Questions surround OPPS on physician supervision
Clarification still ambiguous
In the 2010 OPPS proposed rule, the Centers for Medicare & Medicaid Services (CMS) raises a number of issues, offers clarification, and makes some proposals regarding physician supervision issues. One such issue discussed in the proposed rule has to do with what "immediately available" means.
Providers have raised many questions about what constitutes a physician being immediately available, and as a result of the questions raised over the past 18 months, CMS appears to have responded. Jugna Shah, MPH, president and founder of Nimitt Consulting in Washington, DC, says we may have to be more careful about what we ask for, because in the proposed rule CMS describes "immediately available" as "without interval of time." Yet this seems contradictory with statements related to the physician not having to be present in the department or the room. This attempt at clarification seems to be causing even more confusion and perhaps immediately available should be left defined as it has been to date, she says.
The "immediately available" precedent relates to the provisions of what constitutes appropriate physician supervision in an outpatient setting, an element that has had a fair share of controversy beginning about two years ago when CMS updated its manuals. At that time, providers began questioning what CMS was updating vs. what it had laid out back in April 2000.
"The OPPS 2010 proposed rule goes farther than the 2009 OPPS final rule in recognizing and addressing open items of concern to hospitals, and CMS should be commended for addressing this issue in a more robust manner than it has historically," says Shah.
In essence, the physician supervision rules have laid out who can act in a supervisory role should problems arise during outpatient therapeutic procedures and where the supervisor should be in relation to the site where the procedure is taking place.
NPP supervision proposed for expansion
Shah, says "one thing that's definitely new [in the 2010 proposed OPPS rule] is the recognition of non-physician practitioners [NPPs]" — a change she knows hospitals will unanimously ask CMS to finalize for 2010, and one that will have them applauding.
In the proposed rule, she says, Medicare opens the supervisory role beyond physicians to mid-level practitioners. The rule reads "for CY 2010 we are proposing that nonphysician practitioners, specifically physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse-midwives, may directly supervise all hospital outpatient therapeutic services that they may perform themselves in accordance with their State law and scope of practice and hospital-granted privileges, provided that they continue to meet all additional requirements, including any collaboration or supervision requirements as specified in the regulations at §§410.74 through 410.77."
"The concern from a compliance perspective," Shah says, "is that many hospitals may have assumed that that was in fact the case before." And those hospitals may have already had NPPs providing supervision, as CMS' previous guidance on this issue had been seen as ambiguous. The good news, she says, is that in the proposed rule, Medicare makes it clear that, if made final, this is a change going forward (and does not impact historical practices) and it appears to be, in large part, in response to comments and concerns raised by the provider community.
What does that mean for RAC audits, which can review records dating back to Oct. 1, 2007, or even OIG reviews? That could be an area for take-backs or fraud claims if reviews uncover that appropriate levels of supervision were not being provided.
"That's where compliance officers and lawyers, along with hospital associations, have concern and are discussing this among other ambiguous language from the April 2000 proposed rule with Medicare. Everyone would breathe a collective sigh of relief if Medicare would acknowledge that its own guidance was ambiguous in the past and may have led providers to different conclusions about non-physician practitioners providing guidance as well as the notion of 'immediately available,'" she says.
A letter to CMS, authored by the Association of American Medical Colleges, the American Hospital Association, the Federation of American Hospitals, and the National Association of Psychiatric Health Systems, takes issue with the policy prior to the "potential modifications" indicated in the 2010 OPPS proposed rule. At issue, they write, is the 2009 OPPS rulemaking's statement that a "restatement and clarification" of the physician supervision policy was necessary because there was "misunderstanding" about what level of supervision was required for incident-to outpatient therapeutic services. The letter goes on to state that "direct supervision" by a physician had been a requirement since 2001 only to those services furnished outside of the hospital's campus, but not to those furnished on campus as the rule is written.
"For CMS now to say otherwise about past time periods opens up the entire hospital community to misplaced enforcement scrutiny, including by potential qui tam relators, for services furnished in a hospital or on a hospital's campus before Jan. 1, 2009," the letter states.
"Through our ongoing dialogue with CMS, we learned that an assumption made by CMS in 2001 may be the root cause for the concerns related to the policy. During the 2001 rulemaking, CMS assumed that when services are furnished 'on the premises' (a location description that CMS determined included both in a hospital and on a hospital's campus), 'physician supervision is always at hand.' (63 Fed.Reg. 47,593.) The stated assumption, however, does not specify any particular level of physician supervision that CMS expected to be available. As a result, most hospitals interpreted the policy to require only 'general supervision' by a physician for services furnished in a hospital or on a hospital's campus."
The letter then restates the risk that this could expose hospitals to take-backs: "Such claims are often attractive to whistleblowers because of the lucrative amounts of Medicare reimbursement at issue, which is determined based upon the nature of the direct physician supervision requirement, its impact on the payment status of all services furnished to Medicare beneficiaries in that department, and the construct of the penalty and damages provisions of the federal False Claims Act."
Where does quality stand?
There are no new quality measures in the proposed 2010 rule, though CMS requests comments for many others for future consideration. CMS "seems to be slowing down some of their onward march toward value-based purchasing and quality, quality, quality. Not that those things aren't important to CMS any longer; they are. But I think CMS seems to recognize that hospitals have been hit with a lot of changes under the OPPS over the past few years, and perhaps it's time to slow things down and monitor the impact of some of the new 'efficiency and quality' initiatives before introducing new ones," Shah says.
CMS had proposed doing voluntary validation of data in 2008 but didn't due to staffing resources on its end. It will continue to require hospitals to abstract and submit data on the seven quality measures introduced in 2008 and use its own claims data to examine the four imaging measures introduced for reporting this year. But what exactly CMS is looking at in terms of the imaging measures remains a bit of a mystery, and hopefully CMS will release information on this early in 2010, Shah says.
For hospitals to be in compliance now, she says, they simply have to report the data. At this point, she says, the agency appears to be measuring utilization more so than actual quality, but the outpatient measures are a start toward examining service delivery, utilization, and quality.
With the inpatient rule, CMS told Hospital Peer Review it was essentially holding off on adding quality measures until such time that it could be abstracted electronically from hospitals' electronic health records (EHRs).
Pulling information from medical records and/or claims data is ideal in that it minimizes and perhaps even eliminates administration burden for hospitals, Shah says. Yet granting open access to EHRs is of concern to many and would likely have parameters associated with it so that hospitals are providing a feed rather than CMS having open access, Shah adds.
"I think Medicare is trying to be mindful of hospital burden, which is why the agency seems to be looking for ways to obtain the data and information it needs from claims data, existing registries, EHRs, etc.," says Shah.
She also acknowledges that with health care reform looming, CMS may be waiting to see what happens there before adding more changes for hospitals to contend with in 2010.
In the 2010 OPPS proposed rule, the Centers for Medicare & Medicaid Services (CMS) raises a number of issues, offers clarification, and makes some proposals regarding physician supervision issues. One such issue discussed in the proposed rule has to do with what "immediately available" means.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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