I 

111TH CONGRESS 

2D SESSION H. R. 6376 

To amend title XVIII of the Social Security Act with respect to physician 

supervision of therapeutic hospital outpatient services. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 29, 2010 

Mr. POMEROY (for himself and Mr. MORAN of Kansas) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title XVIII of the Social Security Act with respect 

to physician supervision of therapeutic hospital outpatient services. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. REQUIREMENTS FOR PHYSICIAN SUPERVISION 

4 OF THERAPEUTIC HOSPITAL OUTPATIENT 

5 SERVICES. 

6 (a) THERAPEUTIC HOSPITAL OUTPATIENT SERV7 ICES.— 


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1 (1) SUPERVISION REQUIREMENTS.—Section 

2 1833 of the Social Security Act (42 U.S.C. 1395l) 

3 is amended by adding at the end the following new 

4 subsection: 

5 ‘‘(z) PHYSICIAN SUPERVISION REQUIREMENTS FOR

6 THERAPEUTIC HOSPITAL OUTPATIENT SERVICES.— 

7 ‘‘(1) GENERAL SUPERVISION FOR THERAPEUTIC

8 SERVICES.—Except as may be provided under para9 graph (2), insofar as the Secretary requires the su10 pervision by a physician or a non-physician practi11 tioner for payment for therapeutic hospital out12 patient services (as defined in paragraph (5)(A)) 

13 furnished under this part, such requirement shall be 

14 met if such services are furnished under the general 

15 supervision (as defined in paragraph (5)(B)) of the 

16 physician or non-physician practitioner, as the case 

17 may be. 

18 ‘‘(2) EXCEPTIONS PROCESS FOR HIGH-RISK OR

19 COMPLEX MEDICAL SERVICES REQUIRING HIGHER

20 LEVELS OF SUPERVISION.— 

21 ‘‘(A) IN GENERAL.—Subject to the suc22 ceeding provisions of this paragraph, the Sec23 retary shall establish a process for the designa24 tion of therapeutic hospital outpatient services 

25 furnished under this part that, by reason of 


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1 complexity or high risk, require direct super2 vision (as defined in paragraph (5)(A)). 

3 ‘‘(B) CONSULTATION WITH CLINICAL EX4 PERTS.— 

5 ‘‘(i) IN GENERAL.—Under the process 

6 established under subparagraph (A), before 

7 the designation of any therapeutic hospital 

8 outpatient service for which direct super9 vision may be required under this part, the 

10 Secretary shall consult with a panel of out11 side experts described in clause (ii) to ad12 vise the Secretary with respect to each 

13 such designation. 

14 ‘‘(ii) ADVISORY PANEL ON SUPER15 VISION OF THERAPEUTIC HOSPITAL OUT16 PATIENT SERVICES COMPRISED OF PHYSI17 CIANS AND NON-PHYSICIAN PRACTI18 TIONERS SERVING RURAL AND OTHER

19 AREAS.—For purposes of clause (i), a 

20 panel of outside experts described in this 

21 clause is a panel appointed by the Sec22 retary, based on nominations submitted by 

23 hospital, rural health, and medical organi24 zations representing physicians or non-phyVerDate Mar 15 2010 03:01 Oct 14, 2010 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6376.IH H6376

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1 sician practitioners, as the case may be, 

2 that meets the following requirements: 

3 ‘‘(I) COMPOSITION.—The panel 

4 shall be composed of at least 15 phy5 sicians and non-physician practi6 tioners who furnish therapeutic hos7 pital outpatient services for which 

8 payment is made under this part and 

9 who collectively represent the medical 

10 specialties that furnish such services. 

11 ‘‘(II) PRACTICAL EXPERIENCE.— 

12 During the 12-month period preceding 

13 appointment to the panel by the Sec14 retary, each physician or non-physi15 cian practitioner described in sub16 clause (I) shall have furnished thera17 peutic hospital outpatient services for 

18 which payment was made under this 

19 part. 

20 ‘‘(III) MINIMUM RURAL REP21 RESENTATION REQUIREMENT.—Not 

22 less than 50 percent of the member23 ship of the panel shall be physicians 

24 or non-physician practitioners de25 scribed in subclause (I) who practice 


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1 in rural areas (as defined in section 

2 1886(d)(2)(D)) or who furnish such 

3 services in critical access hospitals. 

