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<strong>CMS</strong>-1403-FC<br />

In the CY 2009 PFS proposed rule, we sought comments<br />

regarding “whether separate exceptions for incentive<br />

payment and shared savings programs would be preferable<br />

and, if so, how they should be structured, and which<br />

requirements should appear in each” (73 FR 38552). Most<br />

commenters in support of establishing an exception for<br />

incentive payment and shared savings programs recommended<br />

that we establish two separate exceptions. Here, we are<br />

requesting specific comments regarding how [1] to define<br />

the terms “incentive payment program” and “shared savings<br />

program.” We also request comments regarding [2] whether<br />

the terminology “incentive payment” and “shared savings”<br />

programs is appropriate or whether different terminology<br />

would better describe the range of nonabusive programs we<br />

intend to cover under the proposed exception(s). Whatever<br />

terminology we employ, we must define the terms with<br />

sufficient clarity to enable parties to determine which<br />

exception, if more than one is finalized, would be<br />

applicable to the specific arrangement being analyzed.<br />

Commenters in support of the adoption of two separate<br />

exceptions frequently asserted that many of the conditions<br />

in the proposed exception are not applicable, or need not<br />

be applicable, to incentive payment programs, asserting<br />

that incentive payment programs do not pose the same risk<br />

393

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