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Presenters:
• Colleen M. Faddick, Shareholder, Polsinelli, PC
• Ross E. Sallade, Shareholder, Polsinelli, PC
• Kyle A. Vasquez, Counsel, Polsinelli, PC
Part II: Back to the Future … Will CMS’
Proposed Provider-Based Rules Reshape the
Future? Or Will They Rewrite the Past?
July 28, 2016
Polsinelli
Reimbursement Institute
Polsinelli Reimbursement Institute
 Single source of news, information and guidance
on the constantly evolving reimbursement industry
– eAlerts
– Webinars
– News from D.C.
– Links to current guidance
– Advisors
 http://www.polsinelliri.com/
2
Today’s Roadmap
Part I – Where we are today (Tuesday, July 19)
Part II – Where we are headed in 2017
 Brief background
 Practical implications of Proposed Rule
 Review scenarios impacted by Proposed Rule
 Review potential 340B implications
 Overview of critical comment areas
3
Brief Background: Section 603 & CMS’ Proposed
Changes to Provider-Based Rules
4
Section 603 of the BBA of 2015
 Effective Nov. 2, 2015; amended Social Security
Act Section 1833(t)
 As of Jan. 1, 2017, no OPPS payment for items
and services furnished in off-campus provider-
based hospital outpatient departments; paid
under the applicable Medicare payment system
 Exceptions to locations and services
5
Proposed Rule Implementing
Section 603
 CY 2017 Hospital Outpatient Prospective
Payment System Proposed Rule
– 81 Fed. Reg. 45604, 45681 (July 14, 2016)
– Narrow interpretation of Section 603
– CMS solicited comments in specific areas
• Comments due Sept. 6, 2016
• Not precluded from commenting beyond CMS’
request
6
Proposed Rule Terminology
 Certain off-campus provider-based hospital
outpatient departments (“PBDs”) items and services
will be “excepted”
– “Excepted” = (i) PBDs existing and billing OPPS on /
before Nov. 2, 2015; (ii) dedicated emergency
departments; (iii) on-campus PBDs
• May continue to bill under the OPPS
– “Non-excepted” = PBDs did not bill under OPPS on /
before Nov. 2, 2015
• Subject to Section 603, no OPPS payment after Jan. 1, 2017
7
Practical Implications, Open Issues,
Critical Comment Areas & Predictions
8
Excepted Items and Services:
Dedicated EDs
 All items and services (emergent or not) furnished
in a dedicated emergency department (“DED”)
excepted
– On- and off-campus DEDs exempt
– Must meet qualify as DED under EMTALA by
meeting one of three criteria:
• Licensed by state as an emergency department
• Held out to public as providing care for emergency
medical conditions on an unscheduled, urgent basis
• During the prior calendar year, provided at least 1/3 of
visits for treatment of emergency medical condition
– Exception includes both emergency and non-
emergency services
– Urgent care centers not excepted
9
Excepted Items and Services:
Dedicated EDs
 Scenarios:
– Existing DED; hospital moves other scheduled,
non-emergent outpatient services into the DED
– Existing DED; hospital completes an addition to
accommodate additional non-emergent services
– Existing non-DED retrofitted to classify as DED
– New DED built after Nov. 2, 2015; provides non-
emergent outpatient services
10
Excepted Items and Services:
Dedicated EDs
 Key DED considerations:
– Compliance with state laws (hours of operation,
staffing, physical plant), certificate of need, life
safety code, etc.
– Compliance with EMTALA
11
Excepted Items and Services:
Clinical Family of Services
 CMS proposal
– No expansion of the types of services offered from
excepted off-campus PBDs
– Excepted off-campus PBDs continue to be paid at
OPPS rates for added items and services if in the
same “clinical families of services”
– 19 “clinical families of services” defined by HCPCS
codes mapped to APCs
– Services beyond clinical families of services are non-
excepted services (i.e., not payable under the OPPS)
and must be billed under the MPFS, if at all
– No limit on volume of services furnished within
clinical family billed prior to Nov. 2, 2015
12
Excepted Items and Services:
Clinical Family of Services
 Scenario:
– Nov. 2, 2015, Hospital operates rad onc practice as
PBD
– In 2016, Hospital purchases ENT practice and seeks
to add to rad onc PBD
 CMS soliciting comments
– Historic view of PBD as physical location vs. items
and services furnished in physical location
– Specific timeframe the excepted PBD had to bill
clinical family of services prior to November 2, 2015
– Categories of the clinical family of services
– Whether volume of services within a clinical family
should be limited
13
Excepted Items and Services:
On-Campus / Remote Location
 On-campus locations excepted
 No proposal to change or clarify the definition of
“campus”
 Section 603 also includes as “on-campus” those
PBDs within 250 yards of remote locations
 Commentary:
– Measurement of the 250 yards should be done in a
straight line by use of surveyor reports or other
appropriate documentation from any point of a
remote location
14
Excepted Items and Services:
On-Campus / Remote Location
 Measuring 250 yards
– How will MAC/RO discretion be applied?
