Knowledge Base Article

On July 25, 2018, CMS finally released the 2019 Proposed Rule for Outpatient Prospective Payment System (OPPS) for hospitals and Ambulatory Surgical Centers (ASCs) (link to Proposed Rule). Toward the end of the OPPS portion of the rule, there is a section titled “Proposed Nonrecurring Policy Changes” that could also be appropriately named, “Bad News for Hospital Off-Campus Provider-Based Departments.”

Background

Before discussing the proposed rule changes, let’s define some terms and examine some history concerning provider-based departments (PBDs). Provider based entities are created or acquired by the main hospital to furnish healthcare services and are under the ownership, administrative, and financial control of the main provider, in accordance with Medicare’s provider-based rules (42 CFR 413.65). PBDs may be on-campus, that is immediately adjacent to the hospital’s main buildings or within 250 yards of the main buildings, or off-campus, which are PBDs located beyond 250 yards from the main hospital buildings.

The concern over the past several years with PBDs is that they furnish the same types of services provided in a physician office setting but receive higher Medicare payments due to Medicare’s payment rules for outpatient hospital services versus physician fee schedule payments. The Medicare patient (beneficiary) payment share is also more for hospital-based services. In 2015, Section 603 of the Bipartisan Budget Act of 2015, addressed some of these concerns. The Act required “new” off-campus PBDs to be paid under a payment system other than the OPPS that would provide payments more equitable with physician office payments. “New” off-campus PBDs were those PBDs that did not furnish and bill for services prior to the date of enactment of the Act, November 2, 2015.

CMS created other exceptions to the application of Section 603 so the below entities and services are known as “excepted” provider-based departments. Excepted PBDs and excepted services continue to be paid under OPPS.

• On-campus PBDs
• “Grandfathered” off-campus PBDs – those furnishing and billing for services before November 2, 2015
• Services furnished by a dedicated emergency department

This means “non-excepted” PBDs are those new off-campus PBDs that do not meet one of the above exceptions and that will no longer be paid under OPPS.

To implement the requirements of Section 603, beginning January 1, 2017, services provided by non-excepted off-campus PBDs are paid under the Medicare Physician Fee Schedule (PFS) at special rates established for this provision. Currently, and proposed for 2019, these non-excepted services, that would previously have been paid under OPPS, are paid under the PFS at 40% of the OPPS payment rate. Providers append modifier “PN” to these non-excepted services to trigger the reduced payment rate. In addition to the reduced payment rates, OPPS packaging rules and most adjustments continue to apply to these non-excepted services – a double whammy, so to speak. Excepted off-campus PBD services are reported with modifier “PO” to allow CMS to gather data on the volume of these services, but as stated above, payment for excepted services is currently still made under the OPPS rates.

Continuing Concerns

In the proposed rule, CMS states, “the majority of hospital off-campus departments continue to receive full OPPS payment (including off-campus emergency departments and excepted off-campus departments of a hospital), which is often higher than the payment that would have been made if a similar service had been furnished in the physician office setting.” Also, CMS is extremely concerned about the continuing growth of outpatient hospital services. Despite the implementation of a prospective payment system (OPPS) in 2000 and increased packaging in recent years, “the OPPS has been the fastest growing sector of Medicare payments out of all payment systems under Medicare Parts A and B” which CMS attributes in large part to the payment differential between hospital-based services and physician office services. Here are a few quotes from the proposed rule that highlight CMS’s concerns:

“Total spending has been growing at a rate of roughly 8 percent per year under the OPPS, and total spending under the OPPS is projected to further increase by more than $5 billion from approximately $70 billion in CY 2018 through CY 2019 to nearly $75 billion.”

“We (CMS) are concerned that the rate of growth suggests that payment incentives, rather than patient acuity or medical necessity, may be affecting site-of-service decision-making. This site-of-service selection has an impact on not only the Medicare program, but also on Medicare beneficiary out-of-pocket spending.”

“A large source of growth in spending on services furnished in hospital outpatient departments (HOPDs) appears to be the result of the unnecessary shift of services from (lower cost) physician offices to (higher cost) HOPDs. We would consider these shifts in the sites of service unnecessary if the beneficiary can safely receive the same services in a lower cost setting but instead receives care in a higher cost setting.”

“One-third of the growth in outpatient volume from 2014 to 2015 was due to an increase in the number of evaluation and management (E&M) visits billed as outpatient services. This growth in part reflects hospitals purchasing freestanding physician practices and converting the billing from the Physician Fee Schedule to higher paying hospital outpatient department (HOPD) visits… From 2012 to 2015, hospital-based E&M visits per beneficiary grew by 22 percent, compared with a 1-percent decline in physician office–based visits.”

The Proposed Solutions, i.e. the Bad News

CMS is proposing to take action on several fronts to decrease what they see as unnecessary and excessive spending on services provided in off-campus PBDs.

The most significant of these proposals is capping the OPPS payment for clinic evaluation and management (E&M) visits for excepted off-campus PBDs at the PFS-equivalent rate. This means clinic visits (HCPCS code G0463) provided in excepted off-campus PBDs and currently billed with the PO modifier would be paid at the same reduced OPPS rate as those currently billed with the PN modifier by non-excepted PBDs. This would reduce the payment rate for clinic visits (G0463) in excepted off-campus PBDs from the proposed unadjusted Medicare OPPS payment rate of $116 to the reduced PFS (40% of OPPS) rate of $46. CMS also notes the beneficiary liability would correspondingly decrease from $23 to $9. This proposal is not budget-neutral and CMS estimates total savings of $760 million ($610 M Medicare saving and $150 M beneficiary savings).

A second cost-saving proposal is to expand the reduced payments for drugs purchased through the 340B Program to non-excepted off-campus PBDs. The implementation of reduced 340B drug payments last year did not affect the payments for drugs in non-excepted off-campus PBDs since they are not paid under OPPS. With this proposal, separately payable drugs (those with an OPPS status indicator of “K”) furnished and billed by non-excepted off-campus PBDs and purchased through the 340B program would be paid at ASP-22.5% for 2019 and subsequent years instead of the current payment of ASP+6%. In other words, the payment amount for SI “K” 340B drugs in non-excepted PBDs would decrease by 28.5%. Medicare would continue to pay ASP+6% for SI “K” drugs not purchased through the 340B program billed by non-expected off-campus PBDs.

In the last proposal to control increasing payments under OPPS for off-campus PBDs, CMS is proposing to limit the expansion of services in excepted off-campus PBDs. If an excepted off-campus PBD furnishes services from a clinical family of services that it did not furnish in a baseline period, those new services would be non-excepted and paid at the non-excepted reduced PFS payment rate effective January 1, 2019.

• CMS is proposing a one-year baseline period from November 1, 2014 through November 1, 2015, or one year from the first date the PBD furnished services under OPPS for those that began furnishing services after November 1, 2014.
• There are 19 clinical families of services defined by CMS and mapped to the applicable APCs in Table 32 in the Proposed Rule.

One last proposal related to PBDs that does not affect payment – YET – is the creation of a HCPCS modifier to be reported for outpatient hospital services furnished in an off-campus provider-based emergency department. Critical access hospitals (CAHs) would not be required to report this modifier.

It will be interesting to see which of these proposals for discouraging off-campus PBD services paid under OPPS will make it to the final rule. It is clear from reading the proposed rule that CMS is intent on limiting expansion and making payments more site-neutral. This is bad news for hospitals that have increased their bottom line through the expansion of off-campus services.