On October 18, 2011, the Centers for Medicare and Medicaid Services (“CMS”) issued a proposed rule modifying certain Medicare Conditions of Participation for Hospitals and Critical Access Hospitals (“CoPs”) (the “Proposed Rule”). The revisions contained in the Proposed Rule are intended to reduce the costs and burden of complying with the current CoPs, maximize patient safety, and reflect current industry standards. The Proposed Rule sets forth the following proposed revisions and clarifications to existing CoPs: <ul class="bullet" >

• Governing Body ( 42 CFR § 482.12) – CMS proposes to clarify that a multi-hospital system, which is defined as a hospital system where there is more than one Medicare provider number or CMS Certification Number, can be governed by a single governing body. This proposed clarification is intended to acknowledge the operational efficiency of maintaining a single governing board and to recognize the current governance structure of many multi-hospital systems. This clarification also impacts compliance with Joint Commission Standard MS.01.01.01, as it helps clarifies the role of one governing body and its oversight of medical staff matters. CMS also request general comments on a proposal to allow multi-hospital systems to maintain one single medical staff for the system.
• Medical Record Services (42 CFR § 482.24) – The current CoP requires that all orders, including verbal orders, be authenticated by the ordering practitioner within forty-eight (48) hours. Acknowledging the industry’s difficulty in consistently meeting this deadline, CMS proposes to eliminate this requirement by revising the CoP to simply state that all orders, including verbal orders, must be dated, timed and authenticated promptly by the ordering practitioner. CMS would then defer to state law to determine the timeliness of authentication. If there is no state law, CMS notes that hospitals would be allowed to establish their own timeframe for authentication. Further, CMS proposes to retract the 2012 sunset date of the January 2007 rule that allows orders to be authenticated by a practitioner in the same group as the treating physician so long as the practitioner is involved in the patient’s care. Under the Proposed Rule, “another practitioner who is responsible for the care of the patient. . . and authorized to write orders by hospital policy” may continue to authenticate the order. Although it believes that the regulation requiring certain updates to and documentation of a patient’s history and physical conducted within thirty (30) days prior to the patient’s admission should not be amended, CMS also requests general comments on the regulatory requirements when a patient receives a history and physical prior to his or her arrival at the hospital.
• Patient’s Rights (42 CFR § 482.13) – As currently written, this CoP requires hospitals to notify Medicare no later than the close of business on the next business day following a patient’s death if the death occurs while the patient is in restraint or seclusion. CMS proposes to modify the reporting requirements for hospitals when the patient’s death involves the use of soft, two-point wrist restraints and no seclusion. The proposal would require hospitals to notify CMS within seven (7) days after the date of death through a log or other system. The notification would include the patient’s name, date of birth, date of death, attending physician, primary diagnosis(es), and medical record number. For all other types of restrains or seclusions, the more extensive reporting requirements would still apply.
• Medical Staff (42 CFR § 482.22) – CMS proposes to clarify that a hospital may grant medical staff privileges to both physicians and non-physicians regardless of whether they are also appointed to the medical staff of the hospital. However, the process for allowing the physician and non-physician practitioners to obtain hospital privileges would remain unchanged, (i.e., if a hospital wanted to use this approach to grant non-physician practitioners privileges, the credentials of each non-physician candidate would be evaluated by the medical staff and recommendations would be made to the governing body). CMS also proposes to modify the medical staff rule for management and accountability to allow doctors of podiatric medicine to serve as leaders of the hospital’s medical staff.
• Infection Control (42 CFR § 428.42) – CMS proposes to eliminate the CoP requiring hospitals to establish a system for logging infections and to give hospitals flexibility in how they chose to track and survey infections.
• Outpatient Services (42 CFR § 482.54) – CMS proposes to revise this CoP in order to enable hospitals greater flexibility in structuring the organizational management of outpatient services so that the individual hospital can make decisions about the management based on the scope and complexity of the outpatient services being offered by the hospital.

The Proposed Rule was published in the October 24, 2011, Federal Register. The comment period is open until December 23, 2011.

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