CMS recently published a proposed rule to update certain of the hospital and critical access hospital (CAH) Medicare and Medicaid conditions of participation (CoPs).  With its goals of modernizing hospital and CAH CoPs, improving quality of care, and supporting HHS and CMS priorities, the updates cover several issues set forth below.

• Preventing discrimination: While hospitals and CAHs must comply with applicable civil rights requirements prohibiting discrimination, CMS notes in the proposed rule that there is no CoP to prohibit discrimination.  Thus, CMS proposes to establish explicitly in the CoPs that a hospital or CAH may not discriminate on the basis of race, color, national origin, sex (including gender identity), age, or disability and that the hospital must establish and implement a written policy prohibiting such discrimination.  In addition, the proposed CoP will prohibit provider discrimination on the basis of religion or sexual orientation, along with a written policy to that effect. 
• Licensed Independent Practitioners (LIPs): Currently, the CoPs state that “the use of restraint or seclusion must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient . . . and authorized to order restraint or seclusion by hospital policy in accordance with State law.”  CMS, noting that the current language “severely limits a PA’s scope of practice” and may lead to workforce shortages, is proposing to remove the term “independent” from this provision and elsewhere in the CoPs as necessary.
• Patient access to medical records:  While the CoPs currently provide for a patient’s right to access his or her medical records in a reasonable time frame, the requirements do not take into account that many records are now maintained electronically or that a patient has a right to his or her records to be provided in an electronic format.  Therefore, CMS is proposing to clarify the CoPs to allow for a patient’s right to his or her records in the form and format requested by the individual, if readily producible in such form and format (including in an electronic form or format when such medical records are maintained electronically).
• Quality Assessment and Performance Improvement (QAPI) Programs: Under the current CoPs, a hospital must systematically examine the quality of its services and implement specific improvement projects on an ongoing basis, including developing its own QAPI program and monitoring it on an on-going basis.  Noting that hospitals are maintaining quality measure data for programs such as the Value-Based Purchasing Program, CMS is proposing to revise the CoPs to require that hospitals include at least some of that data in its QAPI program.

CMS has provided a fact sheet summarizing the proposed changes to the CoPs, including proposed revisions covering infection prevention and control, creation of a hospital-wide antibiotic stewardship programs, medical record service, and nursing programs, as well as CAH-specific updates.  Comments to the proposed rule must be received no later than 5 p.m. on August 15, 2016.

Reporter, Christina A. McNamara, Houston, +1 713 276 7340, cmcnamara@kslaw.com.