Federal regulations force independent diagnostic testing facilities (IDTFs) to ensure radiologist supervision of certain imaging procedures. So why do they allow the supervising radiologists to provide direct oversight at an unlimited number of sites?
Because direct supervision, by definition, means the radiologist has to be there in person. Medicare’s thinking seems to be: “If you can get around to five different locations and provide direct imaging supervision at every one of them, knock yourself out.”
So explained healthcare law specialist W. Kenneth Davis Jr., JD, in an online IDTF primer hosted by the Radiology Business Management Association (RBMA) Aug. 16.
Davis focused largely on regulatory compliance issues that can affect whether or not a site enrolled with Medicare as an IDTF will get paid for its services. Operational supervision was one of these, and it emerged as one of the topics to which he paid special attention.
After noting that IDTFs are important enough to U.S. healthcare that they have their own section in the Code of Federal Regulations (CFR), he pointed attendees concerned about supervision rules and related matters to CFR Title 42, sections 410.32 and 410.33.
“If you’re going to consider enrolling with Medicare as an IDTF, you need to become pretty familiar with these sections,” he said.
Direct Supervision for Contrast Administration: Negotiable?
Of the three types of medical-imaging supervision—general, direct and personal—direct deserves the most careful consideration in the present discussion, Davis suggested.
For general supervision the physician can be offsite and overseeing procedures via telemedicine. For personal supervision the physician must not only be onsite but also doing nearly everything up to and including operating the imaging equipment. There’s not much medical imaging that needs to be personally supervised, Davis said.
The salient supervision category for IDTFs is the one in the middle—direct, he said. “That’s because direct is the level of supervision that is usually required for MRI with contrast and CT with contrast.”
But in technology-drenched 2022, what does it mean for the supervising provider to be in the same room as the patient?
“Unfortunately, we don’t know,” Davis responded to his own question. “Medicare has, I think pretty scrupulously and intentionally, chosen to not provide guidance on what it means to be in the same suite.”
Later in the talk he suggested the agency’s reticence may have to do with the operational leeway it’s allowed hospitals serving patients under the myriad pressures of the COVID-caused public health emergency.
His best advice to IDTF leadership, directors and managers is to use common sense: “If the supervising physician is literally in a physical area that has a different suite number, they’re probably not in the same suite.”
‘Proficiency in Performance and Interpretation’
Referring to another supervision requirement under CFT 410.33, Davis underscored that the supervising physician must evidence proficiency in the performance and interpretation of each type of diagnostic procedure performed by the IDTF.
In context, he said, proficiency in performance and interpretation in the IDTF setting “has been construed as meaning that the supervisor has got to be some kind of a radiologist.”
This stands in marked contrast to the rules for physician groups.
“When physician groups bill for an imaging service, the supervising physician could be, say, an orthopedic surgeon.” Why? Because that orthopedic surgeon doesn’t have to be proficient in the performance and interpretation of each type of diagnostic procedure.
“In an IDTF they would have to be proficient in performance and interpretation,” Davis stressed. He added that it’s wise to check on any local wrinkles with a Medicare Administrative Contractor (MAC) who has jurisdiction over the IDTF’s geographic area.
The variations might include what kind of radiologist can do the job and get paid for it—board-certified, board-eligible or unspecified.
Best to Play it Safe with Nonphysician Practitioners
Segueing to a CFR subsection covering nonphysician practitioners (NPPs) as imaging supervisors for IDTFs, Davis recalled the “temporary” changes Medicare made early on in the COVID pandemic only to adopt some as de facto permanent.
For example, “to the extent that they are authorized to do so do so under their scope of practice in applicable state law”, imaging supervision can be provided by a nurse practitioner, clinical nurse specialist, physician assistant, certified registered nurse anesthetist or a certified nurse midwife, Davis said.
On the other hand, because of the proficiency requirement that is unique to IDTFs, “we believe the safest position is that NPPs cannot provide supervision in an IDTF because they’re not proficient in the performance and interpretation of the test,” Davis said. “NPPs can probably provide supervision for physician groups, but we don’t think they can for IDTFs. This has become the generally accepted majority opinion on this.”
All Eyes on the 2023 Medicare Physician Fee Schedule
Returning to the topic of telemedicine, Davis noted Medicare’s acceptance of virtual in-person presence even for direct imaging supervision during the COVID-caused public health emergency (PHE), which at present appears headed for a new extension.
Up to now, under the PHE provisions, the presence of a physician or other approved practitioner has included technology-based virtual presence except by audio-only, Davis said.
“What this basically means is direct supervision can be provided via teleradiology or telecommunications,” he added.
“Now we’ve had some people argue that, because Medicare didn’t explicitly revise the supervising physician provisions found in CFR 42 section 410.33 for IDTFs, the definition of direct supervision does not apply specifically to IDTFs,” Davis said. “We believe, however, that this seems unlikely given Medicare’s policy behind making the revisions related to allowing social distancing during the PHE.”
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In the end, we do in fact believe that telecommunications can be used for providing direct supervision during the PHE. This is speculation, but the PHE is expected to run through the rest of this year. However—and this is a critical thing to note—several weeks ago, when CMS proposed the MPFS for 2023, they also requested comments on whether to make permanent this telecommunications exception for direct supervision. So keep an eye on that when they come out with the final MPFS in October or November.”
Dave P. has worked in journalism, marketing and public relations for more than 30 years, frequently concentrating on hospitals, healthcare technology and Catholic communications. He has also specialized in fundraising communications, ghostwriting for CEOs of local, national and global charities, nonprofits and foundations.