Business Briefs: Final 2010 Medicare Policy: Supervision in HOPDs

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  Hospital-owned outpatient wound care departments (HOPDs) throughout the country anxiously awaited Medicare’s 2010 Outpatient Prospective Payment System (OPPS) Final Rule, which was released on October 30, 2009 and provides nearly 2000 pages of very important policies. As soon as the Final Rule was released, this author did an immediate search to answer the main question that all HOPDs wanted to have answered: Did Medicare change the “direct supervision” requirement for on-campus and off-campus HOPDs in 2010?

  Medicare, via the OPPS Final Rule, annually updates the 1) payment rules that HOPDs must follow and 2) payment rates that HOPDs may receive from Medicare and Medicare beneficiaries. All wound care providers/employees who work in HOPDs should read the sections of the 2010 OPPS Final Rule that pertain to them. The document can be found at: https://www.cms.hhs.gov/HospitalOutpatientPPS/HORD/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=3&sortOrder=descending&itemID=CMS1230047&intNumPerPage=10.

  In this issue and in the next few issues of Today’s Wound Clinic, this author will review the major points of the 2010 Final Rules for both the HOPD and the physicians and non physician practitioners who provide wound care to Medicare beneficiaries in this place of service.

Look Back at 2009 OPPS Final Rule

  The 2009 OPPS Final Rule, which became effective on January 1, 2009, surprised and worried many providers and employees who work in HOPDs that are not directly supervised by a physician. These HOPDs thought that the availability of physicians in the hospital satisfied the supervision requirements. However, the 2009 OPPS Final Rule clarified that the original 2000 OPPS Final Rule stated that “direct supervision” is the standard for physician supervision of hospital outpatient therapeutic services. “Direct supervision” means the physician must be present and on the premises at the location (in the department) and immediately available to furnish assistance and direction throughout the performance of the procedure (for as long as patients are being treated in the department).

  The only physicians who can provide direct supervision in HOPDs throughout 2009 are:

    • Doctors of medicine or osteopathy
    • Doctors of dental surgery or of dental medicine
    • Doctors of podiatric medicine (for certain purposes and to the extent authorized by the State)
    • Doctors of optometry
    • Chiropractors

  The 2009 OPPS Final Rule further clarified that a non physician practitioner may not provide the direct supervision even if their professional service was billed as a nurse practitioner or a physician assistant service and not as a physician service.

  NOTE: The 2009 OPPS Final Rule greatly affected wound clinics that were directly supervised by non-physician practitioners or, in some cases, were staffed by wound care nurses without any direct supervision. Throughout 2009 hospitals could not bill a facility fee if a physician was not present in the footprint of the wound care department. If a non physician practitioner provided the service, they could bill for the professional fee, but the hospital could not bill the facility fee.

Review of 2010 OPPS Final Rule:

  Medicare stated that the stakeholders provided sufficient information for them to develop a 2010 OPPS Final Rule that took into consideration “current clinical practice and patterns of care, the need to ensure patient access, the associated hospital and physician responsibilities, consistency among requirements for different sites of service, and other important factors.” NOTE: That means that your numerous comments to the OPPS Draft Rule were heard!

  Following are some major OPPS Final Rule points, pertaining to the “Direct Supervision” requirements for on-campus and off-campus HOPDs, which will be effective January 1, 2010:

Physicians Orders:

   “Services and supplies must be furnished on a physician’s order and delivered under physician/non physician supervision. Each occasion of a service does not need to also be the occasion of the actual rendition of a personal professional service by the physician responsible for the care of the patient. However, during the course of treatment rendered by auxiliary personnel, the physician/non physician practitioner must personally see the patient periodically and sufficiently often enough to assess the course of treatment and the patient’s progress and, where necessary, to change the treatment regimen.”

On-Campus Supervision:

  Medicare redefined the definition of supervision for hospital outpatient therapeutic services provided in the hospital or on-campus provider based departments (PBDs): “For services provided in the hospital or on-campus PBD of the hospital, the supervisory physician or non physician practitioner must be present on the same campus and immediately available to furnish assistance and direction throughout the performance of the procedure.”

  NOTE: Because “immediately available” requires the supervising physician/non physician practitioner to be physically present “without interval of time”, that person cannot be performing another procedure or service that he or she could not immediately interrupt.

   “The physician or non physician practitioner must be prepared to step in and perform the service, not just to respond to an emergency. This includes the ability to take over the performance of a procedure and, as appropriate to both the supervising physician or non physician practitioner and the patient, to change a procedure or the course of treatment being provided to a particular patient. The physician or non physician practitioner is not required to be in the room where the procedure is performed.”

  Medicare then described “in the hospital”:

   “…areas in the main building(s) of a hospital or Critical Access Hospital (CAH) that are under the ownership, financial, and administrative control of the hospital or CAH; that are operated as part of the hospital or CAH; and for which the hospital or CAH bills the services furnished under the hospital’s or CAH’s CMS certification number.”

  NOTE: Medicare clarified that “ownership” pertains to the actual business operation, not solely the physical building.

