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4586 Federal Register / Vol. 71, No.

18 / Friday, January 27, 2006 / Notices

requirements; and ability to provide us code, and reports necessary for DEPARTMENT OF HEALTH AND
with the necessary data for validation. effective validation and assessment of HUMAN SERVICES
Section 1865(b)(3)(A) of the Act the organization’s survey process.
further requires that we publish, within —The adequacy of TÜVHS’ staff and Centers for Medicare and Medicaid
60 days of receipt of an organization’s other resources, and its financial Services
complete application, a notice viability. [CMS–3144–FN]
identifying the national accreditation —TÜVHS’ capacity to adequately fund
body making the request, describing the required surveys.
0938–ZA49
nature of the request, and providing at
least a 30-day public comment period. —TÜVHS’ policies with respect to Medicare Program; Approval of
We have 210 days from our receipt of whether surveys are announced or Adjustment in Payment Amounts for
a completed application to publish unannounced. New Technology Intraocular Lenses
approval or denial of the application. —TÜVHS’ agreement to provide us with Furnished by Ambulatory Surgical
The purpose of this proposed notice a copy of the most current ac Centers
is to inform the public of our creditation survey together with any
other information related to the AGENCY: Centers for Medicare and
consideration of the TÜV Healthcare Medicaid Services (CMS), HHS.
Specialists’ (TÜVHS’) request to become survey as we may require (including
corrective action plans). ACTION: Final notice.
a national accreditation organization for
hospitals. This notice also solicits IV. Collection of Information SUMMARY: In this final notice we
public comment on the ability of Requirements respond to public comments on our
TÜVHS requirements to meet or exceed September 30, 2005 notice with
the Medicare CoPs for hospitals. This document does not impose comment period and announce our
information collection and decision concerning an application
III. Evaluation of Deeming Authority recordkeeping requirements.
Request submitted by Advanced Medical Optics
Consequently, it need not be reviewed (AMO) to adjust the Medicare payment
On December 2, 2005, the TÜV by the Office of Management and amounts for certain intraocular lenses
Healthcare Specialists (TÜVHS) Budget under the authority of the (IOLs) on the basis that they are new
submitted all the necessary materials to Paperwork Reduction Act of 1995 (44 technology intraocular lenses (NTIOLs).
enable us to make a determination U.S.C. 35). This is the third of three statutorily
concerning its request for approval as a required Federal Register documents.
V. Response to Public Comments and
deeming organization for hospitals. On May 27, 2005, we published a notice
Notice Upon Completion of Evaluation
Under section 1865(b)(2) of the Act and in the Federal Register entitled
our regulations at § 488.8 (Federal Because of the large number of ‘‘Medicare Program; Calendar Year 2005
review of accreditation organizations), comments we normally receive on Review of the Appropriateness of
our review and evaluation of TÜVHS Federal Register documents published Payment Amounts for New Technology
will be conducted in accordance with, for comment, we are not able to Intraocular Lenses (NTIOLs) Furnished
but not necessarily limited to, the acknowledge or respond to them by Ambulatory Surgical Centers (ASCs)’’
following factors: individually. We will consider all (70 FR 30731) that solicited interested
• The equivalency of TÜVHS’ comments we receive by the date and parties to submit requests for review of
standards for hospitals as compared time specified in the DATES section of the appropriateness of the payment
with our comparable hospital CoPs. this proposed notice. amount for an IOL furnished by an
• TÜVHS’ survey process to Upon completion of our evaluation, ambulatory surgical center. On
determine the following: including evaluation of comments September 30, 2005, we published a
—The composition of the survey team, received as a result of this proposed notice with comment period entitled
surveyor qualifications, and the notice, we will publish a final notice in ‘‘Medicare Program; Calendar Year 2005
ability of the organization to provide the Federal Register responding to the Review of the Appropriateness of
continuing surveyor training. public comments and announcing the Payment Amounts for New Technology
—The comparability of TÜVHS’ result of our evaluation. Intraocular Lenses (NTIOLs) Furnished
processes to those of State agencies,
VI. Executive Order 12866 Statement by Ambulatory Surgical Centers (ASCs)’’
including survey frequency, and the
(70 FR 57297) acknowledging timely
ability to investigate and respond In accordance with the provisions of receipt of one application. In this final
appropriately to complaints against Executive Order 12866, this proposed notice, we announce our decision to
accredited facilities. notice was not reviewed by the Office of approve the NTIOL application
—TÜVHS’ processes and procedures for Management and Budget. submitted by Advanced Medical Optics
monitoring providers or suppliers
Authority: Section 1865 of the Social (AMO) for Tecnis (model numbers
found out of compliance with
Security Act (42 U.S.C. 1395bb). Z9000, Z9001, and Z9003).
