When we started the provider based rule, it was very clear that we hospitals were going to have to file an application for each one of our provider based things and get approval from CMS.That's where we started. You would have to file, make a request, and then they would approve it. Read this expert information provided by our speaker in a healthcare event.
Now, as we went through the years, CMS, somebody at CMS woke up. It said, “Wait a minute, guys. We're going to get 20, 30,000 of these applications. We are not in the position to process them.” So they shifted it. They turned it around the other way. In other words, they said, “Well, we're not going to approve this for you but if we ask you you have to be ready to show that you do meet all these criteria.”
So it went from an affirmative process for CMS to verify. And it went over to the fact that well maybe filing an attestation is enough to ensure healthcare compliance. Or maybe you don’t even have to do anything as long as you're meeting all the rules, okay?
Now, if you want to see this voluntary attestation process, see program memorandum A030. If you are today developing provider based clinics, get a formal determination. Get it in writing. That way, there's not going to be any question.
Now, the interesting thing about this rule is the penalties generally involve just recoupment of any overpayments through the differentials between freestanding and provider based. But other than that, this is kind of a strange rule.
Our expert in a health system conference recommended the four main items that you have to be worried about under the provider based rules. First of all, qualifying and the application and/or attestation process. So one of the things you have to decide relative to your hospital and any provider based operations is number one, well do we qualify, do we meet all of the rules and regulations?
And sometimes it's very straightforward to say yes. In other cases, it's kind of like well, I think we are. But you know, we've got this contract. And we've got this thing over here. It can become difficult to know if you do qualify appropriately and/or meet all of the criteria.
Now, in the meantime, you have to make a decision, “Do I file the formal application and get approval or do I just file an attestation that says, basically we hospital are meeting all of the rules or do we just do nothing?” You could take anyone of those three approaches. We would not suggest the latter.
But at least do an attestation and verify that you indeed do qualify and you're meeting all of the regulations. Again, if you're establishing something new today, we definitely would recommend file the application. Get approval. And it'll probably have to go both into your fiscal intermediary and the regional office.
There are certain things you're not allowed to do under this rule. One of the prohibitions is under arrangements as per healthcare rules . You can't do anything under arrangements. Now, the sad part about that statement in the code of Federal Regulations is it's very brief. And nobody has explained it. What does it mean? Because there other places in the code of Federal Regulations where you are allowed to do things under arrangements. So this is a very big question, okay? We don’t know exactly what it means.
There are also prohibitions relative to management contracts. But we would challenge you to read that part of the CFR that talks about management contracts and figure out exactly what CMS is trying to say.
There's also a prohibition although there's an exception for joint ventures, joint ventures because being provider based means that you are truly, fully integrated into the hospital which means the hospital owns you 100%. Not there is an exception where you can have a joint venture as long as it's on your campus if you are the main provider.
There are certain things you must do. And one of those obligations has to do with off campus clinics. And Medicare guidelines made it very clear. And CMS made it very clear that you have to have direct physician supervision for off campus operations. And we've been operating under that directive ever since 2000.
Now, the one difference that has come up just recently is that can a midlevel, can a nurse practitioner, you might have an off campus clinic where you have nurse practitioners maybe a physician assistant that staff this off campus clinic. And they provide all of the services under their state scope of practice rules and all those other stuff.
There are also some other obligations. Notice with two copayments of your off campus. And then there are some requirements relative to having healthcare guidelines or policies and procedures relative to EMTALA the Emergency Medical and Labor Act.
Now here's another one where CMS has not made it clear as to what we're supposed to do. The Code of Federal Regulation says basically if there's any significant substantive change that might have effect provider based status, you're to report it. But to whom do you report it? When do you report it? How does it fit into all of the staff with the CMS 855 forms? So we have a lot of questions there as well.
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