PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 5. PHYSICIAN AND PHYSICIAN ASSISTANT SERVICES
The Texas Health and Human Services Commission (HHSC) proposes new §354.1060, concerning Definitions, and amendments to §354.1062, concerning Authorized Physician Services of Title 1, Part 15, Chapter 354, Subchapter A, Division 5, relating to Physician and Physician Assistant Services.
Background and Justification
HHSC proposes new §354.1060 to define "direct supervision," "personal supervision," and "substitute physician" as those terms relate to physician supervision of other physicians in the context of an accredited graduate medical education (GME) program and arrangements under which one physician substitutes for another physician (e.g., in a locum tenens arrangement). The purpose of the proposed new §354.1060 and amended §354.1062 is to clarify when a supervising physician may bill Medicaid for services provided by resident physicians in the context of a GME program and substitute physicians.
Section-by-Section Summary
Section 354.1060 sets out definitions for "direct supervision," "personal supervision," and "substitute physician."
Amended §354.1062(a) adds an opening statement specifying the conditions under which a physician may bill Texas Medicaid for covered services. Such conditions include compliance with this rule as well as compliance with all applicable federal and state laws, rules, regulations, and policies relating to the services provided.
In §354.1062(b), the description of physician services was amended to add a statement that a physician may not bill for supervised services if the bill would result in a duplicate claim. The statement that "the physician must have examined the patient, made a diagnosis, and established a plan of care, and documented these tasks on the appropriate medical records" was deleted; these requirements are addressed in the Medical Practice Act and the rules of the Texas Medical Board. The definition for "personal supervision" was deleted and moved to new §354.1060(2).
New §354.1062(c) describes the circumstances in which a physician may bill for services as a supervising physician in a GME program. This new subsection adds situations in which the definitions for personal and direct supervision in §354.1060 are applied, such as inpatient and outpatient settings. Section 354.1062(c) also provides the associated documentation requirements. New text clarifies situations in which personal supervision is required, such as during the key portions of all major surgeries and the key portions of all other physician services billed to the Medicaid program if the immediate supervision, participation, or intervention of the supervising physician is medically prudent. New text is added, as permitted by Medicare, to allow personal and direct supervision of concurrent cases in the outpatient setting with residents providing evaluation and management services. The new text also allows personal and direct supervision of concurrent anesthesia cases by a supervising surgeon or anesthesiologist.
Other text is added to clarify that in the outpatient setting a face-to-face encounter between the patient and the physician providing direct supervision is not required. This is the usual practice for GME programs in Texas and is similar to Medicare's primary care exception policy for services furnished by residents in the absence of a teaching physician. Text is added to require a face-to-face encounter by the supervising physician when evaluation and management services are provided in the inpatient setting.
Amended §354.1062(d) permits an attending physician to bill for delegated health care tasks performed by a qualified physician's assistant or advanced practice nurse. In this subsection, the phrase "in a nursing facility" is deleted because this delegation may occur in any setting.
Amended §354.1062(e) permits billing for services provided by a physician assistant or advanced practice nurse, but deletes the reference to an "anesthesiologist assistant" because this provider type is not licensed in Texas.
New §354.1062(f) clarifies when a physician may bill for services performed by a substitute physician. This new subsection adds references to reciprocal and locum tenens arrangements; reduces the maximum number of days for these arrangements from 90 to 60 days to coincide with Medicare; and makes it clear that the substitute physician must be licensed in the state of Texas and cannot be on the Medicaid or Title XX provider exclusion list. The amended rule also contains an exception to the 60-day limit to coincide with a recent change to the Social Security Act to allow an exception for physicians ordered to active duty in the U.S. Armed Forces (42 U.S.C. §1395u(b)(6)(D)(iii)).
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed section and amendments are in effect there will be no fiscal impact to state government. The proposed new section and amendments will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-Business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro-businesses to comply with the new or amended requirements, as they will not be required to alter their business practices as a result of the rules. One of the rule changes is not reflected in existing policies; this change is to reduce the maximum number of days for a substitute physician arrangement from 90 days to 60 days. This change is not expected to have an adverse economic impact because most Medicaid-enrolled physicians are required to enroll in Medicare and the Medicare limit is 60 days.
There are no anticipated economic costs to persons who are required to comply with the proposed section or amendments. There is no anticipated negative impact on local employment.
Public Benefit
Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed section and amendments are in effect, the public will benefit from the adoption of the proposal. The anticipated public benefit of enforcing the proposed section and amendments will be improved access to and quality of health care services.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Texas Government Code. Under §2007.003(b) of the Texas Government Code, HHSC has determined that Chapter 2007 of the Texas Government Code does not apply to these rules. The changes these rules make do not implicate a recognized interest in private real property. Accordingly, HHSC is not required to complete a takings impact assessment regarding these rules.