TÜVHS’ program requirements. These
monitoring procedures are used only (Catalog of Federal Domestic Assistance EFFECTIVE DATE: This notice is effective
when TÜVHS identifies Program No. 93.778, Medical Assistance on February 27, 2006.
Program; No. 93.773 Medicare—Hospital FOR FURTHER INFORMATION CONTACT:
noncompliance. If noncompliance is Insurance Program; and No. 93.774,
identified through validation reviews, Michael Lyman, (410) 786–6938.
Medicare—Supplementary Medical
the survey agency monitors Insurance Program) SUPPLEMENTARY INFORMATION:
corrections as specified at § 488.7(d).
—TÜVHS’ capacity to report Dated: January 20, 2006. I. Background
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deficiencies to the surveyed facilities Mark B. McClellan, On October 31, 1994, the Social
and respond to the facility’s plan of Administrator, Centers for Medicare and Security Act Amendments of 1994
correction in a timely manner. Medicaid Services. (SSAA 1994) (Pub. L. 103–432) were
—TÜVHS’ capacity to provide us with [FR Doc. 06–748 Filed 1–26–06; 8:45 am] enacted. Section 141(b)(1) of SSAA 1994
electronic data in ASCII comparable BILLING CODE 4120–01–P required us to develop and implement

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Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / Notices 4587

a process under which interested parties only in material. Accordingly, we are technology that sets it apart from other
may request a review of the treating these lenses as the same lens. IOLs. Using a baseline of the date of the
appropriateness of the payment amount On September 30, 2005 we published last determination of a new class of
for intraocular lenses furnished by ASCs in the Federal Register a notice with IOLs, the FDA states an opinion based
under section 1833(i)(2)(A)(iii) of the comment period entitled ‘‘Medicare on proof of superiority over existing
Social Security Act (the Act) on the Program; Calendar Year 2005 Review of lenses of the same type of material or
basis that those lenses constitute a class the Appropriateness of Payment over lenses providing specific clinical
of new technology intraocular lenses. Amounts for New Technology advantages and superiority over existing
On June 16, 1999, we published a Intraocular Lenses Furnished by IOLs as described in the preceding
final rule in the Federal Register Ambulatory Surgical Centers (ASCs)’’ paragraph;
entitled ‘‘Adjustment in Payment (70 FR 57297) acknowledging timely • Determining which lenses meet the
Amounts for New Technology receipt of one application. criteria to qualify for the payment
Intraocular Lenses Furnished by adjustment based on clinical data and
III. Criteria and Process for NTIOL evidence submitted for review, the
Ambulatory Surgical Centers’’ (64 FR Determination
32198), which added subpart F to 42 FDA’s analysis, public comments on the
CFR part 416. The June 16, 1999 final We will classify an IOL as an NTIOL lenses, and other available information;
rule established a process for adjusting if the lens meets the definition of a • Designating a type of material or a
payment amounts for NTIOLs furnished ‘‘new technology IOL’’ in § 416.180, predominant characteristic of an NTIOL
by ambulatory surgical centers (ASCs), which incorporates section 141(b)(2) of that sets it apart from other IOLs to
defined the terms relevant to the SSAA 1994. Under that section, a ‘‘new establish a new class;
technology IOL’’ is defined as ‘‘an IOL • Publishing a notice in the Federal
process, and established an initial flat
that CMS determines has been approved Register announcing the IOLs that we
rate payment adjustment of $50 for IOLs
by the FDA for use in labeling and have determined are ‘‘new technology’’
that we determine are NTIOLs. The
advertising the IOL’s claims of specific IOLs. These NTIOLs qualify for a $50
payment adjustment applies for a 5-year
clinical advantages and superiority over payment adjustment (or other amount
period that begins when we recognize a
existing IOLs with regard to reduced announced through notice and comment
payment adjustment for the first IOL in
risk of intraoperative or postoperative rulemaking); and
a new class of technology, as explained
complication or trauma, accelerated • Adjusting payments effective 30
below. Any subsequent IOLs having the
postoperative recovery, reduced days after the publication of the final
same characteristics as the first IOL
induced astigmatism, improved notice announcing our determinations
recognized for a payment adjustment
postoperative visual acuity, more stable described in the preceding paragraph of
will receive the same adjustment for the
postoperative vision, or other this section.