4 ‘‘(C) SPECIAL RULE FOR OUTPATIENT

5 CRITICAL ACCESS HOSPITAL SERVICES.—Inso6 far as a therapeutic outpatient hospital service 

7 that is an outpatient critical access hospital 

8 service is designated as requiring direct super9 vision under the process established under sub10 paragraph (A), the Secretary shall deem the 

11 critical access hospital furnishing that service 

12 as having met the requirement for direct super13 vision for that service if, when furnishing such 

14 service, the critical access hospital meets the 

15 standard for personnel required as a condition 

16 of participation under section 485.618(d) of 

17 title 42, Code of Federal Regulations (as in ef18 fect on January 1, 2010). 

19 ‘‘(D) CONSIDERATION OF COMPLIANCE

20 BURDENS.—Under the process established 

21 under subparagraph (A), the Secretary shall 

22 take into account the impact on hospitals and 

23 critical access hospitals in complying with re24 quirements for direct supervision in the fur25 nishing of therapeutic hospital outpatient servVerDate Mar 15 2010 03:01 Oct 14, 2010 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6376.IH H6376

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1 ices, including hospital resources, availability of 

2 hospital-privileged physicians, specialty physi3 cians, and non-physician practitioners, and ad4 ministrative burdens. 

5 ‘‘(E) REQUIREMENT FOR NOTICE AND

6 COMMENT RULEMAKING.—Under the process 

7 established under subparagraph (A), the Sec8 retary shall only designate therapeutic hospital 

9 outpatient services requiring direct supervision 

10 under this part through proposed and final 

11 rulemaking that provides for public notice and 

12 opportunity for comment. 

13 ‘‘(3) INITIAL LIST OF DESIGNATED SERVICES.— 

14 The Secretary shall include in the proposed and final 

15 regulation for payment for hospital outpatient serv16 ices for 2012 under this part a list of initial thera17 peutic hospital outpatient services, if any, designated 

18 under the process established under paragraph 

19 (2)(A) as requiring direct supervision under such 

20 part. 

21 ‘‘(4) DIRECT SUPERVISION BY NON-PHYSICIAN

22 PRACTITIONERS FOR CERTAIN HOSPITAL OUT23 PATIENT SERVICES PERMITTED.— 

24 ‘‘(A) IN GENERAL.—Subject to the suc25 ceeding provisions of this subsection, a non-phyVerDate Mar 15 2010 03:01 Oct 14, 2010 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6376.IH H6376

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1 sician practitioner may directly supervise the 

2 furnishing of— 

3 ‘‘(i) therapeutic hospital outpatient 

4 services under this part, including cardiac 

5 rehabilitation services (under section 

6 1861(eee)(1)), intensive cardiac rehabilita7 tion services (under section 1861(eee)(4)), 

8 and pulmonary rehabilitation services 

9 (under section 1861(fff)(1)); and 

10 ‘‘(ii) those hospital outpatient diag11 nostic services (described in section 

12 1861(s)(2)(C)) that require direct super13 vision under the fee schedule established 

14 under section 1848. 

15 ‘‘(B) REQUIREMENTS.—Subparagraph (A) 

16 shall apply insofar as the non-physician practi17 tioner involved meets the following require18 ments: 

19 ‘‘(i) SCOPE OF PRACTICE.—The non20 physician practitioner is acting within the 

21 scope of practice under State law applica22 ble to the practitioner. 

23 ‘‘(ii) ADDITIONAL REQUIREMENTS.— 

24 The non-physician practitioner meets such 

25 requirements as the Secretary may specify. 


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1 ‘‘(5) DEFINITIONS.—In this subsection: 

2 ‘‘(A) THERAPEUTIC HOSPITAL OUT3 PATIENT SERVICES.—The term ‘therapeutic 

4 hospital outpatient services’ means hospital 

5 services described in section 1861(s)(2)(B) fur6 nished by a hospital or critical access hospital 

7 and includes— 

8 ‘‘(i) cardiac rehabilitation services and 

9 intensive cardiac rehabilitation services (as 

10 defined in paragraphs (1) and (4), respec11 tively, of section 1861(eee)); and 

12 ‘‘(ii) pulmonary rehabilitation services 

13 (as defined in section 1861(fff)(1)). 

14 ‘‘(B) GENERAL SUPERVISION.— 

15 ‘‘(i) OVERALL DIRECTION AND CON16 TROL OF PHYSICIAN.—Subject to clause 

17 (ii), with respect to the furnishing of 

18 therapeutic hospital outpatient services for 

19 which payment may be made under this 

20 part, the term ‘general supervision’ means 

21 such services are furnished under the over22 all direction and control of a physician or 

23 non-physician practitioner, as the case may 

24 be. 


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1 ‘‘(ii) PRESENCE NOT REQUIRED.—For 

2 purposes of clause (i), the presence of a 

3 physician or non-physician practitioner is 

4 not required during the performance of the 

5 procedure involved. 