Public Comment
Written comments on the proposed section and amendments may be submitted to Garry Walsh, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 13247, H390, Austin, Texas 78711; by fax to (512) 249-3731; or by e-mail to garry.walsh@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for Tuesday, February 17, 2009 at 9:00 a.m. to 11:00 a.m. in the John H. Winters Building, Public Hearing Room 125, located at 701 W. 51st Street, Austin, Texas 78751. Persons requiring further information, special assistance, or accommodations should contact Pamela Dunn at (512) 491-1488.
Statutory Authority
The new section and amendments are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed new section and amendments affect the Texas Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.
§354.1060.Definitions.
The following words and terms shall have the following meaning when used in this division unless the context clearly indicates otherwise.
(1) Direct supervision--The supervising physician must be in the same office, building, or facility when and where the service is provided and must be immediately available to furnish assistance and direction.
(2) Personal supervision--The supervising physician must be physically present in the room when and where the service is being provided.
(3) Substitute physician--A physician who provides services in place of another physician under either a reciprocal or locum tenens arrangement. These arrangements must comply with Medicaid policy, billing, reporting, and documentation requirements.
(A) Reciprocal arrangements--Arrangements of a substitute physician covering for the billing physician on an occasional basis when the billing physician is unavailable to provide services, and limited to a continuous period of coverage that is no longer than 60 days. Reciprocal arrangements do not have to be in writing.
(B) Locum tenens arrangements--Arrangements of a substitute physician assuming the practice of a billing physician for a temporary period of no longer than 60 days when the billing physician is absent for reasons such as illness, pregnancy, vacation, continuing medical education, or active duty in the U.S. Armed Forces. When the reason is due to active duty in the Armed Forces, the temporary period may extend over a longer continuous period during all of which the billing physician has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Locum tenens arrangements must be in writing.
§354.1062.Authorized Physician Services.
(a) This rule specifies the conditions under which a physician may bill Texas Medicaid for covered services. Such conditions include compliance with this rule as well as compliance with all applicable federal and state laws, rules, regulations and policies relating to covered services.
(b) [(a)] Physician services.
A physician may bill for [The term "physician services"
includes those] reasonable and medically necessary services
that are provided by the physician or under the [
personal] supervision of the [a] physician and
that are within the scope of practice of medicine or osteopathy as
defined by state law. A physician shall not bill the Texas Medicaid
program for supervised services if that billing would result in duplicate
payment for the same services. [Unless otherwise specified
in writing by the department or its designee, or except for services
specified in subsection (e) of this section, the physician must have
examined the patient, made a diagnosis, and established a plan of
care, and documented these tasks on the appropriate medical records
of the patient before submitting claims for payment to the department
or its designee. If such documentation is not present in the appropriate
medical record, then any payment may be recouped. Except as specified
in subsections (b), (c), (d), or (e) of this section, the term "personal
supervision" means that the physician must be in the building of the
office or facility at the time, when, and where the service is provided.]
(c) Physician supervising other physicians. A physician supervising other physicians may bill when the supervision and services are performed in the context of an accredited graduate medical education program. Facilities and professional practices do not qualify for reimbursement for services provided by resident physicians in an outpatient setting unless the facility or professional practice is owned by, or affiliated with, an accredited graduate medical education program.
(1) For all services billed to the Medicaid program, the supervision must be medically appropriate, as described in this rule, and provided to a resident physician performing a Medicaid-covered service. The supervision must be either personal or direct. To qualify for reimbursement, the medical record must clearly establish:
(A) the nature of the supervisory role of the billing physician in the delivery of the services provided by the resident physician; and
(B) that the supervision complies with the definition of supervision applicable to the covered service, as defined in §354.1060 of this title (relating to Definitions).
(2) Personal supervision is required during the key portions of all major surgeries and the key portions of all other physician services billed to the Medicaid program if the immediate supervision, participation, or intervention of the supervising physician is medically prudent in order to assure the health and safety of the patient. Physician services that require personal supervision may include invasive procedures and evaluation and management services that require complex medical decision making. Situations that require personal supervision include those in which:
(A) The clinical condition of the patient is unstable or will likely become unstable during, or as a result of, the planned medical intervention; or
(B) The planned medical intervention, even under optimal conditions, will result in medically reasonable risk for significant morbidity or death following the service or procedure; or
(C) Deviation from expected technique at the time the procedure or service is performed presents a medically reasonable, causally-related, foreseeable risk to the patient's life or health.
(3) For surgical services, the supervising surgeon is responsible for pre-operative, operative, and post-operative care provided to the patient and billed to the Medicaid program. The supervising surgeon, however, may delegate the pre- and post-operative care to a resident if appropriate direct supervision, as defined in §354.1060 of this title, is provided.
(4) For all services that do not require personal supervision and are billed to the Medicaid program, the supervising physician must provide direct supervision. The supervising physician may not provide direct supervision for an activity at the same time as providing personal supervision for another activity, with the following exceptions.
