RECENT DEVELOPMENTS IN HEALTH CARE LAW: JCAHO DEVELOPMENTS
On July 11, JCAHO announced a new hospital standard providing for the privileging of volunteer Licensed Independent Practitioners during emergencies. Standard MS.18.104.22.168 states in part as follows: "In circumstances of disaster(s), in which the emergency management plan has been activated, the [C.E.O.] or medical staff president or their designee(s) may grant emergency privileges." JCAHO indicated that while the use of volunteers is not mandated, the standard provides a means for hospitals to use volunteers in emergencies.
On July 24, JCAHO announced its "2003 National Patient Safety Goals and Recommendations." The Patient Safety Goals are as follow:
· improve the accuracy of patient identification;
· improve the effectiveness of communication among caregivers;
· improve the safety of using high-alert medications;
· eliminate wrong-site, wrong-patient and wrong-procedure surgery;
· improve the safety of using infusion pumps; and
· improve the effectiveness of clinical alarm systems.
On July 30, JCAHO announced that, beginning in 2004, complex health care organizations that offer multiple types of services will undergo more customized and streamlined surveys. The new complex organization survey process will utilize a single survey team to evaluate services throughout the organization, and will include the following features:
· the collection, before the survey, of detailed information about the organization’s specific services and settings;
· selection of a customized set of standards from JCAHO’s new standards database that are matched specifically to the organization’s characteristics;
· assignment of credentialed surveyors who have the skills and expertise most appropriate to the organization’s characteristics;
· concurrent evaluation of the various organization components; and
· reduced survey fees as a consequence of the more integrated survey.
Proposed Amendments to the Emergency Medical Treatment and Active Labor Act Not Adopted
We previously reported that in the May 9 issue of the Federal Register, buried within CMS’s proposed hospital inpatient prospective payment rule, appeared proposed changes to the EMTALA regulations (see May 28, 2002, issue of the Health Care Law Alert). In that regard, CMS proposed to:
· change the requirements relating to emergency patients presenting at off-campus outpatient clinics that do not routinely provide emergency services;
· clarify when EMTALA applies to both inpatients and outpatients;
· clarify the circumstances in which physicians, particularly specialty physicians, must serve on hospital medical staff "on-call" lists; and
· clarify the responsibilities of hospital-owned ambulances so that these ambulances can be more fully integrated with city-wide and local community EMS procedures for responding to medical emergencies.
The final version of the proposal was published on August 1, and it did not include any provisions relating to EMTALA. CMS did, however, indicate that it will publish a separate final rule encompassing those issues at a later date.
District Court Rules Against CMS Ban on Lithotripsy Self-Referrals
On July 12, the U.S. District Court for the District of Columbia ruled that the Department of Health and Human Services and CMS inappropriately classified lithotripsy as being covered by the physician self-referral regulations promulgated under Stark II. CMS had asserted that lithotripsy should be considered a designated health service because it is classified as an "inpatient or outpatient hospital service," despite the fact that such procedures, generally, are performed in ambulatory surgical centers. However, the Court took note of the facts that: (1) the language of Stark II set forth specific procedures for which self-referrals were banned, but that lithotripsy was not among them; and (2) the congressional record (floor speeches and debates) clearly demonstrated a legislative intent not to include lithotripsy as a designated health service. While there does remain a lingering question about the applicability of this decision to other jurisdictions, at least one commentator indicated a belief that the decision will effectively apply nationally.
OSHA Announces National Emphasis Program
for Nursing and Personal Care Facilities
On July 15, OSHA announced a new National Emphasis Program (NEP) to focus outreach efforts and inspections on specific hazards in nursing and personal care facilities with high injury and illness rates. The program will focus outreach efforts and inspections primarily on hazards most prevalent in the facilities, including:
· ergonomics primarily related to resident handling;
· exposure to blood and other potentially infectious materials;
· exposure to tuberculosis; and
· slips, trips, and falls.
The NEP will focus OSHA’s resources on those nursing and personal care facilities that have 14 or more injuries or illnesses resulting in lost work days or restricted activity for every 100 full-time workers. OSHA is planning to inspect approximately 1,000 of these facilities under the new NEP.
August 13, 2002