="https://www.aha.org/system/files/media/file/2020/09/aha-comments-submitted-response-hrsas-rfi-health-professional-shortage-area-hpsa-scorin-9-18-20.pdf">https://www.aha.org/system/files/media/file/2020/09/aha-comments-submitted-response-hrsas-rfi-health-professional-shortage-area-hpsa-scorin-9-18-20.pdf</a>.
\2\ <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7182224/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7182224/</a>.
---------------------------------------------------------------------------
Response: We continue to believe that HPSA scores, while not a
perfect measure, provide the best prioritization approach available at
this time. They are transparent, widely used, publicly available,
regularly updated, and have verifiable inputs for measuring the
severity of a service area's need for additional providers. Consistent
with the Administration's policy objectives and the authority provided
to the Secretary under section 126 of the CAA, we have prioritized
training programs that have a higher likelihood of training physicians
that will practice in underserved communities with the greatest need.
With regard to the comment that HPSAs do not take into account the
availability of non-physician clinicians in shortage areas, we believe
that since the residency positions distributed under section 126 of the
CAA are not available to non-physician clinicians, our focus should be
on measuring physician shortages. In response to the commenters who
expressed concerns related to HPSA scores being based on primary care
specialties and not non-primary care specialties, we acknowledge this
concern but note that the statutory Physician Bonus program utilizes
primary care HPSAs for non-primary care specialties and we believe
provides a currently feasible and appropriate template here.
Regarding the comment that claimed some states game their HPSA
scores or submit faulty data that incidentally lifts their scores, the
commenter did not provide any information to substantiate this claim.
We encourage stakeholders to continue to work with HRSA to improve
HPSAs as part of its Shortage Designation Modernization Project (SDMP),
which has been ongoing since 2013. We are also seeking comment on
feasible alternatives to HPSA scores as a proxy for health disparities
to inform potential future rulemaking regarding prioritization.
Comment: A commenter supported the use of geographic HPSA scores to
prioritize applications, but opposed the use of population HPSA scores.
The commenter indicated that population HPSA designations are sought by
areas that do not meet the criteria for geographic HPSA designations
and there are so many population HPSAs that their inclusion would
undermine legislative intent to target the distribution of residency
positions to areas with the greatest need.
Response: Although we agree with the commenter's assessment that
the inclusion of population HPSA scores changes the prioritization of
some applications, we disagree with the commenter that the inclusion of
population HPSAs undermines targeting the distribution of FTE slots to
areas of greatest need. The more targeted underserved populations in
population HPSAs are as equally deserving as the broader populations in
geographic HPSAs, and the HPSAs scores for both types of HPSAs reflect
the severity of the need. We also note that in the case of a population
HPSA, the requisite amount of training time for the residency program
must occur at facilities that treat the underserved population of the
population HPSA.
Comment: Several commenters argued that HPSAs are designed to
inform about health professional shortages and do not reflect the
capacity of hospitals to train residents.
Response: Our use of HPSA scores for prioritization is not intended
to measure a hospital's capacity to train residents. We rely on a
training program's ACGME accreditation and the ``demonstrated
likelihood'' criterion for that information.
Comment: A commenter alleged that the example distribution table we
provided in the FY 2022 IPPS/LTCH PPS proposed rule (86 FR 25509) is
invalid because the number of areas and specific HPSA scores
represented in it do not reflect actual data. The commenter provided
their own HPSA table that includes data from June 2020 and that
indicates there are too few primary care geographic and population
HPSAs with scores ranging from 21 to 25 to distribute all 1,000
residency positions to hospitals that serve those HPSAs if award sizes
are capped at 1.0 FTE, so that the majority of the awards would be made
to hospitals that serve HPSAs with scores below 21.
Response: The table provided in the preamble of the proposed rule
was not designed to project the likely distribution of FTEs under
section 126 of the CAA, but to illustrate how the prioritization
methodology would be applied in practice based on hypothetical data.
The minimum score for an application to receive sufficient
prioritization to receive an award will not be known until all of the
applications are received and evaluated for an application year.
Comment: A commenter stated that HPSAs can overlap and expressed
concern that hospitals may have trouble locating their HPSA scores. The
commenter cautioned that unless CMS posts a list of HPSA scores,
hospitals will not be able to assess the impact on residency training
and ultimately on patients' access to physicians. Another commenter
stated that we should be more transparent about HPSA scores and clearer
about how HPSA scores will be assigned to applicant hospitals. A
commenter stated that they performed a study of the HPSA scoring
methodology that found that rural and frontier areas with populations
less than 5,000 people received lower scores. The commenter concluded
that the HPSA scoring system discriminates against populations at that
level or lower.
