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 fol-
lowing bill; which was referred to the Committee on Energy and Com-
merce, and in addition to the Committee on Ways and Means, for a pe-
riod to be subsequently determined by the Speaker, in each case for con-
sideration of such provisions as fall within the jurisdiction of the com-
mittee concerned 
A BILL 
To amend title XVIII of the Social Security Act with respect 
to physician supervision of therapeutic hospital out-
patient services. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. REQUIREMENTS FOR PHYSICIAN SUPERVISION 
OF THERAPEUTIC HOSPITAL OUTPATIENT 
SERVICES. 
(a) THERAPEUTIC HOSPITAL OUTPATIENT SERV-
ICES.— 
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(1) 
SUPERVISION
REQUIREMENTS.—Section 
1833 of the Social Security Act (42 U.S.C. 1395l) 
is amended by adding at the end the following new 
subsection: 
‘‘(z) PHYSICIAN SUPERVISION REQUIREMENTS FOR 
THERAPEUTIC HOSPITAL OUTPATIENT SERVICES.— 
‘‘(1) GENERAL SUPERVISION FOR THERAPEUTIC 
SERVICES.—Except as may be provided under para-
graph (2), insofar as the Secretary requires the su-
pervision by a physician or a non-physician practi-
tioner for payment for therapeutic hospital out-
patient services (as defined in paragraph (5)(A)) 
furnished under this part, such requirement shall be 
met if such services are furnished under the general 
supervision (as defined in paragraph (5)(B)) of the 
physician or non-physician practitioner, as the case 
may be. 
‘‘(2) EXCEPTIONS PROCESS FOR HIGH-RISK OR 
COMPLEX
MEDICAL
SERVICES
REQUIRING
HIGHER 
LEVELS OF SUPERVISION.— 
‘‘(A) IN
GENERAL.—Subject to the suc-
ceeding provisions of this paragraph, the Sec-
retary shall establish a process for the designa-
tion of therapeutic hospital outpatient services 
furnished under this part that, by reason of 
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complexity or high risk, require direct super-
vision (as defined in paragraph (5)(A)). 
‘‘(B) CONSULTATION WITH CLINICAL EX-
PERTS.— 
‘‘(i) IN GENERAL.—Under the process 
established under subparagraph (A), before 
the designation of any therapeutic hospital 
outpatient service for which direct super-
vision may be required under this part, the 
Secretary shall consult with a panel of out-
side experts described in clause (ii) to ad-
vise the Secretary with respect to each 
such designation. 
‘‘(ii) ADVISORY
PANEL
ON
SUPER-
VISION OF THERAPEUTIC HOSPITAL OUT-
PATIENT SERVICES COMPRISED OF PHYSI-
CIANS
AND
NON-PHYSICIAN
PRACTI-
TIONERS
SERVING
RURAL
AND
OTHER 
AREAS.—For purposes of clause (i), a 
panel of outside experts described in this 
clause is a panel appointed by the Sec-
retary, based on nominations submitted by 
hospital, rural health, and medical organi-
zations representing physicians or non-phy-
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sician practitioners, as the case may be, 
that meets the following requirements: 
‘‘(I) COMPOSITION.—The panel 
shall be composed of at least 15 phy-
sicians 
and 
non-physician 
practi-
tioners who furnish therapeutic hos-
pital outpatient services for which 
payment is made under this part and 
who collectively represent the medical 
specialties that furnish such services. 
‘‘(II) PRACTICAL EXPERIENCE.— 
During the 12-month period preceding 
appointment to the panel by the Sec-
retary, each physician or non-physi-
cian practitioner described in sub-
clause (I) shall have furnished thera-
peutic hospital outpatient services for 
which payment was made under this 
part. 
‘‘(III) MINIMUM
RURAL
REP-
RESENTATION
REQUIREMENT.—Not 
less than 50 percent of the member-
ship of the panel shall be physicians 
or non-physician practitioners de-
scribed in subclause (I) who practice 
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in rural areas (as defined in section 
1886(d)(2)(D)) or who furnish such 
services in critical access hospitals. 
