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Federal Register / Vol. 70, No.

57 / Friday, March 25, 2005 / Notices 15337

VI. Regulatory Impact Statement determined that this final notice will acknowledging timely receipt of
We have examined the impact of this not significantly affect the rights of application materials from Alcon and
final notice as required by Executive States, local or tribal governments. AMO. In this final notice, we announce
Order 12866 and the Regulatory Authority: Section 1865 of the Social our decision to disapprove the NTIOL
Flexibility Act (RFA) (Pub. L. 98–354). Security Act (42 U.S.C. 1395bb). applications submitted by both Alcon
Executive Order 12866 directs agencies and AMO.
(Catalog of Federal Domestic Assistance
to assess all costs and benefits of Program No. 93.778, Medical Assistance FOR FURTHER INFORMATION CONTACT:
available regulatory alternatives and, Program; No. 93.773 Medicare—Hospital Michael Lyman, (410) 786–6938.
when regulation is necessary, to select Insurance Program; and No. 93.774, SUPPLEMENTARY INFORMATION:
regulatory approaches that maximize Medicare—Supplemental Medical Insurance
Program) I. Background
net benefits (including potential
economic, environmental, public health Dated: February 11, 2005. On October 31, 1994, the Social
and safety effects; distributive impacts; Mark B. McClellan,
Security Act Amendments of 1994
and equity). The RFA requires agencies (SSAA 1994) (Pub. L. 103–432) were
Administrator, Centers for Medicare &
to analyze options for regulatory relief enacted. Section 141(b)(1) of SSAA 1994
Medicaid Services.
for small businesses. For purposes of the required us to develop and implement
[FR Doc. 05–5034 Filed 3–24–05; 8:45 am]
RFA, States and individuals are not a process under which interested parties
BILLING CODE 4120–01–P
considered small entities. may request a review of the
Also, section 1102(b) of the Act appropriateness of the payment amount
requires the Secretary to prepare a for intraocular lenses furnished by ASCs
DEPARTMENT OF HEALTH AND
regulatory impact analysis for any under section 1833(i)(2)(A)(iii) of the
HUMAN SERVICES
notice that may have a significant Social Security Act (the Act) on the
impact on the operations of a substantial Centers for Medicare & Medicaid basis that those lenses constitute a class
Services of new technology intraocular lenses.
number of small rural hospitals. Such
On June 16, 1999, we published a
an analysis must conform to the [CMS–3112–FN; 0938–ZA49] final rule in the Federal Register
provisions of section 604 of the RFA. entitled ‘‘Adjustment in Payment
For purposes of section 1102(b) of the Medicare Program; Disapproval of Amounts for New Technology
Act, we consider a small rural hospital Adjustment in Payment Amounts for Intraocular Lenses Furnished by
as a hospital that is located outside of New Technology Intraocular Lenses Ambulatory Surgical Centers’’ (64 FR
a Metropolitan Statistical Area and has Furnished by Ambulatory Surgical 32198), which added subpart F to 42
fewer than 100 beds. Centers CFR part 416. The June 16, 1999 final
This final notice recognizes CHAP as rule established a process for adjusting
a national accreditation organization for AGENCY: Centers for Medicare &
Medicaid Services (CMS), HHS. payment amounts for NTIOLs furnished
HHAs that request participation in the by ambulatory surgical centers (ASCs),
Medicare program. There are neither ACTION: Final notice.
defined the terms relevant to the
significant costs nor savings for the process, and established a flat rate
SUMMARY: In this final notice, we
program and administrative budgets of payment adjustment of $50 for IOLs that
Medicare. Therefore, this final notice is summarize timely public comments
received in response to our July 23, we determine are NTIOLs. The payment
not a major rule as defined in Title 5, adjustment applies for a 5-year period
United States Code, section 804(2) and 2004 notice with public comment
period and announce our decision that begins when we recognize a
is not an economically significant rule payment adjustment for the first IOL in
under Executive Order 12866. We have concerning applications submitted by
Alcon Laboratories, Incorporated a new class of technology, as explained
determined, and the Secretary certifies, below. Any subsequent IOLs having the
that this final notice will not result in (Alcon) and Advanced Medical Optics
(AMO) (formerly Pharmacia & Upjohn same characteristics as the first IOL
a significant impact on a substantial recognized for a payment adjustment
number of small entities and will not Company) 1 to adjust the Medicare
payment amounts for certain intraocular will receive the same adjustment for the
have a significant effect on the remainder of the 5-year period
operations of a substantial number of lenses (IOLs) on the basis that they are
new technology intraocular lenses established by the first recognized
small rural hospitals. Therefore, we are NTIOL. In accordance with the payment
not preparing analyses for either the (NTIOLs).