   “For 2010, non physician practitioners (clinical psychologists, licensed clinical social workers, physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse midwives) may directly supervise all hospital outpatient therapeutic services that they may perform themselves within their State law and scope of practice and hospital-granted privileges, provided that they meet all additional requirements, including any collaboration or supervision requirements, as specified in the regulations at §§410.74 through 410.77.”

   “The supervisor must be a person who is “clinically appropriate” to supervise the procedure.”

  Medicare clarified that “procedure” encompasses “all services and procedures and includes all components of a service or procedure furnished by a hospital to an outpatient and covered and paid by Medicare, regardless of whether separate payment is made for those component services.”

  NOTE: Non physician practitioners can obtain further clarification by reading Chapter 15 of the Medicare Benefit Policy Manual: https://www.cms.hhs.gov/manuals/Downloads/bp102c15.pdf.

Off-Campus Direct Supervision:

  Medicare did not redefine the definition of “Direct Supervision” of hospital outpatient therapeutic services provided off-campus because that definition was very clear in the 2000 OPPS Final Rule. Medicare did enhance the definition to allow non-physician practitioners to provide direct supervision of the services that they may perform themselves in those locations:

   “For off-campus PBDs of hospitals or CAH’s, the physician or non physician practitioner must be present in the off-campus PBD, and immediately available to furnish assistance and direction throughout the performance of the procedure. This requirement does not mean that the physician or non physician practitioner must be in the room when the procedure is performed.”

Medicare Payment:

   “Medicare Part B payment may be made for hospital outpatient services and supplies furnished incident to the services of a physician, clinical psychologist, nurse practitioner, physician assistant, clinical nurse specialist, certified nurse mid-wife services, or licensed clinical social workers – if they are provided as an integral though incidental part of a physician’s services.”

   “Medicare does not make a payment to the physician or non physician practitioner if they solely provide the direct supervision and do not furnish a direct professional service to the patient.”

Enforcement of Supervision Rules

  Many stakeholders questioned the consequences that they may incur if they misinterpreted the direct supervision rule since the year 2000 when the OPPS began. The 2010 OPPS Final Rule states:

    • For On-Campus PBDs in 2009: “We note that the physician supervision policies for hospital diagnostic and therapeutic services as described in the CY 2009 OPPS/ASC final rule with comment period (73FR 68702 through 68702) continue to be in effect for CY 2009. We have not instructed contractors to delay initiation of enforcement actions or to discontinue pursuing pending enforcement actions regarding the physician supervision of hospital outpatient services (74 Federal Register 35365).”
    • For On-Campus PBDs from 2000 - 2008: Medicare “plans to exercise their discretion and will not enforce situations involving claims where the hospital’s noncompliance with the direct physician supervisory policy resulted from error or mistake.”
    • For Off-Campus PBDs: Medicare “intends to enforce the o­­ff-campus direct supervision policy from 2000-2009 because the April 2000 OPPS Final rule clearly required the supervisory practitioner to be physically present in off-campus PBDs when services were being furnished.”

Summary:

  The 2010 OPPS Final Rule allows more direct supervision flexibility to hospitals and critical access hospitals. Wound care providers and employees who work in hospital-owned outpatient wound care departments should immediately consult with their hospital administration and compliance and legal departments to discuss the following issues:

  •Have you been in compliance with the OPPS direct supervision regulations throughout 2009?
  •Will your HOPD’s supervision protocol be compliant with the 2010 OPPS supervision regulations effective January 1, 2010?
    • Remember that the physician or non physician practitioner providing supervision to your wound care department must have hospital-granted privileges to perform the procedures in your department. The fact that they are immediately available to respond does not appear to meet the full intent of the Final Rule.
    • Once you have determined how you will meet the supervision requirements, you need to establish a method of knowing who is supervising your HOPD everyday that you are open for business. For Example: You may choose to post a schedule of supervising physicians/non physician practitioners that every HOPD employee should check when they first arrive to work.
    • Once you have established your supervision protocol, hospital administration must communicate that protocol to each physician/non physician practitioner who will be providing the supervision in your HOPD.

  If a claim is submitted for work performed in an HOPD that did not have proper supervision, that claim may be paid. However, if an audit uncovers that proper supervision was not available during the patient visit, the payer can recoup your reimbursement. Remember: Just because you were paid does not mean you should have been paid and does not mean that you will be able to keep the payment after an audit.

  Be proactive NOW to be sure you are in compliance with the 2009 and 2010 OPPS supervision regulations. Then you will 1) be in the best position to ensure access to chronic wound care for your Medicare beneficiaries, 2) be in compliance with Medicare’s regulations, and 3) maintain Medicare’s standards for safe, high quality care.

  Stay tuned for additional policy changes, which will be reported in this In Business column of Today’s Wound Clinic!

Kathleen D. Schaum, MS, is President of Kathleen D. Schaum & Associates, Inc., Lake Worth, FL. Ms. Schaum can be reached for questions and consultations by calling (561) 964-2470 or through her email address: kathleendschaum@bellsouth.net.