[Congressional Record Volume 160, Number 128 (Tuesday, September 9, 2014)]
[House]
[Pages H7339-H7341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    EXTENSION OF ENFORCEMENT INSTRUCTION FOR OUTPATIENT THERAPEUTIC 
   SERVICES IN CRITICAL ACCESS AND SMALL RURAL HOSPITALS THROUGH 2014

  Mr. BURGESS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 4067) to provide for the extension of the enforcement 
instruction on supervision requirements for outpatient therapeutic 
services in critical access and small rural hospitals through 2014.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4067

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

     SECTION 1. EXTENSION OF ENFORCEMENT INSTRUCTION ON 
                   SUPERVISION REQUIREMENTS FOR OUTPATIENT 
                   THERAPEUTIC SERVICES IN CRITICAL ACCESS AND 
                   SMALL RURAL HOSPITALS THROUGH 2014.

       The Secretary of Health and Human Services shall continue 
     to apply through calendar year 2014 the enforcement 
     instruction described in the notice of the Centers for 
     Medicare & Medicaid Services entitled ``Enforcement 
     Instruction on Supervision Requirements for Outpatient 
     Therapeutic Services in Critical Access and Small Rural 
     Hospitals for CY 2013'', dated November 1, 2012 (providing 
     for an exception to the restatement and clarification under 
     the final rulemaking 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).

  The SPEAKER pro tempore (Mr. Wenstrup). Pursuant to the rule, the 
gentleman from Texas (Mr. Burgess) and the gentleman from New Jersey 
(Mr. Pallone) each will control 20 minutes.
  The Chair recognizes the gentleman from Texas.


                             General Leave

  Mr. BURGESS. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and insert extraneous materials in the Record on the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. BURGESS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in support of H.R. 4067, which provides for 
the extension of the enforcement instruction on supervision 
requirements for outpatient therapeutic services in critical access and 
small rural hospitals through 2014. This was a bill introduced by 
Congresswoman Jenkins of Kansas.
  Mr. Speaker, this is a commonsense solution to a problem that has the 
potential to limit or delay access to health care for America's seniors 
in rural communities.
  The bill would delay until the end of the year enforcement of 
supervision requirements for outpatient therapeutic services in 
critical access hospitals. This delay would give the Centers for 
Medicaid and Medicare Services and provider groups time to identify 
which services will eventually fall under the requirement.
  I ask my colleagues to support this important piece of legislation 
and reserve the balance of my time.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, H.R. 4067 would suspend current enforcement of Medicare 
rules relating to physician supervision of staff in rural and critical 
access hospitals for certain outpatient therapeutic services. 
Enforcement of these rules was delayed from 2009 through 2013, but 
began again in January of this

[[Page H7340]]

