A few weeks ago, I provided a preview of the three major regulations that we were expecting to see this summer—and at the end of last week, the Centers for Medicare & Medicaid Services (CMS) released the first one of those: the Rural Emergency Hospitals (REH) Conditions of Participation (CoP) Proposed Reg. The other two proposed regs we’re waiting for, the Calendar Year (CY) 2023 Physician Fee Schedule (PFS) and Quality Payment Program (QPP) Proposed Reg and the CY 2023 Outpatient Prospective Payment System (OPPS) Proposed Reg, will be released imminently (they may even be released by the time you read this!).
With respect to the REH CoP Proposed Rule, you may recall that the Consolidated Appropriations Act (enacted on December 27, 2020) included a provision that would allow critical access hospitals (CAHs) and small rural hospitals (those with less than 50 beds) to convert to REHs starting on January 1, 2023. REHs, once established, will receive enhanced reimbursement under Medicare. They will not provide any inpatient services but must be able to provide emergency services 24 hours a day, 7 days a week. Further, they must meet other requirements including, but not limited to: having a transfer agreement in place with a level I or level II trauma center; adhering to quality measurement reporting requirements that will be set by CMS; and following new CoPs that are developed by CMS.
To help inform REH policies, CMS issued a request for information (RFI) on a broad range of issues last year as part of the CY 2022 OPPS Proposed Reg. ACEP submitted a response to the RFI, where we specifically emphasized the need for all services delivered in REHs to be supervised by emergency physicians either in-person or virtually via telehealth. We also had the opportunity to meet with the White House to discuss the REHs CoPs before they were released.
The REH CoP Proposed Reg issued last week is the first step in the implementation of this new facility type under Medicare. The CY 2023 OPPS Proposed Reg (which, again, will be released shortly) will include other REH proposals related to Medicare payment, quality reporting, and enrollment.
Comments on the REH CoPs are due in late August, and ACEP plans on submitting a robust response. The final reg for the REH CoPs will be included in the CY 2023 OPPS Final Reg, which will be released on or around November 1, 2022.
We have drafted a summary of the REH CoP Proposed Reg, but I would like to cover the highlights here. Overall, CMS proposes basic definitions and requirements for REHs and eighteen separate CoPs, many of which align with the CoPs already established for CAHs and hospitals.
First, CMS defines an REH “as an entity that operates for the purpose of providing emergency department services, observation care, and other outpatient medical and health services in which the annual per patient average length of stay does not exceed 24 hours. The REH must not provide inpatient services, except those furnished in a unit that is a distinct part licensed as a skilled nursing facility to furnish post-REH or posthospital extended care services.” Thus, CMS expects patients, on average, to be treated at an REH for less than a twenty-four period and then subsequently be either discharged or transferred to another facility if a patient needs to receive a higher level of care. CMS also proposes to certify a facility as an REH if the facility was, as of December 27, 2020 (the date the Consolidated Appropriations Act was enacted), a CAH or a hospital with no more than 50 beds located in a rural county. This means that a new CAH or small rural hospital that popped up over the last year can’t convert to an REH.
REHs must have an effective governing body, or responsible individual or individuals, that is legally responsible for the conduct of the REH. One important responsibility of the governing body that CMS discusses in the reg is overseeing the credentialling and privileging of telemedicine providers. CMS acknowledges the critical role that telemedicine plays in rural areas and wants to reduce administrative barriers to providing these services in REHs. To accomplish this goal, CMS proposes a streamlined and simplified credentialling and privileging approach. Specifically, the governing body of the REH can grant privileges to practitioners delivering telemedicine services from a distant site based on the recommendations of its medical staff, who would rely on information provided by the distant-site hospital. In other words, instead of having to carry out the traditional credentialling and privileging process for all of the physicians and practitioners that may be available to provide telemedicine services, an REH can simply have its medical staff rely upon information from distant site providers when making its privileging recommendations.
