2010 OPPS proposed rule released

This was a busy week, but the biggest news was the somewhat early release of the OPPS proposed rule for 2010.  While the rule is about the same number of pages as previous years, the substantive policy changes seem fewer than in the last couple of years.

For instance there were no new composite APCs introduced this year.  Additional composite APCs, including cardiac resynchronization therapy, are being considered for future years.  However, CMS indicated that in accordance with comments received in response to the previous composite APCs, they were going to study the effects of existing composites on payment and utilization before introducing additional composite APCs.

One of the more important proposals in the rule relates to physician supervision, a topic we have discussed several times.  CMS discusses the recent “restatements” and “clarifications” made over the course of the last year and proposes regulatory changes in accordance with some of the comments they have received from many industry groups.

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CMS continues to characterize their statements in the CY2009 rulemaking process as “clarifications” and “restatements” of longstanding hospital outpatient supervision policy, noting the relatively few comments received when the statements were made in last year’s proposed rule.  Additionally, they affirmed that the policies articulated in the CY2009 rule will remain in force through 2009 and specifically state:

We have not instructed contractors to delay initiation of enforcement actions or to discontinue pursuing pending enforcement actions regarding physician supervision of hospital outpatient services. (See p. 457 of the display copy.)

The proposals for 2010 are somewhat provider friendly, especially the proposal to allow non-physician practitioners (NPPs) to provide the necessary level of supervision for these services.  Under the proposal, nurse practitioners, physician’s assistants, clinical nurse specialists, certified nurse midwives and clinical psychologists acting within their scope of practice and hospital-granted privileges would be able to provide direct supervision in hospital outpatient departments beginning January 1, 2010. One significant exception to this rule relates to cardiac rehab, pulmonary rehab and intensive cardiac rehab which must continue to be supervised by a doctor of medicine or osteopathy.

Another provider friendly regulatory proposal is to the requirement for supervision on the hospital campus.  For services provided on the hospital campus or in on-campus provider based departments, CMS proposes the physician must be located on the hospital campus in an area operated by the hospital, where the hospital bills for services under its CMS Certification Number.  This proposal would provide significant latitude for services provided on the campus of the hospital in locating supervising staff in areas other than in the department actually rendering the service, as required in the CY2009 “clarifications,” as long as they are immediately available.

CMS went on to provide additional, somewhat troubling clarification on “immediately available.”  Not surprisingly, CMS specified that the supervising individual can not be performing a procedure they could not interrupt.  They also can not be so physically distant on a large campus that they “could not intervene right away”.

Most troubling, CMS notes that “the physician or non-physician practitioner must be prepared to step in and perform the procedure, not just to respond to an emergency” (emphasis added).  CMS indicates they need not be in the same specialty as the service they are supervising, but would have to have hospital granted privileges to perform the procedure.  This could limit the physicians and NPPs that could act as supervising individuals for certain services, even though they are immediately available in terms of their ability to respond to the department.

Other regulatory clarifications being proposed include adding “critical access hospital” wherever hospital is mentioned to make clear the provisions for supervision apply also to CAHs.  Also for services in off campus provider based departments, CMS is clarifying regulatory text to indicate that the physician or NPP must be “present in the off-campus provider-based department.”  They indicate this is no substantive change, simply a regulatory clarification.

In the past, we have focused on the supervision requirements for therapeutic services, however, CMS devotes significant time to the requirements for diagnostic services in this rule as well.  Hospitals should review these provisions closely as well.

Providers are encouraged to write to CMS with comments about the physician supervision requirements if they are concerned about the application to their hospital.  CMS noted the relatively few comments last year and seemed to indicate this supported their contention that their comments were simply a restatement of prior policy, so I encourage everyone to take advantage of this important opportunity to address their concerns about supervision with CMS.

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