AAMC Letter Requesting Delay
in Provider-Based Criteria
August 25, 2000
Nancy-Ann Min DeParle
Administrator
Health Care Financing Administration
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C. 20201
Dear Ms. DeParle:
We appreciated the willingness of HCFA staff to meet with
provider representatives to discuss the provider-based designation
rule on July 24, 2000. The meeting was informative, and HCFA
staff appear willing to address a number of the concerns that
we raised.
Nonetheless, we have a number of concerns that remain. HCFA
received a detailed list of questions from the provider representatives
who attended the July 24 meeting. Even though the provider-based
criteria are slated to be effective in less than two months,
a number of issues remain unresolved. They will not be repeated
here, but as a reminder, difficult issues remain in many areas,
including those that form the heart of the regulation:
- The application process. Examples are: (1) which
entities must apply (e.g., every entity, including inpatient
departments that provide any outpatient services)?; (2)
is an application form available now?; and (3) what happens
if a provider applies for provider-based status and the
application is not processed by October 10?
- Criteria. Among the most troubling criteria are
those related to geographic location. There is much confusion
among providers about which data must be gathered to allow
a hospital to demonstrate that it qualifies. Perhaps most
importantly, we are concerned that the implementation of
what has been dubbed the "75/75 rule" may mean
that certain providers that offer services to Medicare beneficiaries
will be unable to attain hospital-based status, thus putting
into doubt whether these providers will be able to continue
offering essential services.
What remains of particular concern to us is that our discussion
on July 24 revealed that the wording of the final provider-based
regulation does not, in all cases, reflect HCFA's intent.
For instance, HCFA staff agreed that the regulation says that
all entities, including an inpatient department located within
the four walls of a hospital, must apply for provider-based
status if the department provides any outpatient services.
We were told that this was not HCFA's intent. Hospitals are
now placed in the untenable position of having to choose between
compliance with a regulatory requirement that does not reflect
agency intent, or relying on assurances that no penalties
will attach for failure to comply.
Given the many OIG and DOJ investigations which many of our
members have undergone over the past few years, and the numerous
qui tam suits that have been filed, this reassurance
by HCFA staff is insufficient. It is conceivable that a hospital
that does not follow the rules as written could be subject
to allegations that it violated the False Claims Act or other
federal laws. Both to protect providers, and to give them
an opportunity to make a good faith effort to comply with
federal rules, it is essential that in every instance when
a regulation is published as a final rule, it is an accurate
and understandable statement of the agency's implementation
of the law.
HCFA staff indicated that they are reviewing the regulation
to see what can be resolved within the context of the final
rule, since the agency is bound by that rule. While it may
be possible to clarify parts of the provider-based regulation
through the publication of Q's & A's and manual instructions,
other parts must be reproposed in the Federal Register
and rewritten to reflect HCFA's actual intent. We believe
that it is essential that the Agency delay the implementation
of the provider-based criteria for at least 6 months. This
will provide ample time to identify the sections of the final
rule that must be re-proposed and those that need additional
clarification but not new rulemaking. We would be pleased
to work with you on this endeavor.
If you wish to discuss these issues further, please feel
free to contact any of us or, alternatively, you may contact
Ivy Baer, AAMC, at 202-828-0490.
Sincerely,
Rick Pollack
American Hospital Association |
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Robert Dickler
Association of American Medical Colleges |
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Maureen McCullough,
Esq.
Catholic Health Association |
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Tom Scully
Federation of American Hospitals |
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Larry S. Gage
National Association of Public Hospitals and Health Systems |
|
Herb Kuhn
Premier |
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Edward N. Goodman
VHA, Inc. |
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