CMS SOM App. L, Tag Q-0223

ownership

The ASC must disclose, in accordance with Part 420 of this subchapter, and where

applicable, provide a list of physicians who have financial interest or ownership in

the ASC facility. Disclosure of information must be in writing.

Interpretive Guidelines: §416.50(b)

An ASC that has physician owners or investors must provide written notice to the patient,

the patient’s representative or surrogate, prior to the start of the surgical procedure, that

the ASC has physician-owners or physicians with a financial interest in the ASC. CMS

considers the disclosure of physician financial interest or ownership to be part of the

overall “patient rights information” that is now required to be given prior to the start of

the procedure. 42 CFR Part 420 provides definitions and requirements concerning

ownership and control of Medicare-participating providers and suppliers. Surveyors are

not expected to have expert knowledge of what constitutes ownership and control, but

ASCs are required to comply with the provisions of Part 420. ASCs that meet the

physician ownership and control threshold specified in 42 CFR Part 420 must disclose

their physician ownership to patients and provide them with a list of physicians who have

a financial interest or ownership in the ASC. The intent of this disclosure requirement is

to assist the patient in making an informed decision about his or her care by making the

patient, or the patient’s representative or surrogate, aware when physicians who refer

their patients to the ASC for procedures, or physicians who perform procedures in an

ASC also have an ownership or financial interest in the ASC.

The written notice must disclose, in a manner designed to be understood by all patients,

that physicians have an ownership or financial interest in the ASC. Information should

be provided in a manner that is not only technically correct, but also easily understood by

persons not familiar with financial statements, legal documents or technical language.

The ASC should also be aware of the age and the cognitive abilities of its patients in

developing its written notice. (72 FR 50475, August 31, 2007)

Survey Procedures: §416.50(b)

• Ask the ASC whether it is has reported in accordance with 42 CFR Part 420 to the

Medicare program whether the ASC has any physicians with ownership/financial

interests. (Surveyors are not required to make an independent determination

regarding whether an ASC has physicians with ownership or financial interests.) If

the answer is yes, then the ASC is required to comply with the requirement for

disclosure to patients. If the ASC’s response is no, then the ASC has no disclosure

requirement and the surveyor does not have to investigate further.

• If the ASC indicates it has physicians with ownership/financial interests in the ASC:

• Does the ASC have policies and procedures in place to make the required

disclosures to patients? Are the policies and procedures consistent with the

regulatory requirements?

• Does the ASC provide a written notice of disclosure to all patients prior to the

start of the surgical procedure, including a list of physicians with financial

interests or ownership in the ASC?

• Interview ASC staff to assess their knowledge and understanding of the physician

ownership notice requirements, including the ASC’s process for delivering the notice.

• Interview patients to ask them whether they were aware that the ASC has physician

owners/investors. Ask them if they recall getting a written notice about this prior to

the start of their surgical procedure.