[Code of Federal Regulations]
[Title 42, Volume 2]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR413.106]

[Page 570-573]
 
                         TITLE 42--PUBLIC HEALTH
 
                             HUMAN SERVICES
 
PART 413--PRINCIPLES OF REASONABLE COST REIMBURSEMENT; PAYMENT FOR END-STAGE RENAL DISEASE SERVICES; PROSPECTIVELY DETERMINED PAYMENT RATES FOR SKILLED NURSING 
FACILITIES--Table of Contents
 
                 Subpart F--Specific Categories of Costs
 
Sec. 413.106  Reasonable cost of physical and other therapy services furnished under arrangements.

    (a) Principle. The reasonable cost of the services of physical, 
occupational, speech, and other therapists, and services of other health 
specialists (other than physicians), furnished under arrangements (as 
defined in section 1861(w) of the Act) with a provider of services, a 
clinic, a rehabilitation agency or a public health agency, may not 
exceed an amount equivalent to the prevailing salary and additional 
costs that would reasonably have been incurred by the provider or other 
organization had such services been performed by such person in an 
employment relationship, plus the cost of other reasonable expenses 
incurred by such person in furnishing services under such an 
arrangement. However, if the services of a therapist are required on a 
limited part-time basis, or to perform intermittent services, payment 
may be made on the basis of a reasonable rate per unit of service, even 
though this rate may be greater per unit of time than salary-related 
amounts, if the greater payment is, in the aggregate, less than the 
amount that would have been paid had a therapist been employed on a 
full-time or regular part-time salaried basis. Pursuant to section 17(a) 
of Public Law 93-233 (87 Stat. 967), the provisions of this section are 
effective for cost reporting periods beginning after March, 1975.
    (b) Definitions--(1) Prevailing salary. The prevailing salary is the 
hourly salary rate based on the 75th percentile of salary ranges paid by 
providers in the geographical area, by type of therapy,

[[Page 571]]

to therapists working full time in an employment relationship.
    (2) Fringe benefit and expense factor. The standard fringe benefit 
and expense factor is an amount that takes account of fringe benefits, 
such as vacation pay, insurance premiums, pension payments, allowances 
for job-related training, meals, etc., generally received by an employee 
therapist, as well as expenses, such as maintaining an office, 
appropriate insurance, etc., an individual not working as an employee 
might incur in furnishing services under arrangements.
    (3) Adjusted hourly salary equivalency amount. The adjusted hourly 
salary equivalency amount is the prevailing hourly salary rate plus the 
standard fringe benefit and expense factor. This amount is determined on 
a periodic basis for appropriate geographical areas.
    (4) Travel allowance. A standard travel allowance is an amount that 
is recognized, in addition to the adjusted hourly salary equivalency 
amount.
    (5) Limited part-time or intermittent services. Therapy services are 
considered to be on a limited part-time or intermittent basis if the 
provider or other organization furnishing the services under 
arrangements requires the services of a therapist or therapists on an 
average of less than 15 hours per week. This determination is made by 
dividing the total hours of services furnished during the cost reporting 
period by the number of weeks in which the services were furnished in 
the cost reporting period regardless of the number of days in each week 
in which services were performed.
    (6) Guidelines. Guidelines are the amounts published by CMS 
reflecting the application of paragraphs (b) (1) through (4) of this 
section to an individual therapy service and a geographical area. Other 
statistically valid data may be used to establish guidelines for a 
geographical area, provided that the study designs, questionnaires and 
instructions, as well as the resultant survey data for determining the 
guidelines are submitted to and approved in advance by CMS. Such data 
must be arrayed so as to permit the determination of the 75th percentile 
of the range of salaries paid to full-time employee therapists.
    (7) Administrative responsibility. Administrative responsibility is 
the performance of those duties that normally fall within the purview of 
a department head or other supervisor. This term does not apply to 
directing aides or other assistants in furnishing direct patient care.
    (c) Application. (1) Under this provision, CMS will establish 
criteria for use in determining the reasonable cost of physical, 
occupational, speech, and other therapy services and the services of 
other health specialists (other than physicians) furnished by 
individuals under arrangements with a provider of services, a clinic, a 
rehabilitation agency, or public health agency. It is recognized that 
providers have a wide variety of arrangements with such individuals. 
These individuals may be independent practitioners or employees of 
organizations furnishing various health care specialists. This provision 
does not require change in the substance of these arrangements.
    (2) If therapy services are performed under arrangements at a 
provider site on a full-time or regular part-time basis, the reasonable 
cost of such services may not exceed the amount determined by taking 
into account the total number of hours of services furnished by the 
therapist, the adjusted hourly salary equivalency amount appropriate for 
the particular therapy in the geographical area in which the services 
are furnished and a standard travel allowance.
    (3) If therapy services are performed under arrangements on a 
limited part-time or intermittent basis at the provider site, the 
reasonable cost of such services is evaluated on a reasonable rate per 
unit of service basis, except that payment for these services, in the 
aggregate, during the cost reporting period, may not exceed the amount 
that would be determined to be reasonable under paragraph (c)(2) of this 
section, had a therapist furnished the provider or other organization 
furnishing the services under arrangements 15 hours of service per week 
on a regular part-time basis for the weeks in which services were 
furnished by the non-employee therapist.

