The general physician supervision requirements for the Medicare program are found in the Code of Federal Regulations at 42 CFR §410.27. Direct physician supervision of services provided by hospitals using staff that are not physicians or non-physician practitioners is a part of the provider-based rules (PBR) found at 42 CFR §413.65. In the April 7, 2000 Federal Register, the Centers for Medicare & Medicaid Services (CMS, then known as HCFA) codified the PBR and included a statement that direct physician supervision for hospitals was required only for off-campus, provider-based clinics. For on-campus treatment or treatment delivered in the hospital itself, it was presumed that there would be a physician available if services by ancillary staff were being performed.
- Yes, this April 7 Federal Register was the starting point for the OPPS (Outpatient Prospective Payment System) through APCs (ambulatory payment classifications). The PBR Federal Register entries are tacked onto other payment system FR entries, including MS-DRGs. With a rule such as the PBR, separate FR entries would probably be more appropriate.
- Direct physician supervision is also a requirement for physicians in freestanding clinics when the physician performs “incident-to billing.” The requirements for direct physician supervision in a freestanding clinic are somewhat different from the requirements for hospitals. For physicians, if the physician is to bill on an incident-to basis, then the physician must be in the office suite.
Starting in 2008, there was a change in CMS’s stance on physician supervision. From 2008 through at least 2014, there were extensive discussions in various Federal Register entries concerning physician supervision requirements. In 2010, non-physician practitioners (NPPs) were allowed to meet the supervisory requirements for incident-to services. At first, CMS wanted the supervising physician or NPPs to be on the hospital’s campus, but then they backed away from this requirement. CMS also has extended the physician supervision requirements beyond the benefit category of incident-to services to other benefit categories as well.
In the final analysis, CMS has basically three criteria:
- The supervising physician must be immediately available;
- The supervising physician must be interruptible; and
- The supervising physician must be able to take over care.
The use of the word “physician” in the above guidelines generally includes qualified non-physician practitioners. CMS has not provided (or better yet, refuses to provide) any sort of time metric or distance metric for determining compliance. Auditors will be on their own to determine auditing guidelines in this area. For instance, is a five-minute response time acceptable? Or even a 15-minute response time? Must the physician be within 100 yards? Or is a mile acceptable? Without explicit guidelines, auditing for proper supervision is going to be difficult at best.
- CMS has indicated quite strongly that these are not changes in interpretation, but only clarifications. In other words, we (the healthcare community) misinterpreted what CMS stated earlier in the April 7 Federal Register.
- Some benefit categories require that only a physician (i.e., a MD or DO) may provide the needed supervision. This is particularly troublesome with cardiac rehabilitation, intensive cardiac rehabilitation, and respiratory rehabilitation programs.
As of Jan. 1, 2015, critical access hospitals (CAHs) are subject to the physician supervision requirements. For several years, CHAs and small rural hospitals were exempted from these requirements. CAHs have a significant challenge in that their CoPs (conditions of participation) for emergency care allow for a nurse to be on duty with an on-call physician who can respond within 30 minutes (or 60 minutes for a more rural area). Does this requirement dovetail with the concept of “immediately available?” Also, CAHs often have cardiac rehabilitation programs generally provided in a physical therapy arena. Only a physician can serve as a supervising physician. So how close must the supervising physician be? Can the physician be in the ER, or maybe even down the block at a clinic? If you are going to depend upon ER physicians, then will they always be interruptible?
The CAH CoPs require general supervision (i.e., interruptible and contactable by phone or other communication devices) and a 30-minute response time, at least for the ED. The general physician supervision requirements demand that the physician or non-physician practitioner be immediately available. Does this 30 minutes establish a time metric for response on the part of the supervising physician? Note that CMS has done away with the requirement that the physician be on campus so that the physician can be some physical distance away, but what distance and time metric is satisfactory for compliance purposes?
The bottom line is that CAHs, as well as hospitals in general, must establish policies and implementing procedures to the best of their knowledge and capabilities.
CAHs face an additional hurdle in that there appears a conflict between the CoPs and the supervisory requirements. How this issue will be audited and by whom it will be audited are yet to be seen.
Until further guidance is issued, if there is to be any additional guidance, we are all on our own in this area.
About the Author
Duane C. Abbey, Ph.D., CFP, is an educator, author and management consultant working in the healthcare field. He is president of Abbey & Abbey Consultants, Inc., which specializes in healthcare consulting and related areas. His firm is based in Ames, Iowa. Dr. Abbey earned his graduate degrees at the University of Notre Dame and Iowa State University.
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