– Nothing in the actual PB regulation changed
 Critical Comment Area, but consider whether
bright line rules will be useful
15
Hospital PBD II
Main Hospital
Hospital PBD I
Hospital
PBD III
Remote
Hospital
Location
Parking Lot248 yards
5 miles
240 yards
Measuring 250 Yards
Relocation Recap
 CMS proposal
– Freeze excepted off-campus PBDs as they existed on
Nov. 2, 2015
– Prohibit relocation of excepted off-campus PBDs
under any circumstance
– Excepted status determined by location currently
listed on CMS-855A, including both address and
suite number;
– Attempted relocation would mean loss of excepted
status
 CMS considering exception for natural disasters
and circumstances beyond the provider’s control
17
Relocation Scenarios
 Excepted PBD moves from one suite/unit in same
building to another suite/unit is same building
 Excepted PBD expands its suite/unit to encompass
another, but maintains existing street address and
suite number
 Hospital demolishes existing building housing
excepted PBD and rebuilds (or building destroyed)
– In the same location?
– To different specs?
– To the same specs?
– To the same specs with the exact addresses?
18
Relocation Comments to Consider
 Allow relocation for excepted off-campus PBDs
– Operated substantially similar to status as of
Nov. 2, 2015
– In the event of natural disaster
– In the event building demolished and
reconstructed
– To allow for temporary relocation to allow for
renovation of space
 CMS previously considered PBD relocations as a
“material change”
19
Alternative Payment System
 Section 603 requires non-excepted items and
services to be paid under other applicable [non-
OPPS] payment systems
 CMS delaying implementation until CY 2018; cannot
develop an “alternative payment system” by Jan. 1,
2017 (1 year temporary solution)
 CMS proposal:
– Non-excepted items and services paid under MPFS at
non-facility rate (i.e., includes overhead)
20
Payment for Non-Excepted PBDs
 If paid the non-facility MPFS rate, what are the
hospital’s options?
1. Don’t bill – Hospitals would forego payment
for facility/technical/ancillary services
2. Enter into an arrangement with physicians –
Physicians would bill and then pay Hospital for
facility/technical/ancillary services
3. Enroll and submit claims as another
freestanding supplier type (e.g., physician
clinic, ASC, IDTF, other)
21
Payment for Non-Excepted PBDs
 Both [revenue] options create practical and
legal issues
 CMS acknowledges that Option 2 may be
limited by AKS, Stark, reassignment, anti-
markup and other payment rules
– CMS soliciting comments on these limitations
 Option 2 requires hospitals to enter into
agreements with physicians for physicians to
bill Medicare for hospital’s services
22
Payment for Non-Excepted PBDs
 Option 2 – Physician bills for hospital services
 Pre-Section 603 common structure:
– As infusion PBD, hospital contracts with
unrelated physician group to staff PBD
– Hospital bills Medicare for drugs, facility under
OPPS
– Physicians bill Medicare for E&M (if
performed) under MPFS
23
Payment for Non-Excepted PBDs
 Option 2 – Physician bills for hospital services
 Post-Section 603 structure:
– Hospital enters into agreement with physician
group for physician group to bill Medicare for
drugs and physician group “turns over”
collections for drugs to hospital (less billing fee?)
– Threshold question: still hospital services
furnished to registered hospital outpatients?
• Proposed Rule seems to suggest so
24
Payment for Non-Excepted PBDs
 Option 2 – Physician bills for hospital services
 Post-Section 603 issues:
– Stark: must meet an exception as physician refers
DHS to hospital (personal services?)
– AKS: could conform generally to a safe harbor
– Reassignment: non-professional services (drugs)?
