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Proposed Changes to Supervision Levels for Therapeutic Hospital Outpatient Services Would Create More Staffing Flexibility for Hospitals

on Friday, 6 November 2020 in Health Law Advisory: Zachary J. Buxton, Editor

In the 2021 Outpatient Prospective Payment System (“OPPS”) proposed rule issued on August 12, 2020, the Centers for Medicare and Medicaid Services (“CMS”) proposed implementing on a permanent basis certain changes to the requirements for the supervision levels for hospital outpatient therapeutic services. As background, in its 2020 OPPS rule, CMS changed the minimum required level of supervision for most hospital outpatient therapeutic services from direct supervision to general supervision. However, certain groups of services were still required to have supervision levels that were stricter than general supervision, such as cardiac and pulmonary rehabilitation services and the initiation portion of non-surgical extended duration therapeutic services (“NSEDTS”).  

On March 31, 2020, CMS issued an interim final rule that included many changes designed to help hospitals deal with the public health emergency (“PHE”) caused by the coronavirus pandemic. One of those changes was to reduce, during the duration of the PHE, the level of supervision required for NSEDTS services to general supervision for the entire service, including the initiation portion of the service. In addition, in the same interim final rule, CMS permitted for the duration of the PHE that the requirement for direct physician supervision of pulmonary rehabilitation, cardiac rehabilitation, and intensive cardiac rehabilitation services could be satisfied via the virtual presence of the physician through audio/video real-time communications technology when use of such technology was indicated to reduce exposure risks for the patient or the health care provider. Although these changes were only adopted for the duration of the PHE, CMS indicated in the proposed 2021 rule that its opinion was that these changes should be implemented on a permanent basis.

As a result, in the 2021 proposed rule, effective as of January 1, 2021, CMS proposed changing the level of supervision required for NSEDTS to general supervision for the entire service, including the initiation of the service, which had previously required direct supervision. CMS noted this would allow greater flexibility to hospitals in providing these services, reduce provider burden, and improve access to services in cases where the direct supervision requirement may have otherwise prevented some services from being furnished due to lack of availability of the supervising physician or non-physician practitioner, especially for rural and critical access hospitals.

CMS also proposed permitting the direct supervision requirement for pulmonary rehabilitation, cardiac rehabilitation, and intensive cardiac rehabilitation services to be performed via the virtual presence of the physician through audio/video real-time communications technology, subject to the clinical judgment of the supervising physician. (Recall that these services must currently be supervised by a physician, although legislation passed in 2018 (the Improving Access to Cardiac and Pulmonary Rehabilitation Act) would enable advanced practice providers, such as physician assistants and advanced practice registered nurses, to supervise these rehabilitation services beginning in 2024.)

CMS noted this policy would allow direct supervision to be provided through the virtual presence of the physician, which would improve access for patients and reduce the burden on providers even after the end of the PHE. While CMS requested comments on its proposal, it did note that it believed the supervision requirement would not be satisfied by mere availability, but rather would have to involve real-time presence via interactive audio and video technology throughout the performance of the procedure. The comment period for the proposed rule closed on October 5th, so we will wait and see if these changes become final in the final rule which should be released shortly.

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