This is the third of three statutorily review process specified in § 416.185,
RFA or section 1102(b) of the Act. after July 16, 2002, the $50 adjustment
In an effort to better assure the health, required Federal Register documents.
On February 27, 2004, we published a amount can be modified through
safety, and services of beneficiaries in proposed and final rulemaking in
HHAs already certified as well as notice in the Federal Register that
solicited interested parties to submit connection with ASC services. To date,
provide relief to State budgets in this we have made no changes to the
time of tight fiscal restraints, we deem requests for review of the
appropriateness of the payment amount payment amount and have opted not to
HHAs accredited by CHAP as meeting change the adjustment for calendar year
our Medicare requirements. Thus, we for an IOL furnished by an ambulatory
surgical center. On July 23, 2004, we 2004 (CY 2004).
continue our focus on assuring the We have previously approved two
health and safety of services by published a notice with comment
period entitled ‘‘Adjustment in Payment classes of NTIOLs: Multifocal and
providers and suppliers already Reduction in Preexisting Astigmatism.
certified for participation in a cost- Amounts for New Technology
Intraocular Lenses Furnished by These IOLs were approved for NTIOL
effective manner. status during calendar year 2000.
In accordance with the provisions of Ambulatory Surgical Centers’’
Executive Order 12866, this notice was II. NTIOL Applications Submitted for
not reviewed by the Office of
1 Advanced
Medical Optics acquired Pharmacia & Calendar Year 2004
Upjohn Company’s surgical product line on June
Management and Budget. In accordance 28, 2004 and is now the party of interest for On February 27, 2004, we published
with Executive Order 13132, we have purposes of this Final Notice. a notice in the Federal Register entitled

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15338 Federal Register / Vol. 70, No. 57 / Friday, March 25, 2005 / Notices

‘‘Medicare Program; Calendar Year 2004 requirements and the deadline for purposes. Our regulations require the
Review of the Appropriateness of submitting a request; FDA’s approval of a requestor’s claims
Payment Amounts for New Technology • Processing requests to review the for advertising and labeling in order for
Intraocular Lenses (NTIOLs) Furnished appropriateness of the payment amount an IOL to be classified as a NTIOL.
by Ambulatory Surgical Centers (ASCs)’’ for an IOL;
• Compiling a list of the requests we IV. Analysis of and Responses to Public
(69 FR 9322). In response to the Comments
February 27, 2004 notice, we received receive that identify the IOL
the following timely requests for review: manufacturer, IOL model number under We received 14 timely public
1. Manufacturer: Alcon Laboratories, review, name of the requester, and a comments in response to the July 23,
Inc. Model Numbers: ACRYSOF summary of the request for review of the 2004 notice with comment period on
Natural IOL; Models: SB30AL (5.5 mm appropriateness of the IOL payment the NTIOLs under review. Of these, 11
optic) and SN60AT (6.0 mm optic). amount; were from ophthalmologists, two were
These two models are made out of the • Publishing an annual public notice from IOL manufacturers, and one was
same material and differ only in optic in the Federal Register that lists the from a private citizen. The comments
size. Accordingly, we are treating the requests and provides for a public we received and our responses are as
two lenses as the same lens. comment period; follows:
• Reviewing the information Comment: Five commenters
2. Manufacturer: Advanced Medical
submitted with the applicant’s request supported the Alcon Laboratories, Inc.