– Prohibition against unbundling: if still a hospital
outpatient service, only the hospital may bill?
– Prohibition against using another provider number
– What if a diagnostic test subject to anti-markup?
25
Payment for Non-Excepted PBDs
 Option 3 – Hospital enrolls PBD as clinic:
– Hospital must make this choice now –or soon
– If hospital enrolls as something else, it is no longer
a PBD (consider loss and timing of 340B eligibility)
– To avoid delays in approval and payment, must
enroll very soon so that effective date can be Jan.
1, 2017
– Final rule won’t be published until November
26
Change of Ownership (CHOW) - Recap
 Excepted status for off-campus PBD transfers to
new owners only if
– Ownership of main provider is also transferred
and
– New owners accept existing provider agreement
(i.e., agree to successor liability)
 Individual off-campus PBDs could not be
transferred from one hospital to another
27
Change of Ownership (CHOW) -
Scenarios
 Scenarios:
– Reject CHOW; enroll anew
– Reject CHOW; open as remote location of a
hospital
– Asset purchase vs. stock purchase
– Merger with another hospital
 CMS soliciting specific comments
28
340B Program Implications
 Current state of 340B eligibility
– “Child site” must be a reimburseable cost center
that appears on Worksheets A/C; Lines 50-118 of a
filed cost Medicare cost report (i.e., a hospital
department)
– HRSA historically focused on ensuring the hospital
provides care , maintains the record of care, and
remains responsible for the care provided
 Future state
– HRSA revisiting child site eligibility in its Omnibus
Guidance (proposed Aug. 28, 2015)
29
340B Program Implications
 Fate of 340B-eligibility for non-excepted sites
rests with HRSA
 Proposed Rule recognizes that Section 603 still
considers non-excepted sites as PBDs of the
hospital
 If non-excepted site remains a PBD, hospital would
maintain a record of care and remain responsible
for the patient’s care, consistent with 340B patient
definition
 If finalized as-is, Proposed Rule could continue
340B eligibility of non-excepted PBDs
30
340B Program Implications
 Hospitals should carefully consider cost of lost
340B opportunity by enrolling as a clinic (or
other supplier)
 Consider timing of conversion to a clinic (or
other supplier) as it relates to cost report
31
340B Program Implications
 Scenarios:
– Existing excepted site loses exemption from Section 603
– Hospital builds a new, non-excepted location
– Hospitals adds scheduled services to an excepted DED
 Critical comment area
– Comment on processes that ensure that non-excepted
sites remain PBDs, including billing and cost reporting
mechanisms; balance with the cost of complying with
COPs and other hospital standards
– Advocate that HRSA re-opens comments on child site
eligibility to adapt to CMS’s final rule expected in Nov.
2016
– DEA/Distributor issues if physicians bill for drugs?
32
Space-Sharing / Co-Location
& Time-Sharing
 Not addressed in the proposed rule
 CMS has indicated it will be addressed in
forthcoming revisions to Ch. 2 of the Medicare
State Operations Manual
 CMS interpretation of the prohibition – moving
target
 CMS enforcement trends
– CMS State Agency; accreditation organization
training
– Increased denial activity
33
Space-Sharing / Co-Location
& Time-Sharing
 Space-Sharing: Hospital and physician office
share common hallways, waiting rooms,
reception areas, staff, bathrooms, etc.
– Options when discovered?
 Time-Sharing: Hospital uses a provider-based
space M, W, F; Physician uses same space as
physician office space T and Th
– Possible softening of CMS’ position on time
sharing to come?
 Critical comment area??
34
Under Development Locations
 Mid-Build = off-campus provider-based departments under
development prior to Nov. 2, 2015 but had not yet billed
for any services under OPPS
 H.R. 5273 “Helping Hospitals Improve Patient Care Act of
2016” - Section 201 “Mid-build exception”
– Would restore hospital outpatient reimbursement 1/1/18
– Requires a binding written agreement with an outside unrelated party
for actual construction by 11/2/15
– Requires provider-based attestation by 12/31/16 (timing may vary),
certification of binding agreement, and Medicare enrollment
 House Approved; stalled with Senate Fin. Comm.; unclear if
Senate will act prior to the election
35
Comment Solicitation
 In addition to areas previously highlighted, CMS
seeks comments on the following topics:
– Information needed to identify non-excepted
PBDs
– Data collection
– Changes to enrollment forms, claims forms,
hospital cost reports, and hospital operations
– Billing for items and services from a non-
excepted PBD on the CMS-1500
36
Questions?