(A) The supervising physician in the outpatient setting may provide personal and direct supervision concurrently for residents providing evaluation and management services; and
(B) A supervising surgeon or supervising anesthesiologist may be involved in two concurrent anesthesia cases with residents. The supervising surgeon or supervising anesthesiologist must be present during all key portions of the procedure if the immediate supervision, participation, or intervention of the supervising physician is medically prudent in order to assure the health and safety of the patient.
(5) Supervision in the outpatient setting. A face-to-face encounter between the physician providing direct supervision and the patient is not required in the outpatient setting in the context of a graduate medical education program. All other requirements for personal or direct supervision in this division must be met for the services to qualify for reimbursement. The supervising physician must document that he/she:
(A) Reviewed the patient's history and physical examination;
(B) Confirmed or revised the patient's diagnosis;
(C) Determined the course of treatment to be followed;
(D) Assured that any needed supervision of interns or residents was provided; and
(E) Confirmed that the documentation in the medical record comports with the level of service billed.
(6) Supervision in the inpatient setting. A physician who supervises other physicians in an inpatient setting must comply with documentation requirements of paragraph (5)(A) - (E) of this subsection and must document that he or she has completed a:
(A) Personal examination of the patient not later than 36 hours after the patient's admission and before the patient's discharge and, as necessary, based on the patient's condition; and
(B) Face-to-face encounter with the patient on the same day as any billed services provided by the resident physician.
[(b) If the attending physician provides
personal and identifiable direction to interns or residents who are
participating in the care of his patient in a teaching setting as
an approved and accredited training program by the appropriate accreditation
agencies, the physician's services are covered. For major surgical
procedures and other complex and dangerous procedures or situations,
the attending physician must be physically present during the procedure
or situation to provide personal and identifiable direction, or payment
may be recouped. If personal and identifiable direction is not provided
or is not appropriately documented, any payment for services may be
recouped. The attending physician must demonstrate that personal and
identifiable direction was provided by:]
[(1) reviewing the patient's history and physical examination and personally examining the patient within a reasonable period after the patient's admission and before the patient's discharge;]
[(2) confirming or revising the patient's diagnosis;]
[(3) determining the course of treatment to be followed;]
[(4) ensuring that any supervision needed by the interns or residents is provided; and]
[(5) making, in the patient's medical record, appropriate documentation of the tasks identified in paragraphs (1)-(4) of this subsection before submitting the claim for payment to the department or its designee. The documentation is made in the same manner as required by federal regulations under Medicare.]
(d) [(c)] Delegated services. If
the attending physician delegates health care tasks to a qualified
physician's assistant or advanced practice nurse [in a nursing
facility], the services are covered if the supervision or delegation
is consistent with the rules and regulations of the Texas Medical
Board [Texas State Board of Medical Examiners]. Services
provided by physician's assistants and advanced practice nurses [in
nursing facilities] must be consistent with applicable rules,
regulations, and laws. If the supervision of the delegated task is
not appropriately documented in the patient's chart, any payment for
services may be recouped.
[(d) A physician may bill for the
service of a substitute physician who sees patients in the billing
physician's practice under either an informal arrangement of less
than 14 days, or under a formal arrangement of up to 90 days (or as
otherwise specified by the department). The substituting physician's
name and address must be documented on the claim.]
(e) Services provided by a physician assistant
or advanced practice nurse. If the services are provided by
a physician assistant or[,] advanced practice
nurse [or anesthesiologist assistant], practicing within
the scope of their license and based on protocols which have been
agreed to and signed by their supervising licensed physician, the
physician services are covered.
(f) Substitute physician. A physician may bill for the services of a substitute physician who sees patients in the billing physician's practice under either a reciprocal or locum tenens arrangement. To qualify for reimbursement, the billing physician and substitute physician must comply with the following requirements:
(1) The substitute physician's name and address must be documented on the claim.
(2) The substitute physician must be licensed to practice in the state of Texas.
(3) Consistent with the requirements of §371.1615 and §371.1677 of this title (relating to Provider Responsibility and Obligation of All Health Care Providers Regarding Exclusion, respectively), the substitute physician must not be on the Medicaid or Title XX provider exclusion list.
(4) The time period for which a physician may bill for the services of a substitute physician is limited to the following situations:
(A) When the billing physician is absent or unavailable for reasons other than active duty as a member of a reserve component of the U.S. Armed Forces, services provided by a substitute physician after the 60th day must be provided by and billed under the substitute physician's own Medicaid provider number.
(B) When the billing physician is absent or unavailable due to active duty as a member of a reserve component of the U.S. Armed Forces, the billing physician may bill for the services of a substitute physician for a period of 60 days or a longer continuous period during all of which the billing physician has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Medicaid may reimburse the billing physician for services provided by the substitute physician until the billing physician is no longer on active duty as a member of a reserve component of the Armed Forces.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 12, 2009.
TRD-200900108
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 22, 2009
For further information, please call: (512) 424-6900