Just A Language Change, Or A Step In Slouching Towards Gomorrah?

I am not sure of the ultimate meaning and outcome of this CMS update to the OPPS, but my fear is that it may represent yet another step in "slouching towards medical Gomorrah" - that is, physician oversight of patient care by a wide variety of ancillaries being deemed entirely unnecessary and redundant.

Of course, health IT will turn even the lowliest LPN into Marcus Welby...

American Health Lawyers Association (AHLA) alert

CMS Modifies "Incident To" Restrictions at Provider-Based Sites


By Kelly R. Anderson*

On June 19, 2008, the Centers for Medicare and Medicaid Services (CMS) posted the July 2008 Update of the Hospital Outpatient Prospective Payment System (OPPS).

Notably, in the update, CMS announced revisions to the Medicare Benefit Policy Manual "to remove language stating that services furnished in provider-based departments of hospitals must be rendered under the direct supervision of a physician 'who is treating the patient.'" This is a much-anticipated modification for hospitals and their lawyers since the release of Medicare Transmittal 82, in February 2007. Transmittal 82 required provider-based clinics to furnish therapeutic services under the direct supervision of a physician who is treating the patient.

According to CMS, the language of Transmittal 82 has caused confusion in relation to the requirements of the Code of Federal Regulations. Prior to the release of Transmittal 82, the Code of Regulations provided that services furnished incident-to in a provider based hospital outpatient department required the oversight of a supervising physician who is immediately available in the event of an emergency, but not necessarily the treating physician. 42 C.F.R. § 410.27(f). It appears that for services furnished incident-to in a provider based hospital outpatient department, hospitals may again rely on the supervision of a physician who generally does not have a treatment relationship with the patient.

View the July update (Transmittal 1536).

*We would like to thank Kelly R. Anderson, Esquire (Baptist Healthcare System, Central Baptist Hospital, Lexington, KY), for providing this email alert.


One wonders how the explicit removal of language on care "rendered under the direct supervision of a physician who is treating the patient" to care that can "rely on the supervision of a physician who generally does not have a treatment relationship with the patient" will play out in the real world of medicine.

A world where the almighty dollar rules.

-- SS