37
real challenges. real answers. sm
Polsinelli provides this material for informational purposes only. The material
provided herein is general and is not intended to be legal advice. Nothing herein
should be relied upon or used without consulting a lawyer to consider your specific
circumstances, possible changes to applicable laws, rules and regulations and other
legal issues. Receipt of this material does not establish an attorney-client
relationship.
Polsinelli is very proud of the results we obtain for our clients, but you should know
that past results do not guarantee future results; that every case is different and
must be judged on its own merits; and that the choice of a lawyer is an important
decision and should not be based solely upon advertisements.
© 2016 Polsinelli PC. In California, Polsinelli LLP.
Polsinelli is a registered mark of Polsinelli PC
38

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Back to the Future... Will CMS' Proposed Provider-Based Rules Reshape the Future? Or Will They Rewrite the Past?: Part II

  • 1. Presenters: • Colleen M. Faddick, Shareholder, Polsinelli, PC • Ross E. Sallade, Shareholder, Polsinelli, PC • Kyle A. Vasquez, Counsel, Polsinelli, PC Part II: Back to the Future … Will CMS’ Proposed Provider-Based Rules Reshape the Future? Or Will They Rewrite the Past? July 28, 2016 Polsinelli Reimbursement Institute
  • 2. Polsinelli Reimbursement Institute  Single source of news, information and guidance on the constantly evolving reimbursement industry – eAlerts – Webinars – News from D.C. – Links to current guidance – Advisors  http://www.polsinelliri.com/ 2
  • 3. Today’s Roadmap Part I – Where we are today (Tuesday, July 19) Part II – Where we are headed in 2017  Brief background  Practical implications of Proposed Rule  Review scenarios impacted by Proposed Rule  Review potential 340B implications  Overview of critical comment areas 3
  • 4. Brief Background: Section 603 & CMS’ Proposed Changes to Provider-Based Rules 4
  • 5. Section 603 of the BBA of 2015  Effective Nov. 2, 2015; amended Social Security Act Section 1833(t)  As of Jan. 1, 2017, no OPPS payment for items and services furnished in off-campus provider- based hospital outpatient departments; paid under the applicable Medicare payment system  Exceptions to locations and services 5
  • 6. Proposed Rule Implementing Section 603  CY 2017 Hospital Outpatient Prospective Payment System Proposed Rule – 81 Fed. Reg. 45604, 45681 (July 14, 2016) – Narrow interpretation of Section 603 – CMS solicited comments in specific areas • Comments due Sept. 6, 2016 • Not precluded from commenting beyond CMS’ request 6
  • 7. Proposed Rule Terminology  Certain off-campus provider-based hospital outpatient departments (“PBDs”) items and services will be “excepted” – “Excepted” = (i) PBDs existing and billing OPPS on / before Nov. 2, 2015; (ii) dedicated emergency departments; (iii) on-campus PBDs • May continue to bill under the OPPS – “Non-excepted” = PBDs did not bill under OPPS on / before Nov. 2, 2015 • Subject to Section 603, no OPPS payment after Jan. 1, 2017 7
  • 8. Practical Implications, Open Issues, Critical Comment Areas & Predictions 8
  • 9. Excepted Items and Services: Dedicated EDs  All items and services (emergent or not) furnished in a dedicated emergency department (“DED”) excepted – On- and off-campus DEDs exempt – Must meet qualify as DED under EMTALA by meeting one of three criteria: • Licensed by state as an emergency department • Held out to public as providing care for emergency medical conditions on an unscheduled, urgent basis • During the prior calendar year, provided at least 1/3 of visits for treatment of emergency medical condition – Exception includes both emergency and non- emergency services – Urgent care centers not excepted 9
  • 10. Excepted Items and Services: Dedicated EDs  Scenarios: – Existing DED; hospital moves other scheduled, non-emergent outpatient services into the DED – Existing DED; hospital completes an addition to accommodate additional non-emergent services – Existing non-DED retrofitted to classify as DED – New DED built after Nov. 2, 2015; provides non- emergent outpatient services 10
  • 11. Excepted Items and Services: Dedicated EDs  Key DED considerations: – Compliance with state laws (hours of operation, staffing, physical plant), certificate of need, life safety code, etc. – Compliance with EMTALA 11
