Critical access hospitals (CAH) have received a reprieve of sorts from CMS.
CMS will not evaluate or enforce the "direct supervision" requirement for therapeutic services furnished in calendar year 2010 to outpatients in CAHs, according to a March 15 agency notice to Congress.
"This is good news for CAHs in 2010," says Debbie Mackaman, RHIA, CHCO, regulatory specialist for HCPro, Inc. "This has already proven to be a significant challenge for some rural hospitals that do not have the medical staff available to provide a 24/7 level of supervision outside of the ER physicians."
Sometimes a disconnect exists between the reality of on-the-ground operational issues that hospitals face daily and the rules that regulatory agencies believe make sense for all hospitals, says Jugna Shah, MPH, president of Nimitt Consulting, Inc., in Washington, DC.
"A greater understanding of CAH operational and care-delivery issues should have been taken into account from the beginning as CMS was thinking through whether a one-size-fits-all approach to physician supervision would work," Shah adds. "No one argues with the need to have physician supervision, as that is important for patient safety, but the rules around it need to be appropriate for CAHs."
Efforts led at first by a few CAH hospitals, and then many more, resulted in this "vitally important" change, says Shah. During the comment period for the 2010 OPPS proposed rule, some CAHs wrote to CMS that the physician supervision proposal would set out different standards than what they already followed under the Emergency Medical Treatment and Active Labor Act (EMTALA), which would be a problem, says Shah.
After release of the 2010 OPPS final rule, CAHs worried about losing reimbursement because they could not meet the physician supervision requirements, Shah says.
Although lost revenue is a concern for all hospitals, CAHs are paid on a cost-based system rather than by APCs, resulting in higher payments for services like observation, for which it is difficult to ensure supervision at all times. Some CAHs were also concerned that because they were providing services and not billing for them, CMS could view that as an inducement to use the facility.
Staff members at CAHs contacted the American Hospital Association and their congressional representatives. As a result, members of Congress sent letters directly to CMS.
"It really does show that CMS is listening to the provider community," says Kimberly Anderwood Hoy, Esq., CPC, director of Medicare and compliance for HCPro, Inc., in Marblehead, MA. "When CMS goes back to the drawing board for 2011, I think all hospitals should consider submitting comments on the difficulties they had complying with the rules this year."
2010 revisions to physician supervision
The final 2010 hospital OPPS rule included a "direct supervision" policy that requires a supervisory physician or non-physician practitioner (NPP) to be present on a hospital or CAH campus when outpatient therapeutic services are performed and immediately available to provide assistance and direction throughout the duration of procedures.
For services "in the hospital" or provided in designated on-campus provider-based departments, the supervising practitioner only needs to be on the campus, not in the department. However, many CAHs do not have physicians or NPPs on the campus at all times.
In some cases, CAHs do not have the budget to hire additional staff members to provide 24-hour supervision and in other cases, they are not able to find anyone willing to work in a rural location.
Another problem is the discrepancy between EMTALA requirements CAHs abide by and the physician supervision requirements, Shah says.
"As long as critical access hospitals have been abiding by EMTALA, they should be fine until we hear something further," Shah says.
CMS has not stated what level of physician supervision it will require CAHs to have this year. Physician supervision is critical for patient safety, but the level of supervision or the requirements around the level of supervision should hopefully come more in line with what the EMTALA rules already are, Shah says.
CAHs should consider having a policy that addresses CMS' concerns about the quality and safety of outpatient services, Hoy says. That policy should refer back to the CAH Conditions of Participation (CoP), which define what constitutes safe and appropriate care at a CAH and the availability of providers.
"CMS seems to be keying on the quality and safety of the services, so I think referring back to the Conditions of Participation on availability of providers and ensuring that their policies meet those requirements will demonstrate that they have considered the quality and safety of the care they are providing to their outpatients," Hoy says.
In its policies, a CAH board of directors may want to address these requirements, CMS' guidance on non-enforcement in CAHs, and the reasons they are unable to meet the requirements. The board can then specifically state the reasons it believes patients are receiving high-quality, safe care in its hospital, including that CoPs are met, Hoy suggests. This will provide documentation of the reason for lack of supervision if the hospital is later challenged
Moving forward
CAHs should not consider this temporary reprieve a free pass, Mackaman cautions. "They should begin to consider how they might meet the current regulations if the rule does not change in 2011."
Michelle A. Leppert, CPC-A, is managing editor for Briefings on APCs and APCs Weekly Monitor. She can be reached at mleppert@HCPro.com.