year. My understanding is that there has not been any issue with 
enforcement to date and that the Medicare program has not taken any 
action against a facility for failure to meet physician supervision 
standards since January. But as this bill did not follow regular order 
through the committee process, we have not had an opportunity to hear 
from interested parties about the issue and bring to light what the 
implications might be of an additional delay. Frankly, the likely 
result of such a bill would be confusion for hospitals.
  Medicare's physician supervision requirement places a premium on 
patient safety, and I understand that rural facilities sometimes face 
difficulty in securing staffing. However, it seems reasonable to me 
that outpatient clinics that provide services to Medicare beneficiaries 
should meet some basic standards for having supervisory physicians 
available if an emergency arises--for example, when patients are 
receiving potentially lethal doses of chemotherapy medication.
  Meanwhile, there are countless public health issues that the 
committee could productively devote its time to, such as looking into 
the recent outbreak of Ebola, the effects of e-cigarettes, or perhaps 
the decline of routine vaccinations that has led to an explosion of 
preventable illnesses like measles. Rather, the bill before us seems to 
be only responsive to the fears of certain health care providers that 
someone could file a complaint that a facility was allowing staff to 
practice medicine on Medicare patients without any supervision. But 
isn't that the kind of thing that we might be concerned about--and want 
a whistleblower to report? Yet, that is just what this bill would 
prevent.
  It remains unclear to me why an additional delay of this Medicare 
policy is needed. Simply saying that the Senate passed this bill by 
unanimous consent in February is not sufficient justification--and 
makes even less sense now that the calendar year is nearly over.
  So, Mr. Speaker, we should be finding time to address the real and 
pressing public issues facing our Nation rather than those that merely 
cause an inconvenience or anxiety for certain health care providers.
  I reserve the balance of my time at this time, Mr. Speaker.
  Mr. BURGESS. Mr. Speaker, at this time, I would like to yield 3 
minutes to the gentlewoman from Kansas, Congresswoman Jenkins, the 
author of the bill.
  Ms. JENKINS. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, I rise today in support of H.R. 4067, a bill to provide 
for the extension of the enforcement instruction on supervision 
requirements for outpatient therapeutic services in critical access and 
small rural hospitals through 2014.
  I was proud to introduce this legislation in February, and I am 
pleased that Chairman Upton and the Energy and Commerce Committee 
reported it favorably and brought it to the House floor today.
  The 83 critical access hospitals in Kansas are the lifeblood of our 
rural communities, and one of the many challenges these communities 
face is access to health care. The presence of a facility such as a 
critical access hospital in a community could be the deciding factor in 
whether or not the next generation of children decide to raise their 
family in their hometown, or perhaps whether or not a business decides 
to locate there.
  The Centers for Medicare and Medicaid Services made a decision on 
January 1 of this year that will make it more difficult for these rural 
hospitals to serve their communities. CMS informed these hospitals that 
physicians are now required to directly supervise outpatient services, 
such as drawing blood and activity therapy. This is a change in policy 
that will put a strain on providers while providing no quality 
improvements for the patients they serve.
  This bill will correct that problem by reinstating the moratorium on 
enforcement of these unnecessary regulations. It has broad bipartisan 
support in Congress and the support of key stakeholders.
  Mr. Speaker, I insert in the Record letters of support for H.R. 4067 
from the American Hospital Association, the National Rural Health 
Association, the Kansas Hospital Association, and Anderson County 
Hospital, which is a critical access hospital in Garnett, Kansas, one 
of 1,300 nationwide.

                                American Hospital Association,

                                     Washington, DC, May 19, 2014.
     Hon. Lynn Jenkins,
     U.S. House of Representatives,
     Washington, DC.
       Dear Representative Jenkins: On behalf of our nearly 5,000 
     member hospitals, health systems and other health care 
     organizations, and our 43,000 individual members, the 
     American Hospital Association is pleased to support H.R. 4067 
     to provide for the extension of the enforcement instruction 
     on supervision requirements for outpatient therapeutic 
     services in critical access and small rural hospitals through 
     2014.
       Approximately 46 million Americans live in rural areas and 
     depend on these hospitals as an important, and often the 
     only, source of care. Critical access and small rural 
     hospitals face unique challenges because of their remote 
     geographic location, scarce workforce, physician shortages 
     and constrained financial resources with limited access to 
     capital.
       Your bill attempts to address one of these unique 
     challenges--the issue of direct supervision for outpatient 
     therapeutic services. In the 2009 outpatient prospective 
     payment system (PPS) final rule, the Centers for Medicare & 
     Medicaid Services (CMS) mandated a new policy for ``direct 
     supervision'' of outpatient therapeutic services that 
     hospitals and physicians recognized as a burdensome and 
     unnecessary policy change. CMS's policy required that a 
     supervising physician be physically present in the department 
     at all times when Medicare beneficiaries receive outpatient 
     therapeutic services. Hospital outpatient therapeutic 
     services have always been provided by licensed, skilled 
     professionals under the overall direction of a physician and 
     with the assurance of rapid assistance from a team of 
     caregivers, including a physician, should an unforeseen event 
     occur. While hospitals recognize the need for direct 
     supervision for certain outpatient services that pose high 
     risk or are very complex, CMS's policy generally applies to 
     even the lowest risk services. Your bill would provide a 
     needed delay in enforcement of the direct supervision policy 
     through 2014 for critical access and small rural hospitals 
     with fewer than 100 beds.
       Again, we are pleased to support this bill and applaud your 
     commitment to America's rural hospitals and health care 
     providers.
           Sincerely,
                                                     Rick Pollack,
     Executive Vice President.
                                  ____