‘‘(C) SPECIAL
RULE
FOR
OUTPATIENT 
CRITICAL
ACCESS
HOSPITAL
SERVICES.—Inso-
far as a therapeutic outpatient hospital service 
that is an outpatient critical access hospital 
service is designated as requiring direct super-
vision under the process established under sub-
paragraph (A), the Secretary shall deem the 
critical access hospital furnishing that service 
as having met the requirement for direct super-
vision for that service if, when furnishing such 
service, the critical access hospital meets the 
standard for personnel required as a condition 
of participation under section 485.618(d) of 
title 42, Code of Federal Regulations (as in ef-
fect on January 1, 2010). 
‘‘(D) CONSIDERATION
OF
COMPLIANCE 
BURDENS.—Under 
the 
process 
established 
under subparagraph (A), the Secretary shall 
take into account the impact on hospitals and 
critical access hospitals in complying with re-
quirements for direct supervision in the fur-
nishing of therapeutic hospital outpatient serv-
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ices, including hospital resources, availability of 
hospital-privileged physicians, specialty physi-
cians, and non-physician practitioners, and ad-
ministrative burdens. 
‘‘(E) REQUIREMENT
FOR
NOTICE
AND 
COMMENT
RULEMAKING.—Under the process 
established under subparagraph (A), the Sec-
retary shall only designate therapeutic hospital 
outpatient services requiring direct supervision 
under this part through proposed and final 
rulemaking that provides for public notice and 
opportunity for comment. 
‘‘(3) INITIAL LIST OF DESIGNATED SERVICES.— 
The Secretary shall include in the proposed and final 
regulation for payment for hospital outpatient serv-
ices for 2012 under this part a list of initial thera-
peutic hospital outpatient services, if any, designated 
under the process established under paragraph 
(2)(A) as requiring direct supervision under such 
part. 
‘‘(4) DIRECT SUPERVISION BY NON-PHYSICIAN 
PRACTITIONERS
FOR
CERTAIN
HOSPITAL
OUT-
PATIENT SERVICES PERMITTED.— 
‘‘(A) IN
GENERAL.—Subject to the suc-
ceeding provisions of this subsection, a non-phy-
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sician practitioner may directly supervise the 
furnishing of— 
‘‘(i) therapeutic hospital outpatient 
services under this part, including cardiac 
rehabilitation 
services 
(under 
section 
1861(eee)(1)), intensive cardiac rehabilita-
tion services (under section 1861(eee)(4)), 
and 
pulmonary 
rehabilitation 
services 
(under section 1861(fff)(1)); and 
‘‘(ii) those hospital outpatient diag-
nostic 
services 
(described 
in 
section 
1861(s)(2)(C)) that require direct super-
vision under the fee schedule established 
under section 1848. 
‘‘(B) REQUIREMENTS.—Subparagraph (A) 
shall apply insofar as the non-physician practi-
tioner involved meets the following require-
ments: 
‘‘(i) SCOPE OF PRACTICE.—The non- 
physician practitioner is acting within the 
scope of practice under State law applica-
ble to the practitioner. 
‘‘(ii) ADDITIONAL
REQUIREMENTS.— 
The non-physician practitioner meets such 
requirements as the Secretary may specify. 
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‘‘(5) DEFINITIONS.—In this subsection: 
‘‘(A) 
THERAPEUTIC
HOSPITAL
OUT-
PATIENT
SERVICES.—The term ‘therapeutic 
hospital outpatient services’ means hospital 
services described in section 1861(s)(2)(B) fur-
nished by a hospital or critical access hospital 
and includes— 
‘‘(i) cardiac rehabilitation services and 
intensive cardiac rehabilitation services (as 
defined in paragraphs (1) and (4), respec-
tively, of section 1861(eee)); and 
‘‘(ii) pulmonary rehabilitation services 
(as defined in section 1861(fff)(1)). 
‘‘(B) GENERAL SUPERVISION.— 
‘‘(i) OVERALL DIRECTION AND CON-
TROL
OF
PHYSICIAN.—Subject to clause 
(ii), with respect to the furnishing of 
therapeutic hospital outpatient services for 
which payment may be made under this 
part, the term ‘general supervision’ means 
such services are furnished under the over-
all direction and control of a physician or 
non-physician practitioner, as the case may 
be. 
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‘‘(ii) PRESENCE NOT REQUIRED.—For 
purposes of clause (i), the presence of a 
physician or non-physician practitioner is 
not required during the performance of the 
procedure involved. 
