Dear CMS. . .

Believe it or not, the first week of June is almost over, and time is running out to give your comments to CMS on its proposed 2009 Inpatient Prospective Payment System rule. The federal agency is accepting comments about its nine new proposed "never events" and 43 new reporting requirements until June 13.

Since the proposed rule was released in April, there has been chatter in the medical community about the possible effects the rule as it is written could have on the industry. Some have questioned how reasonable the new "never events" are, namely delirium and Legionnaire's Disease, says Nancy Foster, vice president for quality at the American Hospital Association. The AHA plans to file a response to CMS before the June 13 deadline based on the feedback it is getting from members and those who work in the field.

"Most of the feedback we are hearing is concern that CMS has stretched beyond the bounds of what we would think would be included in something that is reasonably preventable with known evidence-based practices," Foster says. "Certainly, delirium has raised a number of questions, and Legionnaire's disease—when it appears in any institution—is usually a function of not what clinicians are doing, but the hospital's cleaning and air conditioning systems."

The bottom line, Foster says, is that even when clinicians do everything possible to prevent the infections and conditions on CMS' list, they may still occur. That's why, leading up to the end of the comment period, the AHA has been working with infectious disease experts, surgeons, and intensivists to understand how each of the conditions on the CMS list can be prevented and the circumstances in which a hospital may not be able to prevent a condition from occurring.

The AHA will also express its concern with the section of the rule that would require hospitals to report another 43 quality measures. Foster says for hospitals to not only collect the data, but have staff members learn what it all means, will take time away from patient care.

"We're not sure that's the right way to deliver care to patients in our hospitals," she says.

The American Medical Association says it will also provide comments to CMS before the deadline, and Foster says she's heard that many state hospital associations have drafted opinions, too. Will CMS listen? That's yet to be seen, but Foster says the federal agency has a history of listening to constructive criticism from those in the field.

"CMS will receive a wide variety of comments from those of us in the healthcare provider role as well as other individuals—payers, policy makers, and the like," she says. "How they mash all that together to come up with a final rule is best known inside CMS, but they've shown in the past that they do take into account comments, especially when there is logic and reason."

What worries me most about the 2009 IPPS proposal is that no one yet knows how hospitals will be affected by the 2008 rule. As you recall, CMS won't stop reimbursement for the first eight "never events" until October 1. So it feels like CMS is jumping the gun just a bit. While I applaud its efforts to continue improving the care offered in hospitals, it may be better to delay another list of never events until we can get a handle on the effect of the first round.

Foster agrees.

"I do think it would be more prudent after the first round," she says. "Understanding the intended effects and the unintended consequences is important, as these are a large and very diverse set of additional issues."