Response: A primary care HPSA, either a geographic or population
one, cannot overlap with any other primary care HPSAs. Similarly, a
mental health HPSA, either a geographic or population one, cannot
overlap with any other mental health HPSAs. However, there are areas
that are designated as both mental health and primary care HPSAs, and
have different scores for each. Overlap between primary care and mental
health HPSAs may be either complete or partial.
[[Page 73439]]
Hospitals can find information about the HPSA or HPSAs associated
with their training program locations using the HRSA search tool at:
<a href="https://data.hrsa.gov/tools/shortage-area/by-address">https://data.hrsa.gov/tools/shortage-area/by-address</a>. When a hospital
finds that its residency training program meets the requirement to be
prioritized by more than one HPSA, it may choose which HPSA to use on
its application. A hospital cannot choose more than one HPSA to
prioritize its application. CMS does not assign a HPSA to prioritize an
application.
The HPSA scoring methodology is a relative measure that is applied
uniformly and equitably regardless of the size of the underlying
population. Hospitals that would like to learn more about how HRSA
developed the HPSA scoring methodology through notice and comment
rulemaking and how it calculates the HPSA scores can find out more by
contacting HRSA or visiting this web page: <a href="https://www.hhs.gov/guidance/document/hpsa-and-muap-hpsa-scoring-criteria">https://www.hhs.gov/guidance/document/hpsa-and-muap-hpsa-scoring-criteria</a>.
Comment: Several commenters requested that CMS clarify whether
there is any difference in prioritization between primary care or
mental health only geographic HPSAs and population HPSAs.
Response: There is no difference in prioritization with respect to
the HPSA score of a primary care geographic HPSA, a mental health only
HPSA, or a population HPSA. For example, a HPSA score of 21 is treated
the same in the prioritization regardless of whether it is associated
with a primary care geographic HPSAs, a mental health only HPSA, or a
population HPSA.
Comment: Some commenters recommended other methods of prioritizing
applications to distribute FTE slots to areas that are in most need. A
commenter recommended prioritizing applications by a composite of HPSA
scores and Medically Underserved Area (MUA) scores. Another commenter
suggested that for the 60 percent of residency positions not required
to be allocated to hospitals that meet the statutory eligibility
categories, priority should be given to hospitals that are located in
MUAs, or service areas or populations designated as medically
underserved by state health entities. A commenter urged CMS to
prioritize applications for addiction medicine in mental health only
HPSAs. Other commenters requested that any program for any physician
specialty be allowed to use the score from a mental health only HPSA,
with preference given to applications for psychiatry training programs.
A commenter stated that CMS should use the Medicare disproportionate
share hospital (DSH) patient percentage of the applicant hospital to
prioritize applications. Some commenters indicated that CMS should
prioritize applications from small hospitals with less than 250 beds,
and hospitals with only one residency program.
Response: We thank the commenters for their feedback. As indicated
earlier, we continue to believe that HPSA scores, while not a perfect
measure, provide the best prioritization approach available at this
time. They are transparent, widely used, publicly available, regularly
updated, uniformly calculated, and have verifiable inputs for measuring
the severity of a service area's need for additional physicians.
Different methodologies that would be used by individual states to
designate areas or populations as underserved do not possess all of
these characteristics.
We also do not believe that MUAs are as appropriate as HPSAs for
purposes of section 126 of the CAA. HPSAs were designed for the
National Health Service Corps to distribute clinicians to where they
are needed most, they form the statutory basis for the Medicare
Physician Bonus Program, and geographic HPSAs are explicitly referenced
in section 126 of the CAA. In contrast, MUAs were designed to help
establish health maintenance organizations and community health
centers,\3\ play no role in the Medicare Physician Bonus Program, and
are not referenced in section 126 of the CAA.
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\3\ <a href="https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups">https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups</a>.
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We disagree that any residency training program regardless of
specialty should be allowed to use the score from a mental health only
HPSA for prioritization. These areas are only designated as shortage
areas for mental health services and such a wide use would be broadly
inconsistent with the Medicare Physician Bonus Program. Therefore, we
are allowing only programs for Psychiatry and subspecialties of
Psychiatry to use the score from a mental health only HPSA. We note
that the subspecialties of Psychiatry include addiction psychiatry and
multispecialty addiction medicine.
We disagree with the commenter who stated that CMS should use the
Medicare DSH patient percentage of the applicant hospital to prioritize
applications. We believe that using the DSH patient percentage is a
less targeted way to increase the likelihood of residents choosing to
practice in areas with more severe shortages.
