Mandatory Disclosure of Physician Ownership in ASCs Required by the Medicare Conditions for Coverage Effective May 18, 2009

The final Medicare Conditions for Coverage were published October 30, 2008 and will become effective May 18, 2009. One of the most significant changes in the Conditions for Coverage is the requirement for ASCs to provide patients with certain verbal and written notification of rights and of ownership in advance of the date of the service. The notice must be provided in a language in any manner that the patient or the patient's representative understands. ASCs specifically must:

1. Post the written notice of patient rights set forth in the Conditions for Coverage in a place or places within the ASC likely to be noticed by patients (or their representative, if applicable) waiting for treatment. The ASC's notice of rights must include the name, address, and telephone number of a representative in the State agency to whom patients can report complaints, as well as the Web site for the Office of the Medicare Beneficiary Ombudsman.
2. Disclose physician financial interests in the ASC. Disclosure of information must be in writing and furnished to the patient. This disclosure, which had previously been a safe harbor requirement, is now a requirement for all centers. Further, disclosure must be provided in advance of the procedure - i.e., generally made prior to the date the patient has the procedure.
3. Provide the patient or, as appropriate, the patient's representative, in advance of the date of the procedure, with information concerning its policies on advance directives, including a description of applicable State health and safety laws and, if requested, official State advance directive forms. The ASC must also inform the patient or patient's representative of the patient's right to make informed decisions regarding the patient's care and must also document in a prominent part of the patient's current medical record whether or not the individual has executed an advance directive.
4. Establish a grievance procedure for documenting the existence, submission, investigation, and disposition of a patient's written or verbal grievance to the ASC and notify the patient of the same.

The requirement that such notice be provided "in advance" is generally considered to be at least the day before the procedure is scheduled for all of the above notifications. If the patient is not scheduled for an initial appointment at the ASC before the date of surgery, the ASC may be able to meet the advance requirement by (a) providing verbal notice over the telephone and (b) mailing the written materials to the patient (or instructing the patient to download the materials from the ASC website) and, on the date of the procedure, having the patient bring the notice materials with a signed acknowledgement that they were provided in advance of that day. There is no requirement that all of the above notices be included in the same documentation, but it will be critical for the ASC to ensure that the above verbal and written notices are provided and properly documented in patient records.