Provider-based billing moratorium concerns? CMS wants to hear them

Hospitals wondering about their off-campus provider-based departments will soon have some clarification on their ability to expand or relocate and how the departments that are under construction will be treated by CMS. The proposals for implementing the moratorium will soon be presented through the 2017 Outpatient Prospective Payment System (OPPS) Proposed rule expected to be published in July of this year, CMS announced.

Section 603

Congress amended the Medicare statute to provide special payment treatment for off-campus outpatient departments of hospitals the Bipartisan Budget Act of 2015 (P.L. 114-74) at section 603 (see Congress’s new provider-based provision—hospitals face significant changes and many unanswered questions, Health Law Daily, December 10, 2015). Per the new law, as of January 1, 2017, OPPS payments to hospitals will not be available for the vast majority of services furnished by “new” off-campus outpatient departments of a hospital. There are exceptions to this ban, including items and services furnished by dedicated emergency departments, as defined in 42 C.F.R. sec. 489.24(b), as well as off-campus departments of a hospital that were billing Medicare under the OPPS system prior to the date of the new law’s enactment, November 2, 2015, which are “grandfathered” under the new law.

Items or services furnished at off-campus locations failing to meet the requirements for OPPS reimbursement will be reimbursed in accordance with the otherwise applicable payment systems as long as the requirements for reimbursement under those systems are met. The statute states that each hospital will be required to provide CMS with such information as the Secretary deems necessary to implement the new provision. There will be no administrative or judicial review of: (1) the determination of the particular items or services subject to the new rule; (2) the payment systems that will be applied in the absence of OPPS; and (3) the “determination of whether a department of a provider” satisfies the definition of off-campus outpatient department of provider in the statute.


Facilities affected by this Proposed rule may submit comments and questions prior to the release of the Proposed rule to CMS at Although CMS cannot provide guidance prior to the release of the Proposed rule, it invited interested parties to submit scenarios and areas of concern. Following the issuance of the Proposed rule, there will also be the standard notice and comment period as part of the rule-making process prior to the issuing of the Final rule.