‘‘(C) DIRECT SUPERVISION.— 
‘‘(i) PROVISION OF ASSISTANCE AND 
DIRECTION.—Subject to clause (ii), with 
respect to the furnishing of therapeutic 
hospital outpatient services for which pay-
ment may be made under this part, the 
term ‘direct supervision’ means that a phy-
sician or non-physician practitioner, as the 
case may be, is able to furnish assistance 
and direction throughout the furnishing of 
such services and, in accordance with the 
policies, procedures, guidelines or bylaws of 
the hospital— 
‘‘(I) with respect to such services 
furnished in the hospital, or in an on- 
campus department of such hospital, 
is present and on the same campus 
and immediately available (including 
by telephone or other means) to fur-
nish such assistance and direction; or 
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‘‘(II) with respect to such serv-
ices furnished in an off-campus pro-
vider-based department of such hos-
pital, is present in or in close prox-
imity to such department and is im-
mediately available (including by tele-
phone or other means) to furnish such 
assistance and direction. 
‘‘(ii) PRESENCE
IN
ROOM
NOT
RE-
QUIRED.—For purposes of clause (i), a 
physician or non-physician practitioner, as 
the case may be, is not required to be 
present in the room during the perform-
ance of the procedure involved. 
‘‘(D) NON-PHYSICIAN
PRACTITIONER
DE-
FINED.—The term ‘non-physician practitioner’ 
means an individual who— 
‘‘(i) is a physician assistant, a nurse 
practitioner, a clinical nurse specialist, a 
clinical social worker, a clinical psycholo-
gist, a certified nurse midwife, or a cer-
tified registered nurse anesthetist, and in-
cludes such other practitioners as the Sec-
retary may specify; and 
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‘‘(ii) with respect to the furnishing of 
therapeutic outpatient hospital services, 
meets the requirements of paragraph 
(4)(B).’’. 
(2) 
CONFORMING
AMENDMENT.—Section 
1861(eee)(2)(B) of the Social Security Act (42 
U.S.C. 1395x(eee)(2)(B)) is amended by inserting ‘‘, 
and a non-physician practitioner (as defined in sec-
tion 1833(z)(5)(D)) may supervise the furnishing of 
such items and services in the hospital’’ after ‘‘in 
the case of items and services furnished under such 
a program in a hospital, such availability shall be 
presumed’’. 
(b) PROHIBITION ON RETROACTIVE ENFORCEMENT 
OF REVISED INTERPRETATION.— 
(1) REPEAL
OF
REGULATORY
CLARIFICA-
TION.—The restatement and clarification under the 
final rule making changes to the Medicare hospital 
outpatient prospective payment system and calendar 
year 2009 payment rates (published in the Federal 
Register on November 18, 2008, 73 Fed. Reg. 
68702 through 68704) with respect to requirements 
for direct supervision by physicians for therapeutic 
hospital outpatient services (as defined in paragraph 
(3)) for purposes of payment for such services under 
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the Medicare program shall have no force or effect 
in law. 
(2) HOLD
HARMLESS.—A hospital or critical 
access hospital that furnishes therapeutic hospital 
outpatient services during the period beginning on 
January 1, 2001, and ending on December 31, 
2011, for which a claim for payment is made under 
part B of title XVIII of the Social Security Act shall 
not be subject to any civil or criminal action or pen-
alty under Federal law for failure to meet super-
vision requirements under the regulation described 
in paragraph (1), under program manuals, or other-
wise. 
(3) 
THERAPEUTIC
HOSPITAL
OUTPATIENT 
SERVICES DEFINED.—In this subsection, the term 
‘‘therapeutic hospital outpatient services’’ means 
medical and other health services furnished by a 
hospital or critical access hospital that are— 
(A) hospital services described in sub-
section (s)(2)(B) of section 1861 of the Social 
Security Act (42 U.S.C. 1395x); 
(B) cardiac rehabilitation services or inten-
sive cardiac rehabilitation services (as defined 
in paragraphs (1) and (4), respectively, of sub-
section (eee) of such section); or 
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(C) pulmonary rehabilitation services (as 
defined in subsection (fff)(1) of such section). 
Æ 
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