Despite several industry groups' efforts to advocate for a moratorium on physician supervision requirements outlined in the 2009 OPPS final rule, CMS has stated that it will enforce its regulations for the remainder of the calendar year. The agency announced the news in its 2010 OPPS proposed rule released this month.
This means that hospitals must continue to ensure that supervising physicians are in the department in which the services are taking place, regardless of whether the services are on campus or off campus.
However, for 2010, CMS has proposed two sets of requirements for each of these scenarios. For on-campus supervision, the supervising physician or nonphysician practitioner must be in the hospital throughout the duration of the procedure, meaning in areas in the main building(s) of the hospital that are under the ownership, financial, and administrative control of the hospital; are operated as part of the hospital; and for which the hospital bills the services furnished under the hospital's CMS Certification Number.
On-campus supervising physicians or nonphysician practitioners must also be close enough to actually step in and assume providing the care, if necessary. In the 2010 OPPS proposed rule, CMS expressed concern regarding hospitals with large campuses, alluding to the fact that this requirement may be challenging for them to meet.
"This may be of particular concern to teaching hospitals and large medical centers where there are blocks or even miles between buildings," says Kimberly Anderwood Hoy, Esq., CPC, director of Medicare and compliance at HCPro, Inc. in Marblehead, MA.
In addition, the supervising physician or nonphysician practitioner can't be occupied with any other procedure he or she can't leave. This can be particularly problematic for ED physicians or surgeons who may be in the middle of a procedure or surgery that cannot be interrupted, Hoy says.
For an off-campus provider-based department, CMS states the physician or nonphysician practitioner must be in the off-campus department and immediately available to furnish assistance and direction throughout the performance of the procedure.
"What hospital executives need to understand is that quality of care may not require this level of supervision, but it's a technical coverage rule that they just have to follow," Hoy says.
The good news is that CMS proposes to expand the types of providers who can render supervision, making it potentially easier for hospitals to meet requirements.
CMS proposes to allow physician assistants, nurse practitioners, clinical nurse specialists, certified nurse midwives, and clinical psychologists to provide supervision of hospital outpatient therapeutic services when their licenses allow them to do so. Under current policy, only physicians and certain designated providers may provide the direct supervision of these services.
One caveat is that this expansion doesn't take effect until 2010.
What does this mean for hospitals that did not heed CMS' clarification regarding nonphysician practitioners in the 2009 OPPS final rule? Increased liability for potential RAC audits, Hoy says. "It's potentially a low hanging fruit. [RACs] don't have to look at the individual medical records for visits. All they have to know is that there's no physician staffed for a particular time period, and all services during that time are non-covered and can be denied," she adds.
Of note is that the permanent RACs can look back over a three-year period—and well before CMS issued formal clarification on this issue. Many hospitals may have mistakenly assumed that nonphysician practitioners could provide supervision for these services because the practice would generally be appropriate under state licensure laws, Hoy says. However, after CMS clarified this in the 2009 OPPS final rule, it is clear that nonphysician practitioners were not allowed to supervise.
"Hospitals may need to consider whether they need to consult legal advice about whether they have any repayment obligations," she says.
However, the proposed changes may offer hospitals some flexibility in terms of staffing. For example, if a hospital previously staffed a wound care clinic with a physician who performed supervision, the hospital now has several other options to consider.
"Now, they could have a clinical nurse specialist there who can specialize in wound care and who might actually be rendering services there," Hoy says, adding that the nurse would also be less of an expense to the clinic.
CMS will accept comments on the proposed rule until August 31, and the agency will respond to comments in a final rule to be issued by November 1. The proposed rule is available in the Federal Register.