CMS Updates Physician Supervision Regulation Under HOPPS, But Questions Remain

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Clarifying earlier communications, the Centers for Medicare and Medicaid Services (CMS) has issued a transmittal updating the physician supervision regulation as mandated in the Hospital Outpatient Prospective Payment System (HOPPS) 2011 Final Rule.

The transmittal reflects a loosening of CMS’ requirements centered on direct supervision of diagnostic and therapeutic procedures provided in the hospital or under arrangement with the hospital in the final rule. Whereas previous transmittal indicates only that a physician be “immediately available” to supervise these procedures, its newer counterpart specifies that “direct supervision” is permissible from any location in or near the hospital. A supervising physician can be at any location close to the hospital, or in a department that is not located in the actual space where the procedure or service is performed, providing he or she remains “immediately available” and, as such, can set aside other tasks and obligations to attend to the patient if required. Non-physician providers, for example, physician assistants and nurse practitioners, are not permitted to supervise diagnostic procedures performed by technicians, nurses, and other hospital staff. However, they may perform diagnostic procedures that are within their state-established scope of practice without the presence of a physician.

The definition of non-surgical therapeutic services has also been revised to allow for the initial portion of the service to be under direct supervision and for the remainder of the services under general supervision, according to a transmittal posted on the ACR web site. CMS defines initiation of the service as the beginning portion of the procedure, which ends when the patient becomes stable and when the supervising physician or non-physician believes the remainder of the procedure may be delivered safely under a general level supervision. Non-physician practitioners are allowed to provide direct supervision for therapeutic services.

Nonetheless, questions surrounding some interpretations of the final rule remain. Notably, CMS has indicated that the supervising physician must be “knowledgeable about the test” and “clinically appropriate” to furnish it. According to the rule, CMS does not expect the supervising physician to operate the equipment; rather, only that he or she be able to respond to an emergency by taking over the procedure and, as appropriate, changing the course of care for a particular patient. “The problem here is that what this means still isn’t clear; the ‘$64,000 question’ being whether (for an imaging procedure) the physician must be a radiologist,” notes W. Kenneth Davis, Jr., JD, a partner in the Chicago office of law firm KattenMuchinRosenman LLP. Davis, whose specialties include health care regulatory matters, said the current “widely acceptable” position on this issue holds that a “supervising physician” need not specialize in radiology.

“The language is imprecise; the terms ‘knowledgeable’ and ‘clinically appropriate’ can be interpreted in a myriad of ways,” Davis asserted. “CMS’ rules for independent diagnostic testing facilities (IDTFs) state that a supervising physician must be ‘proficient in the performance and interpretation’ of services. ‘Proficient’ and ‘knowledgeable’ are two different things; ‘proficient’ is a much more precise a descriptive. Had CMS wanted to be that specific on the hospital side, the rule would, it seems, incorporate that verbiage.”

On the flip side, Davis observes, hospitals would do well to initiate some manner of quasi-credentialing and certification process to ensure that handling tests is generally “within the scope of practice” of every “supervising physician”, radiologist and otherwise. “Hospitals cannot have ‘any old doctor’ doing the supervising,” he concluded. “That is just common sense.