HHS and CMS Issue Proposed Rule Authorizing States to Identify OPPC’s

On February 17, 2011, the Centers for Medicare & Medicaid Services (“CMS”) and the Department of Health and Human Services (“HHS”) announced a proposed rule under the PatientProtection and Affordable Care Act ("PPACA") that would grant states the authority to codify Other Provider Preventable Conditions (“OPPCs”) and Provider Preventable Conditions (“PPCs”) that include, at minimum, the Hospital Acquired Conditions (“HACs”) defined by Medicare, but also state-identified conditions. HHS believes establishing Medicare requirements as the minimum for the application of the policy is appropriate because many states that have implemented Hospital Care Acquired Condition (“HCAC”) policies have adhered to Medicare requirements, because the conditions are generally accepted by the provider community.

PPCs are defined under two categories; HCACs and OPPCs. The proposed rule would include a definition for an HCAC that would not be limited to those specifically outlined by Medicare, but also include conditions identified by states for prevention of health care reimbursement under state plans, as approved by CMS through the state plan review process. Accordingly, the proposed definition would establish Medicare requirements as the floor, but allow further state innovation as determined by each state.

Such a policy would extend to applying nonpayment provisions to service settings beyond the inpatient hospital setting. Under the proposed rule, states may identify similar OPPCs related to services furnished in settings other than inpatient hospitals, such as nursing home facilities. State plans would have to provide for nonpayment for care and services related to these OPPCs and federal financial participation would not be available in state expenditures for such care and services related to OPPCs.

The proposed definition of an OPPC would include, at a minimum, wrong surgical or other invasive procedure performed on a patient, a surgical or other invasive procedure performed on the wrong body part, and a surgical or other invasive procedure performed on the wrong patient. As of January 15, 2009, Medicare no longer covers the above mentioned surgical or invasive procedures, or hospitalizations and other services related to these non-covered procedures as defined by Medicare.

The proposed criteria for other OPPCs would be similar to the criteria for HCACs, including that a condition or event identified by a state must be; (1) a discrete, auditable, quantifiable, and clearly defined occurrence, (2) clearly adverse, resulting in a negative consequence of care that results in unintended injury or illness, and (3) reasonably preventable, meaning an event that could have been anticipated and prepared for, but that occurs because of an error or other system failure.

HHS hopes to make these requirements effective July 1, 2011, and is currently soliciting comments. If you have questions about the proposed rule, or about how the PPACA may impact your organization, please contact Leigh Ann O'Neill at 317-238-6346.