CMS Urged to Withdraw Physician Supervision Policy

Bryn Evans , April 17, 2009

A group of 12 healthcare organizations, including the American Hospital Association, has urged CMS to withdraw or delay the recent policy change regarding physician supervision of hospital outpatient services, according to an April 15 article on the AHA's Web site, AHA News Now. The organizations recommended that CMS suspend enforcement of the policy until the agency can address all related concerns.

The policy, which CMS announced in the 2009 OPPS final rule, requires a physician privileged by the hospital to be present in a department of the hospital, or its outpatient departments furnishing outpatient therapeutic services, both on and off campus.

In its April 15 letter to CMS, the group says the policy "places a considerable burden on hospitals, requiring them to engage more physicians for direct supervisory coverage without a clear clinical need."

The letter also states that "the impact will be particularly severe for small or rural hospitals, such as critical access hospitals, which are often the only source of outpatient hospital services within many miles and which are in locations which may have only one or two physicians in the entire community."

Kimberly Anderwood Hoy, JD, CPC, director of Medicare and compliance for HCPro, Inc., in Marblehead, MA says the letter is "a good start, because certainly hospitals have felt that this was an onerous burden."

In the 2009 OPPS final rule, CMS stated that lack of direct physician supervision was a quality concern. The letter responds that "beyond this statement, CMS offers no evidence to support the assertion that quality is affected at these sites of service when there is no direct supervision. If quality is one of the reasons for imposing this new requirement, then CMS must make available the data that supports this contention."

Hoy points out that many of the services affected by the current policy (for example, infusion and wound care) are also delivered by home health nurses in a patient's home without a physician present. "It doesn't make sense for CMS to limit coverage of these services without a physician present in the outpatient department, when they are being done safely, without a physician present by home health nurses in patient's homes," she says.

Second, CMS argued in the final rule that the policy was a clarification rather than a change. The letter draws attention to the confusion this position has caused within the industry: "CMS' intent…was not clear in the 2009 OPPS proposed rule. There was a clear lack of effective and adequate notice about the CMS policy change . . . therefore, many in the field missed the opportunity to address the substantial impact this policy change would have on providers and physicians."

Hoy says that even if opponents of the policy were to concede to CMS that this policy has always been its intent, that doesn't mean that CMS shouldn't take a look at how delivery of health care has changed in the past ten years. "They may need to re-examine the policy in light of the lack of safety concerns that have arisen," she says.

Hoy adds that a strength of the letter is that many reputable associations without a common agenda back it. She suggests that while CMS could dismiss the concerns of individual hospitals as biased, a letter from the principal associations commands more attention.

The letter concludes with a call upon CMS to hold a special Open Door Forum or Town Hall meeting to address the policy and the problems it is creating. This, it says, "would be an important first step . . . ensure it provides the hospital and physician community with the opportunity to provide full feedback on the new policy's impact."

Hoy says such a meeting would offer the industry an opportunity to discuss the CMS basis for saying that the policy is necessary for quality.

Bryn Evans, CPC-A, is a managing editor with HCPro, Inc.

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