What Does “Direct Supervision” Mean in Non-Hospital Diagnostic Testing Facilities?

The Centers for Medicare and Medicaid Services, commonly known as CMS, requires physician supervision of certain services as a condition for reimbursement. The required supervision level depends on the type of service performed, the setting where the service is performed and the physical location of where the service is performed. Adhering to the proper protocol is critical, as services furnished without the required level of physician supervision are not reimbursable by Medicare and may potentially have even more significant consequences, including civil and criminal penalties.

Types of Physician Supervision

Generally, there are three levels of supervision for diagnostic testing in non-hospital facilities:

  • General supervision, which means the procedure is furnished under the supervising physician’s overall direction and control, but the physician’s physical presence is not required during the procedure’s performance.
  • Direct supervision, which means the supervising physician must be present and immediately available to furnish assistance and direction throughout the procedure’s performance. It does not mean the physician must be physically present in the room when the procedure is performed.
  • Personal supervision, which means the physician must be physically present in the room during the procedure’s performance.  

Direct Supervision in Hospital Settings v. Non-Hospital Settings

CMS regulations tell us that the required direct supervision for diagnostic tests performed directly or under arrangement with a hospital or in an on-campus or off-campus outpatient department of the hospital (i.e., hospital settings) differs from the required direct supervision for diagnostic tests performed in a free-standing facility, physician’s office or independent diagnostic testing facility (i.e., non-hospital settings).

For diagnostic tests performed in hospital settings, direct supervision does not require the supervising physician to be present within any physical boundary as long as he or she is immediately available.

In contrast, when services are provided in non-hospital settings or under arrangement with hospitals in non-hospital settings, direct supervision requires the supervising physician to remain present in the “office suite” where the service is being performed and be immediately available to give assistance and direction throughout the performance of the procedure.

What Does Office Suite Mean in Non-Hospital Settings?

While we know that supervising physicians are not physically bound in hospital settings and that they are physically bound in non-hospital settings, a question arises: what are the physical boundaries supervising physicians must comply with in non-hospital settings?

Does office suite mean one space, as identified in a lease, containing a collection of smaller offices or rooms? Does it allow for one primary office suite with sub-suites within? What if two separate office suites have a connecting door in between them?

No CMS regulation, Medicare Benefit Policy Manual provision or any other authority defines “office suite,” nor is there any directive case law or advisement interpreting the meaning of “office suite.” In addition, there is a lack of guidance regarding interest in enforcing the relevant CMS regulations and consequences for failing to comply with the relevant CMS regulations.

Consequences of Failing to Comply with the Required Physician Supervision Requirements

Nevertheless, knowing your options and risks are critical. Should CMS find physician supervision practices noncompliant with CMS regulations, billing entities and supervising physicians may be subject to claims’ denials, be required to reimburse CMS, be subject to whistleblower lawsuits and medical malpractice lawsuits, and potentially face civil and criminal penalties.

Medical Spa Industry Is Booming But is Regulation Keeping Up?

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medical spa lawMedical Spas nationwide, but specifically in Florida, have been opening up at a staggering pace. For many reasons, including new services, technological advances, and lax regulations, the opportunities for medical spa businesses are endless.

In 2010, there were about 1,600 medspas operating in the United States generating about $1.1 billion in revenue (about $700,000 per medspa on average). By 2018, these numbers increased to over 5,000 medspas generating about $7 billion-$8 billion in revenue (about $1.4 million per medspa on average). The number is expected to grow to over 10,000 medspas by 2023 with about $18 billion-$20.7 billion in revenue.

While medical spa owners have taken advantage of these opportunities, state authorities have yet to keep up. The medical spa industry is largely unregulated, whether that be due to the nature of the services provided, or the explosive growth in this alternative type of medical clinic. On top of that, there’s been a expansion in scope of practice and supervision requirements for certain providers, including nurse practitioners.Continue reading

What Nurse Practitioner Practice Expansion Means for Doctors

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nurse practitioner practiceBy: Jeff Cohen

The issue of scope of practice is front and center in Florida right now with the expansion of what nurse practitioners (and nurse midwives) are legally permitted to do.  The newly enacted 464.0123 allows for qualified APRNs (there is specific criteria) to practice independent of a supervising physician in the following areas of medicine–primary care, family medicine, general pediatrics, and general internal medicine.

Even more, assuming they meet the membership criteria for admission to a healthcare facility medical staff, they may admit patients, manage patient care, and discharge patients.  One of the only preserved connections with a physician established by the law is if the APRN practices at a healthcare facility, a transfer agreement including a physician is required.  Additionally, the new law establishes a Council On Advanced Practice Registered Nurse Autonomous Practice, two members of which are appointed by the Board of Medicine and an additional two appointed by the Board of Osteopathic Medicine.       Continue reading

Florida Physician Supervision for Non-Physician Providers

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florida physician supervisionBy: Chase Howard

In Florida, a licensed physician can provide supervision of healthcare providers that are not physicians under certain circumstances. Understanding who a physician can cover and under what circumstances can help protect your license and avoid receiving a complaint by the Florida Department of Health.

In every case, when a physician agrees to supervise another provider, Florida law requires certain documentation and notice to be filed.Continue reading

Medicare Physician Fee Schedule Full of Surprises

Bill Tracking SpyglassBy: Jeff Cohen

When new healthcare regs come out, we all get excited.  “What sort of nuggets will I find that could be useful?”  Sometimes the regs have useful things and sometimes, they’re just disappointing and frustrating.  The proposed changes to the 2016 Medicare Physician Fee Schedule are a mixed bag.  Allow me to illustrate:

The incident to rules may be changed to require only the ordering physician to supervise the performance of the service.  Currently, any physician in a group practice could supervise the performance of an incident to service (which allows the practice to bill for the service as though it had been performed by the ordering physician);

Qualified telemedicine services that are furnished via an interactive telecom system can be furnished by a physician or authorized practitioner for an additional list of services, including CRNAs.  This is a big change that expands the list of authorized providers;

The feds propose to characterize certain Stark Law violations as “technical,” which means they pose no financial risk to the Medicare program.  Examples include unsigned or expired agreements;Continue reading

The Next Passenger on the Health Train: Physician Assistants

fl legBy: Jackie Bain

The scope of Physician Assistants’ practice is a dynamic and hotly debated area of law which shares many similarities with the nurse supervision issues we covered in a recent article (available here). House Bill 1275 would have also allowed for an expansion in the PA field and was included on the “Health Train” compilation of bills introduced during the Florida legislature’s recent session. As we know nothing on the Train passed before the session ended and though it may gain forward momentum next time, here’ how the laws stand today: Continue reading

Physicians & Nurses in for a Long Ride on the Health Train

npsBy: Jackie Bain

Nearly half of U.S. States have already expanded the scope of nursing practice and several more are analyzing whether it is appropriate.  The debate between physicians and nurses regarding how much autonomy a nurse should be given is a political hotbed that will likely be revisited by the legislature in the near future.  Until that time, the Board of Medicine and the Board of Nursing will quietly continue to enforce the present requirements. Here’s how they stand today:

Under Florida’s current laws, in addition to the practice of professional nursing, an advanced registered nurse practitioner (“ARNP”) may perform acts of medical diagnosis, treatment and prescription. However, for the most part, such acts must be performed under the general supervision of a physician.  The nature of such a supervisory relationship should be identified in a protocol which identifies the medical acts to be performed and the conditions for their performance.Continue reading