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CMS Addresses Issue over Who Can Write Orders for Rehabilitation and Respiratory Care Services

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February 23, 2012

AARC has received several inquiries regarding a November 18, 2011 instruction from the Centers for Medicare and Medicaid Services (CMS) titled “Conditions of Participation for Hospitals and Interpretive Guidelines for Hospitals” (Transmittal 72). At issue is an inconsistency between CMS regulations and interpretive guidelines regarding which practitioners are deemed qualified to write orders for rehabilitation and respiratory care services.

Respiratory therapists should not be confused by the term “rehabilitation services”. To be clear, written orders for rehabilitation services in the context of the relevant Hospital Conditions of Participation means physical therapy, occupational therapy, audiology and speech pathology services. It does not mean orders for pulmonary rehabilitation services. Those services fall under an entirely different benefit category in the Medicare law.

Respiratory therapists should be reminded, however, that services billed under G0237-39 for patients who do not meet the COPD criteria for pulmonary rehabilitation are considered “respiratory care” services. Therefore, the types of practitioners who can write those orders, in addition to other types of respiratory care services, would be subject to the new CMS interpretive guidelines.

In the summer of 2010, AARC reported on final policy changes CMS made on this issue. With respect to respiratory care services specifically, CMS expanded the rules to permit practitioners other than a medical doctor or doctor of osteopathy to write orders if they met certain qualifications, although the regulatory language did not specify the “types” of practitioners who were eligible. Rather, the criteria were stated simply as a “qualified licensed practitioner, responsible for the care of the patient, acting within his or her scope of practice, and authorized by the medical staff to order the services in accordance with hospital policies and procedures and all State laws.” Nurse practitioners and physician assistants were listed as examples.

When CMS finally updated the interpretive guidelines to implement those regulatory changes, it came out with more restrictive policies than contained in final rule. Namely, the guidelines state that a practitioner must have medical staff privileges to write rehabilitation and respiratory care orders. They also list the specific types of practitioners who may be granted such privileges, i.e., nurse practitioners, physician assistants, clinical nurse specialists, certified registered nurse anesthetists and certified nurse midwives as long as they meet other requirements.

These inconsistent provisions have caused confusion among hospital staff and resulted in an appeal to CMS by the American Hospital Association (AHA) to remove the privileging requirement and defer to state law and hospital policies as to who can order rehabilitation and respiratory care services consistent with the final rule.

According to AHA, CMS took quick action to rescind and revise the guidance in response to its concerns. The policy now allows non-privileged practitioners to order outpatient rehabilitation and respiratory care services in accordance with state license/scope of practice laws and written hospital policy. The issue was discussed during a CMS Open Door forum on February 22. The revised policy is expected to be on the CMS website shortly.