We disagree with commenters who indicated that CMS should
prioritize applications from small hospitals with less than 250 beds
and generally smaller hospitals with only one residency program to the
extent that the commenters meant irrespective of the HPSA scores
associated with these applications. However, we do believe there is
merit in considering smaller hospital size as a tiebreaker when
prioritizing applications with equal HPSA scores in order to further
reduce the impact of proration. Of the two suggestions by commenters,
bed count is one of the most transparent and currently used measures of
hospital size (42 CFR 412.105(b)). Therefore, if there are insufficient
FTE slots remaining to distribute to applications with equal HPSA
scores, we will first distribute FTE slots to applications from
hospitals with less than 250 beds. If there are insufficient FTE slots
to distribute to applications from hospitals with less than 250 beds,
only then would we prorate among those applications. If there are
sufficient slots to distribute to applications from hospitals with less
than 250 beds, we would prorate the remaining slots among the
applications from hospitals with 250 beds or more.
Comment: Several commenters who otherwise supported the HPSA
scoring methodology recommended the incorporation of an ``impact
factor'' that measures the proportion of residents that ultimately go
on to practice in HPSAs. The use of this additional factor, according
to commenters, would help ensure that section 126 of the CAA
distributions support physician pipelines that produce lasting benefits
for underserved areas. A commenter noted that one research-focused non-
profit already documents the flow of residents to eventual practice
locations for family medicine programs. Commenters also stated that the
use of such an impact factor is aligned with the President's Executive
Order on ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government,'' which calls on federal
agencies to recognize and address policies and programs that serve as
barriers to equal opportunity. Another commenter expressed a similar
view, that hospitals should be given priority if their training
programs have records of sending residents on to practice in provider
shortage areas.
Response: We thank the commenters for their feedback and agree that
a measure of the extent to which residents later practice in
underserved areas may be beneficial. In order to inform potential
future rulemaking, we welcome further comment on how to best estimate
the impact factor using appropriately comprehensive and
[[Page 73440]]
transparent data sources across physician specialties, and how to weigh
an impact factor in the prioritization.
Comment: A commenter expressed their opinion that if Congress
passes new legislation increasing the number of available GME training
residency positions, then the distribution process will need to be
changed.
Response: Because we consider this comment to be outside the scope
of the section 126 proposals, we are not directly responding to this
comment in this final rule with comment period. However, we appreciate
the commenter's concern and expect that any future changes following
new legislation would be made through notice and comment rulemaking.
In summary, after considering the comments received, we are
finalizing the following prioritization policy. Applications from
hospitals for a fiscal year are grouped by the HPSA score of the
application, with each grouping consisting of those hospitals with the
same HPSA score. Applications are prioritized by descending HPSA score.
Within each grouping, applications with equal priority (i.e., those
with the same HPSA score) are next grouped by whether the application
is from a hospital with a bed size of less than 250 beds, or 250 beds
or more. Applications from hospitals with less than 250 beds are
prioritized within each grouping. The number of beds in the hospital is
determined in accordance with Sec. 412.105(b).
If there are insufficient slots available to be distributed to all
applications with both the same HPSA score and the same bed size
grouping, the remaining available slots are prorated among those
applications.
e. Alternative Considered for Prioritization
As an alternative to our proposed prioritization approach, in the
FY 2022 IPPS/LTCH PPS proposed rule (86 FR 25509 through 25510), we
considered a simpler prioritization approach for FY 2023 that would
allow additional time to work with stakeholders to develop a more
refined approach for future years. Under this alternative approach, CMS
would distribute 200 additional residency positions for FY 2023 among
hospitals that qualify in Category One, Category Two, Category Three,
and/or Category Four, with higher priority given to applications from
hospitals that qualify in more categories. That is, hospitals that
qualify under all four categories would receive top priority, hospitals
that qualify under any three of the four categories would receive the
next highest priority, then any two of the four categories, and finally
hospitals that qualify under only one category. Under this alternative
proposal considered, in the proposed rule, we stated that we would
distribute 1.0 FTE to each hospital that qualified under all four
categories, prorating only in the event that the number of hospitals
that qualified under all four categories exceeds 200. If the number of
hospitals that qualified under all four categories is less than 200,
each hospital that qualified under three out of four categories would
receive 1.0 FTE, with proration again occurring only in the event that
the number of hospitals that qualified under three out of four
categories exceeds the number of positions remaining. We would continue
in this manner, moving on to hospitals that qualified under two out of
four and one out of four categories until all 200 positions are
distributed.
We sought comment on this alternative prioritization approach
considered to allow for additional time to work with stakeholders to
develop a more refined approach for future years.
