Memo

Date:	May 8, 2003
To:	AMDA Members
Subject:	Clarification of April 10, 2003, Center for Medicare & Medicaid Services (CMS) Memo Regarding Physician Delegation of Tasks in SNFs and NFs

 

The purpose for this memo is to help clarify a recent CMS memo (http://www.cms.hhs.gov/medicaid/ltcsp/ltcmemos.asp) sent to Survey and Certification regional offices and State Survey Agency directors in which CMS attempted to clarify the regulatory differences concerning physician delegation of tasks in skilled nursing facilities (SNFs) and nursing facilities (NFs) Specifically, the agency sought to clarify the authority of physician extenders to perform physician visits and write orders and sign certifications and re-certifications in SNFs and NFs.

 

We have received a number of questions regarding the “clarification” at our national office, which indicate some further confusion. We have spoken with CMS and what follows is our analysis of the CMS policy on physician extenders.

 

1) We advise members to note that the memo was sent to the surveyors and regional directors and not to the Medicare carriers. In almost all cases, if CMS intended to change policy, they would have sent the memo the Medicare carriers directing them to do so pursuant to the memo’s instructions.

 

2) The memo does not contain a CMS policy change. 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.

 

3) The memo clearly states that nurse practitioners (NP), clinical nurse specialists (CNS), and physician assistants (PA) who are employed by the facility may not make Initial Regulatory Visits or sign Initial Orders in SNFs. Although, NPs and CNSs not employed by the facility may sign Certifications or Re-Certifications in SNFs.

 

4) In our opinion, and as a result of member inquiries, there is some ambiguity as to whether this memo provides clarification for PAs, NPs and CNSs to make medically necessary visits prior to the physician doing the Initial Visit and signing the Initial Orders.

In a letter to AMDA dated April 2, 2000, Terrence Kay, then the Director of the Division of Practitioner and Ambulatory Care in the Center for Health Plans and Providers for the Health Care Financing Administration (now CMS), provided clarification on NPs performing and billing for a medical necessary visit in a nursing facility (NF), However, regarding the same issue for SNFs, Mr. Kay cited 42 CFR (483.40 (c)(4)):
”at the option of the physician, required visits [emphasis added] in a SNF after the initial visit may alternate between personal visits by the physician and visits by an NP, PA, or CNS.”   The fact that the language states “required visits” instead of using the term “medically necessary visits” leaves some question as to whether mid-levels not employed by the facility may make medically necessary visits (as opposed to required visits) in a SNF.

 

In addition, the April 10, 2003 CMS memo states, “Therefore, in accordance with the regulations, PAs, NPs, and CNSs, may provide medically necessary care to long term care residents, except in those few situations where the regulations require that the task be personally performed by a physician or when prohibited by State law or facility policy.”

 

While we are seeking clarification from CMS on the question of PAs, NPs and CNSs performing medically necessary visits, it is our opinion that mid-levels may perform the first visit as a medically necessary visit but not as an initial visit, since this is clearly stated in the regulations and in the April 10 memo. In other words, NPs and CNSs may perform and bill for medically necessary visits in SNFs (if not employed by the facility and working in collaboration with the attending physician) but may not perform or bill for initial visits or sign initial orders and certifications in SNFs. In addition to the regulation as stated, AMDA firmly believes that the complexity of the initial visit is such that a physician is best qualified to perform this initial evaluation.

 

In the meantime, given the variation of Medicare carrier local policies, we advise members who have questions about this issue to contact their carrier to get clarification in writing. In addition, AMDA will be contacting each Carrier Medical Director (CMD) to call their attention to the CMS memo and any follow-up clarification from them.

 

In addition, we will ask CMS to provide us with a comprehensive communication that addresses all the issues surrounding the use of mid-level practitioners from both a regulatory and a carrier/payment perspective.