Is Your ASC Governing Board in Compliance with Medicare Rules?

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By Arthur E. Casey

How well does your ASC governing board carry out its mandated duties? A lot of boards fall short. Failure to meet governing body responsibilities, as defined by Medicare Conditions for Coverage, is one of the top 10 ASC deficiencies reported by Medicare surveyors, according to the Arizona Department of Health Services.

Boards are under mounting pressure to get closely involved in ASC operations. The revised Medicare Conditions for Coverage for ASCs, which took effect in May 2009, add new duties for governing boards. For example, the board is now explicitly responsible for the ASC's Quality Assurance and Performance Improvement Program. Also, CMS has substantially increased the amount of time Medicare surveyors must spend evaluating each facility. This gives surveyors more opportunity to scrutinize boards' meeting minutes, agendas and other documents.

Keep in mind that within your ASC, the governing board has ultimate authority concerning the organization, management and operation of the center – including appointment of medical staff. It is not only responsible for adopting formal policies and procedures for the ASC, but also for carrying them out. Its oversight duties cover the full gamut, from quality issues and infection control to financial management and accountability.

Board Should not be a Rubber Stamp

Medicare surveyors are looking for evidence that the governing board is actively overseeing the ASC. Note that the Medicare Condition for Coverage § 416.41 says the surgery center "must have a governing body that assumes full legal responsibility for determining, implementing and monitoring policies."

The governing body is expected to play a direct role in quality assessment, as well as negotiating and maintaining contracted services, a hospital transfer agreement and a disaster preparedness plan, among other things. It must also make sure the ASC follows the bylaws that it initially adopted. Medicare surveyors may consult the bylaws to ensure that duties are being conducted and carried out in accordance with that document.

Small ASCs, be advised: the Medicare Conditions for Coverage do not differentiate between larger and smaller facilities. Even though an ASC does not have as many dedicated staff and typically works with fewer resources to meet requirements, its board has the same responsibilities as a larger facility.

Other Committees Share the Same Responsibilities

In addition to CMS-required board meetings, a surgery center's bylaws may call for regular meetings of the medical executive, quality and infection control committees. Delegation of the board's authority to these panels should be clearly documented, and their meeting minutes will be open to scrutiny by Medicare surveyors, as are board minutes.

Meetings of these committees must be held separately from the governing boards – even in smaller centers where the board and its committees may have the exact same members. When meetings occur one right after the other, the first has to be formally adjourned before the second starts, and there have to be separate minutes.

Pay Attention to Meeting Minutes

Reading the minutes of board meetings is a key tool for Medicare surveyors to determine if the board is fully addressing its obligations. Surveyors may also examine minutes of the other panels, such as the infection control and medical executive committees, to determine if they are carrying out the center's bylaws and meeting key concerns.

Keep in mind the minutes will become the official historical record of ASC operations. Therefore, if a quality concern is raised in the minutes and is resolved later, be sure to indicate this in the minutes.

The minutes should provide an overview of what was considered and accomplished at the meeting. They are not expected to be a verbatim report or a record of conversations, reports or work assignments. Highly detailed minutes are not necessary and may even provide fodder for a lawsuit against the ASC. In some cases, the minutes can become discoverable by opposing attorneys in a lawsuit against the ASC. On the other hand, the minutes can also be too short. If they are less than a page long, they could raise concerns that the board was not adequately carrying out its duties.

Aim for Shorter, More Frequent Meetings

The governing board should meet at least once a quarter or even once a month. A board that meets frequently can parcel out the volume of business through time. If the board meets just once a year, the agenda would be impossibly long, and important deadlines that take place during the year, such as approving a physician for re-credentialing, could be missed.

Keep in mind that the more frequently the board meets, the shorter each session will be, barring unusual circumstances. Typically, a meeting should run from a little less than an hour to 90 minutes. If it lasts three and a half hours, participants have less time for other important duties and they may lose focus.

Directly Oversee QAPI Program

Under the 2009 change in the Medicare Conditions for Coverage, the board has been given direct responsibility over the Quality Assessment and Performance Improvement (QAPI) program. The board must define, implement and maintain its QAPI program. It must specify data collection methods, frequency and other details, and it must clearly establish expectations for safety and allocate sufficient resources for implementation.

A quality assurance or medical advisory committee may do the legwork for QAPI oversight, but it must regularly report to the board, and the board must closely review those reports and take final action on recommendations. In its review, the board should pay particular attention to untoward events such as a return to surgery or transfer of a patient to the hospital.

The board or its delegated committee also needs to document and demonstrate distinct annual performance improvement projects (and the rationale behind them), as well as results, outcomes and any additional restudy of the project at a later date to ensure that the higher level of performance has been maintained.

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