                            National Rural Health Association,

                                    Washington, DC, July 28, 2014.
     Hon. Lynn Jenkins,
     U.S. House of Representatives,
     Washington, DC.
       Dear Representative Jenkins: The National Rural Health 
     Association applauds your leadership in introducing H.R. 
     4067. This bill will provide for the extension of the 
     enforcement instruction on supervision requirements for 
     outpatient therapeutic services in critical access and small 
     rural hospitals through 2014.
       NRHA is a national nonprofit membership organization with 
     more than 21,000 members. Our mission is to provide 
     leadership on rural health issues. NRHA membership is made up 
     of a diverse collection of individuals and organizations, all 
     of whom share the common bond of ensuring all rural 
     communities have access to quality, affordable health care.
       NRHA supports your efforts to put a moratorium on the 
     physician supervision of outpatient services requirement at 
     CAHs and small rural hospitals until the end of 2014. If you 
     have further questions, please do not hesitate to call Erin 
     Mahn on my government affairs staff at 202-639-0550 or by e-
     mail [email protected].
       We thank you for sponsoring this important legislation. You 
     are truly a stalwart champion for rural America.
           Sincerely,
                                                 Alan Morgan, CEO,
     National Rural Health Association.
                                  ____



                                  Kansas Hospital Association,

                                                    July 30, 2014.
     Hon. Lynn Jenkins,
     U.S. House of Representatives,
     Washington, DC.
       Dear Representative Jenkins: On behalf of our 128 member 
     hospitals, the Kansas Hospital Association is pleased to 
     support H.R. 4067. This important legislation provides a one-
     year extension on the non-enforcement of the direct 
     supervision policy for therapeutic services provided in 
     critical access hospitals and rural hospitals with 100 or few 
     beds.
       Effective January 1, 2014, the Centers for Medicare and 
     Medicaid Services' decided to not extend its policy to not 
     enforce the direct supervision policy for therapeutic 
     services provided in CAHs and rural hospitals with less than 
     100 beds. This new policy of enforcement on CAHs and small 
     rural hospitals may limit the hospital's ability to provide 
     their outpatients with basic therapeutic services. These are 
     services that have been provided safely in rural communities 
     throughout the years. H.R. 4067 would provide a much needed 
     delay in enforcement of the direct supervision policy for 
     therapeutic services through 2014.

[[Page H7341]]

       We are pleased to support your legislation and appreciate 
     your commitment to Kansas hospitals.
           Sincerely,
                                                         Tom Bell,
     President and CEO.
                                  ____