remainder of the 5-year period In accordance with our NTIOL
established by the first recognized comparable clinical advantages.’’
The process we use for evaluating application review procedures, we
NTIOL. In accordance with the payment asked the FDA to review the AMO
review process specified in § 416.185, requests for NTIOL designation and
reviewing the appropriateness of the application to determine whether the
after July 16, 2002, the $50 adjustment manufacturer’s claims of specific
amount can be modified through payment amount for a NTIOL furnished
by ASCs is described in our regulations clinical advantages and superiority over
proposed and final rulemaking in existing IOLs had been approved for
connection with ASC services. To date, at part 416, subpart F and in the
September 30, 2005 Federal Register labeling and advertising purposes. Our
we have made no changes to the regulations require the FDA’s approval
payment amount and have opted not to notice.
This process includes— of a requestor’s claims for advertising
change the adjustment for calendar year • Publishing a public notice in the and labeling in order for an IOL to be
2005 (CY 2005). Federal Register identifying classified as a NTIOL.
II. NTIOL Applications Submitted for requirements and the deadline for
IV. Analysis of and Responses to Public
Calendar Year 2005 submitting a request;
Comments
• Processing requests to review the
On May 27, 2005 we published a appropriateness of the payment amount We received 12 timely public
notice in the Federal Register entitled for an IOL; comments in response to the September
‘‘Medicare Program; Calendar Year 2005 • Compiling a list of the requests we 30, 2005 notice with comment period on
Review of the Appropriateness of receive that identify the IOL the NTIOLs under review. Eleven were
Payment Amounts for New Technology manufacturer, IOL model number under from ophthalmologists in support of
Intraocular Lenses (NTIOLs) Furnished review, name of the requester, and a NTIOL status for the Tecnis lenses.
by Ambulatory Surgical Centers (ASCs)’’ summary of the request for review of the One comment was received from
(70 FR 30731) that solicited interested appropriateness of the IOL payment another manufacturer who makes an
parties to submit requests for review of amount; IOL with similar aspheric optic design
the appropriateness of the payment • Publishing an annual public notice characteristics. The comments we
amount for an IOL furnished by an in the Federal Register that lists the received and our responses are as
ambulatory surgical center. In response requests and provides for a public follows:
to the May 27, 2005 notice, we received comment period; Comments: The commenting
one timely request for review: • Reviewing the information ophthalmologists strongly supported
1. Manufacturer: Advanced Medical submitted with the applicant’s request NTIOL designation for the Tecnis
Optics (AMO); Model Numbers: Tecnis for review, and requesting confirmation lenses. Most of these commenters
(model numbers Z9000, Z9001, and from the FDA about labeling reported positive experiences from
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Z9003). Tecnis Models Z9000 and applications that have been approved on patients in whom they implanted the
Z9001 are made from silicone material. the IOL model under review. We also Tecnis lenses during cataract surgery.
