June 07, 2010 | | Comments 0
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CMS updates supervision requirements for hospital diagnostic and therapeutic services

In recurring update notification R128BP, CMS has provided additional clarification on the supervision requirements for both hospital diagnostic and therapeutic services.  This clarification is primarily in response to multiple questions received from hospitals following the significant changes to these requirements that were incorporated into the CY 2010 Final OPPS Rule.  This transmittal contains both a brief summary of these clarifications, as well as the red-lined changes to the substantive language included in the relevant sections of Chapter 6 of the Medicare Benefit Policy Manual (MBPM).

In particular, CMS has provided additional guidance regarding supervision of hospital diagnostic tests by non-physician practitioners, clarifying and distinguishing the rules that apply to (1) those services provided on and after August 1, 2000 and before January 1, 2010; and (2) those services provided on and after January 1, 2010.

Services provided before January 1, 2010

For services provided on and after August 1, 2000 and before January 1, 2010, CMS appears to apply more stringent standards when those services are furnished in a provider-based facility.  Only those diagnostic services that are furnished under the appropriate level of supervision are payable under the OPPS.  With respect to individual diagnostic tests, the supervision levels listed in the quarterly updated Medicare Physician Fee Schedule (MPFS) Relative Value File apply. For diagnostic services not listed in the MPFS, Medicare contractors, in consultation with their medical directors, define appropriate supervision levels in order to determine whether claims for these services are reasonable and necessary.

Diagnostic tests subject to physician supervision requirements generally fall into three physician supervision categories:

  • General supervision, indicated by a “1” in the MPFS file, which requires the service to be furnished under the overall direction and control of the physician, but he/she need not be present during the performance of the procedure;
  • Direct supervision, indicated by a “2” in the MPFS file, which requires the physician to be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure, but he/she need not be present in the room when the procedure is performed; and
  • Personal supervision, indicated by a “3” in the MPFS file, which requires the physician to be present in the room during the performance of the procedure.

CMS goes on to clarify, however, that certain non-physician practitioners (NPPs) may not be subject to the physician supervision requirements set out above (or may be subject to a lower level of physician supervision than otherwise indicated in the MPFS) when they personally perform specific diagnostic tests, so long as the physician supervision included in any collaboration or supervision requirements particular to that type of practitioner is met.  In no event, however, are these practitioners permitted to function as supervisory “physicians” for the purposes of other hospital staff performing diagnostic tests.

CMS specifically identifies the following non-physician practitioners as being subject to these less restrictive physician supervision requirements:  physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse midwives.

Services provided on and after January 1, 2010

For diagnostic services provided on and after January 1, 2010, CMS generally applies the same physician supervision requirements, except for those diagnostic services subject to “direct supervision.” As noted above, services subject to direct supervision are designated with a “2” in the MPFS file.  For dates of service on and after January 1, 2010, the “direct supervision” requirements, which are set out below, vary, depending upon where the services are provided:

  • For services furnished directly or under arrangement in the hospital or in an on-campus outpatient department of the hospital (“provider-based”), as defined at 42 CFR 413.65, “direct supervision” means that the physician must be present on the same campus and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed;
  • For services furnished directly or under arrangement in an off-campus outpatient department of the hospital (“provider-based”), as defined at 42 CFR 413.65, “direct supervision” means the physician must be present in the off-campus provider-based department of the hospital and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed;
  • For services furnished under arrangement in nonhospital locations, “direct supervision” means the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure.  It does not mean he/she must be present in the room when the procedure is performed.

The same NPP exceptions apply to services provided on and after January 1, 2010 when these NPPs personally perform specific diagnostic tests, so long as the physician supervision included in any collaboration or supervision requirements particular to that type of practitioner is met.  In no event, however, are these practitioners permitted to function as supervisory “physicians” for the purposes of other hospital staff performing diagnostic tests.  Hospitals are encouraged to carefully review the applicable regulations (42 CFR 410.32(b)), as well as the revised language of the MBPM, Chapter 6, Sections 20.4.3. 20.4.4, for more details.

Next week I will focus on additional CMS clarifications in R128BP that further define the term “immediately available” and identify the credentials, knowledge, skills, ability, and privileges that the supervisory practitioner must possess in order to be qualified to perform a given service or procedure.

Entry Information

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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