United States: CMS Finally Relaxes ASC Rule On Timing Of Notice Of Patients’ Rights Information

On October 24, 2011, the Centers for Medicare & Medicaid Services ("CMS") issued a final rule removing the requirement that ambulatory surgical centers ("ASCs") provide required patients' rights information in advance of the procedure date. The revised conditions for coverage will allow ASCs to provide the information on the same date as the procedure and gives patients the opportunity to receive surgeries on the same day they are referred to the ASC for service.

ASCs are currently required to provide patients (or the patient's representative or surrogate) with verbal and written notice of the patient's rights in advance of the date of the procedure. The requirement presents problems for ASCs that provide same-day procedures on an emergency basis. In response to this and other concerns, CMS issued a proposed rule on April 23, 2010, which included an exception to the advance notice requirement for cases where, because of emergency, it was not feasible to provide the required information in advance of the date of the procedure. The proposed rule allowed patients' rights information to be provided immediately before the procedure, but only if (1) the signed physician referral was in writing, was dated the day the patient presented at the ASC, and was placed in the patient's medical record prior to the procedure; and (2) a physician in the ASC or the referring physician communicated in writing, and the ASC documented in the medical record, that the procedure had to be performed as soon as possible to safeguard the health of the patient.

In its final rule, CMS abandoned the proposed emergency exception and amended the conditions for coverage to allow ASCs to provide the required information to all patients at any time before surgery. The final rule provides patients and ASCs increased scheduling flexibility and gives patients an alternative to hospital outpatient departments for sameday procedures.

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