QUESTION:
We are working on rewriting our Medical Staff governance documents and noticed that the discussion draft of the Medical Staff Bylaws prepared by HSM attorneys includes the details on histories and physicals.  Why are the specifics of histories and physicals included in the Bylaws instead of the Medical Staff Rules and Regulations?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
This is a question and answer (but mostly the answer) that has perplexed us for quite some time so we understand any confusion.  The Centers for Medicare & Medicaid Services (“CMS”) Conditions of Participation (“CoPs”), which are the federal regulations with which hospitals must comply to participate in the Medicare and Medicaid programs, require the Medical Staff Bylaws to include certain details on histories and physicals, including those related to timing, practitioner eligibility for completion, use of histories and physicals performed before admission or registration, and options for using an “assessment” for outpatient surgical or procedural services.  See 42 C.F.R. § 482.22(c)(5).  Accreditation entities have followed suit and also require this information related to histories and physicals to be in the Bylaws.  See, e.g., The Joint Commission, Standards & EPs, MS.01.01.01, EP 16 (“The medical staff bylaws include…[t]he requirements for completing and documenting medical histories and physical examinations.”).

In the past, we assumed that CMS was using “Bylaws” in the CoPs generally to encompass any of the Medical Staff governance documents, including the Rules and Regulations.  Thus, if a hospital was using a separate document approach (i.e., Bylaws, Credentials Policy, Organization Manual, Rules and Regulations, etc.), histories and physicals could be addressed in the Rules and Regulations.  This makes sense because the Rules and Regulations, traditionally, cover the rules for clinical services and the provision of care, such as those related to admissions, orders, consultations, surgical services, and anesthesia.  The rules for histories and physicals would be a logical fit for the Rules and Regulations.  However, we received feedback from CMS that the details on histories and physicals specified in the CoPs must be included in the Bylaws document itself.

Some medical staffs with which we have worked include only what is required by CMS in the Bylaws and then include additional details on histories and physicals (e.g., the details of the examination and documentation of the examination) in the Rules and Regulations.  This is perfectly acceptable but results in fragmentation and documents that are difficult to reference for purposes of discovering all the requirements for histories and physicals.  It may be easier to simply include all the specifics on the topic in the Medical Staff Bylaws with a cross-reference in the Rules and Regulations to the appropriate section, article, or appendix of the Bylaws.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.