The 24-Hour History and Physical Examination Regulation and the Impact on Hospital Operating Room Cases C

LITCH’S LAW LOG

The 24-Hour History and Physical Examination Regulation and the Impact on Hospital Operating Room Cases C. Scott Litch Chief Operating Ofﬁcer and General Counsel

ecent federal regulations from the In 2005, CMS issued a proposed and physical examination from Centers for Medicare & Medicaid regulation (based on a regulatory proposal no more than 7 days before RServices (CMS) should be noted that originated in 1997) that would require admission to within 30 days for pediatric dentists and AAPD affiliate an H&P no more than 30 days before the before admission supports safe member general dentists treating children procedure or within 24 hours after hospital patient care as long as the hos- with extensive dental caries in the hospital admission. The rationale from CMS and a pital ensures documentation of operating room setting. brief history of the issue is stated as follows the patient’s current condition Background (emphasis added in bold): in the medical record within 24 hours after admission.”1 CMS develops Conditions of Participa- “The current medical history and Specifics on the New H&P CoP tion (CoPs) and Conditions for Coverage physical examination requirement has (CfCs) that health care organizations must been an ongoing focus and point of CMS issued its final regulation on Nov. meet in order to begin and continue par- contention for the American Medical 27, 20062, with the following provisions: ticipating in the Medicare and Medicaid Association (AMA) and the American “42 C.F.R. § 482.22 Condition of programs. According to CMS, “These Podiatric Medical Association, Inc. participation: Medical staff. minimum health and safety standards (APMA). The current regulatory are the foundation for improving quality requirement states that a physical (c) Standard: Medical staff bylaws. and protecting the health and safety of examination and medical history be The medical staff must adopt and beneficiaries.” CMS also ensures that the done no more than 7 days before or enforce bylaws to carry out its respon- standards of accrediting organizations 48 hours after an admission for each sibilities. The bylaws must: recognized by CMS (through a process patient by a doctor of medicine or called “deeming”) meet or exceed the osteopathy, or, for patients admitted (5) Include a requirement that a Medicare standards set forth in the CoPs only for oromaxillofacial surgery, by medical history and physical examina- / CfCs. Therefore, CoPs and CfCs are an oromaxillofacial surgeon who has tion be completed no more than 30 the minimum health and safety standards been granted such privileges by the days before or 24 hours after admis- that providers and suppliers must meet in medical staff in accordance with State sion for each patient by a physician (as order to be Medicare and Medicaid certi- law. defined in section 1861(r) of the Act), fied. CoPs and CfCs apply to many health These professional groups conan oromaxillofacial surgeon, or other care organizations, including ambulatory tinue to challenge the timeframe for qualified individual in accordance surgical centers, federally-qualified health completion of the medical history with State law and hospital policy. centers, and hospitals. For more informa- and physical examination, as well The medical history and physical tion, visit: www.cms.hhs.gov/CFCsAndCoPs/. as who is permitted to complete the examination must be placed in the patient’s medical record within 24 hours The regulations covering Conditions of history and physical examination. after admission. When the medical Participation for Hospitals are located in Questions have intensified as a result history and physical examination 42 C.F.R. (Code of Federal Regulations) of the JCAHO’s revised standard are completed within 30 days before § 482. that states a history and physical examination performed within 30 days admission, the hospital must ensure Previous Regulation and Proposed before admission may be used in the that an updated medical record entry Change patient’s medical record, provided any documenting an examination for any The regulation examined in this article changes in the patient’s condition are changes in the patient’s condition is relates to patient history and physical documented in the medical record at completed. This updated examination exams (referred to as “H&P”). The previ- the time of admission. must be completed and documented ous regulation required an H&P to be in the patient’s medical record within “We believe that expanding 3 done within 7 days prior to a procedure or 24 hours after admission.” the current requirement for within 48 hours after admission. completion of a medical history

