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CMS Provides Further Adjustments to Hospital Outpatient Supervision Rules
November 9, 2011
By: Thomas W. Coons
In its final Outpatient PPS update for fiscal year 2012, which CMS put on the web November 1, 2011, the agency updated its hospital outpatient supervision rules in two important respects. First, it established a process by which interested parties may seek to change the classification of certain services from requiring direct supervision to requiring either general or personal supervision. CMS also clarified that the supervision rules apply to therapeutic services that may fall within discrete benefit categories and that are not, under the Medicare Act, considered to be services furnished “incident to” a physician’s professional services. The CMS discussion on these changes can be found here: www.ofr.gov/(X(1)S(scowdohnuodekhblmbrwklwa))/OFRUpload/OFRData/2011-28612_PI.pdf
As to the first matter, CMS announced that it has established a technical review process under which CMS’s existing APC Panel will consider requests that CMS assign supervision levels other than direct supervision to specific hospital outpatient therapeutic services. CMS will expand the APC Panel, which currently has 15 members, to include two representatives from small rural PPS hospitals and another two from critical access hospitals (CAHs). In doing this, CMS will give specific representation to those hospitals that have been particularly vocal about their difficulties in complying with the direct supervision requirements. Further, recognizing the difficulties that CAHs and small rural hospitals have faced in complying with the current requirements, CMS stated that it will continue through calendar year 2012 its policy of not enforcing the supervision requirements for these hospitals.
Under the process established by CMS, the agency will follow the same APC Panel process used currently to solicit requests from stakeholders for APC and status indicator changes. Also, CMS may itself request the Panel’s review of supervision levels for certain services. Priority will be given to services addressed in prior public comments as part of the calendar year 2010 and 2011 OPPS rules.
The request for review will require a justification for the requested change in supervision level, together with, to the extent possible, clinical support for the change. Reviewing this information, the Panel will determine whether there is a significant likelihood that a supervisory practitioner will need to reassess the patient and modify treatment during, or immediately following, therapeutic intervention, or to provide guidance or advice to the individual who provides these services. The Panel will also consider the complexity of the service, the acuity of the patients receiving the service, the probability of unexpected or adverse patient events, and the expectation of rapid clinical changes during the therapeutic service or procedure. The Panel will then make a recommendation to CMS, which CMS will act upon. Once it has made its decision, CMS will place its decision on the OPPS website for public review and comment. The comment period will be abbreviated, lasting 30 days. CMS anticipates that it will then make its decisions final within 60 days of the end of the comment period, with those decisions becoming effective either in July or January following the most recent APC Panel meeting.
Most stakeholders, of course, will be inclined to request that services currently requiring direct supervision be downgraded to requiring general supervision. CMS, however, stated that the APC Panel may recommend that personal supervision be required for certain services. For example, CMS said, it may be appropriate for the Panel to recommend personal supervision to ensure that auxiliary personnel or personnel in training (such as medical students) are adequately supervised.
In responding to comments as part of the final rule, CMS also addressed requests that it explain the scope of its supervision requirements and whether those requirements apply to therapeutic services that have discrete benefit categories and that are not, by statute, considered to be furnished “incident to” a physician’s professional services. CMS stated that it had long maintained that all hospital outpatient therapeutic services are, for purposes of supervision, furnished “incident to” a physician service even when described by benefit categories other than the statute’s specific “incident to” provision. Accordingly, CMS said, its conditions for payment, including the direct supervision standard, apply to all hospital outpatient therapeutic services.
Ober|Kaler’s Comments
The creation of a review process for supervision levels should prove helpful to hospitals, particularly those hospitals that are currently encountering difficulties in complying with CMS’s direct supervision requirements. Unfortunately, however, it appears that it will take some time to downgrade specific procedures from requiring direct supervision to requiring only general supervision. As a consequence, the new review process is unlikely to provide immediate relief to those hospitals that are chaffing under the existing requirements.
