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CMS Clarifies Rules Governing Physician Supervision Of Services Provided To Hospital Outpatients

On May 28, the Centers for Medicare and Medicaid Services (CMS) issued Transmittal 128, which clarifies CMS policies regarding physician supervision of diagnostic and therapeutic services provided to hospital outpatients. The transmittal, effective on July 1, 2010, updates the Hospital Outpatient Prospective Payment System (OPPS).

In the transmittal, CMS specifies that “[d]irect supervision is the minimum standard for supervision of all Medicare hospital outpatient therapeutic services,” and that direct supervision requires that the supervisory physician must be “immediately available to furnish assistance and direction” for the duration of a given procedure. This supervisory physician must possess “the knowledge, skills, ability, and privileges” to perform a given service or procedure, and “while physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse midwives only require physician supervision included in any collaboration or supervision requirements particular to that type of practitioner when they personally perform a diagnostic test, these practitioners are not permitted to function as supervisory ‘physicians’ for the purposes of other hospital staff performing diagnostic tests.”

According to the transmittal, “[i]mmediate availability requires the immediate physical presence of the physician,” but “CMS has not specifically defined the word ‘immediate’ in terms of time or distance.” Examples of when a supervisory physician is not “immediately available” include “situations where the supervisory physician is performing another procedure or service that he or she could not interrupt. Also, for services furnished on-campus, the supervisory physician may not be so physically far away on-campus from the location where hospital outpatient services are being furnished that he or she could not intervene right away.”

CMS clarifies that a supervisory physician must be “clinically appropriate to supervise the service or procedure,” meaning that “the supervisory responsibility is more than the capacity to respond to an emergency.” While CMS does not expect a supervisory physician to act unilaterally without consulting a patient’s treating physician or practitioner, a supervising physician must be able “to take over performance of a procedure and, as appropriate to the supervisory physician and the patient, to change a procedure or the course of care for a particular patient.”

“Diagnostic services furnished under arrangement in on-campus hospital locations, off-campus hospital locations, and in nonhospital locations must be furnished under the appropriate level of physician supervision according to the requirements of 42 CFR §§ 410.28(e) and 410.32(b)(3),” the transmittal further explains.

Additionally, the transmittal provides some clarification on coverage of outpatient therapeutic services incident to a physician’s service. Specifically, it explains that therapeutic services include observation, as well as all “hospital outpatient services that are not diagnostic . . . that aid the physician or practitioner in the treatment of the patient.”

Lastly, CMS notes that it “would expect that hospitals already 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,” and in the case of services not furnished directly by a physician or nonphysician practitioner, CMS expects that “these hospital bylaws and policies would ensure that the therapeutic services are being supervised in a manner commensurate with their complexity, including personal supervision where appropriate.”

For more information, contact Adrienne Dresevic, Esq. and Carey F. Kalmowitz, Esq. at (248) 996-8510.

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