June 14, 2010 | | Comments 0
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CMS clarifies “immediate availability” and identifies supervisory practitioner qualifications for both diagnostic and therapeutic outpatient hospital services

Last week we discussed CMS’ clarifications regarding supervision requirements for hospital diagnostic and therapeutic services.  In particular, we reviewed guidance set out in transmittal R128BP regarding supervision requirements for hospital diagnostic tests when performed by non-physician practitioners.  This week we will focus on additional CMS clarifications set out in that transmittal that further define the term “immediate availability” and identify the credentials, knowledge, skills, ability, and privileges that the supervisory practitioner must possess in order to be qualified to supervise or perform a given service or procedure.

Diagnostic services

With respect to diagnostic services subject to direct supervision, “immediate availability” requires the immediate (not specifically defined in terms of time or distance) physical presence of the physician.   CMS provides two examples:

  • 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; and
  • For services furnished on-campus, the supervisory physician must be close enough to intervene right away.

CMS also clarifies that a supervisory physician must be clinically appropriate to supervise the service or procedure, which includes the following qualifications:

  • 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;
  • Although not expected to operate the technical equipment instead of a technician, must be knowledgeable about the test and clinically appropriate to furnish the test; and
  • Must have the ability to take over performance of a procedure and, as appropriate, to change a procedure or the course of care for a particular patient (ordinarily in consultation with the patient’s treating physician or nonphysician practitioner [NPP]).

Although not specifically stated, these qualification requirements also appear primarily aimed at physicians supervising diagnostic services subject to direct supervision.

Therapeutic services

With respect to therapeutic services, at a minimum, all outpatient hospital therapeutic services are subject to direct supervision by either a physician or certain specific NPPs (clinical psychologists, licensed clinical social workers, physician assistants, nurse practitioners, clinical nurse specialists, or certified nurse midwives, for services within their scope of practice and hospital privileges), with the exception of pulmonary rehabilitation, cardiac rehabilitation or intensive cardiac rehabilitation services, which must be supervised by a physician.  The clarifications that apply to diagnostic services regarding “immediate availability” and supervisory physician qualifications set out above also apply to those physicians and/or NPPs providing direct supervision for therapeutic hospital services.

CMS goes on to clarify, however, that, given the complexity and wide range of therapeutic outpatient services provided, hospitals are expected:

  • To have the credentialing procedures, bylaws, and other policies in place to ensure that hospital outpatient services furnished to Medicare beneficiaries are being provided only by qualified practitioners in accordance with all applicable laws and regulations; and
  • For services not furnished directly by a physician or NPP, to ensure that the therapeutic services are being supervised in a manner commensurate with their complexity, including personal supervision where appropriate.

Critical Access Hospitals (CAHs)

One final point of clarification:  In Transmittal R128BP, CMS reminded us that it had decided earlier this year not to enforce the requirements for direct supervision of therapeutic services that are furnished to outpatients in CAHs during calendar year 2010.  However, CMS has stated that this issue will be looked at further in the final rule making for CY 2011, as well as supervision requirements for diagnostic services provided by CAHs.  CMS made it clear, however, that it expects all CAHs to provide quality care, regardless of the current applicability of outpatient hospital diagnostic and therapeutic supervision requirements to CAHs.

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Filed Under: OPPS

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Judith Kares About the Author: Judith Kares is an instructor for HCPro's Medicare Boot Camp - Hospital Version. Judith has also been involved in the following:

  • Development of comprehensive compliance programs
  • Initial and follow-up risk assessments
  • Development and implementation of compliance training programs
  • Compliance audits and internal investigations
  • Research/advice regarding specific risk areas
  • Development of corrective action programs
Prior to beginning her current legal/consulting practice, Judith spent a number of years in private law practice, representing hospitals and other health care clients, and then as in-house legal counsel. In that capacity, she served first as Assistant General Counsel and Director of the Legal Department for Blue Cross and Blue Shield of Arizona (BCBSAZ) and then as Deputy General Counsel, Regulatory and Contract Compliance, with Blue Cross and Blue Shield of the National Capital Area (BCBSNCA) in Washington, D.C.

In both in-house positions, Judith had primary responsibility for contracting and regulatory compliance. The latter included oversight of federal and state health care programs. BCBSAZ was a fiscal intermediary, a Medicare risk and AHCCCS (Arizona's managed care alternative to traditional Medicaid) contractor, as well as a participating contractor under the national Blue Cross/Blue Shield Federal Employee Program.

Judith is also an adjunct faculty member at the University of Phoenix, where she teaches courses in business and health care law and ethics. She is an advocate for the use of alternatives to traditional dispute resolution, having participated in the volunteer mediation program in the Justice Courts of Maricopa County, Arizona. Judith is a frequent speaker at healthcare-related seminars. In addition to her membership in the State Bar of Arizona and the Tennessee Bar Association, Judith is a member of the American Health Lawyers Association, the Health Care Compliance Association, and the Arizona Association of Health Care Lawyers.

Judith earned her Juris Doctor degree (with high distinction) from The University of Iowa, College of Law and her B.A. (with highest distinction) from Purdue University.

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