12 March 2008 LITCH’S LAW LOG

Note that the term “physician” in (iii) All verbal orders must be translate to approximately 21 million section 1861(r) of the Social Security Act authenticated based upon federal and surgical procedures performed each includes a dentist, defined as: state law. If there is no state law that year in the U.S. on patients who are designates a specific timeframe for admitted to the hospital on the day of “ . . . a doctor of dental surgery the authentication of verbal orders, their procedure. A majority of these or of dental medicine who is legally verbal orders must be authenticated patients are also discharged from the authorized to practice dentistry by within 48 hours. hospital the same day that they are the State in which he performs such admitted . . .”6 function and who is acting within the (2) All records must document the scope of his license when he performs following, as appropriate: CMS justified its regulation by stating such functions. . .” that: (i) Evidence of— However while pediatric and general “Without a requirement that an (A) A medical history and physical dentists are certainly trained to complete updated examination be completed examination completed no more a patient medical history, it is not within after admission and prior to surgery than 30 days before or 24 hours after the scope of their practice to perform a or other procedure, any changes in a admission. The medical history and complete physical exam—whether for patient’s condition would most likely physical examination must be placed the 30 day pre-admission H&P or for the be missed by hospital staff. Failing to in the patient’s medical record within update required 24 hours after admission. identify changes in a patient’s condi- 24 hours after admission. Oral surgeons are trained to do H&Ps tion prior to surgery may adversely and are so noted in the regulation (albeit (B) An updated medical-record-en- impact not only the procedure but under the confusing term of “oromaxil- try documenting an examination for also consequently, and perhaps more lofacial surgeons”), but of course are held any changes in the patient’s condition significantly, the outcome of the pro- to the same standard of care as MDs when when the medical history and physical cedure for the patient.”7 performing them. examination are completed within 30 Hence, the prior H&P regulation from days before admission. This updated 42 C.F.R. § 482.24 Condition of Nov. 27, 2006, was modified by CMS as examination must be completed and participation: Medical record services. follows: documented in the patient’s medical (c) Standard: Content of record. record within 24 hours after admis- “42 C.F.R. § 482.22 Condition of The medical record must contain sion.4 participation: Medical staff. (emphasis information to justify admission and added in bold) Clarification for Outpatient continued hospitalization, support the Procedures (c) . . . diagnosis, and describe the patient’s progress and response to medications CMS also issued more recent regula- (5) Include a requirement that— and services. tions on this matter related to outpatient services.5 In terms of the CoP H&P (i) A medical history and (1) All patient medical record en- requirements, CMS indicated that: physical examination be com- tries must be legible, complete, dated, pleted and documented for each timed, and authenticated in written “Since this final rule became patient no more than 30 days or electronic form by the person re- effective on Jan. 26, 2007, we have before or 24 hours after admis- sponsible for providing or evaluating received a great number of comments sion or registration, but prior to the service provided, consistent with and questions from providers about surgery or a procedure requiring hospital policies and procedures. the timeframe requirements (for both anesthesia services. The medi- the initial medical history and physical history and physical examination (i) All orders, including verbal cal examination and its update) as must be completed and documented orders, must be dated, timed, and well as about the postanesthesia evalu- by a physician (as defined in section authenticated promptly by the order- ation requirements. In both areas, 1861(r) of the Act), an oromaxillofacial ing practitioner, except as noted in commenters have sought clarification surgeon, or other qualified licensed paragraph (c)(1)(ii) of this section. on the application of these require- individual in accordance with State (ii) For the 5-year-period following ments for patients undergoing out- law and hospital policy. Jan. 26, 2007, all orders, including patient surgeries and procedures . . . (ii) An updated examination verbal orders, must be dated, timed, According to the most recent data, 30 of the patient, including any and authenticated by the ordering million surgical procedures are per- changes in the patient’s condi- practitioner or another practitioner formed each year in the United States tion, be completed and docu- who is responsible for the care of the with over 60 percent done as outpa- mented within 24 hours after patient as specified under § 482.12(c) tient procedures and another 10 to 15 admission or registration, but and authorized to write orders by percent performed on a same-day ad- prior to surgery or a procedure hospital policy in accordance with mission basis. These figures combined State law. PDT 13 LITCH’S LAW LOG