  • 12. Excepted Items and Services: Clinical Family of Services  CMS proposal – No expansion of the types of services offered from excepted off-campus PBDs – Excepted off-campus PBDs continue to be paid at OPPS rates for added items and services if in the same “clinical families of services” – 19 “clinical families of services” defined by HCPCS codes mapped to APCs – Services beyond clinical families of services are non- excepted services (i.e., not payable under the OPPS) and must be billed under the MPFS, if at all – No limit on volume of services furnished within clinical family billed prior to Nov. 2, 2015 12
  • 13. Excepted Items and Services: Clinical Family of Services  Scenario: – Nov. 2, 2015, Hospital operates rad onc practice as PBD – In 2016, Hospital purchases ENT practice and seeks to add to rad onc PBD  CMS soliciting comments – Historic view of PBD as physical location vs. items and services furnished in physical location – Specific timeframe the excepted PBD had to bill clinical family of services prior to November 2, 2015 – Categories of the clinical family of services – Whether volume of services within a clinical family should be limited 13
  • 14. Excepted Items and Services: On-Campus / Remote Location  On-campus locations excepted  No proposal to change or clarify the definition of “campus”  Section 603 also includes as “on-campus” those PBDs within 250 yards of remote locations  Commentary: – Measurement of the 250 yards should be done in a straight line by use of surveyor reports or other appropriate documentation from any point of a remote location 14
  • 15. Excepted Items and Services: On-Campus / Remote Location  Measuring 250 yards – How will MAC/RO discretion be applied? – Nothing in the actual PB regulation changed  Critical Comment Area, but consider whether bright line rules will be useful 15
  • 16. Hospital PBD II Main Hospital Hospital PBD I Hospital PBD III Remote Hospital Location Parking Lot248 yards 5 miles 240 yards Measuring 250 Yards
  • 17. Relocation Recap  CMS proposal – Freeze excepted off-campus PBDs as they existed on Nov. 2, 2015 – Prohibit relocation of excepted off-campus PBDs under any circumstance – Excepted status determined by location currently listed on CMS-855A, including both address and suite number; – Attempted relocation would mean loss of excepted status  CMS considering exception for natural disasters and circumstances beyond the provider’s control 17
  • 18. Relocation Scenarios  Excepted PBD moves from one suite/unit in same building to another suite/unit is same building  Excepted PBD expands its suite/unit to encompass another, but maintains existing street address and suite number  Hospital demolishes existing building housing excepted PBD and rebuilds (or building destroyed) – In the same location? – To different specs? – To the same specs? – To the same specs with the exact addresses? 18
  • 19. Relocation Comments to Consider  Allow relocation for excepted off-campus PBDs – Operated substantially similar to status as of Nov. 2, 2015 – In the event of natural disaster – In the event building demolished and reconstructed – To allow for temporary relocation to allow for renovation of space  CMS previously considered PBD relocations as a “material change” 19
  • 20. Alternative Payment System  Section 603 requires non-excepted items and services to be paid under other applicable [non- OPPS] payment systems  CMS delaying implementation until CY 2018; cannot develop an “alternative payment system” by Jan. 1, 2017 (1 year temporary solution)  CMS proposal: – Non-excepted items and services paid under MPFS at non-facility rate (i.e., includes overhead) 20
  • 21. Payment for Non-Excepted PBDs  If paid the non-facility MPFS rate, what are the hospital’s options? 1. Don’t bill – Hospitals would forego payment for facility/technical/ancillary services 2. Enter into an arrangement with physicians – Physicians would bill and then pay Hospital for facility/technical/ancillary services 3. Enroll and submit claims as another freestanding supplier type (e.g., physician clinic, ASC, IDTF, other) 21
  • 22. Payment for Non-Excepted PBDs  Both [revenue] options create practical and legal issues  CMS acknowledges that Option 2 may be limited by AKS, Stark, reassignment, anti- markup and other payment rules – CMS soliciting comments on these limitations  Option 2 requires hospitals to enter into agreements with physicians for physicians to bill Medicare for hospital’s services 22