Comment: Many commenters supported the proposed alternative
prioritization approach. Commenters stated it would be less burdensome,
more straightforward, and better reflect Congressional intent. Some
commenters indicated this was similar to part of the approach used for
Section 5503 of the Affordable Care Act. Several commenters indicated
that CMS should only use the alternative method for FY 2023 and should
work with stakeholders to develop a better approach for future years.
Some commenters indicated that because the four eligibility categories
are treated equally in the statute, hospitals that qualify under each
one should be equally positioned to receive FTE slots. Several
commenters stated that our proposed prioritization method based on HPSA
scores would disadvantage many hospitals that qualify only under
Category One, Category Two, and/or Category Three, and therefore would
be contrary to Congressional intent. Some commenters indicated that for
applications from hospitals that qualify under the same number of
statutory categories under the alternative method, we secondarily
prioritize those applications from hospitals training 10 FTEs or more
above their caps, with those most above their cap receiving slots
first.
Response: We thank the commenters for their feedback on the
prioritization method described in the ``Alternatives Considered''
portion of the proposed rule.
We acknowledge that our proposed method based on HPSA scores
prioritizes applications for programs where the residents spend
significant time in a geographic or population HPSA. This is
intentional. It is appropriate and entirely consistent with the statute
for CMS to establish a sufficiently focused prioritization methodology
so that our policy objectives for section 126 of the CAA regarding
reducing health care disparities for medically underserved communities
are most likely to be achieved. We disagree with commenters who believe
our proposed prioritization method based on HPSA scores is not likely
to achieve those goals. The locations of residents' training affects
where they practice, as noted by other commenters. We acknowledge some
similarity between aspects of the alternative approach and part of the
approach taken in the implementation of section 5503 of the Affordable
Care Act, but believe our approach based on HPSA scores is a more
targeted improvement over section 5503's approach. We also note that as
discussed earlier, the vast majority of commenters strenuously opposed
our proposed 1.0 FTE limit per hospital and in response to those
comments we are increasing that limit in this final rule with comment
period.
We considered the comments that we should secondarily prioritize
those applications from hospitals training 10 FTEs or more above their
caps, with those most above their cap receiving slots first. We
disagree with these comments because this secondary prioritization
method would be less effective at increasing the likelihood of
residents choosing to practice in areas with more severe shortages
compared to using the method we are adopting for prioritization based
on HPSA scores.
Comment: Some commenters opposed the use of the alternative method
and indicated it would exclude hospitals in states that do not have new
medical schools or additional locations and branch campuses from top
priority, disadvantaging many rural states. Commenters stated that some
of those states have made efforts to address physician workforce
shortages by increasing medical school class sizes rather than
establishing new medical schools. Some commenters stated that new
allopathic medical schools train fewer family physicians than older
medical schools so the alternative method disadvantages primary care.
Response: We agree with commenters that the alternative method
would exclude hospitals in states that do not have new medical schools
or additional
[[Page 73441]]
locations and branch campuses from top priority (that is, qualifying
under all four categories) because those hospitals cannot qualify under
Category Three. In addition, as several commenters pointed out, and as
discussed earlier, section 126 of the CAA addresses a nationwide
provider shortage and ensures minimum allotments to certain categories
of hospitals; prioritization for all 1,000 residency positions
distributed under this section to hospitals that meet all four
statutory eligibility categories could lead to the possibility that
hospitals located in the following 20 areas (15 states, one district
and four territories) would be awarded zero positions: Alaska, American
Samoa, Guam, Hawaii, Iowa, Maine, Maryland, Minnesota, Montana,
Nebraska, New Hampshire, North Dakota, Northern Mariana Islands,
Oregon, Rhode Island, South Dakota, U.S. Virgin Islands, Vermont,
Washington DC, and Wyoming. We believe that prioritization according to
the severity of the provider shortage is the more equitable approach to
distribution. Therefore, after consideration of the comments received,
and the reasons discussed, we are not finalizing the alternative
methodology for FY 2023.
f. Distributing at Least 10 Percent of Positions to Each of the Four
Categories
Section 1886(h)(9)(B)(ii) of the Act requires the Secretary to
distribute at least 10 percent of the aggregate number of total
residency positions available to each of the following categories of
hospitals discussed earlier: Category One, Category Two, Category
Three, and Category Four.
In the proposed rule (86 FR 25510), we stated that because it is
possible for a hospital to be eligible for distribution of additional
residency positions via more than one of the four categories, Category
One, Two, Three or Four, there is a strong likelihood that by
prioritizing applications by HPSA score the result will be that 10
percent or more of the additional residency positions will be
distributed to hospitals in each of the four categories. In the
proposed rule (86 FR 25510), we proposed to collect information
regarding qualification for all four categories in applications to
allow us to track progress in meeting all statutory requirements, and
evaluate the need to modify the distribution methodology in future
rulemaking.