Optics. Model Numbers: Tecnis, with
for review, and requesting confirmation Acrysof lenses without distinguishing
Z-Sharp Optic Technology, Foldable
from the FDA about labeling between the two models presented, and
Posterior Chamber IOL; Models Z9000
applications that have been approved on five commenters supported the AMO
(12 mm diameter) and Z9001 (13 mm
the IOL model under review. We also Tecnis lenses without distinguishing
diameter). These two models are also between the two models presented.
request the FDA’s recommendations as
made out of the same material and differ Based on their positive experiences with
to whether or not the IOL model
only in diameter. Accordingly, we are the IOLs, these commenters requested
submitted represents a new class of
also treating these lenses as the same that the IOLs under review be classified
technology that sets it apart from other
lens. as NTIOLs, and therefore, eligible for
IOLs. Using a baseline of the date of the
On July 23, 2004, we published in the the payment adjustment.
last determination of a new class of
Federal Register a notice with comment Response: We appreciate the
IOLs, the FDA states an opinion based
period entitled ‘‘Medicare Program; commenters’ interests in these lenses
on proof of superiority over existing
Adjustment in Payment Amounts for and are pleased that these lenses have
lenses of the same type of material or
New Technology Intraocular Lenses improved the quality of life of Medicare
over lenses providing specific clinical
Furnished by Ambulatory Surgical beneficiaries. However, anecdotal
advantages and superiority over existing
Centers’’ (69 FR 44029) that summarized evidence supporting NTIOL status is not
IOLs as described in the preceding
these timely applications and solicited sufficient to characterize an IOL as a
paragraph;
public comments on the IOLs submitted • Determining which lenses meet the NTIOL. Our regulations at § 416.180
by Alcon and AMO. criteria to qualify for the payment prohibit us from characterizing an IOL
III. Criteria and Process for NTIOL adjustment based on clinical data and as a NTIOL unless the FDA has
Determination evidence submitted for review, the approved for use in labeling and
FDA’s analysis, public comments on the advertising the IOL’s claims of specific
We will classify an IOL as an NTIOL lenses, and other available information; clinical advantages and superiority over
if the lens meets the definition of a • Designating a type of material or a existing IOLs. The FDA must rely on
‘‘new technology IOL’’ in § 416.180, predominant characteristic of an NTIOL published clinical data to make this
which incorporates section 141(b)(2) of that sets it apart from other IOLs to determination. Testimonials in support
SSAA 1994. Under that section, a ‘‘new establish a new class; of an IOL being reclassified as a NTIOL
technology IOL’’ is defined as ‘‘an IOL • Publishing a notice in the Federal cannot substitute for the FDA’s
that CMS determines has been approved Register announcing the IOLs that we approval. We present the FDA review in
by the FDA for use in labeling and have determined are ‘‘new technology’’ section V.
advertising the IOL’s claims of specific IOLs. These NTIOLs qualify for the Comment: Two comments from
clinical advantages and superiority over following payment adjustment: (a) ophthalmologists opposed NTIOL status
existing IOLs with regard to reduced Determinations made before July 16, for the Alcon Laboratories, Inc.
risk of intraoperative or postoperative 2002—$50; (b) Determinations made Acrysof lenses, contending that the
complication or trauma, accelerated after July 16, 2002—$50 or the amount relationship between blue light and
postoperative recovery, reduced announced through proposed and final macular degeneration is speculative.
induced astigmatism, improved rules in connection with ASC services; The comments did not distinguish
postoperative visual acuity, more stable and between the two models presented.
postoperative vision, or other • Adjusting payments effective 30 Response: Based upon our review of
comparable clinical advantages.’’ days after the publication of the final the literature, we agree with the
The process we use for evaluating notice announcing our determinations commenters that the relationship
requests for NTIOL designation and described in paragraph (8) of this between blue light and macular
reviewing the appropriateness of the section. degeneration is speculative and not
payment amount for a NTIOL furnished In accordance with our NTIOL proven by available evidence. We
by ASCs is described in our regulations application review procedures, we present our review of the literature in
at part 416, subpart F and in the asked the FDA to review the Alcon and section V.
