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Out with the Old, In with the…Older? DHS Returns to a 24-Hour Timeframe for Authentication of Verbal Orders

Health Law Update Sarah E. Coyne, Kerry L. Moskol, Kevin J. Eldridge

In a memo issued on August 9, 2012, the Wisconsin Department of Health Services ("DHS") repealed the statewide variance for verbal orders and reinstated the regulatory requirement that imposes a 24-hour timeframe for authentication of verbal orders for hospitals and critical access hospitals.

For many years now, Wisconsin hospitals have followed a statewide variance that allowed verbal orders to be authenticated within a 48-hour timeframe - even though the underlying state regulation required a 24-hour authentication period. The variance was put in place to better align Wisconsin's hospital regulations with the federal Conditions of Participation for Hospitals (which allowed for a 48-hour timeframe for hospitals).

However, the basis for the statewide variance was recently eliminated when the Centers for Medicare and Medicaid Services ("CMS," which promulgates and enforces the federal Conditions of  Participation) issued a new final rule removing the federal 48-hour authentication provision. In its place, CMS implemented a revised provision that requires verbal orders to be authenticated "promptly" and defers to state law to set a more specific timeframe.

In response to the revised federal authentication regulation, DHS issued DQA Memo 12-012, in which DHS repealed the statewide variance. As a result, all hospitals must now require verbal orders to be authenticated within 24 hours of receipt, in accordance with Wis. Admin. Code DHS § 124.12(5)(b)11.

Before you start panicking, note that DHS also provided a process for case-by-case variances upon a hospital's request. Specifically, DHS indicated that if a hospital wishes to request a variance to allow for a 48-hour authentication timeframe (as opposed to the 24-hour regulatory requirement), the hospital should submit the request via email to  DHSWebmailDQA@dhs.wisconsin.gov and include all of the following:

  1. The rule from which the variance is requested (DHS § 124.12(5)(b)11);
  2. The time period for which the variance is requested;
  3. The specific alternative action which the facility proposes (48 hours instead of 24 hours);
  4. The reasons for the request; and
  5. An explanation that the variance will not adversely affect the health, safety or welfare of any patient and enforcement of the requirement would result in hardship on the hospital or on a patient.

If you choose not to seek a variance, you will need to take action! And pronto! Although DHS didn't specify the effective date for this change, it would appear to be effective immediately. Here is what you will need to do:

  1. Breathe. Maybe get a cup of coffee and a piece of chocolate and perhaps arrange spa services for key members of your health information management departments.
  2. Revise your Medical Staff Bylaws, Rules and Regulations, and policies to require authentication of verbal orders within 24 hours. Most of those documents will specifically refer to the 48-hour timeframe; that is no longer compliant.
  3. Educate staff (physicians, nurses, midlevel providers, compliance officers and health information managers, among others) on the new 24-hour authentication requirement. It is one thing to revise your documents, it is another to implement the process. Education will be key!
  4. If your hospital uses an electronic medical record system, determine whether any programming changes are required to ensure the 24-hour timeframe will be met.

For more information, please contact Sarah Coyne at (608) 283-2435 / sarah.coyne@quarles.com, Kerry Moskol at (608) 283-2609 / kerry.moskol@quarles.com, Kevin Eldridge at (608) 283-2452 / kevin.eldridge@quarles.com or your Quarles & Brady attorney.