CMS Clarifies Physician Use of Mid-Level Practitioners
CMS issues revisions in response to its April 10 memo
by Meg LaPorte
Taking a cue from the government bureaucracy "handbook"--before open door forums, town hall meetings, and initiatives aimed at improving provider relations and reducing regulatory burdens--the Center for Medicare and Medicaid Services (CMS) recently caused an already puzzling interpretation of regulations to become even more difficult for nursing home physicians and mid-level practitioners to follow.
On April 10, 2003, CMS released a memo, "Physician Delegation of Tasks in Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs)," which attempted to clarify "the regulatory differences concerning physician delegation of tasks in SNFs and NFs."
Contrary to the memo's intent, however, it left a number of long-term care (LTC) practitioners scratching their heads over a provision intended to guide physicians in how to appropriately utilize mid-level practitioners, such as nurse practitioners (NPs), clinical nurse specialists (CNSs), and physician assistants (PAs), to perform required and medically necessary visits, write orders, and sign certifications and re-certifications.
Nonetheless, following the release of the April 10 memo, the government affairs staff of the American Medical Directors Association (AMDA) received numerous inquiries requesting clarification on the memo. Some raised concerns that CMS was making a policy change on the use of mid-level practitioners. Many were concerned specifically with a mid-level practitioner's ability to perform a medically necessary visit to a newly admitted SNF patient before the physician has made the required initial visit.
In response to AMDA and other provider organizations' requests, CMS published a revised memo in late July that contains new definitions, more detailed descriptions of services, and some corrections to errors found in the first one. The new memo is an improvement over the previous one due to its comprehensive approach and improved interpretations.
During a July 29 Open Door Forum conference call for SNF/LTC stakeholders, Sheila Lambowitz, a CMS Survey and Certification staff member, reported that the revised clarification memo contains definitions for five services that may be performed by mid-level practitioners in SNFs and NFs:
- Initial comprehensive visits;
- Initial comprehensive orders;
- Other required visits;
- Certifications; and
- Re-certifying SNF patients.
SNFs vs. NFs
According to the Code of Federal Regulations' (CFR) language for physician visits, key differences exist between a physician's authority to delegate visits to residents in NFs versus residents in SNFs. To paraphrase the CFR language regarding NFs: Any required physician task in an NF, including those required by regulations to be personally performed by the physician, may also be performed by a mid-level practitioner.
However, any mid-level practitioner conducting a visit or certification must not be employed by the facility and must be working in collaboration with a physician.
On the other hand, the regulatory language for physician visits in SNFs states that mid-level practitioners may alternate visits to the patient only after the physician has performed the initial visit.
This means mid-level practitioners may not perform the initial visit (as defined in the memo) in an SNF, but may perform subsequent alternating visits and other required, acute, or medically necessary visits.
Initial Comprehensive Visits & Initial Comprehensive Orders
"One major distinction between the first memo and the new clarification is that the term initial visit has been replaced by initial comprehensive visit, which must not be performed by anyone other than a physician (in an SNF)," said Ms. Lambowitz. "This new clarification, however, is not intended to preclude a [mid-level practitioner] from providing medically necessary services to SNF or NF patients."
Mid-level practitioners in an SNF may not sign the initial comprehensive orders (which now replace initial orders), but NPs, CNSs, and PAs not employed by the facility may sign initial comprehensive orders in an NF.
It is important to bear in mind that these tasks may be performed only when permitted under the scope of practice for the state. PAs may not sign initial orders or perform the initial visit, regardless of employment status.
Other Required Visits
The most significant development contained in the new clarification was based on the discovery that CMS was interpreting the initial visit (now referred to as the initial comprehensive visit) as the first visit in an SNF or an NF, said Ms. Lambowitz. "While we now interpret the initial visit to be the initial comprehensive visit, it does not preclude [mid-level practitioners] from providing medically necessary services [in either setting]," she said.
Certification & Re-Certification
Upon admission to an NF, a resident must be certified to stay in the facility as a Medicare, Medicaid, or private pay patient. The memo clearly outlines the varied ability of mid-level practitioners to sign certifications and re-certifications. NPs and CNSs may sign certifications and re-certifications for patients in SNFs if they are not employed by the facility. However, PAs--regardless of employment status--may not sign initial certifications or any re-certifications for SNF patients. Yet, all mid-level practitioners may sign subsequent orders--regardless of employment status in both an SNF and an NF.
Dually Certified Facilities
Because the CFR language does not directly address dually certified facilities, the CMS memo directs providers to follow the guidelines for physician visits in SNFs and NFs. In order to determine which guideline to follow (SNF or NF) the facility must first establish how the resident stay is being paid. For residents in a Part A Medicare stay, the NP, CNS, and PA must follow the guidelines for services in an SNF. For Medicaid-stay residents, the NP, CNS, and PA must follow the guidelines for services in an NF.
Historically, AMDA members have had questions about the physician visit provisions as they relate to the utilization of mid-level practitioners--especially because the regulatory policies often vary among Medicare carriers.
In an April 2000 response to AMDA from a CMS official, the CFR language for physician visits to SNFs was cited as a basis for the response: "at the option of the physician, required visits [emphasis added] in an SNF after the initial visit may alternate between personal visits by the physician and visits by an NP, a PA, or a CNS."
Prior to the April communication, AMDA had used this and other correspondence from CMS to provide its members with guidance on the issue.
In response to the most recent concerns, AMDA issued the following analysis to guide its members on the delegation of visits to mid-level practitioners:
- The memo does not make a change in CMS policy. If the agency intended to change policy, in almost all cases, the memo also would have been sent to the Medicare carriers directing them to do so pursuant to the memo's instructions. It is simply a clarification most likely intended to inform surveyor to monitor the use of physician extenders in a facility's admitting and certification policies.