The Tecnis Model Z9003 is made from request the FDA’s recommendations as The commenters reported improved
acrylic material. All three lenses to whether or not the IOL model contrast vision, reduced overall ocular
provide the same functionality, differing submitted represents a new class of spherical aberration, improved

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4588 Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / Notices

functional vision, and significantly AMO resubmitted its NTIOL request environmental, public health and safety
better contrast sensitivity and contrast in CY 2005 and provided additional effects, distributive impacts, and
acuity. One stated that surgeons should information on the clinical relevance of equity). A regulatory impact analysis
not use substandard lenses when better reduced postoperative spherical (RIA) must be prepared for major rules
lenses are available. Another commenter aberration and increased contrast with economically significant effects
provided a research article concluding sensitivity. In the CY 2005 application, ($100 million or more in any 1 year). We
the Tecnis lens provided improved AMO provided additional peer- have determined that this final notice is
visual acuity and functional acuity reviewed published studies, a meta- not a major rule. The RFA requires
contrast testing compared to analysis, and a justification of the agencies to analyze options for
conventional spherical silicone and choice of comparator lens, none of regulatory relief of small businesses. For
acrylic IOLs. This article had been which were included in the CY 2004 purposes of the RFA, small entities
previously submitted by AMO in its application. To demonstrate clinical include small businesses, nonprofit
2004 and 2005 calendar year NTIOL superiority, AMO submitted journal organizations, and government agencies.
submissions. articles and AMO-sponsored research Most hospitals and most other providers
We also received a comment reporting improved functional vision and suppliers are small entities, either
supporting NTIOL status for the Tecnis resulting from compensation for corneal by nonprofit status or by having
lenses that suggested they be classified spherical aberration. We reviewed the revenues of $6 million to $29 million in
as ‘‘Aspheric Optic’’ NTIOLs. The additional literature submitted by AMO any 1 year. Individuals and States are
in its CY 2005 application and found it not included in the definition of a small
commenter also requested that one of its
to be acceptable and supportive of our entity. We are not preparing an analysis
IOL products having aspheric optic
requirements. for the RFA because we have
design characteristics, as well as an IOL
AMO claims the Tecnis IOLs create determined that this final notice will
of another manufacturer, be placed in
a new class of IOLs compensating for not have a significant economic impact
this newly created ‘‘Aspheric Optic’’
corneal spherical aberration. AMO on a substantial number of small
NTIOL class.
states this improves contrast sensitivity, entities.
We agree with the commenters in functional performance, and especially In addition, section 1102(b) of the Act
their support of the Tecnis lenses. We safer night driving. Based on the requires us to prepare a regulatory
do not agree with the comment that the additional information from AMO, CMS impact analysis if a regulation may have
Tecnis lenses be classified as approves AMO’s claims of clinical a significant impact on the operations of
‘‘Aspheric Optic’’ NTIOLs. NTIOL advantages and superiority of the a substantial number of small rural
classes are defined by clinical outcomes Tecnis IOL for ocular spherical hospitals. This analysis must conform to
which provide benefits to Medicare aberrations and simulated night driving. the provisions of section 604 of the
beneficiaries. The two previously We find the AMO Tecnis Lenses RFA. For purposes of section 1102(b) of
created NTIOL classes are ‘‘Multifocal’’ Models Z9000, Z9001, and Z9003 meet the Act, we define a small rural hospital
and ‘‘Reduction in Preexisting the NTIOL definition and are to be given as a hospital that is located outside of
Astigmatism.’’ We disagree with the the new NTIOL classification of a Core-Based Statistical Area and has
commenter’s suggestion to create a new Reduced Spherical Aberration. fewer than 100 beds. We are not
‘‘Aspheric Optic’’ NTIOL class as this preparing an analysis for section 1102(b)
class would not be based upon clinical VI. Collection of Information of the Act because we have determined
outcome. We recommend that the Requirements that this final notice will not have a
commenter who claimed that one of its Because the requirements referenced significant impact on the operations of
IOLs has aspheric optic design in this final notice will not affect 10 or a substantial number of small rural
characteristics submit an application more persons on an annual basis, this hospitals.
