Summary
On June 15, 2012, the Director of the Survey and Certification Group of the Centers for Medicare and Medicaid Services (“CMS”) issued a memorandum (“Memo”) to state survey agency directors instructing them to hold off on enforcing a recently revised hospital governing body condition of participation (“CoP”) requiring the governing body of each hospital to include at least one medical staff member. The upcoming effective date of that CoP at 42 CFR §482.12 is July 16, 2012, but CMS is reconsidering its position on governance in light of concerns expressed by the American Hospital Association (“AHA”) and other stakeholders. Specifically, CMS has directed surveyors to refrain from assessing compliance or citing deficiencies with respect to the new requirement. CMS also has directed the three CMS-approved hospital accreditation agencies, the American Osteopathic Association, Det Norske Veritas Healthcare and The Joint Commission, to defer revising their accreditation standards and survey processes to meet the revised governing body CoP until CMS has completed its review. CMS is in the process of preparing interpretive guidelines addressing the numerous amended CoPs and conditions for coverage subject of two final rules published on May 16, 2012, but it is possible these guidelines will not be ready by the effective date of the rules, July 16, 2012. Finally, the requirement for there to be a medical staff member on the governing body of each hospital was never applicable to critical access hospitals in any event.
Background
On May 16, 2012, CMS issued a final rule revising a number of hospital and critical access hospital CoPs (“Final Rule”). The purpose of this Final Rule was to implement Executive Order 13563 calling for the elimination of unnecessary, obsolete or excessively burdensome regulations affecting the efficient delivery of health care. One of the revisions requires each hospital to ensure that there is medical staff member representation on the governing body for the purpose of improving communication and coordination between the governing body and the medical staff. CMS clarified that multi-hospital system integrated governing bodies need not necessarily secure a medical staff member from each of the individual hospitals in the system.
In a letter to CMS dated June 5, 2012, the AHA strongly objected to the new governing body regulation because CMS did not introduce the regulation in the notice of proposed rulemaking issued on October 24, 2011. As a result, hospitals did not have the opportunity to offer comments. AHA believes CMS’s failure to give adequate notice of the proposed change violated the Administrative Procedure Act, and AHA is recommending rescission of the rule. While many hospitals do have physician representatives on their boards, AHA believes notice of CMS’s intentions would have elicited considerable opposition from its constituent hospitals. As a practical matter, the new regulation, in many cases, conflicts with other federal, state and local laws, making it impossible for certain hospitals to comply. For example, the governing bodies of certain public hospitals are elected by the public or appointed by elected officials, and in some cases, state law prohibits appointment of medical staff members to the boards of public hospitals. CMS issued its Memo citing the “complexity of the issues raised” by members of the health care community, including the AHA. It is reviewing the comments and intends to “reconsider [the governance] requirement in future rulemaking.”
Practical Considerations
42 CFR §482.12 requiring medical staff representation on the hospital’s governing body, effective July 16, 2012, will not be enforced on that date, pending CMS’s further review of the new regulation. Therefore, hospitals will not be cited as deficient by survey agencies for failing to comply, until further notice. Should your hospital be cited for noncompliance with this specific CoP, the hospital should immediately challenge such finding and request that the state survey agency or accreditation agency redact it. Of note, the AHA also asserted that CMS, in the Final Rule, improperly reinterpreted a current medical staff CoP at 42 CFR §482.22 to prohibit a health system from having a single integrated medical staff serving all the hospitals in the system. In the above-referenced letter, the AHA requested that CMS retract this reinterpretation from the Final Rule’s preamble. CMS did not address this medical staff issue in the Memo subject of this article. Therefore, CMS’s current position is that every hospital, regardless of whether it is part of a system, must have its own independent medical staff. We will have to wait and see whether CMS will revisit this regulation as well.
The Survey and Certification Letter can be found here:
If you have any questions or would like additional information about this topic, please contact:
- Adele Merenstein at (317) 752-4427 or amerenst@hallrender.com;
- Timothy C. Lawson at (317) 977-1438 or tlawson@hallrender.com;
- Clifford A. Beyler at (317) 977-1441 or cbeyler@hallrender.com; or
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