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CMS Finalizes Inpatient Hospital Rules

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August 2, 2010 

Last year AARC reported twice that the Centers for Medicare and Medicaid Services’ (CMS) interpretation of its rules regarding orders for respiratory care services required a physician to co-sign such orders if written by a nurse practitioner (NPs) or physician assistant (PAs). This is because longstanding regulations mandated that only a medical doctor or doctor of osteopathy could write such orders.

CMS believes the current regulations are overly restrictive and found no documented studies to suggest that other practitioners such as NPs and PAs should be precluded from ordering necessary respiratory care services for their patients if certain conditions were met. Moreover, CMS noted the current process of requiring a physician’s co-signature on orders written by a NP or PA is burdensome to all involved.

Earlier this year, CMS proposed to change those rules to permit practitioners other than a physician to write respiratory care orders if they are:

  • Qualified and licensed;
  • Responsible for the care of the patient;
  • Acting within his or her scope of practice under State law; and,
  • Authorized by the hospital’s medical staff to order the services in accordance with hospital policies and procedures and State laws.

CMS added that all respiratory care orders must be documented in the patient’s medical record in accordance with current regulations. 

CMS has finalized these proposed rules as part of its FY 2011 update to policies and payment rates for inpatient services furnished in acute care hospitals, long-term care hospitals and certain excluded hospitals. The regulations were published August 16, 2010. The discussion of respiratory care orders can be found on pages 50405–50407, and page 50419 (regulatory text).

AARC supported the change but noted in its public comments that 35 states have some form of language in their respiratory care practice acts that require orders for hospital respiratory care services to be “written by a licensed physician only.” We questioned how these acts would be impacted by CMS’ proposed rule and whether federal law would take precedent over state law in those situations where orders could only be written by a physician.

In finalizing their rules, CMS responded by stating they are written in such a way “as to avoid the preemption of State law and regulations.” Therefore, CMS expects hospitals to “apply the laws of their respective States as to which types of practitioners would be allowed to write respiratory care orders without the need for a physician co-signature.” In the end, it is up to the hospital to determine if revisions to their medical staff bylaws are warranted as they relate to the categories of practitioners allowed to write respiratory care orders under CMS’ final rule.