124 STAT. 485 PUBLIC LAW 111–148—MAR. 23, 2010 ‘‘(aa) the total percentage of the non-elderly insured population for the preceding fiscal year (based on the most recent estimates available from the Director of the Congres- sional Budget Office before a vote in either House on the Patient Protection and Affordable Care Act that, if deter- mined in the affirmative, would clear such Act for enroll- ment); over ‘‘(bb) the total percentage of the non-elderly insured population for such preceding fiscal year (as estimated by the Secretary); exceeds ‘‘(II) 5 percentage points.’’. (h) DIALYSIS.—Section 1881(b)(14)(F) of the Social Security Act (42 U.S.C. 1395rr(b)(14)(F)) is amended— (1) in clause (i)— (A) by inserting ‘‘(I)’’ after ‘‘(F)(i)’’ (B) in subclause (I), as inserted by subparagraph (A)— (i) by striking ‘‘clause (ii)’’ and inserting ‘‘subclause (II) and clause (ii)’’; and (ii) by striking ‘‘minus 1.0 percentage point’’; and (C) by adding at the end the following new subclause: ‘‘(II) For 2012 and each subsequent year, after determining the increase factor described in subclause (I), the Secretary shall reduce such increase factor by the productivity adjustment described in section 1886(b)(3)(B)(xi)(II). The application of the preceding sentence may result in such increase factor being less than 0.0 for a year, and may result in payment rates under the payment system under this paragraph for a year being less than such pay- ment rates for the preceding year.’’; and (2) in clause (ii)(II)— (A) by striking ‘‘The’’ and inserting ‘‘Subject to clause (i)(II), the’’; and (B) by striking ‘‘clause (i) minus 1.0 percentage point’’ and inserting ‘‘clause (i)(I)’’. (i) OUTPATIENT HOSPITALS.—Section 1833(t)(3) of the Social Security Act (42 U.S.C. 1395l(t)(3)) is amended— (1) in subparagraph (C)(iv), by inserting ‘‘and subparagraph (F) of this paragraph’’ after ‘‘(17)’’; and (2) by adding at the end the following new subparagraphs: ‘‘(F) PRODUCTIVITY AND OTHER ADJUSTMENT.—After determining the OPD fee schedule increase factor under subparagraph (C)(iv), the Secretary shall reduce such increase factor— ‘‘(i) for 2012 and subsequent years, by the produc- tivity adjustment described in section 1886(b)(3)(B)(xi)(II); and ‘‘(ii) for each of 2010 through 2019, by the adjust- ment described in subparagraph (G). The application of this subparagraph may result in the increase factor under subparagraph (C)(iv) being less than 0.0 for a year, and may result in payment rates under the payment system under this subsection for a year being less than such payment rates for the preceding year. ‘‘(G) OTHER ADJUSTMENT.— ‘‘(i) ADJUSTMENT.—For purposes of subparagraph (F)(ii), the adjustment described in this subparagraph is—
