Provider-Based Rule (PBR)

Information Toolkit

Provided As a Courtesy By:

Abbey & Abbey, Consultants, Inc.

 

The following documents and/or Internet links provide the various documents that have addressed the whole “Provider-Based Rule” for Medicare.  This Rule has, and continues to undergo modification and significant interpretations.  Confusion continues to surround the precise interpretation of a number of situations relative to the Provider-Based Rule.  Also, CMS guidance continues to morph to some degree on interpretation and requirements. 

 

A major change process (CMS claims it is only a clarification) has occurred with physician supervision requirements.  Physician supervision is now the minimum supervisory requirement for virtually all outpatient therapeutic services regardless of where performed in the hospital setting.  This change process started in CY2008 and has continued through the present.  See the Federal Register entries provided below.

 

On November 2, 2015 the Bipartisan Budget Act of 2015 (BBA 2015) was signed into law.  Section 603 provides for reduced payment to off-campus provider-based clinics and operations starting January 1, 2107.  Off-campus provider-based clinics/operations that were recognized prior to the enactment of this law will continue to receive full payment, that is, full payment through split-billing (filing both a 1500 and UB04).

 

Notes:

 

1.    CMS will need to codify the provisions in BBA 2015, Section 603 through the National Public Rule Making (NPRM) process, that is, through the Federal Register.

2.    Anticipate also that there will be significant subregulatory guidance that will also have to be issued.

 

Starting January 1, 2016, CMS now requires hospital to use the PO modifier on the UB-04 for off-campus provider-based clinics/operations that receive payment through the OPPS or APCs.  For professional claims, that is the 1500, there is a new place of service, POS=19, for off-campus hospital outpatient services.  POS=22 has been modified to correlate with POS=19.  POS=22 addresses on-campus hospital outpatient services.  CMS is collecting data to determine the relative costs for providing services through provider-based clinics/operations.

 

Notes:

 

1.    See the document below concerning the use of the PO modifier.  Because this modifier is to be used for services payable under the OPPS through APCs, there may be some subtle compliance challenges.  APCs now have Comprehensive APCs (C-APCs) that may bundle certain services (e.g., laboratory) into the APC payment even though there are separate fee schedule payment mechanisms.

2.    How CMS is going to statistically process the data that is collected is still to be enunciated by CMS.  The development of cost data will probably take several years.

3.    Hospital chargemaster and cost reporting personnel should assess proper revenue code assignment relative to the cost-to-charge ratios (CCRs) developed through the cost report.  If improper CCRs are being used by CMS to convert provider-based clinic charges into what CMS thinks are the costs, then future decisions concerning payment could become skewed.

 

Resource Documents

 

The following documents provide the resources to read and understand this rule.  Note that the documents need to be read in the context of their date of issuance since this is an evolving rule.  As much as possible the information provides any sort of date context within which the documents should be viewed.

 

Clicking on the hyperlinks will either provide you with the document from this web site or take you to a web site (CMS generally) from which the document can be obtained.

 

 

  1. PM A-99-24 – This Program Memorandum is a re-issue of the infamous PM A-96-7.  The latter PM was issued by HCFA relative to their concern about the proliferation of “Hospital-Based Clinics” and the criteria that should be met by these clinics.  Note:  This PM addresses exclusively the issue of Provider-Based Clinics which has now become one aspect of many other aspects relative to the Provider-Based Rule.  Note also that all of the criteria in this PM were gathered from various sources most of which have no basis in the CFR (Code of Federal Regulations).

 

  1. April 7, 2000 Federal Register PBR Entries – This document consists of the Preamble and CFR additions/changes section relating to the Provider-Based Rule.  This represents the beginning of the formalization of PBR.  Note:  This is the APC Federal Register entry.  The placement of the proposed PBR in this FR entry seemed to imply that the PBR related to outpatient situations only.  However, this is not the case!

 

  1. November 13, 2000, Federal Register PBR Entries – This document consists of the Preamble and CFR additions/changes section relating to PBR.  This is the CY2001 APC update Federal Register.

 

  1. August 24, 2001 Federal Register PBR Entries – These are the proposed changes for the Provider-Based Rule.  These are in the proposed changes for APCs for CY2002.

 

  1. November 30, 2001, Federal Register PBR Entries – This document consists of the Preamble and CFR additions/changes section relating to PBR.  This is the CY2002 APC update Federal Register.  Recall that the CY2002 update was delayed.

 

  1. May 9, 2002 Federal Register PBR Entries – This document consists of the Preamble and CFR additions/changes section relating to PBR.  This is the proposed FY2003 DRG update Federal Register.  It is interesting that the PBR proposed changes are in the DRG update Federal Register.  This is a small indicator that the Provider-Based Rule is applicable to more than just outpatient activities.

 

  1. August 1, 2002 Federal Register PBR Entries – This document consists of the Preamble and CFR additions/changes section relating to PBR.  This is the FY2003 DRG update Federal Register.