February 27, 2004 Federal Register AMO NTIOL applications to determine Comment: We received one comment
notice. whether the manufacturers’ claims of from an IOL manufacturer opposing
This process includes— specific clinical advantages and NTIOL status for the Alcon Laboratories,
• Publishing a public notice in the superiority over existing IOLs had been Inc. Acrysof IOLs, contending that the
Federal Register identifying approved for labeling and advertising FDA failed to approve Alcon’s claims of

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Federal Register / Vol. 70, No. 57 / Friday, March 25, 2005 / Notices 15339

specific clinical advantages. The contrast, the FDA approved labeling notice does not impose any information
comment did not distinguish between states only that blue light transmittal is collection and record keeping
the two models presented. reduced ‘‘without negatively affecting requirements that are subject to review
Response: While the manufacturer color vision.’’ No claims of clinical by the Office of Management and
claims clinical advantages for blue light superiority for reducing blue light Budget (OMB) under the Paperwork
filtering in its application for NTIOL transmission are made in the labeling. Reduction Act of 1995.
status, the manufacturer does not make Accordingly, because the FDA has not
VII. Regulatory Impact Statement
this claim in its FDA-approved labeling. approved labeling supporting Alcon’s
As previously stated, claims of clinical claim that these lenses, independent of We have examined the impacts of this
superiority must be approved by the the other influencing factors, reduce notice as required by Executive Order
FDA for use in labeling and advertising long-term retinal damage, we cannot 12866 (September 1993, Regulatory
for an IOL to qualify as a NTIOL under approve Alcon’s application to adjust Planning and Review), the Regulatory
§ 416.180. We believe that the the Medicare payment amounts for Flexibility Act (RFA) (September 19,
relationship between blue light and these lenses. Additionally, we reviewed 1980, Pub. L. 96–354), section 1102(b) of
macular degeneration is not adequately the literature submitted by Alcon and the Act, the Unfunded Mandates Reform
substantiated by the literature. performed our own literature search. Act of 1995 (Pub. L. 104–4) and
Comment: We received one comment There is insufficient published peer- Executive Order 13132.
from an IOL manufacturer opposing reviewed evidence addressing the cause Executive Order 12866, (as amended
NTIOL status for the AMO Tecnis and effect relationship between the blue by Executive Order 13258, which
lenses, claiming they provide no useful light filtering effects of an IOL and merely reassigns responsibility of
improvements over existing IOLs. retinal damage. duties) directs agencies to assess all
Response: The literature submitted by costs and benefits of available regulatory
B. AMO Tecnis Lenses with Z-Sharp alternatives and, if regulation is
the manufacturer validates AMO’s Optic Technology, Foldable Posterior
claims of increased contrast sensitivity necessary, to select regulatory
Chamber IOL; Models Z9000 and Z9001 approaches that maximize net benefits
for the Tecnis IOLs only when the
lenses are compared to one other IOL. In a July 12, 2004 letter to CMS (including potential economic,
However, both the literature submitted regarding AMO’s NTIOL application, environmental, public health and safety
by AMO and our independent review of the FDA states that ‘‘* * * significantly effects, distributive impacts, and
the literature did not show that the less with the Tecnis lens than with the equity). A regulatory impact analysis
Tecnis lenses demonstrate increased acrylic lens. The simulated night (RIA) must be prepared for major rules
contrast sensitivity over the spectrum of driving results (functional vision) under with economically significant effects
available IOLs. We believe that for a several of the conditions tested and the ($100 million or more in any 1 year). We
lens to be approved as an NTIOL, it visual acuity results were statistically have determined that this final notice is
significantly better in [the] eye not a major rule. The RFA requires
must offer benefits superior to those
implanted with the Technis lens. agencies to analyze options for
offered by more than one other available
However, another objective [of] the regulatory relief of small businesses. For
lens.
study was to demonstrate the mesopic purposes of the RFA, small entities
V. NTIOL Decision—Disapproval of (6 cd/m2) intra-individual difference in include small businesses, nonprofit
July 23, 2004 Applications by Alcon the postoperative quality of vision using organizations, and government agencies.
and AMO sine-wave contrast sensitivity testing Most hospitals and most other providers
between the Tecnis lens (Z9000) and a and suppliers are small entities, either
A. Alcon Acrysof Natural Lenses;
lens with a spherical optic. In this by nonprofit status or by having
Model Numbers SB30AL and SN60AT
clinical investigation, the contrast revenues of $8.5 million or less in any
Alcon claims to have created a class sensitivity results were not significantly 1 year. We have determined that this
of IOL that reduces chronic blue light different as stated in the labeling.’’ final notice will not affect small
exposure to the retina and reduces long- We interpret this FDA statement, as businesses.
