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Admit, Discharge, Transfer – The New Condition of Participation. Are You Ready?

on Wednesday, 7 April 2021 in Health Law Alert: Erin E. Busch, Editor

While providers have been gearing up for compliance with the Information Blocking Rule, the compliance date for the less often cited but no less important revision to the Conditions of Participation (“CoPs”) requiring “Electronic Notifications” is also just around the corner on May 1, 2021. At the same time that the Information Blocking Rule was finalized, CMS finalized the proposal to revise the CoPs for Medicare- and Medicaid-participating hospitals (acute, CAH and psychiatric facilities) to require hospitals to send electronic patient event notifications of a patient’s admission, discharge, and/or transfer (referred to as “ADT”) to another health care facility or to another community provider or practitioner. In the final rule, the standard was clarified to require notification of any of the following, to the extent permissible under applicable federal law and state law or regulations and not inconsistent with a patient’s prior expressed preferences:

    • The patient’s registration in the hospital’s emergency department (if applicable)
    • The patient’s admission to the hospital’s inpatient services (if applicable)
    • The patient’s discharge or transfer from the hospital’s emergency department (if applicable)
    • The patient’s discharge or transfer from the hospital’s inpatient services (if applicable)

The hospital must make a reasonable effort to ensure that the above notifications are sent by the hospital’s system to all applicable post-acute care services providers and suppliers, as well as to (i) the patient’s established primary care practitioner; (ii) the patient’s established primary practice group or entity; and (iii) other practitioner, or other practice group or entity, identified by the patient as the practitioner, or practice group or entity, primarily responsible for the patient’s care—to the extent any of the foregoing need to receive notification of the patient’s status for treatment, care coordination or quality improvement purposes.

Numerous questions were raised by commenters following the proposed rule which were addressed by CMS in the preamble to the final rule. The foremost question seemed to be—why is this requirement a component of the CoPs? The preamble noted the commenters concerns “that by placing the patient event notification requirements in the CoPs, CMS is putting hospitals’ participation in Medicare at risk, which they stated would be an excessive penalty for failure to implement patient event notifications in accordance with the proposed requirements. Commenters also stated that the survey and certification process was not well-suited to determining compliance with the proposed CoP ‘Electronic notifications’ standard. These commenters questioned how surveyors would assess compliance with the requirements….” 85 Fed Reg. 25510, 25589 (May 1, 2020).  In response, CMS indicated that it believes that the capability to send patient event notifications should be a fundamental feature of hospital medical record systems, and is consistent with its statutory authority for establishing and updating CoPs. CMS described in detail the method for assessing deficiencies based on a hospital’s compliance or noncompliance with all of the many CoP requirements. CMS also indicated it would be providing interpretive guidelines to surveyors to help surveyors assess compliance with the ADT patient notification requirements.

Beyond the concerns related to the vehicle for these requirements being the CoPs, hospitals also expressed concerns about its ability to identify primary care practitioners or other practitioners responsible for the patient’s care. CMS clarified that in cases where a hospital is not able to identify a primary care practitioner for a patient, the patient has not identified a provider to whom they would like information about their care to be sent, or there is no applicable PAC provider or supplier identified, the hospital would not be expected to send a patient event notification for that patient. However, the provider would be required to show that it has a process in place for identifying this information and to update its system with this information once received. This analysis provides some leeway for hospitals who admit a patient to the emergency department before the full registration process is completed. Once the patient is registered and if a primary care practitioner is identified, the system would be required to send the next notification to that practitioner.

The more difficult challenge may be in coordinating this rule with the Privacy Rule. While the preamble makes clear that nothing in the rule should be construed to supersede hospitals’ compliance with HIPAA, and hospitals are not required to obtain patient consent to send the ADT notifications, the rule incorporates the concept that notification should be made only if not inconsistent with a patient’s prior expressed preferences. This raises the question for hospitals as to whether this requirement places a higher burden on hospitals to honor a patient’s requested restriction under HIPAA—in this case a request not to send information to another health care provider. Today, when a patient requests a restriction on disclosure of information to another health care provider, hospitals are not required to accept the requested restriction and frequently explain to the patient why it will not accept the restriction as it relates to an established primary care provider. This new standard calls that ability to deny a restriction somewhat into question by incorporating a patient’s “prior expressed preferences” into the ADT notification standard.  Hospitals should be prepared for potentially more requested restrictions as patients become aware of the automatic notification to established providers of any admission, discharge or transfer to the emergency department or inpatient service of a hospital.

Because this requirement is a new CoP, stay tuned for the interpretive guidelines promised by CMS that will guide surveyors in enforcing the standard. The interpretive guidelines frequently provide additional insight into CMS’s interpretation of the requirements.

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