                                     Anderson County Hospital,

                                        Garnett, KS, May 18, 2014.
     Hon. Lynn Jenkins,
     Longworth HOB,
     Washington, DC.
       Dear Representative Jenkins: As you know, I have 
     communicated with you in the past about the consequences of 
     the physician supervision requirements that were included in 
     the Outpatient Prospective Payment Final Rule (OPPS) for 
     2014, as published in the Federal Register on December 10, 
     2013. These rules will have an unintended impact on the 
     provision of outpatient therapeutic services in Critical 
     Access Hospitals and to patient care in rural settings.
       Anderson County Hospital (ACH) is a Critical Access 
     Hospital (CAH) located in Anderson County, Kansas. Since 
     1994, we have operated a hospital-based rural health clinical 
     staff by employed physicians and mid-levels, the only primary 
     care clinic currently operating in our county. Additionally, 
     our emergency room is staffed with physicians and mid-level 
     practitioners 24/7. For the past two years, ACH has continued 
     to struggle with how to meet the supervision requirements. 
     Initially, it was that we would use a combination of ER and 
     primary care providers to provide the direct supervision; if 
     one of them was not immediately available, we would provide 
     the service and not bill for it. Please keep in mind that 
     while direct supervision does not require the provider to be 
     in the room with the patient, they do need to be immediately 
     available. The location of both our clinic and ER providers 
     meet this requirement.
       In a clarification received from CMS in January, they 
     further instructed us that hospital employed practitioners in 
     hospital-based rural health clinics, even those that are 
     located on the same campus and adjacent to the hospital, 
     cannot meet the direct supervision requirement for outpatient 
     therapeutic services. This makes it nearly impossible for us 
     to meet the supervision requirements. Although we have a full 
     complement of staff that could provide direct supervision, 
     the ability to use them to provide services is not in 
     question.
       These requirements present a significant hardship and 
     expense to rural hospitals and is in direct conflict to the 
     Conditions of Participation for CAHs. It will limit the 
     ability to provide our outpatients with basic therapeutic 
     services such as IV infusions, initial antibiotic therapy, 
     emergency cardiac drugs and blood transfusions. These are 
     services that have been provided in rural communities safely 
     throughout the years, and will ultimately impact access to 
     important services for the patients and communities we serve.
       For those CAHs who have emergency room coverage provided by 
     their own employed physicians, the requirements are even more 
     difficult to meet. Since CAH conditions of participation say 
     that the physician does not need to be in the ER, must 
     respond to the emergency room within 30 minutes, most 
     hospitals have protocols that allow a registered nurse to 
     begin life saving IV therapy on a verbal order from the 
     provider. The physician supervision requirements seem to 
     contradict this.
       The strangest part of the interpretation of these rules is 
     that they only impact payment, not the actual provision of 
     the services, so this is not really an issue of quality or 
     patient safety. We are told that we are able to provide the 
     services when needed, but unless there is documented direct 
     supervision, we are not able to bill or be paid for the 
     services provided.
       Because of the implications of these rules and their 
     interpretation on the provision of outpatient therapeutic 
     services at our hospital and many others in rural settings, I 
     ask for your support of H.R. 4067, which would put a hold on 
     enforcement of the supervision requirements through 2014. 
     This additional time would hopefully allow the opportunity to 
     re-visit the many issues raised by these rules and would go a 
     long way in alleviating the consequences of the policy that 
     I've outlined in this letter. We must keep in mind that the 
     intent of the CAH program was to provide access to quality 
     patient care in rural communities. A delay in enforcement 
     would help us refocus on that goal.
           Sincerely,

                                  Dennis A. Hachenberg, FACHE,

                                          Chief Executive Officer,
                                         Anderson County Hospital.

  Ms. JENKINS. Mr. Speaker, I was born and raised in a small town in 
Kansas, and I feel strongly that folks in rural communities deserve 
access to quality health care.
  I urge my colleagues to support this legislation, and I am hopeful 
that the Senate will soon act on it so that it may become law.
  Mr. PALLONE. Mr. Speaker, I have no other speakers at this time, and 
so I yield back the balance of my time.
  Mr. BURGESS. Mr. Speaker, I urge my colleagues to support the bill, 
and yield back the balance of my time.
  Mr. WAXMAN. Mr. Speaker, H.R. 4067, reinstates a four month delay in 
the enforcement of the current Medicare rules relating to physician 
supervision of staff who administer certain therapeutic services in 
rural and critical access hospitals.
  The Medicare physician supervision requirement protects patients by 
ensuring that Medicare beneficiaries have access to someone capable of 
dealing with unforeseen emergencies. While I understand that rural 
healthcare providers often have difficulty acquiring adequate staffing, 
we should not place greater value on their convenience than on the 
safety of Medicare beneficiaries.
  Reinstating a delay of these requirements until the end of the year 
only potentially confuses healthcare providers and lowers the bar on 
patient safety that Medicare has put in place.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Texas (Mr. Burgess) that the House suspend the rules and 
pass the bill, H.R. 4067.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________