It's official — CMS changes H&P rule

Verbal orders can be signed by non-MD, if allowed

Under newly published Medicare requirements, hospitals now may complete a history & physical (H&P) within 30 days of outpatient surgery, and it must be added to the record within 24 hours of admission.

The Centers for Medicare & Medicaid Services (CMS) published a final rule revising requirements in the hospital conditions of participation (CoPs) for completion of history and physical examinations, authentication of verbal orders, securing medications. The new requirements reflect the standards of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

"The new regulation is welcomed since it was confusing when JCAHO and CMS were so different," said Sue Dill Calloway, RN, MSN, JD, director of hospital risk management at OHIC Insurance Co., a medical malpractice insurance company in Columbus, OH, in an analysis for OHIC's clients.1 "The old CMS seven-day rule was also felt to be too restrictive," Calloway said.

Under the new rule, outpatient surgery programs need to ensure there is an updated entry in the medical record to reflect any changes in the patient's condition, according to Calloway. She gives the example of a physician who performs an H&P two weeks before a patient has elective surgery. "The physician would want to assess on admission if there had been any change since the H&P had been performed two weeks ago," Calloway says. "The physician can document in the progress notes that the H&P has been reviewed and that the patient has been examined and the physician concurs with the findings of the H&P completed two weeks ago."

Some hospitals may add a stamp or box to the bottom of the H&P form that contains this information, Calloway said.

H&P doesn't have to be performed by physician

CMS also expanded who may perform an H&P, Calloway said. "For example, a physician may want to delegate the H&P to a physician assistant or advanced nurse practitioner," she said.

The physician still is responsible for what is written in the H&P and must authenticate or sign off the H&P when it is completed by someone else, Calloway said.

"The hospital must ensure that the person doing the H&P is qualified and allowed by state law and the hospital," she said.

The requirement that the person must be privileged by the medical staff was eliminated, which will be helpful when a family doctor performs the H&P and is not on the staff, Calloway said. "The family practitioner may perform the H&P for the surgeon, but hospitals should note the JCAHO standard on this which has not changed," she said. The Joint Commission still requires that the H&P be performed by someone who is credentialed at the facility doing the surgery, Calloway said. Under the CMS requirement, "the surgeon only has to look it over and update it, but not sign it," she said. The person who is doing the update is responsible for making sure that the H&P is complete and accurate, she added.

5-year rule implemented for verbal orders

CMS now is requiring that all orders, including verbal orders, must be dated, timed, and authenticated by the prescribing practitioner with a temporary exception says that these actions must be taken by the prescribing practitioner or another practioner responsible for the care of the patient, even if the order did not originate with him or her.

According to a published statement from the agency, "CMS believes this temporary revision to the authentication requirement will reduce burden and provide flexibility for hospitals until the advancement of health information technology is sufficient to allow the prescribing practitioner to authenticate his or her own orders promptly and efficiently."2

The verbal order does not have to be signed off by the ordering practitioner or the physician who gave it, Calloway said. "It could be signed off by any practitioner who is responsible for the care of the patient and who is allowed by the law and the hospital to do so," she said. Previously, a nurse practitioner or physician assistant never was allowed to sign off on a physician's verbal order, Calloway noted. "Now a nurse practitioner or physician assistant could only sign off on an order if they had authority to write the order themselves, as determined by hospital policy and state law," she said.

If state law doesn't specify a time frame for authenticating the verbal orders, they should be authenticated within 48 hours, CMS said. Authentication means the verbal order is signed off promptly by the ordering practitioner, Calloway said. "Physicians often forget to time the order and time when the order is signed off," she said. Orders can be authenticated in writing or electronically by fax, she said.

Avoid using verbal orders

CMS reinforces that the use of verbal orders should be minimized. "This means that physicians should not give verbal orders if he or she is in the nursing unit and can write them," Calloway said. Verbal orders can be used when the surgeon is scrubbed in during a procedure, she said. Also, verbal orders can be used when physicians call from their offices, Calloway said.

The final regulation also addresses the security of medications. CMS now requires that all drugs and biologicals be kept secure and locked, when appropriate. "Some hospitals would like to legally allow a patient to keep their Nitro at the bedside or allow a patient to keep their inhaler at the bedside," Calloway said. "These were previously not permitted, as all drugs were supposed to be locked up and secured."

The final rule was published in the Federal Register on Nov. 27, 2006. The effective date is Jan. 26, 2007. The rule can be accessed at


  1. Calloway SD. Strategies. Columbus, OH: OHIC Insurance Co.; December 2006.
  2. Centers for Medicare & Medicaid Services. Medicare Publishes New Hospital Requirements. Baltimore; November 2006.