requiring anesthesia services, 42 C.F.R. § 482.51 Condition of Special thanks to A. Conan Davis, when the medical history and participation: Surgical services. D.D.S., CMS Chief Dental Officer, and physical examination are com- LCDR Scott J. Cooper, M.M.Sc, PA-C, (b) * * * pleted within 30 days before CMS Senior Health Insurance Special- admission or registration. The (1) Prior to surgery or a procedure ist/Policy Analyst for their assistance in updated examination of the patient, requiring anesthesia services and reviewing this article. For further informa- including any changes in the patient’s except in the case of emergencies: tion, please contact Chief Operating Offi- condition, must be completed and cer and General Counsel C. Scott Litch at (i) A medical history and physical documented by a physician (as (312) 337-2169 ext. 29 or [email protected]. examination must be completed and defined in section 1861(r) of the Act), documented no more than 30 days Footnotes an oromaxillofacial surgeon, or other before or 24 hours after admission or 1 qualified licensed individual in ac- Medicare and Medicaid Programs; registration. cordance with State law and hospital Hospital Conditions of Participation: policy.8” (ii) An updated examination of Requirements for History and Physi- the patient, including any changes cal Examinations; Authentication of Clearly, this requires the H&P update in the patient’s condition, must be Verbal Orders; Securing Medications; to be completed, and documented, prior to completed and documented within 24 and Postanesthesia Evaluations, 70 Fed. the surgery or procedure. hours after admission or registration Reg. 15268 (March 25, 2005) The CoP for medical records and surgi- when the medical history and physical 2 Medicare and Medicaid Programs; cal services was modified as follows: examination are completed within Hospital Conditions of Participation: 30 days before admission or registra- “42 C.F.R. § 482.24 Condition of Requirements for History and Physi- tion.”10 participation: Medical record services. cal Examinations; Authentication of Impact of Changes on Dentists Verbal Orders; Securing Medications; (c) . . . and Postanesthesia Evaluations, 71 Fed. These regulations, effective as of Jan. Reg. 68672 (Nov. 27, 2006) (2) 26, 2007 and Jan. 1, 2008, respectively, 3 (i) Evidence of-- require coordination between the hospital 71 Fed. Reg. 68694 (Nov. 27, 2006) and its medical staff, and communication 4 71 Fed. Reg. 68694 (Nov. 27, 2006) (A) A medical history and physical from the hospital to medical staff regard- examination completed and docu- ing how the hospital will implement the 5 Medicare Program: Changes to the mented no more than 30 days before regulation and how medical staff should Hospital Outpatient Prospective Pay- or 24 hours after admission or reg- schedule H&Ps. Presumably most, if not ment System and CY 2008 Payment istration, but prior to surgery or a pro- all, hospitals with which pediatric and gen- Rates, the Ambulatory Surgical Center cedure requiring anesthesia services. eral dentists are affiliated and/or at which Payment System and CY 2008 Pay- The medical history and physical they have privileges will be affected, since ment Rates, the Hospital Inpatient examination must be placed in the participation in Medicare or Medicaid pro- Prospective Payment System and FY patient’s medical record within 24 grams triggers these requirements. Since 2008 Payment Rates; and Payments hours after admission or registration, the previous H&P requirement was within for Graduate Medical Education for but prior to surgery or a procedure 7 days of a procedure, the 30-day window Affiliated Teaching Hospitals in Certain requiring anesthesia services. is an improvement. However, for outpa- Emergency Situations; Medicare and (B) An updated examination of the tient procedures–which are most common Medicaid Programs: Hospital Condi- patient, including any changes in the for hospital dental surgery–the updated tions of Participation; Necessary Pro- patient’s condition, when the medical H&P must be completed and documented vider Designations of Critical Access history and physical examination after admission or registration but prior Hospitals, 72 Fed. Reg. 66579 (Nov. 27, are completed within 30 days before to surgery. CMS has indicated that the 2007) individual who completes the H&P update admission or registration. Docu- 6 72 Fed. Reg. 66882 (Nov. 27, 2007) mentation of the updated examina- does not have to be the same individual 7 tion must be placed in the patient’s who did the original H&P. CMS has stated 72 Fed. Reg. 66883 (Nov. 27, 2007) that both documents may be handwritten, medical record within 24 hours after 8 72 Fed. Reg. 66933 (Nov. 27, 2007) admission or registration, but prior dictated and transcribed, or completed 9 to surgery or a procedure requiring electronically. 72 Fed. Reg. 66933 (Nov. 27, 2007) 9 anesthesia services. Other related regulations will be dis- 10 72 Fed. Reg. 66934 (Nov. 27, 2007) cussed in future columns.

14 March 2008