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New CMS Guidance on the Performance of Histories and Physicals at ASCs

Staying Well Within the Law

First Quarter 2011

CMS issued guidance to state surveyors on Dec. 17, 2010, clarifying the requirements contained in the Ambulatory Surgical Center (ASC) Interpretive Guidelines for medical histories and physical examinations (H&Ps).

This guidance was issued in response to confusion among state surveyors who did not know whether the requirement that H&Ps be performed not more than 30 days before a scheduled surgery allowed the H&Ps to be performed on the same day of the surgery.

The guidance clarifies three major issues in connection with Medicare surveys of ASCs:

1. The comprehensive H&P can be performed on the same day as the surgical procedure.
Pursuant to the Medicare conditions for coverage for ASCs at 42 CFR 416.52, each patient must have a comprehensive medical H&P assessment by a physician or other qualified practitioner within 30 days before the date of the patient’s scheduled surgery.  The new CMS guidance clarifies there is no prohibition against performing the H&P on the same day as the surgery, including performing the H&P in the ASC, as long as the H&P is comprehensive and the results are placed in the patient’s medical record before the procedure.  It is not acceptable, according to the CMS guidance, to conduct the H&P after the patient has been prepped for surgery and brought into the operating or procedure room.

2. If the H&P is performed on the date of the surgery in the ASC, the H&P assessment may be combined with some, but not all, of the elements of the required pre-surgical assessment.
The Medicare conditions for coverage for ASCs also require patients to undergo a pre-surgical assessment that documents, at a minimum, any changes in the patient’s condition since the completion of the H&P.  The CMS guidance makes it clear that if the H&P was conducted before the date of the surgery, then the pre-surgical assessment will require a separate examination in the ASC on the date of the surgery.  However, if the H&P is conducted on the same day as the surgery, some of the elements of the pre-surgical assessment may be incorporated into the H&P.  This does not apply to the anesthetic/procedure risk assessment required to be performed pursuant to 42 CFR 416.42, which must be performed separately immediately prior to the surgery and after the H&P.  The H&P must still be placed into the patient’s medical record prior to the procedure.

3. A comprehensive H&P is required regardless of the type of surgical procedure.
CMS makes clear there is no exemption for ASCs that perform less invasive procedures from the requirement to perform a comprehensive H&P.  CMS cautions those ASCs that believe the comprehensive H&P requirement is too burdensome given the types of procedures they perform to consider voluntarily terminating their Medicare certification as an ASC and instead perform those procedures as physician office-based surgical services.

The guidelines contained in the memorandum are effective immediately.

For more information about this topic, please contact Victoria Heller Johnson at 610.458.4980 or vjohnson@foxrothschild.com.

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Attorney(s)

Johnson, Victoria Heller

Practice Area(s)

Health Law

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