6 ‘‘(C) DIRECT SUPERVISION.— 

7 ‘‘(i) PROVISION OF ASSISTANCE AND

8 DIRECTION.—Subject to clause (ii), with 

9 respect to the furnishing of therapeutic 

10 hospital outpatient services for which pay11 ment may be made under this part, the 

12 term ‘direct supervision’ means that a phy13 sician or non-physician practitioner, as the 

14 case may be, is able to furnish assistance 

15 and direction throughout the furnishing of 

16 such services and, in accordance with the 

17 policies, procedures, guidelines or bylaws of 

18 the hospital— 

19 ‘‘(I) with respect to such services 

20 furnished in the hospital, or in an on21 campus department of such hospital, 

22 is present and on the same campus 

23 and immediately available (including 

24 by telephone or other means) to fur25 nish such assistance and direction; or 


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1 ‘‘(II) with respect to such serv2 ices furnished in an off-campus pro3 vider-based department of such hos4 pital, is present in or in close prox5 imity to such department and is im6 mediately available (including by tele7 phone or other means) to furnish such 

8 assistance and direction. 

9 ‘‘(ii) PRESENCE IN ROOM NOT RE10 QUIRED.—For purposes of clause (i), a 

11 physician or non-physician practitioner, as 

12 the case may be, is not required to be 

13 present in the room during the perform14 ance of the procedure involved. 

15 ‘‘(D) NON-PHYSICIAN PRACTITIONER DE16 FINED.—The term ‘non-physician practitioner’ 

17 means an individual who— 

18 ‘‘(i) is a physician assistant, a nurse 

19 practitioner, a clinical nurse specialist, a 

20 clinical social worker, a clinical psycholo21 gist, a certified nurse midwife, or a cer22 tified registered nurse anesthetist, and in23 cludes such other practitioners as the Sec24 retary may specify; and 


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1 ‘‘(ii) with respect to the furnishing of 

2 therapeutic outpatient hospital services, 

3 meets the requirements of paragraph 

4 (4)(B).’’. 

5 (2) CONFORMING AMENDMENT.—Section 

6 1861(eee)(2)(B) of the Social Security Act (42 

7 U.S.C. 1395x(eee)(2)(B)) is amended by inserting ‘‘, 

8 and a non-physician practitioner (as defined in sec9 tion 1833(z)(5)(D)) may supervise the furnishing of 

10 such items and services in the hospital’’ after ‘‘in 

11 the case of items and services furnished under such 

12 a program in a hospital, such availability shall be 

13 presumed’’. 

14 (b) PROHIBITION ON RETROACTIVE ENFORCEMENT

15 OF REVISED INTERPRETATION.— 

16 (1) REPEAL OF REGULATORY CLARIFICA17 TION.—The restatement and clarification under the 

18 final rule making changes to the Medicare hospital 

19 outpatient prospective payment system and calendar 

20 year 2009 payment rates (published in the Federal 

21 Register on November 18, 2008, 73 Fed. Reg. 

22 68702 through 68704) with respect to requirements 

23 for direct supervision by physicians for therapeutic 

24 hospital outpatient services (as defined in paragraph 

25 (3)) for purposes of payment for such services under 


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1 the Medicare program shall have no force or effect 

2 in law. 

3 (2) HOLD HARMLESS.—A hospital or critical 

4 access hospital that furnishes therapeutic hospital 

5 outpatient services during the period beginning on 

6 January 1, 2001, and ending on December 31, 

7 2011, for which a claim for payment is made under 

8 part B of title XVIII of the Social Security Act shall 

9 not be subject to any civil or criminal action or pen10 alty under Federal law for failure to meet super11 vision requirements under the regulation described 

12 in paragraph (1), under program manuals, or other13 wise. 

14 (3) THERAPEUTIC HOSPITAL OUTPATIENT

15 SERVICES DEFINED.—In this subsection, the term 

16 ‘‘therapeutic hospital outpatient services’’ means 

17 medical and other health services furnished by a 

18 hospital or critical access hospital that are— 

19 (A) hospital services described in sub20 section (s)(2)(B) of section 1861 of the Social 

21 Security Act (42 U.S.C. 1395x); 

22 (B) cardiac rehabilitation services or inten23 sive cardiac rehabilitation services (as defined 

24 in paragraphs (1) and (4), respectively, of sub25 section (eee) of such section); or 


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1 (C) pulmonary rehabilitation services (as 

2 defined in subsection (fff)(1) of such section). 

Æ 


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