Executive Summary
On October 24, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released a final rule (“Final Rule”) revising the Patient Rights Conditions for Coverage (“CfCs”) for ambulatory surgical centers (“ASCs”). Effective on December 23, 2011, ASCs will be permitted to provide the patient, the patient’s representative or the patient’s surrogate, patient rights information prior to the start of the surgical procedure, meaning, the patient may have a procedure done on the same day the patient presents to the ASC for the first time.
The existing ASC Patient Rights CfC, made effective in May 2009, requires the ASC to provide patient rights information “in advance of the date of a procedure.” This means, currently, ASCs cannot perform same-day procedures and maintain compliance with the CfCs. CMS originally promulgated the current CfC after receiving stakeholder feedback suggesting that patients might be overwhelmed by the amount of paperwork they would be obligated to review on the date of the procedure. Commenters stated patients might benefit from reviewing important information prior to arrival at the ASC for services. Upon reconsideration, CMS believes the Final Rule allows sufficient time to enable ASCs to provide patient rights information and promotes ASC health and safety standards by permitting ASCs to schedule surgical procedures in the best interest of patients without compromising patient safety. The Final Rule can be found at: http://www.gpo.gov/fdsys/pkg/FR-2011-10-24/pdf/2011-27171.pdf.
Major Revision – Relaxation of Timing of Patient Rights Notice (42 C.F.R. § 416.50(a))
On April 23, 2010, CMS proposed an exception to the ASC Patient Rights CfC that would have permitted notice of patient rights to be provided on the same date the patient received a written physician referral for the ASC service only in emergency circumstances where delaying the treatment would have jeopardized the patient’s health (“Proposed Rule”). CMS decided not to finalize the Proposed Rule but instead chose to finalize a different policy once it learned that many ASCs regularly perform same-day surgeries and that patient needs would be better served if scheduling were left to the discretion of the ASC and the patient. The Final Rule permits ASCs to provide a verbal and written notice of the patient’s rights prior to the start of the surgical procedure even on the day of surgery. Further, the same-day notice will be allowed regardless of whether the procedure to be performed is emergency, urgent or merely routine. CMS estimates that the Final Rule will result in “substantial savings for both patients and facilities” by avoiding some 1.4 million visits per year that were necessitated by the previous, more stringent, notice requirement.
Minor Revision – Recipients of Written Notice of Grievance Decisions (42 C.F.R. § 416.50(d)(6))
In addition to relaxing the CfCs addressing the timing of providing notice of patient rights, the Final Rule also revised the Proposed Rule to specify that the ASC must provide “the patient, the patient’s representative, or the patient’s surrogate” with written notice of a grievance decision. The Proposed Rule had only referenced the “patient.”
If you have any questions or would like additional information about this topic, please contact your regular Hall Render attorney or Adele Merenstein at (317) 752-4427
or amerenst@hallrender.com.
Special thanks to Joel D. Swider, Law Clerk, for his assistance with the preparation of this Health Law News summary.
