Hospital Supervision Rules for “Incident To” Services
Physician supervision rules in hospital outpatient departments have continually changed over the past five years. Those who have followed these rules cannot help but wonder whether CMS is somewhat schizophrenic on this issue. Hospital supervision rules have been like a moving target, making compliance difficult to track and to communicate to front line physicians and staff who must comply with these changing rules.
Services of a therapeutic nature are often performed by physician extenders in a hospital department and are billed “incident to” the physician’s services. Historically, direct supervision was required to enable the service to be billed as “incident to” the physician’s services. The direct supervision rule generally requires the physician to be “immediately available” to assist with and direct the service. This does not necessarily require presence in the same room where the service is being delivered. The precise requirements that must be complied with in order to meet the “direct supervision” requirement is where CMS has given us a moving target for compliance purposes.
In the 2009 OPPS Rule, CMS provided what it considered to be “clarification” of its rules. To most providers, the CMS guidance actually amounted to a change of position that required changes in their supervision policies. Before the 2009 “explanation,” many providers structured their compliance efforts under the assumption that they were not required to have a physician physically present in an outpatient department to meet the direct supervision requirement. The 2009 “clarification” indicated that physical presence of a supervision provider was required.
The 2009 comments lead to much criticism from the provider community. This resulted in further changes in the 2010 OPPS Rule that made it sufficient for the supervising physician to be present on the same campus and immediately available rather than requiring physical presence in the department. Off campus clinics and departments were still required to meet the more restrictive physical presence requirement. Physical presence of off campus departments required actual physical presence in the space that is designated as the department. The supervising physician would not meet this standard even if they were located in the same building but not in the departmental office suite.
Although the 2010 rules answered some of the open questions, the rules had a huge negative impact primarily on smaller hospitals and particularly those located in rural areas. Small hospitals were required to meet the physician “physical presence” requirements even when there was no other activity requiring physician presence. This necessitated small hospitals to incur costs to meet the “incident to” supervision requirement even when physician presence was not otherwise required.
At least partly to address the “small hospital” issues, the 2011 OPPS Rule made significant changes to the physician supervision requirement. The “on the same campus” rule was abandoned in favor of a rule that focused more on the general “availability” of the physician. The 2011 rule eliminated many of the specific physical location requirement but still maintained the more general requirement that the physician be “immediately available to furnish assistance or direction throughout the performance of the procedure.” The standard requires the physician to be immediately available and interruptible. The rule also opened the door for the physician to be available by telemedicine to meet “general” supervision requirements.
The 2011 rule also identified certain services for which direct supervision is always required for the initiation of the services. Services covered by special supervision requirements includes a limited listing of non-surgical and extended duration therapeutic services. These services include certain injections, infusion and observation services. Chemotherapy is not included in this listing. These services are services that can have a longer overall duration and have a low risk of requiring physician involvement after the service is initiated.
The 2011 rule set up a panel to evaluate specific therapeutic services to determine the appropriate level of supervision. The 2012 OPPS Rule formally designated the panel as the body that reviews and recommends changes in supervision requirements relative to various therapeutic services. The 2012 rule also took steps to assure that critical access and rural hospitals were represented on the panel. The panel is authorized to recommend levels of supervision that are lower than “direct supervision” for specific services. The panel does not have the ability to directly enact regulations or make policy changes. Its role is limited to that of advising CMS on these issues.
At the present time, the hospital outpatient supervision requirements currently must meet the “general” supervision requirements. The service must be performed under the overall direction and control of the physician. The physical presence of the physician is not required during the performance of the “incident to” activity. In cases where personal (as opposed to general) supervision is required, the actual presence of the physician is required in the room. Some services only require physical presence at the inception of the service and have been found to not create a risk during the ongoing stages of the procedure.
All hospital outpatient therapeutic services are deemed to be provided “incident to” the services of the physician. The level of supervision required in the case of these types of services (personal or general) is based upon CMS determinations following review by the panel as indicated above.
So, now that we are all clear on the rules, (insert sarcasm emotion here), can we expect them to change again the future? Certainly the panel process will be reflected by different rules for specific therapeutic items. Additionally, given the history of this requirement, no one would be surprised if further changes are in our future.