Digital Debut

Illinois Aligns with CMS’ Burden Reduction Changes

The state’s final rule amends its H&P and written transfer agreement requirements

BY STEPHEN ABRESCH | SEPTEMBER 2022

While states have moved slowly to align with the Centers for Medicare & Medicaid Services’ (CMS) 2019 burden reduction changes, 2022 has seen an uptick in action on the issue. Three states have made changes this year: Alaska and Illinois have finalized rules removing their written transfer agreement requirements and deferring the choice of performing a medical history and physical (H&P) examination to physicians, while Ohio changed its H&P requirements to give physicians the ability to determine when one is required prior to surgery, but maintained its written transfer agreement requirement. Delaware was the first state to align its H&P requirements for ASCs with CMS in 2021.

Illinois finalized its proposed rule last month, according to a notice in the Illinois Register. Effective July 28, 2022, the final rule makes a number of changes to the state’s ASC regulations, including implementing the state’s surgical smoke evacuation requirements—as required by the passage of surgical smoke evacuation legislation in 2021—and implementing requirements related to closed captioning on televisions in common areas in ASCs.

Background

On September 25, 2019, CMS announced a final rule, effective November 29, 2019, to relieve burdens on healthcare providers. As part of that rule, CMS removed the requirements at 42 CFR §416.41(b)(3) for an ASC to have a written transfer agreement with a local hospital or hospital admitting privileges for all physicians who practice within the ASC. The agency replaced this with the requirement that an ASC periodically provide a local hospital with written notice of its operations and patient population served. In the same rule, CMS replaced the requirement that each patient at an ASC have a medical H&P completed by a physician not more than 30 days before the scheduled surgery with the requirement that ASCs develop and maintain a policy that identifies those patients who require an H&P prior to surgery.

Many states had based their own H&P and written transfer agreement requirements on CMS’ previous requirements, meaning that despite the change, most states still required ASCs to fulfill these requirements. At the time the rule was finalized, only 14 states—Arizona, California, Delaware, Idaho, Iowa, Nebraska, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Vermont, West Virginia, Wisconsin—and Washington, DC, did not have written transfer agreement or admitting privilege requirements. Only eight states—California, Idaho, Iowa, North Dakota, Vermont, West Virginia, Wisconsin, Wyoming—and Washington, DC, had no H&P requirements.

Illinois Introduces Changes

On April 22, 2022, the Illinois Department of Public Health published a notice of proposed rulemaking in the Illinois Register announcing the proposed changes to the state’s ambulatory surgical treatment center licensing requirements. The proposed rule’s primary purpose was implementation of the state’s surgical smoke evacuation requirement, but it also included important changes to the state’s existing H&P and written transfer agreement requirements.

Previously, Illinois required ASCs to obtain an up-to-date medical history and complete physical examination before any medical procedure is performed, but it did not specify a 30-day period as CMS had. The state’s previous written transfer agreement required ASCs to provide written documentation of one of the following: a transfer agreement with a hospital approximately 15 to 30 minutes travel time from the facility; a statement that the medical director of the facility has full admitting privileges at a hospital within 15 to 30 minutes travel time and that he or she will assume responsibility for all facility patients requiring follow-up care; or a statement that each staff physician, dentist or podiatrist has admitting privileges in a hospital within 15 to 30 minutes travel time.

After moving quickly through the regulatory process, the state finalized the proposed rule, effective July 28, 2022. Amendments to the proposed rule left the original language on H&P and written transfer agreement requirements intact. Now, ASCs must have a policy that identifies patients who require an H&P prior to surgery and the timeframe in which the examination is to be completed. Based on its policy, if an ASC determines an H&P is needed, it will perform it within the timeframe laid out in its policy. The final rule removed the state’s written transfer agreement requirement, with ASCs required to have an effective procedure for the immediate transfer of patients requiring emergency care to a hospital within 15 to 30 minutes travel time from the ASC.

Write Stephen Abresch with any questions.