REGULATORY REVIEW


CMS Proposes Changes to Conditions for Coverage ASCs need to watch three proposals BY KARA NEWBURY


In September 2018, the Centers for Medicare &


(CMS) announced “Reg- ulatory


Medicaid Services Provisions


to


Promote Program Efficiency, Trans- parency, and Burden Reduction” as part of a proposed rule that would revise the applicable Conditions of Participation (CoPs) that apply to providers and Conditions for Cover- age (CfCs) that apply to ASCs. This proposal is a continuation of CMS’ efforts to reduce regulatory burden in accordance with the January 30, 2017, Executive Order “Reducing Regulation and Controlling Regula- tory Costs” (Executive Order 13771). CMS estimates that these proposed changes would


collectively save


health care providers an estimated $1.12 billion annually. If finalized, three of these proposals would bring significant changes to the CfCs.


Transfer Agreements with Hospitals In the CfCs, 42 CFR 416.41(b)(3), “Standard: Hospitalization,” ASCs are currently required to have a hos- pital transfer agreement with a local hospital or all physicians practicing in the ASC must have admitting priv- ileges with a local hospital. ASCA members told ASCA years ago that some facilities were experiencing difficulties working with their local hospital, particularly in rural com- munities in which there is only one hospital qualified as “local.” For competitive reasons, the hospitals in some communities have refused to enter into transfer agreements, put- ting the ASC’s certification at risk, or in some situations, creating a sit- uation that prevented the ASC from ever obtaining CMS certification.


ASCA had asked CMS to consider adding a third option—as long as the ASC made a “good faith effort” to obtain a hospital transfer agreement from a local hospital, the standard would be met. This language would have been similar to that found in the regulations that apply to skilled nurs- ing facilities. In the “Regulatory Provisions to Promote Program Efficiency, Trans- parency, and Burden Reduction” pro- posed rule, CMS decided to address the issue by removing the standard entirely. If the rule were to be final- ized, an ASC would not need a hos- pital transfer agreement or admit- ting privileges for its physicians to comply with CMS’ requirements. According to CMS, “this would address the competition barriers that currently exist in some situations where hospitals providing outpa- tient surgical services refuse to sign written transfer agreements or grant admitting privileges to physicians


TRACK THE LATEST REGULATORY AND LEGISLATIVE NEWS FOR ASCs


Visit ASCA’s website every week to stay up to date on the latest government affairs news affecting the ASC industry. Every week, ASCA’s Government Affairs Update newsletter is posted online for ASCA members to read. The weekly newsletter tracks and analyzes the latest legislative and regulatory developments concerning ASCs.


ascassociation.org/ GovtAffairsUpdate


28 ASC FOCUS JANUARY 2019 | ascfocus.org


performing surgery in an ASC.” As the rule indicates, the Emergency Medical Treatment and Labor Act (EMTALA) emergency response reg- ulations would continue to address emergency transfer of a patient from an ASC to a nearby hospital. Even if this proposal is finalized, states might still require a transfer agreement or admitting privileges for all physicians (or both), and state law trumps federal law when it is more restrictive. ASCA also recommends that even if this proposal is finalized, facilities that wish to do so should continue using a hospital transfer agreement with a local hospital to ensure the best coordination of care for patients.


Requirements for Comprehensive Medical H&P


CMS also is proposing to remove the current requirements at §416.52(a) and replace them with requirements that defer to the ASC policy and oper- ating physician’s clinical judgment to ensure patients receive appropri- ate pre-surgical assessments based on the patient and the type of sur- gery being performed. If finalized, the new CfC would be what is indi- cated below. Please note that as with the rest of this rule, this language is proposed; ASCA will update its members if and when this language is finalized.


§416.52 Conditions for cover-


age—Patient admission, assessment and discharge. The ASC must ensure each patient has the appropriate pre- surgical and post-surgical assess- ments completed and that all ele- ments of the discharge requirements are completed.


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