Medicare’s New Physician Supervision Rule Harms Patients
A new Medicare policy went into effect in 2010, requiring physicians to be physically present in order to reimburse care given to patients in hospital outpatient and observation units. The rule is causing severe hardship for nurses and their patients who need to receive chemotherapy, IV therapy, and other treatments in observation and other hospital outpatient units — particularly in rural areas where patients and physicians must travel long distances. Fortunately, the Centers for Medicare & Medicaid Services (CMS) recently decided to delay its enforcement for a year in Critical Access Hospitals (CAHs), but the rule still applies to other hospital outpatient departments.
The current rule, adopted in the 2009 Medicare Outpatient Prospective Payment System Final Rule, can be found at 42 CFR §410.27 of Medicare regulations. For outpatient hospital services furnished “incident to physician services”, “the physician or nonphysician practitioner must be present on the same campus” or the same “off-campus provider-based department” and “immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician or nonphysician practitioner must be present in the room when the procedure is performed. For pulmonary rehabilitation, cardiac rehabilitation, and intensive cardiac rehabilitation services, direct supervision must be furnished by a doctor of medicine or osteopathy, as specified in §§ 410.47 and 410.49, respectively.”
The supervisory physician or nonphysician practitioner “may not be located in any other entity” and “immediately available” means that person may not be “so physically far away . . . that he or she could not intervene right away.” While the supervisory practitioner does not have to be of the same specialty or department, he or she “must have, within his or her State scope of practice and hospital-granted privileges, the ability to perform the service or procedure.”
NPs, CNSs, & CNMs Can Supervise Most Therapeutic Services: CMS first limited supervision primarily to physicians, but “numerous stakeholders, especially rural hospitals, raised budgetary and patient access concerns related to ensuring adequate physician staffing” and pointed out that ”Medicare conditions of participation for CAHs allow nurse practitioners and physician assistants to be responsible for the care of Medicare patients in CAHs.” So CMS decided that “clinical psychologists, physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse-midwives, may directly supervise all hospital outpatient therapeutic services that they may perform themselves within their State scope of practice and hospital-granted privileges, provided that they meet all additional requirements, including any collaboration or supervision requirements as specified in” Medicare regulations. Licensed clinical social workers were also added. CMS noted “these practitioners are . . . recognized in statute and regulation as providing services that are analogous to physicians’ services.”
However, cardiac rehabilitation (CR), intensive cardiac rehabilitation (ICR), and pulmonary rehabilitation (PR) services require direct supervision by an MD or DO with expertise in those areas. Public comments had “argued that to require physician-only supervision would mean that some PR, CR, and ICR programs in rural areas would have to close for lack of physician supervision and there would be no access to the PR, CR, and ICR services for beneficiaries in those communities.” But CMS was constrained by existing law limiting supervision of these services only to physicians. And only physicians may supervise hospital outpatient diagnostic services. In the 2009 OPPS Final Rule, CMS posited that “all hospital outpatient services that are not diagnostic are services that aid the physician in the treatment of the patient, and are called therapeutic services.”
Nursing Services: In the 2009 OPPS Final Rule, CMS denied requests to allow supervision by registered nurses, pharmacists, or other medical professionals, as these “professionals are not recognized in the Social Security Act as providing services that would be physicians’ services if performed by a physician and they may not enroll in Medicare as independent practitioners and receive payment directly for their professional services.” Some public comments indicated “no clear clinical need for such supervision”; others argued that “because physicians do not furnish nursing services or the services of other ancillary health professionals, they should not be expected to supervise those services and it would be inappropriate to expect physicians to accept responsibility for care that they have not personally furnished.” CMS failed to respond directly to this important point.
Critical Access Hospitals: Many Critical Access Hospitals and rural hospitals requested an exemption from the requirement, and CMS responded by specifically including CAHs in the definition, in the 2009 OPPS Final Rule. But on March 15, 2010, the agency announced that it was instructing all Medicare contractors “not to evaluate or enforce the supervision requirements for therapeutic services provided to outpatients” in CAHs during calendar year 2010, and that it plans to “revisit” the CAH issue in the next rulemaking cycle.
Chemotherapy & Partial Hospitalizations: Providers challenged applying the rule to partial hospitalizations and “specialized services such as chemotherapy, blood transfusions, and radiation therapy services” and stressed “the need to allow supervision by practitioners located in other entities on-campus.” CMS said availability by telephone or other electronic device is not sufficient, particularly for complex therapeutic services. The supervising physician or practitioner must be “prepared to step in and perform the service, not just respond to an emergency.”
ANA advocated against this policy in formal written comments responding to the 2009 OPPS Proposed Rule. We plan to do so again when the next rule is issued in July 2010. We are also exploring other options and avenues. We are heartened by the recent year-long exemption for CAHs, and look forward to greater scrutiny of this outdated policy.
Eileen Shannon Carlson, RN, JD
Tags: Centers for Medicare & Medicaid Services, CMS, Critical Access Hospitals, March 2010, Medicare