We received no comments on this proposal. Therefore, we are also
finalizing our plan as proposed to collect information regarding
qualification for all four categories to allow us to track progress in
meeting all statutory requirements, and evaluate the need to modify the
distribution methodology in future rulemaking.
g. Hospital Attestation to National CLAS Standards
In order to ensure that the residents are educated and trained in
culturally and linguistically appropriate policies and practices, we
proposed that all applicant hospitals would be required to attest that
they meet the National Standards for Culturally and Linguistically
Appropriate Services in Health and Health Care (the National CLAS
Standards) to ensure the section 126 of the CAA additional residency
position allocation broadens the availability of quality care and
services to all individuals, regardless of preferred language,
cultures, and health beliefs. (For more information on the CLAS
standards, please refer to <a href="https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=2&lvlid=53">https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=2&lvlid=53</a>)
Comment: Several commenters expressed support for our proposal that
all applicant hospitals be required to attest that they meet the
National Standards for Culturally and Linguistically Appropriate
Services (CLAS) in Health and Health Care.
Response: We thank the commenters for their support.
Comment: A few commenters expressed support for the aims of the
National CLAS Standards, but also raised concerns about requiring
hospitals to attest to a uniform benchmark. A commenter argued that
these criteria can be difficult to measure objectively, and recommended
that CMS modify the application requirement so that hospitals are still
eligible for residency positions if they attest that they support and
are making progress toward meeting the National CLAS standards. Another
commenter requested that hospitals be granted flexibility in
demonstrating their commitment to culturally and linguistically
appropriate training, and argued that many of the CLAS standards
overlap with requirements that hospitals already meet, including the
Internal Revenue Service (IRS) requirements for 501(c)(3) hospitals;
the Joint Commission Standards related to language access and
interpreter services; and ACGME core competency requirements. Another
commenter cited similar requirements and provided several examples of
initiatives that its own members have undertaken, but asserted that the
concept of a national standardized or mandated curriculum is
inappropriate, and that teaching hospitals should have the freedom to
design and implement their own educational programs.
Response: We appreciate commenters' feedback and support. We
acknowledge that other accreditation boards list some of the same
requirements as the National CLAS standards requirements, but we
believe that the National CLAS standards are more aligned with the
Administration's commitment to addressing healthcare barriers, which
include that residents are educated and trained in culturally and
linguistically appropriate policies and practices. However, we will
continue to consider further adjustments going forward if appropriate.
For additional information about implementing the National CLAS
standards within your organization to help advance and sustain
culturally and linguistically appropriate services, please visit
<a href="https://thinkculturalhealth.hhs.gov/">https://thinkculturalhealth.hhs.gov/</a>.
After consideration of the comments we received, we are finalizing
our proposal that all applicant hospitals would be required to attest
that they meet the National CLAS Standards.
h. Payment for and Aggregation of Additional FTE Residency Positions
Awarded Under Section 126 of the CAA
Section 1886(h)(9)(D) requires that CMS pay a hospital for
additional positions awarded under this paragraph using the hospital's
existing direct GME PRAs for primary care and OB/GYN programs and non-
primary care programs consistent with the regulations at Sec. 413.77.
However, similar to our implementation of section 5503 in the CY 2011
OPPS final rule (75 FR 72192) with respect to the application of direct
GME PRAs for primary care and nonprimary care residents, we proposed
that a hospital that receives additional positions under section 126 of
the CAA would be paid for FTE residents counted under those positions
using the same primary care and nonprimary PRAs for which payment is
made for FTE residents subject to the 1996 FTE cap.
We received no comments on our proposal that additional positions
received under section 126 of the CAA would be paid using the same
primary care and nonprimary care PRAs which are used with respect to
FTE residents subject to the 1996 cap, therefore we are finalizing as
proposed. We will revise Worksheet E-4 to add a line on which hospitals
will report the number of FTEs by which the hospital's FTE caps were
increased for direct GME positions received under section 126 of the
CAA.
i. Conforming Regulation Amendments for 42 CFR 412.105 and 42 CFR
413.79
Section 126 of the CAA, under subsection (b), amends section
[[Page 73442]]
1886(d)(5)(B) of the Act to provide for increases in FTE resident
positions for IME payment purposes as well. Specifically, a new section
1886(d)(5)(B)(xii) of the Act was added, stating that for discharges
occurring on or after J
[…truncated; see source link]Indexed from Federal Register on December 27, 2021.
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