 

  1. CFR (Code of Federal Regulation) Entries

 

    1. 42 CFR 413.65This is the main entry for the Provider-Based Rule à Read with Care!!
    2. 42 CFR 489.24 – This entry addresses Emergency related requirements.
    3. 42 CFR 410.27 – This entry addresses Outpatient Services/Supplies
    4. 42 CFR 489.2 – This entry involves Provider Agreement Definitions as used in 42 CFR 413.65
    5. 42 CFR 412.22 – This entry addresses related Inpatient PPS information

 

Note:  All of the CFR entries can be downloaded from http://www.gpo.gov/nara/cfr/index.html  Care must be taken to ensure that you have the latest, most up-to-date entry.

 

  1. Provider-Based Application and/or Attestation Forms.  There does not appear to be a national CMS approved form for either requesting a formal determination or filing an attestation with supporting documentation.  Note that as various attestation forms have been developed by the Fiscal Intermediaries of Medicare Administrative Contractors that the simple attestation statement has grown into essentially an attestation statement is what previously was considered a request for determination. 

    There are no official forms and formal rules and time periods for filing attestations and/or having the FIs/MACs process the attestations have never been issued.  Note also that with the major change in supervisory requirements the same process could occur with the attestation statements.  For instance, the distinction between off-campus and on-campus/in-the-hospital is significant for attestation filing just as this distinction was important for supervisory requirements.

     Also, the exact relationship between the attestations and filing/updating the various CMS-855 forms is not clear.  For instance, does updating the CMS-855-A and CMS-855-B on the part of hospitals meet the reporting requirements under the provider-based rule (PBR)?

 

Provider-Based Application Form with Instructions ß This is from the 2003 time period.

 

Attestation Form 1 ß This is from the 2005 time period.

 

Here is an attestation form which looks very much like a request for determination.  This is from the 2010/2011 time period:

 

Attestation Form 2

 

  1. Program Memorandum - PM A-03-030 à Dated April 18, 2003 – Effective Date:  October 1, 2002 – Implementation Date: May 1, 2003 – This PM finally provides the suggested format for the attestation form.

 

  1. OIG Reports – There are two OIG reports that indicate that there should be no such thing as provider-based in that there is a payment differential.  These reports are mainly in the context of Provider-Based Clinics.

 

    1. September, 1999 OIG Report – “Hospital Ownership of Physician Practices”
    2. August, 2000 OIG Report – “HCFA Management of Provider-Based Reimbursement to Hospitals”
    3. January, 2003 OIG Report – “Payment for Procedures in Outpatient Departments and Ambulatory Surgical Centers”

 

  1. For Provider-Based Status Clinics, the Medicare “Site-of-Service” Differential is of importance as is overall APC payment.  The latest RBRVS Federal Register entry is from December 31, 2002.  This is a delayed entry with the CY2003 RBRVS update being effective as of March 1, 2003.  You can download this FR entry from any of the GPO Gateways.  If you want the entire entry as a single file, click Total CY2003 RBRVS Federal Register.  If you want the similar APC update FR entry for CY2003, click Total CY2003 APC Federal Register.

 

  1. HCFA FAQ and HCFA MedLearn Information – The following documents were saved from CMS’s website prior to the fairly recent reorganization.  These documents no longer appear to be available and are provided as historical reference for educational purposes only!

 

    1. Provider-Based FAQs – Very interesting reading, although CMS’s answers sometimes raise additional questions!
    2. HCFA's MedLearn Chapter 6 on Provider-Based – Yes, this was included as part of the early APC training!

 

  1. CY2005 Provider-Based Rule Update

 

    1. CMS Proposed Changes to PBR - Yes, this appeared in the proposed DRG update for CY2006
    2. CMS Final Changes to PBR - And again, this appeared in the final rule for CY2006 DRGs

 

15.               For CY2009 – Supervisory Interpretation Clarification

 

a.    For the proposed and final updates to APCs for CY2009, CMS suddenly started discussing changes, which they claim to only be clarifications, in the interpretation of physician supervisory requirements for on-campus provided-based operations that are not actually in the hospital itself.  (Actually, the way the changes are phrased, these same supervisory requirements may also apply to in-hospital provider-based operations.)  The five key documents are provided below.  Note that Transmittal 87 was rescinded shortly after it was issued.  This transmittal should also be studied because it introduces a new concept, namely the physician-based clinic, which, apparently, CMS wanted to be distinct from the general concept of a freestanding clinic as enunciated in the Provider-Based Rule itself.  But, this transmittal has been withdrawn so that this concept is not currently in use, but it may indicate the direction in which CMS wants to take these rules.

b.    Provider-Based Pages from July 18, 2008 Federal Register – Yes, this is the proposed APC update Federal Register for CY2009

c.    Provider-Based Pages from November 18, 2008 Federal Register – Yes, this is the final APC update Federal Register for CY2009

d.    Transmittal 82 >>> Read with extreme care!  This appears to be a major change although CMS claims it is simply a clarification and not a change in policy.  (See Section 902 of the MMA 2003 that disallows CMS to retrospectively apply changes in policy.)

e.    Transmittal 87 <<< This transmittal was rescinded within weeks after issuance.

f.     Transmittal101 >>> Read with extreme care!  Key language was removed concerning presumption of physician supervision.