with evidence showing clinical benefits notice does not impose any information Section 202 of the Unfunded
of its lenses during the 2006 NTIOL collection and record keeping Mandates Reform Act of 1995 also
application period. We appreciate all requirements that are subject to review requires that agencies assess anticipated
commenters’ interest in the NTIOL by the Office of Management and costs and benefits before issuing any
process. Budget (OMB) under the Paperwork rule whose mandates require spending
Reduction Act of 1995. in any 1 year of $100 million in 1995
V. NTIOL Decision—Approval of dollars, updated annually for inflation.
Advanced Medical Optics Application VII. Regulatory Impact Statement That threshold level is currently
AMO Tecnis
Lenses; Models Z9000, We have examined the impacts of this approximately $120 million. This final
Z9001, and Z9003 notice as required by Executive Order notice will have no consequential effect
12866 (September 1993, Regulatory on State, local, or tribal governments or
In CY 2004, AMO applied for NTIOL Planning and Review), the Regulatory on the private sector.
designation for the Tecnis lenses. As Flexibility Act (RFA) (September 19, Executive Order 13132 establishes
part of the 2004 NTIOL review, CMS 1980, Pub. L. 96–354), section 1102(b) of certain requirements that an agency
requested FDA review of AMO’s NTIOL the Act, the Unfunded Mandates Reform must meet when it publishes a proposed
application. FDA’s review confirmed Act of 1995(Pub. L. 104–4) and rule (and subsequent final rule) that
that the clinical trial performed by AMO Executive Order 13132. imposes substantial direct requirement
demonstrated that results under several Executive Order 12866, (as amended costs on State, local, or tribal
conditions tested were statistically by Executive Order 13258, which governments, preempts State law, or
significantly better with the Tecnis merely reassigns responsibility of otherwise has Federalism implications.
lens than with the control acrylic IOL. duties) directs agencies to assess all Since this final notice does not impose
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However, we denied AMO’s CY 2004 costs and benefits of available regulatory any costs on State or local governments,
NTIOL application for the Tecnis alternatives and, if regulation is the requirements of E.O. 13132 are not
lenses due to the lack of evidence that necessary, to select regulatory applicable.
the Tecnis design improvements approaches that maximize net benefits In accordance with the provisions of
provided clinical benefits to patients. (including potential economic, Executive Order 12866, this final notice

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Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / Notices 4589

was not reviewed by the Office of or visually impaired, or have a the Executive Secretary named in the
Management and Budget. condition that requires special FOR FURTHER INFORMATION CONTACT
Authority: Secs. 1102 and 1871 of the assistance or accommodations, are section and submit the following by the
Social Security Act (42 U.S.C. 1302 and asked to notify the Executive Secretary Deadline for Presentations and
1395hh). by March 23, 2006 (see FOR FURTHER Comments date listed in the DATES
(Catalog of Federal Domestic Assistance INFORMATION CONTACT). section of this notice: a brief statement
Program No. 93.773, Medicare—Hospital ADDRESSES: The meeting will be held in of the general nature of the evidence or
Insurance; and Program No. 93.774, the main auditorium of the Centers for arguments you wish to present, the
Medicare—Supplementary Medical names and addresses of proposed
Medicare & Medicaid Services, 7500
Insurance Program). participants, and a written copy of your
Security Blvd, Baltimore, MD 21244.
Dated: January 9, 2006.
FOR FURTHER INFORMATION CONTACT:
presentation. Your presentation should
Mark B. McClellan, Michelle Atkinson, Executive Secretary, consider the questions we have posed to
Administrator, Centers for Medicare and the Committee and focus on the issues
by telephone at 410–786–2881 or by e-
Medicaid Services. specific to the topic. The questions will
mail at Michelle.Atkinson@cms.hhs.gov.
[FR Doc. E6–1049 Filed 1–25–06; 4:00 pm] be available on our Web site at http://
Web site: You may access up-to-date
www.cms.hhs.gov/FACA/
BILLING CODE 4120–01–P information on this meeting at http://
02_MCAC.asp#TopOfPage. We require
www.cms.hhs.gov/FACA/
that you declare at the meeting whether
02_MCAC.asp#TopOfPage.