- The memo makes a distinction between mid-level practitioners employed by the facility and those not employed by the facility. The distinction is that NPs, CNSs, and PAs employed by the facility may not make initial comprehensive visits or sign initial comprehensive orders in SNFs or NFs, while mid-level practitioners not employed by the facility but who have a collaborative agreement with a physician, may make follow-up and medically necessary visits in SNFs and initial comprehensive, follow-up, and medically necessary visits in NFs.
- Although the April 10 memo is ambiguous regarding the allowance of NPs, CNSs, and PAs to make medically necessary visits prior to the physician performing the initial comprehensive visit and signing the initial comprehensive orders, the revised memo clarifies the issue by including medically necessary or acute visits in the definition of other required visits. This means that mid-level practitioners may perform other required visits that will not be construed as an initial comprehensive visit.
Therefore, AMDA's opinion (not to be construed as legal advice) is that mid-level practitioners may perform the first visit in an SNF or an NF as a medically necessary or an acute visit. Moreover, in addition to the regulation as stated in the CFR, AMDA's position is that the complexity of the initial comprehensive visit is such that a physician is best qualified to perform this initial evaluation.
Despite these recent CMS communications, AMDA advises physicians and mid-level practitioners to seek clarification in writing on this issue from their local Medicare carrier--at least until the revised memo has been appropriately communicated to the carriers.
Richard Stefanacci, DO, MGH, MBA, CMD, an AMDA member currently serving as the CMS Health Policy Scholar for Thomas Jefferson University, Philadelphia, recently speculated that surveyors asked for the memo to be issued due to their confusion around the issue. He suggested that the memo is a result of a request by some surveyors for clarification on this issue because the regulations are far from clear.
"In addition, the focus appears to be on preventing a conflict of interest that can arise when a facility-employed mid-level practitioner is certifying facility services," said Dr. Stefanacci. "Conflict of interest issues have always been a concern, and with the increase of NFs employing mid-level practitioners directly, this issue is receiving greater attention."
Other LTC physicians speculated that because the first memo was issued only to survey agencies, it was part of an effort to coax surveyors into more closely scrutinizing physician visits and task delegation. But according to another CMS source (who asked not be identified), the impetus for the memo was based on "numerous inquiries concerning this regulation, particularly from nurse practitioners."
Regardless of CMS' motivation for issuing the memos, they represent a valuable step toward improved understanding of the regulations. Both physicians and mid-level practitioners should use the memos as a reference tool, which may prove particularly use when questions arise concerning initial comprehensive visit versus first visits and certifications and re-certifications.
The memos are available on the CMS Web site, http://cms.hhs.gov/.
Mid-Level Practitioners: Our Invaluable Partners
As medical science has advanced and the elderly population has grown, so has the need for more LTC practitioners to deliver care. Mid-level practitioners have filled a gap in LTC that physicians have not been able to meet. They can reduce health-care costs and serve as key players in delivering health care in the LTC setting.
According to the AMDA Clinical Practice Guidelines on Mid-Level Practitioners in Long Term Care, the growth and utilization of the mid-level practitioner has not been without growing pains and controversy. The full use of these practitioners has been influenced by significant legal, economic, and practice constraints, which vary from state to state.
Nonetheless, AMDA members increasingly utilize mid-level practitioners for tasks ranging from alternating routine visits to writing protocols for the licensed nurses in facilities to follow for commonly occurring events. In addition, mid-level practitioners in LTC gather data and evaluate newly admitted patients, communicate patient progress to hospital and community physicians and obtain information about why certain interventions were or were not undertaken in the past. Moreover, they assist the medical director in conducting inservices for the staff, developing policies and procedures, and conducting quality improvement activities.
Despite historical controversy surrounding the interpretation of regulations and varied scope of practice issues, one medical director remains clear-cut about his facilities' policies on initial visits and the use of mid-level practitioners in nursing homes. David Wilcox, MD, CMD, CWS, FACP, associate professor of medicine at the Indiana University School of Clinical Medicine and a medical director in the Indianapolis area, believed his practice is in compliance with the recent CMS memos on the subject.
"The memo does not affect our geriatric practice in any significant manner," he said. "Nurse practitioners are highly functional in the state of Indiana. They make visits to residents with acute symptoms and they make the first visit to my nursing home patients--within 48 hours of admission. The nurse practitioners perform a general assessment and ensure all the necessary paperwork, such as transfer or discharge orders from the hospital, are with the patient.
"The physician makes the required initial visit, which includes a history and physical, usually within 48 hours of the patient's admission as well," said Dr. Wilcox. "This allows the physician and nurse practitioner to collaborate on writing the initial assessment and orders. The NP, however, does not bill for this first visit and therefore does not get paid by Medicare for that visit."
Not only does this practice improve quality of care in the facility, but it also prevents the facility from liability exposure and possible claims denial from the Medicare carrier (as carriers may often do when an unclear regulation exists).
"Other nursing home physicians have indicated to me that having the nurse practitioner make an unpaid visit in addition to my visit constitutes a duplication of work. But I am more concerned about our patients having high quality care," emphasized Dr. Wilcox. "The nurse practitioner and physician assessments are complementary; the patient benefits from two professional evaluations coming from different perspectives."
This article originally appeared in
Caring for the
Ages, September 2003; Vol. 4, No. 9, p. 4, 11.
Caring for the Ages is an official publication of the American
Medical Directors Association, published by Elsevier. This article may not be
reproduced in any form, print or electronic, without
The opinions expressed
by the authors are their own
and not necessarily those of AMDA or of Elsevier.
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