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CMS Proposed Rule Revises Outpatient Doctor Supervision Requirements

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In the 2011 OPPS final rule, CMS addressed these concerns by substantially revising its physician supervision policy to eliminate the requirement that a supervising physician must be “on the same campus" or “in the off-campus provider-based department of the hospital,"  identify a limited set of “non-surgical, extended duration therapeutic services" for which direct supervision is required only for initiation of the service, followed by a general supervision requirement for the remainder of such service, and announce its intent to establish an independent review process for evaluating the appropriate level of physician supervision for specific therapeutic services in the calendar year 2012 OPPS rulemaking cycle. (View CMS’ 2011 OPPS Final Rule Substantially Revises Physician Supervision Requirements for more information.) 

In the 2012 OPPS proposed rule, CMS is proposing that the Panel serve as the independent review body that evaluates individual services defined by CPT code and recommends to CMS a supervision level (general, direct or personal) to ensure an appropriate level of quality and safety. In order to ensure the Panel is prepared to address supervision standards, CMS intends to amend the Panel’s charter to include supervision, add two to four members to represent CAHs, and create a supervision subcommittee to evaluate appropriate supervision standards for individual services.

CMS intends to issue supervision decisions based on Panel recommendations through sub-regulatory guidance, similar to the process used to set supervision levels for diagnostic services under the Medicare Physician Fee Schedule (MPFS). Unlike the MPFS process, CMS’ decisions would be posted on the OPPS website for public review and comment, and would be effective either in July or January of the given year. 

While CMS stated that direct supervision is the most appropriate, and therefore the default, level of supervision for most hospital outpatient therapeutic services that are authorized for payment as “incident to" physicians’ services (unless personal supervision is required), the Panel could recommend the potential assignment by CMS of general (lower) or personal (higher) supervision. CMS is proposing that the Panel assess whether there is a significant likelihood that the supervisory practitioner would need to reassess the patient and modify treatment during or immediately following the therapeutic intervention, or provide guidance or advice to the individual who provides the services.  Because CMS intends to allow the Panel to recommend that CMS assign either personal or general supervision to hospital outpatient therapeutic services, it is proposing to use the definitions of personal and general supervision established for purposes of the MPFS for the hospital outpatient setting. See 42 C.F.R. 410.32(b)(3).

CMS is also reiterating its position that all hospital outpatient therapeutic services are furnished “incident to" a physician’s service even when described by benefit categories other than the specific “incident to" provisions. Because hospital outpatient therapeutic services are furnished “incident to" a physician’s professional service, the conditions for payment, including the direct supervision standard, apply to all of these services.

CMS anticipates it will extend the notice of nonenforcement of the requirement for direct supervision in CAHs and small rural hospitals through calendar year 2012 while it works to establish the independent review process.

These changes will be applicable to services furnished on or after Jan. 1, 2012. Comments to the proposed rule must be submitted no later than 5 pm EDT on Aug. 30, 2011.

Source: McDermott Will & Emory

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