CMS finalizes changes to physician supervision requirements for hospitals

CMS adopted a new standard for direct supervision of therapeutic services provided "in a hospital" or on-campus outpatient department as part of the 2010 OPPS final rule, released October 30.

In the rule, CMS defined "in the hospital" and clarified that the supervision requirements extend to all outpatient services provided "in the hospital", and not just those in provider based departments.  They also discussed "immediately available" extensively and loosened restrictions that prevented nurse practitioners, physician's assistants and other non-physician practitioners (NPPs) from acting as the supervising provider.  Supervision requirements in off-campus departments remained essentially the same, with the exception of the expansion for NPPs. 

In the hospital

CMS defined "in the hospital" as in the main buildings that are under the ownership and control of the hospital, operated by the hospital, and for which the hospital bills services under its billing number.  For services "in the hospital" or provided in on-campus provider-based departments, outpatient therapeutic services must be provided under the direct supervision of a physician as defined in amended regulations at 42 C.F.R. 410.27. 

Under the revised regulations for on-campus services, direct supervision requires the supervising practitioner to be "on the same campus" where the outpatient service is being rendered, rather than in the same department, as previously required. In the proposed rule, CMS did not formally define "on the campus," but indicated that it would require the practitioner be in space meeting the definition of "in the hospital." However, based on comments submitted by providers, CMS broadened this interpretation in the final rule, stating:

We agree with the commenters that allowing the supervising physician to be in nonhospital space on the campus could make it easier for a supervising physician or nonphysician practitioner to respond immediately. Therefore, we believe it would be appropriate to allow the supervising physician or non-physician practitioner to be located anywhere on the campus of the hospital, as long as he or she was immediately available to furnish assistance and direction throughout the performance of the procedure. (74 Federal Register 60583)

That means physicians and non-physician practitioners providing supervision may be in a private physician's office, a co-located hospital, or hospital-operated provider or supplier-such as a skilled nursing facility, end-stage renal disease facility, home health agency, or other nonhospital space on the hospital's campus.  However, for off-campus departments, the definition of direct supervision continues to require the supervising practitioner be located in the department where the services are being rendered. 

Changing the requirement to allow the supervising provider to be anywhere on the campus is going to be helpful for those departments that are on hospital campuses, but it is important to remember they must continue to be "immediately available" within the new stricter guidelines also discussed in the rule.

Immediately available

CMS made some important clarifications regarding the meaning of "immediately available" in the preamble that will require attention by providers to ensure compliance.

CMS specified that the supervising physician must be able to step in and take over the procedure at any point, not merely provide assistance in an emergency.  CMS reiterated that the practitioner providing supervision does not need to be of the same specialty as the procedure or service that is being performed. However, they clarified that the practitioner must have, within his or her state scope of practice and hospital-granted privileges, the ability to personally step in and perform the service or procedure.

Additionally, in order to be considered "immediately available" the person must be close enough to be able to step in immediately, not simply anywhere on the campus. CMS declined to specify a distance or time that would be considered immediately available, but did say the supervising practitioner could not be so physically distant that it prevented them from "intervening right away".  They also indicated that an hour would be inappropriate.

This leaves a wide gap from seconds away, which doesn't seem required, to an hour away, which is too long.  Providers must work within this framework to develop policies for supervision for the individual services they provide.  CMS further indicated "we would expect that these bylaws and policies would ensure that the services are being supervised in a manner commensurate with the complexity of the service."

Nonphysician practitioners

CMS finalized its proposal to permit physician assistants, nurse practitioners, clinical nurse specialists, certified nurse midwives, and clinical psychologists to provide direct supervision for hospital outpatient therapeutic services they are able to personally provide under their licence. One change from the proposed rule is the addition of licensed clinical social workers. CMS agreed with commenters that licensed clinical social workers should also be included in the list of non-physician practitioners allowed to provide direct supervision.

However, those changes do not apply until 2010 and anyone who has been using non-physician practitioners for supervision should consider any compliance ramifications, particularly for 2009.  Additionally, this expansion of practitioners qualified to provide supervision does not extend to the new benefits for cardiac rehab, intensive cardiac rehab and pulmonary rehab that will be effective for 2010.  These programs require supervision by an MD or DO with special qualifications.

The provider friendly changes to the direct supervision requirements for 2010 come, in part, as a response to commenters, including the American Hospital Association (AHA), who complained to CMS that the rules were confusing, unclear and onerous.  In the 2009 proposed rule, CMS discussed physician supervision requirements, and finalized certain interpretations that many providers felt were a departure from prior requirements. 

In particular, hospitals had previously understood that direct supervision on a campus of a hospital was generally met because of the presence of physicians on the campus, without a need to be specifically concerned with supervision for each department or service they rendered.  However, in 2009, CMS stated that it had always been their intention that direct supervision be met for all outpatient department services, including those on campus.  The regulation in 2009 required the physician to be located on the premises of the location where the services were rendered. CMS clarified that this meant the supervising physician must have been located in the department to meet outpatient supervision requirements in 2009 and prior years; a drastic change from the understanding of many hospitals.  

Hospital administrators had been worried that the OIG, recovery audit contractors, Medicare administrative contractors, and other auditors might go back and audit prior outpatient services for compliance with this seemingly new standard and potentially take back large amounts of money.   The AHA and others specifically asked for a moratorium on past enforcement due to the confusion about the requirements.  CMS agreed that past requirements may have been confusing and stated they will not sanction audits or reviews of the supervision requirements for 2000-2008. However, they also stated that the requirements were clarified for 2009 and they would not prevent enforcement action based on those clarifications for services rendered in 2009.

This makes an even stronger case for concern about enforcement in 2009 because CMS specifically singles out this year. Providers should take a close look at their risk for that year in light of the clarifications published in the 2009 rule. 

Kimberly Anderwood Hoy, JD, CPC, is the director of Medicare and compliance for HCPro, Inc.

She serves as lead consultant for HCPro's Revenue Cycle Institute and is the lead instructor for HCPro's Medicare Boot Camp® - Hospital Version. - which covers Medicare coverage, billing, coding and payment for hospital outpatient and inpatient services.

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