term retinal damage (macular well as our own literature review, to In addition, section 1102(b) of the Act
degeneration). However, these claims mean that while there may be a requires us to prepare a regulatory
are absent from the IOLs’ FDA-approved difference in contrast sensitivity impact analysis if a regulation may have
labeling and advertising. In addition, a between the Tecnis lens and two other a significant impact on the operations of
July 12, 2004 FDA letter to CMS IOLs tested, that difference is not a substantial number of small rural
concerning Alcon’s NTIOL application statistically significant. We also hospitals. This analysis must conform to
states, in part, as follows: ‘‘* * * At this reviewed the literature submitted by the provisions of section 604 of the
point, it appears as though there is no AMO and performed our own literature RFA. For purposes of section 1102(b) of
definitive explanation in regards to the search. We believe there is insufficient the Act, we define a small rural hospital
extent blue light plays in retinal published peer-reviewed evidence as a hospital that is located outside of
damage. Retinal damage is a multi- addressing the cause and effect a Metropolitan Statistical Area and has
factorial issue, because so many things relationship between the implanted fewer than 100 beds. We have
(e.g., environment, nutrition, etc.) may Tecnis lens and a reduction in contrast determined that this final notice does
also impact the degree of damage, if sensitivity. However, we encourage not have a significant impact on the
any.’’ AMO to resubmit this application with operations of a substantial number of
The same FDA letter also states that additional data from published peer- small rural hospitals.
Alcon did not receive FDA approval to reviewed evidence. Section 202 of the Unfunded
make the claim in its labeling that ‘‘the Mandates Reform Act of 1995 also
blue light filtering quality of the VI. Collection of Information requires that agencies assess anticipated
ACRYSOF Natural IOL provides a Requirements costs and benefits before issuing any
specific clinical advantage over existing Because the requirements referenced rule that may result in an expenditure
IOLs in mitigating the risk of blue light- in this final notice will not affect 10 or in any 1 year by State, local, or tribal
mediated damage to the retina.’’ In more persons on an annual basis, this governments, in the aggregate, or by the

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15340 Federal Register / Vol. 70, No. 57 / Friday, March 25, 2005 / Notices

private sector, of $110 million. We have responses to our specific preliminary that permit public consultation for
determined that this final notice will recommendations and will include all coding and payment determinations for
not have a consequential effect on the items on the public meeting agenda. new durable medical equipment (DME)
governments mentioned or on the DATES: Meeting Dates: Given the under Medicare Part B of title XVIII of
private sector. expansion of the public meeting the Social Security Act (the Act). The
Executive Order 13132 establishes process, we have scheduled 8 additional procedures and public meetings
certain requirements that an agency meeting times for 2005: Tuesday, June 7; announced in this notice for new DME
must meet when it publishes a proposed Wednesday, June 8; Tuesday, June 14; are in response to the mandate of
rule (and subsequent final rule) that Wednesday, June 15; Thursday, June 16; section 531(b) of BIPA.
imposes substantial direct requirement Tuesday, June 21; Wednesday, June 22; We published a notice in the
costs on State, local, or tribal and Thursday, June 23. We may not November 23, 2001 Federal Register (66
governments, preempts State law, or need all 8 days. Once the review and FR 58743) with information regarding
otherwise has Federalism implications. coding recommendation process is the establishment of the public meeting
We have determined that this final underway, we will have a firmer idea of process for DME.
notice does not have an economic the exact number of days needed to The public meeting process
impact on State, local, or tribal schedule the public meetings. We will previously limited to DME has been
governments. consider each meeting individually, and expanded to include all new public
In accordance with the provisions of we may modify the meeting dates and requests for revisions to the HCPCS.
Executive Order 12866, this final notice times published in this notice. This change will provide more
was not reviewed by the Office of Final confirmation of meeting dates, opportunities for the public to become
Management and Budget. times, and agenda items will be posted aware of coding changes under
Authority: Secs. 1102 and 1871 of the 3 weeks in advance of each scheduled consideration, as well as opportunities
Social Security Act (42 U.S.C. 1302 and meeting on the official HCPCS Web site: for CMS to gather public input.
