 |
|
| Sample Newsletters | MarketPlace AIS Products & Services |
|
AIS's Health Business Daily
Featured Story, June 28, 2010 CMS Gives ‘Mixed Signals’ in New Physician Supervision Guidance Reprinted from REPORT ON MEDICARE COMPLIANCE, the nation's leading source of news and strategic information on false claims, overpayments, compliance programs, billing errors and other Medicare compliance issues. By Nina Youngstrom, Managing Editor (nyoungstrom@aishealth.com) CMS has again put its pen to paper on the outpatient supervision requirement, this time fleshing out its expectations for supervising physicians’ competence and availability. In Medicare transmittal 128, which updates the outpatient prospective payment system (OPPS), CMS adds a fair amount of new language on the physician and nonphysician practitioner (NPP) supervision requirement.
Some lawyers think the transmittal contradicts April guidance posted on the CMS website, muddying the waters of a mandate already perceived as unreasonable.
“CMS is giving mixed signals,” says Portland, Ore., attorney Bernie Thurber, with Davis Wright Tremaine. The physician supervision requirement “is like a giant pendulum swinging back and forth and CMS can’t make up its mind.”
The 2010 OPPS regulation, which took effect in January 2010, requires physician supervision of outpatient diagnostic and therapeutic services and allows NPPs to supervise outpatient therapeutic services. Outpatient therapeutic services require direct supervision, which means the physician must be on campus and immediately available the whole time services are provided. CMS has defined “immediately available” as meaning “without interval of time.” Lawyers have interpreted this to mean supervising physicians can’t be performing another procedure that can’t be interrupted and shouldn’t have to sprint to prevent harm from coming to the patient in need of intervention.
Three Levels of Supervision Exist
There are three levels of supervision for outpatient diagnostic tests, according to the Medicare physician fee schedule: direct; general (which means the physician’s presence is not required when services are performed); and personal (which means the physician has to be in the same room).
The straightforward part of the transmittal emphasizes the limits of NPP supervision. NPPs can supervise only outpatient therapeutic services. CMS states that “diagnostic X-ray and other diagnostic tests must be furnished under the appropriate level of supervision by a physician.” While some types of NPPs may order and perform diagnostic tests without supervision, they can’t supervise diagnostic tests when performed by other hospital staff, CMS asserts.
Then CMS takes a stab at explaining the meaning of “immediately available” for purposes of satisfying the direct supervision requirement for outpatient therapeutic services. “CMS has not specifically defined the word ‘immediate’ in terms of time or distance; however, an example of a lack of immediate availability would be situations where the supervisory physician is performing another procedure or service that he or she could not interrupt. Also, for services furnished on-campus, the supervisory physician may not be so physically far away on-campus from the location where hospital outpatient services are being furnished that he or she could not intervene right away,” the transmittal says.
CMS Sets Forth the Qualifications of Docs
CMS also addresses the qualifications of supervising physicians. He or she “must have, within his or her state scope of practice and hospital-granted privileges, the knowledge, skills, ability, and privileges to perform the service or procedure” the transmittal says. While certain specialized diagnostic testing equipment is operated by technicians — and CMS doesn’t necessarily expect supervising physicians to stand in for them — the supervising physician should be knowledgeable about the test and “clinically appropriate to furnish the test.”
Being a supervising physician involves “more than the capacity to respond to an emergency, and includes the ability to take over performance of a procedure” and perhaps alter its course, the transmittal states. But supervising physicians would not necessarily make these decisions without contacting the patient’s treating physician or NPP.
Thurber says the transmittal is a step backward for hospitals after it seemed like CMS was lightening up. First it announced a one-year moratorium on enforcement of the physician supervision rule at critical-access hospitals. Then CMS published the answers to frequently asked questions (FAQs) in April.
In the FAQs, hospitals got the green light to let emergency department (ED) physicians double as supervising physicians for other outpatient services provided on campus. CMS said that physicians can be “reasonably interrupted to furnish assistance and direction in the delivery of therapeutic services” under their supervision. CMS also stated that “most emergency physicians can appropriately supervise many services within the scope of their knowledge, skills, licensure and hospital-granted privileges.”
But “now CMS comes up with this [transmittal], which goes back to where they started,” Thurber says. The language in the transmittal hews to the language CMS used in the Federal Register when it first changed the rules of the physician supervision game, which stirred hospital anxiety and outrage. For example, Thurber says, contrary to the FAQs, the OPPS final 2010 requirement states “we do not believe that allowing supervisors to be responsible for emergencies only would satisfy the standard ‘to furnish direction and assistance throughout the performance of the procedure.’”
CMS ‘Lacks Understanding’ of Operations
The content of the transmittal also reflects CMS’s lack of understanding of hospital operations, Thurber says. When CMS asserts that physicians should supervise within the scope of their hospital-granted privileges, it’s ignoring the reality of medical-staff politics. “Most hospitals don’t just willy-nilly give doctors the credentials to do different procedures because they need someone to supervise. Specialists carefully guard the quality of their specialty,” Thurber says. For example, the process of changing medical staff bylaws to allow credentialing of ED docs to supervise other services would be difficult and “move at a glacial pace,” he says.
Thurber has doubts that hospitals are twisting themselves into a pretzel to comply with this rule, especially as clarifications continue to emerge. “Hospitals will do the best they can to meet CMS’s stated expectations but inevitably there will be some shortcomings,” he says.
Other lawyers don’t think the transmittal strays far from CMS’s other statements on physician supervision. Houston attorney Nancy LeGros notes the transmittal is consistent with its statements in the November OPPS regulation’s preamble.
The transmittal is challenging because “CMS said what they wanted in broad strokes, but it is complex to implement for hospitals,” LeGros says. Hospitals have to adopt some kind of policy that cites the services physicians are supervising. One option is for hospitals to change their privileging forms, which address what services physicians can perform, to also describe what services they can supervise, says LeGros, with King & Spalding. If a hospital is audited, it should be able to produce a roster or some other form of documentation that shows supervision was provided (e.g., Dr. Smith was responsible for supervising XYZ service on May 15, 2010), she says. |
| ||||||||
