March 22, 2019

In This Issue
Fast Facts
NAHU Calls on Congress to Fix the Two-Midnight Rule
NAHU Coalition Urges Action on Surprise Billing
CMS Releases "Master the Marketplace Anywhere, Anytime"
State Spotlight: Maine Protects Pre-existing Conditions
Healthcare Happy Hour
Miss Yesterday’s Webinar on Section 125 Best Practices?
HUPAC Roundup
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NAHU Calls on Congress to Fix the Two-Midnight Rule
NAHU called on members who specialize in Medicare plans to take action on our latest Operation Shout to support legislation that would fix Medicare’s “two midnight” policy for patients placed on observation status. Last week, Representatives Joe Courtney (D-CT) and Glenn Thompson (R-PA) introduced H.R. 1682 and Senators Sherrod Brown (D-OH) and Susan Collins (R-ME) introduced S. 753. These bills would allow observation stays to be counted toward the three-day mandatory inpatient stay for Medicare coverage of a skilled nursing facility (SNF).

Currently, Medicare beneficiaries who are not officially admitted to a hospital may be classified under “Observation Status,” which is treated as an outpatient procedure for billing purposes. Unfortunately, the common practice of placing a beneficiary on observation status can have significant financial consequences for Medicare beneficiaries, since Medicare Part A and its related coverage rules only apply to actual inpatient care admissions. This may lead patients, many who are extremely sick and may need skilled nursing care to spend many days in the hospital and be charged for services that Medicare would have otherwise paid had they been admitted. Furthermore, hospitals have up to one year to retroactively change admission status to observation, leading unsuspecting beneficiaries with thousands of dollars in bills for SNF care they believed would be covered by Medicare.

The issue stems from policies designed to prevent unnecessary hospital readmissions, where Medicare would penalize hospitals when patients would be re-hospitalized within a month of being discharged. Hospitals with readmission rates above the national average would receive lower Medicare reimbursements, thereby in theory incenting hospitals to adequately treat patients the first time and avoid re-admissions. However, in response to the policy, some hospitals increasingly placed patients under observation status, allowing them to provide care for patients whose conditions were not poor enough to be admitted without the hospital being penalized for a re-admission. Regardless if care was performed in the inpatient unit, these visits would be classified as outpatient procedures and billed under Medicare Part B, which could result in higher cost-sharing for the patient.

As frequency of beneficiaries receiving extended observation services increased as well as high error rates for hospital services that were performed as inpatient instead of outpatient, in 2013, the Center for Medicare and Medicaid Services (CMS) issued guidance designed to determine which hospital stays should be billed for Medicare Part A and which should qualify as outpatient. Beginning in October of 2013, if a physician expected a patient to stay fewer than two midnights, then the services would be classified as outpatient and billed under Medicare Part B. CMS later delayed the enforcement of this policy through March 31, 2015.

The bills introduced this week would allow observation stays to be counted toward the three-day mandatory inpatient stay for Medicare coverage of a SNF, helping to close the loophole and provide an important consumer protection for Medicare beneficiaries who may be placed under observation status. This would allow for patients who are placed under observation status to count their stay towards the three-day mandatory inpatient stay under the two-midnight policy for Medicare coverage of skilled nursing facility services, and prevent patients from being denied Medicare benefits. Beneficiaries could also avoid receiving unexpected bills for services, such as prescription medications, that otherwise would have been covered under a hospital admission.

Contact your senators and representative. Send an Operation Shout today asking your legislators to support H.R. 1682 and S. 753 to fix the two-midnight rule.

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