[[Page 572]]

    (4) If an HHA furnishes services under arrangements at the patient's 
residence or in other situations in which therapy services are not 
performed at the provider's site, the reasonable cost of such services 
is evaluated as follows:
    (i) Time records available. If time records of HHA visits are 
maintained by the provider, the reasonable cost of such services is 
evaluated on a unit-of-time basis, by taking into account the total 
number of hours of service furnished by the therapist, the adjusted 
hourly salary equivalency amount appropriate for the particular therapy 
in the geographical area in which the services are furnished, and a 
standard travel allowance for each visit. However, if the travel time of 
the therapist is accurately recorded by the therapist, and approved and 
maintained by the provider, the reasonable cost of such services may be 
evaluated, at the option of the provider, by taking into account the 
total number of hours of service furnished by the therapist, including 
travel time, and the adjusted hourly salary equivalency amount 
appropriate for the particular therapy in the geographical area in which 
the services are furnished. This option does not apply to services 
furnished by HHAs under arrangements with providers other than HHAs.
    (ii) No time records available. If time records are unavailable or 
found to be inaccurate, each HHA visit is considered the equivalent of 
one hour of service. In such cases, the reasonable cost of such services 
is determined by taking into account the number of visits made by the 
therapist under arrangements with such agency, the adjusted hourly 
salary equivalency amount appropriate for the particular therapy in the 
geographical area in which the services are furnished, and a standard 
travel allowance.
    (iii) Limited part-time or intermittent services. If under paragraph 
(c)(4) (i) or (ii) of this section, the provider required therapy 
services on an average of less than 15 hours per week, the services are 
considered limited part-time or intermittent services, and the 
reasonable cost of such services is evaluated on a reasonable rate per 
unit of service basis as described in paragraph (c)(3) of this section.
    (5) If therapy services are performed in situations where 
compensation to a therapist employed by the provider is based, at least 
in part, on a fee-for-service or on a percentage of income (or 
commission), the guidelines will apply. The entire compensation will be 
subject to the guidelines in cases where the nature of the arrangements 
is most like an under ``arrangement'' situation, although technically 
the provider may treat the therapists as employees. The intent of this 
section is to prevent an employment relationship from being used to 
circumvent the guidelines.
    (6) These provisions are applicable to individual therapy services 
or disciplines by means of separate guidelines by geographical area and 
apply to costs incurred after issuance of the guidelines but no earlier 
than the beginning of the provider's cost reporting period described in 
paragraph (a) of this section. Until a guideline is issued for a 
specific therapy or discipline, costs are evaluated so that such costs 
do not exceed what a prudent and cost-conscious buyer would pay for the 
given service.
    (d) Notice of guidelines to be imposed. Prior to the beginning of a 
period to which a guideline will be applied, a notice will be published 
in the Federal Register establishing the guideline amounts to be applied 
to each geographical area by type of therapy.
    (e) Additional allowances. (1) If a therapist supervises other 
therapists or has administrative responsibility for operating a 
provider's therapy department, a reasonable allowance may be added to 
the adjusted hourly salary equivalency amount by the intermediary based 
on its knowledge of the differential between therapy supervisors' and 
therapists' salaries in similar provider settings in the area.
    (2) If a therapist performing services under arrangements furnishes 
equipment and supplies used in furnishing therapy services, the 
guideline amount may be supplemented by the cost of the equipment and 
supplies, provided the cost does not exceed the amount the provider, as 
a prudent and cost-conscious buyer, would have been able to include as 
allowable cost.

[[Page 573]]

    (f) Exceptions. The following exceptions may be granted but only 
upon the provider's demonstration that the conditions indicated are 
present:
    (1) Exception because of unique circumstances or special labor 
market conditions. An exception may be granted under this section by the 
intermediary if a provider demonstrates that the costs for therapy 
services established by the guideline amounts are inappropriate to a 
particular provider because of some unique circumstances or special 
labor market conditions in the area.
    (2) Exception for services furnished by risk-basis HMO providers. 
For special rules concerning services furnished to an HMO's enrollees 
who are Medicare beneficiaries by a provider owned or operated by a 
risk-basis HMO (see Sec. 417.201(b) of this chapter) or related to a 
risk-basis HMO by common ownership or control (see Sec. 417.250(c) of 
this chapter).
    (3) Exception for inpatient hospital services. Effective with cost 
reporting periods beginning on or after October 1, 1983, the costs of 
therapy services furnished under arrangements to a hospital inpatient 
are excepted from the guidelines issued under this section if such costs 
are subject to the provisions of Sec. 413.40 or part 412 of this 
chapter. The intermediary will grant the exception without request from 
the provider.
    (g) Appeals. A request by a provider for a hearing on the 
determination of an intermediary concerning the therapy costs determined 
to be allowable based on the provisions of this section, including a 
determination with respect to an exception under paragraph (f) of this 
section, is made to the intermediary only after submission of its cost 
report and receipt of the notice of amount of program reimbursement 
reflecting such determination, in accordance with the provisions of 
subpart R of part 405 of this chapter.

[51 FR 34793, Sept. 30, 1986, as amended at 63 FR 5139, Jan. 30, 1998]