 

  1. Proposed for CY2010 - Provider-Based Pages from July 20, 2009 Federal Register – Includes Physician Supervision by Mid-Levels and ‘In the Hospital’ Definition

 

  1. Final Changes for CY2010 - Provider-Based Pages from November 20, 2009 Federal Register – Include Physician Supervision by Mid-Levels, Physician Supervision Requirement Changes and ‘In-the Hospital’ Definition

 

  1. Proposed for CY2011 - Provider-Based Pages from August 8, 2010 Federal Register – Additional Discussion and Proposed Changes for Physician Supervision

 

  1. Final Changes for CY2011 - Provider-Based Pages from November 24, 2010 Federal Register – Further Changes, Dropping the On-Campus Requirement and Special Consideration for Critical Access Hospitals (CAHs)

 

  1. Proposed Changes for CY2012 - 2012 Proposed Changes to Supervisory Requirements – CMS Discussion of Interpretations and Further Proposed Changes.

 

  1. Final Changes for CY2012 - 2012 Final Changes to Supervisory Requirements – Continuing CMS Discussion and Changes Relative To the Supervisory Requirements. 

 

    1. An Extended Form of the APC Panel Will Determine Supervisory Levels If Other Than Direct Physician Supervision.
    2. The Default For All Provider-Based Departments (PBDs) Is Direct Physician Supervision.
    3. Generally, Services Paid Through The MPFS (Medicare Physician Fee Schedule) Are Not Subject To Therapeutic Supervision Requirements.  See Physical Therapy, Occupational Therapy, Speech Language Pathology, Medical Nutrition Therapy and the Like.

 

  1. Proposed Changes for CY2013 - 2013 Proposed Changes to Supervisory Requirements – Continuing Discussion – Extending Non-Application to CAHs and Small Rural Hospitals

 

  1. Final Changes for CY2013 - CY2013 Final Changes to Supervisory Requirements – Final Changes for CY2013.  Relatively Minimal Discussions

 

  1. Proposed Physician Supervision Changes for CY2014 - CY2014 Proposed Changes to Supervisory Requirements

 

  1. Final Physician Supervision Changes for CY204 - CY2014 Final Changes to Supervisory Requirements

 

  1. 2016 Place of Service Listing - POSListing2016PlaceOfService  Note POS=19 and POS=22.

 

  1. PO Modifier FAQs - POModifierFAQs  Note that the PO modifier is used only for services that are paid under OPPS/APCs.

 

  1. Section 603 of BBA 2015 - BBA2015Section603

 

  1. Section 603 CBO Estimates of Savings - hr1314.pdf

 

  1. BBA 2015 – Summary of Sections -  CPRT-114-RU00-D001.pdf

 

 

  1. Other Related Resources

 

    1. See RBRVS Update Federal Registers
    2. See APC Update Federal Registers
    3. See BIPA – Beneficiary Improvement & Protection Act – 2000 à Section 404
    4. See Section 2446 Provider Reimbursement Manual
    5. See Section 2004 State Operations Manual
    6. See EMTALA Law and Related Federal Register Entries – Proposed Changes May 9, 2002 with Final Changes September 9, 2003

 

  1. Articles and Related Resources
    1. Manson, L.A. and Baptist, A.J. – “Assessing the Cost-Effectiveness of Provider-Based Status” – Healthcare Financial Management, August 2002, Vol. 56, No. 8, Pages 52-58.
    2. Becker, S. – “HCFA Issues Guidance and Answers Questions Related to the Provider-Based Status of Facilities” – Health Care Law Monitor, November, 2000, Pages 11-21.
    3. Glover, R.L. – “Recent Changes to EMTALA Requirements for Provider-Based Entities” – Health Care Law Monitor, June, 2000, Pages 19-22.
    4. Ferman, J. – “Final Medicare Provider-Based Status Rule” – Healthcare Executive, July-August, 2000, Vol. 15, No. 4, Pages 54-55.
    5. Gundling, R.L. – “Criteria for Provider-Based Status Should Be Examined” – Healthcare Financial Management, December, 2000, Vol. 54, No. 12, Pages 66-67.
    6. Reynolds, M. – “HCFA’s New Restrictions on the Operation of Hospital Outpatient Facilities” – Journal of Health Law, 2000 Autumn, Vol. 33, No. 4, Pages 615-627.

 

Abbey & Abbey, Consultants, Inc.

Provides Provider-Based Rule Audits and Reviews For Hospitals & Hospital Systems

Contact Information:

Telephone – (515) 232-6420

E-Mail – Duane@AACIWeb.com

 

This site was last updated on March 12, 2016.