1395hh) http://www.cms.hhs.gov/medicare/ II. Registration
(Catalog of Federal Domestic Assistance hcpcs. Each meeting day will begin at 9
Program No. 93.773, Medicare—Hospital a.m. and end at 5 p.m., E.S.T. Registration Procedures: Registration
Insurance; and Program No. 93.774, ADDRESSES: The public meetings will be can be completed online at http://
Medicare—Supplementary Medical held in the auditorium at Centers for www.cms.hhs.gov/medicare/hcpcs. To
Insurance Program) Medicare & Medicaid Services, 7500 register by telephone, contact Public
Dated: March 14, 2005. Security Boulevard, Baltimore, Meeting Coordinators Gloria Knight at
Mark B. McClellan, Maryland 21244. (410) 786–4598 or Jennifer Carver at
Administrator, Centers for Medicare & (410) 786–6610. The following
FOR FURTHER INFORMATION CONTACT:
Medicaid Services. information must be provided when
Gloria Knight, (410) 786–4598, Jennifer
[FR Doc. 05–5593 Filed 3–24–05; 8:45 am] registering: name, company name and
Carver, (410) 786–6610.
BILLING CODE 4120–01–P Web Site: Additional details regarding address, telephone and fax numbers, e-
the public meeting process for all new mail address, and special needs
public requests for revisions to the information. Registrants must also
DEPARTMENT OF HEALTH AND HCPCS, along with information on how indicate whether they are the ‘‘primary
HUMAN SERVICES to register and guidelines for an speaker’’ for an agenda item. Primary
effective presentation, will be posted at speakers must be designated by the
Centers for Medicare & Medicaid entity that submitted the HCPCS coding
Services least 1 month before the first meeting
date on the official HCPCS Web site: request. A CMS staff member will
[CMS–1297–N] http://www.cms.hhs.gov/medicare/ confirm your registration by mail, e-
hcpcs. mail, or fax.
Medicare Program; Public Meetings in Individuals who intend to provide a Registration Deadline: Individuals
Calendar Year 2005 for All New Public presentation at a public meeting need to must register for each date they plan
Requests for Revisions to the familiarize themselves with this either to attend or to provide a
Healthcare Common Procedure Coding information. The HCPCS Web site will presentation. The deadline for
System (HCPCS) Coding and Payment also include ‘‘The Healthcare Common registration of all the meeting dates is
Determinations Procedures Coding System (HCPCS) Tuesday, May 17, 2005.
AGENCY: Centers for Medicare & Procedures,’’ a description of the new III. Presentations and Comment Format
Medicaid Services (CMS), HHS. HCPCS coding process, along with a
detailed explanation of the procedures A. Primary Speaker Presentations
ACTION: Notice.
used to make coding and payment The entity that requested revisions to
SUMMARY: This notice announces the determinations for all the products, the HCPCS coding system for a
dates and location of the Healthcare supplies, and services that are coded in particular agenda item may designate
Common Procedure Coding System the HCPCS. A summary of each public one ‘‘primary speaker’’ to make a
(HCPCS) public meetings to be held in meeting will be posted on the HCPCS presentation for a maximum of 15
calendar year 2005 to discuss our Web site by the end of July 2005. minutes. Fifteen minutes is the total
preliminary coding and payment SUPPLEMENTARY INFORMATION: time interval for the presentation, and
determinations for all new public must incorporate the demonstration, set-
requests for revisions to the HCPCS. I. Background up, and distribution of material. In
These meetings provide a forum for On December 21, 2000, the Congress establishing the public meeting agenda,
interested parties to make oral passed the Medicare, Medicaid, and we may group multiple, related requests
presentations or to submit written SCHIP Benefits Improvement and under the same agenda item. In that
comments in response to preliminary Protection Act of 2000 (BIPA) (Pub. L. case, we will decide whether additional
coding and payment determinations. 106–554). Section 531(b) of BIPA time will be allotted, and may opt to
Discussion will be directed toward mandated that we establish procedures increase the amount of time allotted to

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