Notice 2015-46 provides guidance to charitable hospitals on how to comply with the requirement in Reg. §1.501(r)‑4(b)(1)(iii)(F) that a hospital must include a provider list in its financial assistance policy (FAP). The list must include all providers, other than the hospital itself, that deliver care in the facility and specify whether the individual providers are or are not covered by the FAP.
Quite often emergency care is provided in the hospital by providers who are not part of the hospital. The issue that arose was whether the hospital’s FAP had to include those individuals as well.
The notice explains how the resolved this issue as follows:
Under the final regulations, a hospital facility's FAP must apply to all emergency and medically necessary care provided in the hospital facility only to the extent the care is provided by the hospital facility itself or a substantially-related entity. See §1.501(r)‑4(b)(1)(i); §1.501(r)‑1(b)(28) (defining “substantially-related entity” generally as a partnership in which the hospital organization owns a capital or profits interest, or a disregarded entity of which the hospital organization is the sole member or owner, that provides emergency or other medically necessary care in the hospital facility unless the provision of such care constitutes an unrelated trade or business).
However, the Treasury Department and the IRS also agreed with commenters that, because patients are typically unaware of the relationships between a hospital facility and the healthcare providers working in the hospital facility, it is important for a hospital facility's FAP to clearly disclose which services provided in the hospital facility are covered by the FAP and which are not. Such information may be valuable not only for patients seeking to understand what financial assistance they may qualify for individually, but also for those seeking to understand the health needs of the community and the resources available to meet them. Therefore, in response to comments and in order to provide transparency for patients and communities, the final regulations require a hospital facility's FAP to include a list of providers, other than the hospital facility itself, delivering emergency or other medically necessary care in the hospital facility and specify which providers are covered by the hospital facility's FAP and which are not (“provider list”). See §1.501(r)‑4(b)(1)(iii)(F).
However these requirements lead to new concerns on the part of the hospitals. For instance, in a large hospital the full list could change frequently as providers move or change their practices and/or change the nature of their relationship with the hospital. The question also arose regarding whether the provider list could be a separate document or if it had to be directly incorporated into the FAP. Finally, the notice indicated some had asked if the provider list could specific the emergency or other medically necessary care covered by the FAP by department if all providers in the department or service are covered by the hospital’s FAP.
In response to these comments the IRS has provided additional guidance. In terms of the provider list the IRS provided the following clarifications:
- A hospital may list the names of individual doctors, practice groups, or any other entities that are providing emergency or medically necessary care in the hospital facility by the name used either to contract with the hospital or to bill patients for care provided. “For example, if all of the doctors in a practice group that provides emergency or other medically necessary care in the hospital facility are covered by the hospital facility's FAP, the hospital facility may include the name of the practice group, rather than the name of each individual doctor, in its provider list and indicate which services of the practice group are covered by the FAP.”
- Instead, a hospital may specify providers by reference to a department or a type of service if it is made clear which services and providers are covered. “For example, if all providers of all services in a department of a hospital facility are covered by the FAP, the hospital facility's FAP may include the department, rather than the specific names of doctors or practice groups, in its provider list and indicate that the services in that department are covered by the FAP.”
- If none of the providers for a department are covered by the hospital’s FAP, the list may include the department and simply indicate that none of the services provided in that department are covered by the FAP.
The ruling goes on to describe how a hospital should handle the situation where a provider is covered by the FAP in some, but not all situations. In that case the hospital must describe the circumstances under which the care delivered by the provider will or will not be covered by the FAP. The notice provides the following details:
For example, if the hospital facility has a contract with an outside provider to deliver certain specialty services in the hospital facility's emergency room that are covered by the FAP but other emergency or medically necessary care delivered in the hospital facility by the provider is not covered by the FAP, the hospital facility must describe the circumstances in which the outside provider's services will and will not be covered by the FAP.
The notice makes clear that while the hospital does have to indicate whether a provider is covered by its FAP, it is not under an obligation to indicate whether that provider’s services may be covered under another entity’s financial aid program.
The list of providers can be maintained in a list separate from the FAP but if the hospital does so, the FAP must state that the list is to be found in a separate document and explain how to obtain that list free of charge, both online and on paper.
While an authorized body of the hospital must adopt the FAP, if the only change to the FAP is to update the provider list the revised FAP does not need to adopted by an authorized body of the hospital to be considered established by the organization.
Minor errors and omissions in the provider list will not be considered a failure to meet the requirements of §501(r) are promptly corrected. If that happens the hospital is not required to disclose the omission or error.