Supervision of Nurses: New CMS Rule for Hospital Outpatient Services
Did you know that many hospitals have special supervision requirements for their outpatient services – including nursing care? Special requirements for “direct” supervision by physicians and other health care providers particularly affect nursing services, observation units, and critical access hospitals (CAHs). ANA has advocated to rescind or improve these requirements, which can affect nurses’ ability to provide IV therapy, chemotherapy, and other nursing care in hospital outpatient and observation units. The Centers for Medicare and Medicaid Services (CMS) recently issued a final rule maintaining the requirement, with minor changes.
In 2009, CMS fleshed out its policy (first described in 2000) that requires “direct” versus “general” supervision of outpatient therapeutic services in hospitals and provider-based departments. The policy applies to services reimbursed through Medicare and Medicaid, which are delivered “incident to” physician services (i.e., performed by clinicians other than the billing provider.) CMS policy for Medicare/Medicaid hospital outpatient departments is set through the annual Hospital Outpatient Prospective Payment System (OPPS) payment update rules and regulations. These apply to about 4,000 general and specialty hospitals, plus community mental health centers.
The initial requirements were overly broad and restrictive. After strong objections from ANA and other leading health care groups, CMS made several major revisions:
1. Direct supervision of most outpatient services can be provided by certain nonphysician practitioners, including nurse practitioners, clinical nurse specialists, and certified nurse midwives. However, diagnostic services and cardiac and pulmonary rehabilitation must be supervised by a medical doctor or doctor of osteopathy.
2. Supervising practitioners must be “immediately available,” without specifying a particular location or proximity.
3. CAHs were specifically made subject to the supervision requirements, but temporarily exempted from their enforcement.
4. CMS created a new category of “nonsurgical extended duration therapeutic services” which require direct supervision only at the beginning.
ANA expressed to CMS that nursing care includes many uniquely nursing interventions, already subject to nursing scope of practice rules, licensure, and ethical standards, and supervised by nursing management. ANA comments regarding the 2012 proposed rule urged CMS to rescind the requirements, which “create an unnecessary layer of supervision which is not required in current accepted practice, ignore the levels of professionalism of the therapy provider, and impose an undue administrative and clinical burden for hospitals and other health care providers.”
CMS’s new OPPS final rule for 2012 appeared in the Federal Register on November 30, 2011, with final regulations codified at 42 CFR 410.27. Direct supervision continues to be the norm, but “Certain therapeutic services and supplies may be assigned either general supervision or personal supervision.” “Nonsurgical extended duration therapeutic services (extended duration services)” are defined as services which “can last a significant period of time, have a substantial monitoring component that is typically performed by auxiliary personnel, have a low risk of requiring the physician’s or appropriate nonphysician practitioner’s immediate availability after the initiation of the service, and are not primarily surgical nature.” These are subject to direct supervision at initiation, “which may be followed by general supervision at the discretion of the supervising physician or the appropriate nonphysician practitioner.”
CMS also designated the Federal Advisory Panel on Ambulatory Payment Classification Groups to consider requests to clarify which level of supervision is required for particular services – including possibly a higher level of “personal” supervision. The criteria for review are: a) complexity of the service; b) acuity of the patients receiving it; c) probability of unexpected or adverse events; and d) expectation of rapid clinical changes. Though this panel includes physicians and one RN with clinical expertise, its main function is setting reimbursement for outpatient services. ANA expressed reservations about the panel’s expertise for considering the appropriate level of supervision for nursing care and interventions, and we plan to stay vigilant regarding this panel’s actions. CMS plans to post preliminary decisions on the OPPS website and allow 30 days for public review and comment, and make final decisions within 60 days, to be published in July and January.
CMS also extended the exemption for CAHs and small rural hospitals with up to 100 beds for another year. For more detailed information please refer to the CMS fact sheet about the 2012 final OPPS rule.
Eileen Shannon Carlson, RN, JD
Tags: Centers for Medicare & Medicaid Services, CMS, Critical Access Hospitals, Hospital Outpatient Prospective Payment System (OPPS), January 2012