  • 23. Payment for Non-Excepted PBDs  Option 2 – Physician bills for hospital services  Pre-Section 603 common structure: – As infusion PBD, hospital contracts with unrelated physician group to staff PBD – Hospital bills Medicare for drugs, facility under OPPS – Physicians bill Medicare for E&M (if performed) under MPFS 23
  • 24. Payment for Non-Excepted PBDs  Option 2 – Physician bills for hospital services  Post-Section 603 structure: – Hospital enters into agreement with physician group for physician group to bill Medicare for drugs and physician group “turns over” collections for drugs to hospital (less billing fee?) – Threshold question: still hospital services furnished to registered hospital outpatients? • Proposed Rule seems to suggest so 24
  • 25. Payment for Non-Excepted PBDs  Option 2 – Physician bills for hospital services  Post-Section 603 issues: – Stark: must meet an exception as physician refers DHS to hospital (personal services?) – AKS: could conform generally to a safe harbor – Reassignment: non-professional services (drugs)? – Prohibition against unbundling: if still a hospital outpatient service, only the hospital may bill? – Prohibition against using another provider number – What if a diagnostic test subject to anti-markup? 25
  • 26. Payment for Non-Excepted PBDs  Option 3 – Hospital enrolls PBD as clinic: – Hospital must make this choice now –or soon – If hospital enrolls as something else, it is no longer a PBD (consider loss and timing of 340B eligibility) – To avoid delays in approval and payment, must enroll very soon so that effective date can be Jan. 1, 2017 – Final rule won’t be published until November 26
  • 27. Change of Ownership (CHOW) - Recap  Excepted status for off-campus PBD transfers to new owners only if – Ownership of main provider is also transferred and – New owners accept existing provider agreement (i.e., agree to successor liability)  Individual off-campus PBDs could not be transferred from one hospital to another 27
  • 28. Change of Ownership (CHOW) - Scenarios  Scenarios: – Reject CHOW; enroll anew – Reject CHOW; open as remote location of a hospital – Asset purchase vs. stock purchase – Merger with another hospital  CMS soliciting specific comments 28
  • 29. 340B Program Implications  Current state of 340B eligibility – “Child site” must be a reimburseable cost center that appears on Worksheets A/C; Lines 50-118 of a filed cost Medicare cost report (i.e., a hospital department) – HRSA historically focused on ensuring the hospital provides care , maintains the record of care, and remains responsible for the care provided  Future state – HRSA revisiting child site eligibility in its Omnibus Guidance (proposed Aug. 28, 2015) 29
  • 30. 340B Program Implications  Fate of 340B-eligibility for non-excepted sites rests with HRSA  Proposed Rule recognizes that Section 603 still considers non-excepted sites as PBDs of the hospital  If non-excepted site remains a PBD, hospital would maintain a record of care and remain responsible for the patient’s care, consistent with 340B patient definition  If finalized as-is, Proposed Rule could continue 340B eligibility of non-excepted PBDs 30
  • 31. 340B Program Implications  Hospitals should carefully consider cost of lost 340B opportunity by enrolling as a clinic (or other supplier)  Consider timing of conversion to a clinic (or other supplier) as it relates to cost report 31
  • 32. 340B Program Implications  Scenarios: – Existing excepted site loses exemption from Section 603 – Hospital builds a new, non-excepted location – Hospitals adds scheduled services to an excepted DED  Critical comment area – Comment on processes that ensure that non-excepted sites remain PBDs, including billing and cost reporting mechanisms; balance with the cost of complying with COPs and other hospital standards – Advocate that HRSA re-opens comments on child site eligibility to adapt to CMS’s final rule expected in Nov. 2016 – DEA/Distributor issues if physicians bill for drugs? 32
  • 33. Space-Sharing / Co-Location & Time-Sharing  Not addressed in the proposed rule  CMS has indicated it will be addressed in forthcoming revisions to Ch. 2 of the Medicare State Operations Manual  CMS interpretation of the prohibition – moving target  CMS enforcement trends – CMS State Agency; accreditation organization training – Increased denial activity 33
  • 34. Space-Sharing / Co-Location & Time-Sharing  Space-Sharing: Hospital and physician office share common hallways, waiting rooms, reception areas, staff, bathrooms, etc. – Options when discovered?  Time-Sharing: Hospital uses a provider-based space M, W, F; Physician uses same space as physician office space T and Th – Possible softening of CMS’ position on time sharing to come?  Critical comment area?? 34