DEPARTMENT OF HEALTH AND or not you have any financial
Presentations and Comments:
HUMAN SERVICES involvement with manufacturers of any
Interested persons may present data,
items or services being discussed (or
information, or views orally or in
Centers for Medicare & Medicaid with their competitors).
writing on issues pending before the
Services After the public and CMS
Committee. Please submit written
presentations, the Committee will
[CMS–3162–N] comments to Michelle Atkinson, by e-
deliberate openly on the topic.
mail at Michelle.Atkinson@cms.hhs.gov
Medicare Program; Meeting of the Interested persons may observe the
or by mail to the Executive Secretary for
Medicare Coverage Advisory deliberations, but the Committee will
MCAC, Coverage and Analysis Group,
Committee—March 30, 2006 not hear further comments during this
Office of Clinical Standards and
time except at the request of the
AGENCY: Centers for Medicare & Quality, Centers for Medicare &
chairperson. The Committee will also
Medicaid Services (CMS), HHS. Medicaid Services, 7500 Security
allow a 15 minute unscheduled open
ACTION: Notice.
Boulevard, Mail Stop C1–09–06,
public session for any attendee to
Baltimore, MD 21244.
address issues specific to the topic. At
SUMMARY: This notice announces a SUPPLEMENTARY INFORMATION: the conclusion of the day, the members
public meeting of the Medicare will vote, and the Committee will make
Coverage Advisory Committee (MCAC). I. Background
its recommendation.
The Committee generally provides On December 14, 1998, we published
advice and recommendations about a notice in the Federal Register (63 FR III. Registration Instructions
whether scientific evidence is adequate 68780) to describe the Medicare The Coverage and Analysis Group is
to determine whether certain medical Coverage Advisory Committee (MCAC), coordinating meeting registration. While
items and services are reasonable and which provides advice and there is no registration fee, individuals
necessary under the Medicare statute. recommendations to us about clinical must register to attend. You may register
The charter also permits the MCAC to issues. This notice announces a public by contacting Maria Ellis at 410–786–
develop recommendations about other meeting of the Committee. 0309, mailing address: Coverage and
specific issues of Medicare coverage. Meeting Topic: The Committee will Analysis Group, OCSQ; Centers for
This meeting concerns authoritative discuss evidence and hear presentations Medicare & Medicaid Services; 7500
drug compendia that may be used in and public comments regarding the Security Blvd, Mailstop: C1–09–06;
determining the medically accepted desired characteristics of published Baltimore, MD 21244, or by e-mail at
indications of drugs and biologicals authoritative compendia that may be Maria.Ellis@cms.hhs.gov. Please provide
used in an anti-cancer used by CMS to determine the your name, address, organization,
chemotherapeutic regimen under Part B medically accepted indications of drugs telephone and fax number, and e-mail
of the Medicare program. Notice of this and biologicals employed in an anti- address.
meeting is given under the Federal cancer chemotherapeutic regimen under You will receive a registration
Advisory Committee Act (5 U.S.C. App. Part B of the Medicare program, section confirmation with instructions for your
2, section 10(a)). 1861(t)(2) of the Social Security Act. arrival at the CMS complex. You will be
DATES: The public meeting will be held Background information about this notified if the seating capacity has been
on Thursday, March 30, 2006 from 7:30 topic, including panel materials, is reached.
a.m. until 4:30 p.m. e.s.t. available on the Internet at http:// This meeting is located on Federal
Deadlines: Deadline for Presentations www.cms.hhs.gov/coverage/. property; therefore, for security reasons,
and Comments: Written comments and any individuals wishing to attend this
II. Procedure
presentations must be received by meeting must register by close of
February 27, 2006, 5 p.m., e.s.t. This meeting is open to the public. business on March 23, 2006.
Deadline for Registration To Attend The Committee will hear oral
Meeting: For security reasons, presentations from the public for IV. Security, Building, and Parking
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individuals wishing to attend this approximately 45 minutes. The Guidelines


meeting must register by close of Committee may limit the number and This meeting will be held in a Federal
business on March 23, 2006. duration of oral presentations to the Government building; therefore, Federal
Special Accommodations: Persons time available. If you wish to make security measures are applicable. In
attending the meeting who are hearing formal presentations, you must notify planning your arrival time, we

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