With respect to the types of services REHs will provide, the “bread and butter” services under an REH will be emergency, laboratory, radiologic, and pharmacologic services. However, REHs are also allowed to provide additional medical and health outpatient services that include, but are not limited to, outpatient rehabilitation, surgical, maternal health, and behavioral health services. Given this Administration’s priority to help improve access to maternal health care services, the agency believes that REHs should provide maternal health services that include prenatal care, low-risk labor and delivery, and postnatal care. With respect to behavioral health services, REHs are allowed to be opioid treatment providers as long as the treatment remains an outpatient service. CMS proposes personnel requirements for REHs who choose to provide these additional outpatient medical and health services.
CMS is also proposing a CoP for infection prevention and control and antibiotic stewardship programs for REHs that mirrors similar infection prevention and control requirements for hospitals and CAHs. REHs must have facility-wide infection prevention and control and antibiotic stewardship programs that are coordinated with the REH quality assessment and performance improvement (QAPI) program, for the surveillance, prevention, and control of hospital-acquired infections and other infectious diseases and for the optimization of antibiotic use through stewardship. CMS proposes specific requirements for these programs in the reg.
Another CoP is dedicated to staffing requirements. The Consolidated Appropriations Act does not specify the specific type of physician and/or practitioner that must provide services within an REH, so CMS is providing REHs with a great deal of flexibility to determine how to staff the emergency department at the REH 24 hours a day, 7 days a week. CMS does not believe that it is necessary that a doctor of medicine or osteopathy, nurse practitioner, clinical nurse specialist, or physician assistant is available to furnish patient care services at all times in the REH. Instead, CMS is proposing that a physician or practitioner with training or experience in emergency care be on call and immediately available by telephone or radio contact and available on site within specified timeframes.
Further, in response ACEP’s comment on the RFI about having care supervised by board-certified emergency physicians, CMS states that: “While we agree that having a board-certified emergency physician serving as the medical director of the REH would benefit patients by ensuring that the REH is overseen by a highly qualified physician with a high level of expertise in emergency medicine, we believe that requiring this of REHs would be unduly burdensome due to the challenges faced by rural communities in obtaining and retaining medical professionals to provide health care services. While we are not proposing to require that REHs have a board-certified emergency physician serve as the medical director, we would encourage REHs to have such a physician serve in the capacity of medical director if possible.” Thus, although CMS did not accept ACEP’s recommendation, the agency does acknowledge the value of having board-certified emergency physicians oversee the care being delivered in REHs.
There are other noteworthy CoPs in the reg, including those that:
- Establish discharge planning requirements that align with those required for CAHs. In addition to describing these requirements in detail, CMS also refers to previously issued guidance on providing instructions in a culturally and linguistically appropriate manner. Discharge planning should focus on returning the patient to a home or community-based setting to the fullest extent possible with necessary supports and services.
- Set forth a series of patients’ rights, including around privacy and security and around the use of use of restraints and seclusion.
- Require REHs to create a Quality Assessment and Performance Improvement Program (QAPI Program).
- Require REHs to maintain a medical records system and a detailed record for each patient that includes specifically prescribed information. The record must include dated signatures of the doctor of medicine or osteopathy or other health care professional.
- Require REHs to have in effect an agreement with at least one Medicare-certified hospital that is a level I or level II trauma center for the referral and transfer of patients requiring emergency medical care beyond the capabilities of the REH.
- Establish emergency preparedness requirements that align with the existing emergency preparedness standards for Medicare and Medicaid providers. As part of these requirements, REHs must develop and maintain an emergency preparedness plan that must be reviewed and updated at least every two years. REHs must also develop and maintain an emergency preparedness training and testing program that is reviewed and updated at least every two years. REHs must conduct exercises to test the emergency plan at least annually. Specifically, REHs must conduct two testing exercises, a full-scale or functional exercise, and an additional exercise of its choice, every two years.
So, those are the main CoPs that CMS proposes for REHs. Again, CMS plans to include other REH proposed policies in the OPPS reg. Overall, our hope is that all of CMS’ proposals combined will create a stable and sustainable pathway for facilities to convert to REHs and provide emergency and other vital outpatient services to patients in rural areas.
Before concluding, I want to remind you all again that the other major Medicare proposed regs will be released very soon. I will update you as soon as possible once the regs are issued and may even issue a special edition of Regs and Eggs before next week.
Until next week (or even sooner), this is Jeffrey saying, enjoy reading regs with your eggs.
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