  • 35. Under Development Locations  Mid-Build = off-campus provider-based departments under development prior to Nov. 2, 2015 but had not yet billed for any services under OPPS  H.R. 5273 “Helping Hospitals Improve Patient Care Act of 2016” - Section 201 “Mid-build exception” – Would restore hospital outpatient reimbursement 1/1/18 – Requires a binding written agreement with an outside unrelated party for actual construction by 11/2/15 – Requires provider-based attestation by 12/31/16 (timing may vary), certification of binding agreement, and Medicare enrollment  House Approved; stalled with Senate Fin. Comm.; unclear if Senate will act prior to the election 35
  • 36. Comment Solicitation  In addition to areas previously highlighted, CMS seeks comments on the following topics: – Information needed to identify non-excepted PBDs – Data collection – Changes to enrollment forms, claims forms, hospital cost reports, and hospital operations – Billing for items and services from a non- excepted PBD on the CMS-1500 36
  • 38. real challenges. real answers. sm Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. © 2016 Polsinelli PC. In California, Polsinelli LLP. Polsinelli is a registered mark of Polsinelli PC 38

Editor's Notes

  1. RES
  2. RES [NOTES FROM BRAGG’S PART 1 SLIDE] Today’s webinar is part of Polsinelli’s Reimbursement Institute. The Reimbursement Institute is made up advisors from Polsinelli, as well as a number of client representatives, all of whom specialize in health care reimbursement. The Reimbursement Institute Website is listed on the PowerPoint slide and is a great resource for e-Alerts, Webinars, News from D.C., links to guidance, as well as a list of our advisors. Please check out the website and please let us know if you have interest in participating on the Advisory Board.
  3. RES Recording of Part I available, Part II will also be available.
  4. Colleen
  5. Colleen Dedicated emergency departments; Items and services billed prior to November 2, 2015; Remote hospital campus locations; On-campus PBDs – extended to include those within 250 yards of a remote location of the hospital; Same “clinical family of services”; Provider based entities (RHC); Critical Access Hospitals; and Satellite facilities
  6. Colleen
  7. Colleen
  8. Kyle
  9. (Kyle)
  10. (Kyle)
  11. (Colleen)
  12. (Colleen)
  13. (Collen)
  14. (Collen)
  15. (Ross)
  16. (Ross)
  17. (Colleen) No alternate payment system? Can’t pay hospital under MPFS if billed on UB? -outpatient therapy? -kidney disease patient education? -vaccines?
  18. (Colleen)
  19. (Colleen)
  20. (Colleen)
  21. (Colleen) Colleen’s notes: Page 45688 (midway, 3d column): “the Act does not specify that the off-campus outpatient departments of a provider are no longer considered a PBD part of the hospital.”
  22. (Colleen) Colleen’s notes: Prohibition against unbundling outpatient services: 410.42 (CMS could change reg for this, but also statutory – 1862(a)(14) [1395y] -AMR – probably will apply b/c “performing supplier” is hospital, billing supplier is physician and hospital does not furnish 75% of its services through the physician group nor does it furnish the diagnostic test in the physician group’s office (it is a hospital outpatient department) RIPE FOR COMMENT!
  23. (Colleen) Does new clinic drop off the hospital’s cost report? If so, when? Likely no termination of child site until filed cost report. Will timing be such that CMS fixes its billing issues (allowing a non-excepted PBD to bill Medicare on a UB but be paid under MPFS) so that PBD can go back to true PBD/OPPS status and remain 340B eligible? Colleen’s notes: Prohibition against unbundling outpatient services: 410.42 (CMS could change reg for this, but also statutory – 1862(a)(14) [1395y] -AMR – probably will apply b/c “performing supplier” is hospital, billing supplier is physician and hospital does not furnish 75% of its services through the physician group nor does it furnish the diagnostic test in the physician group’s office (it is a hospital outpatient department) RIPE FOR COMMENT!
  24. (Ross)
  25. (Ross)
  26. (Kyle)
  27. (Kyle)
  28. (Kyle)
  29. (Kyle) – other considerations – if billed under doc MPFS, can the facility really distribute drugs HRSA enrollment pulls from CMS cost report electronically; need a fix
  30. (Ross w/ Colleen and Kyle Comment)
  31. (Ross w/ Colleen and Kyle Comment)
  32. (Kyle)
  33. Kyle