- Observation Status and Surprise Medical Bills
- Government Watchdog Agency Issues Report Highlighting “Significant Vulnerabilities” in Medicare’s Hospice Benefit
The Center for Medicare Advocacy frequently hears from Medicare beneficiaries and their families about patients who receive treatment, tests, and services for multiple days while they are in a hospital bed but who are called “outpatients.” If these patients need post-hospital care in a skilled nursing facility (SNF), Medicare Part A will not pay for their stay and they must pay out-of-pocket, solely because the hospital did not call them “inpatients” for three consecutive days. Three consecutive inpatient days is a prerequisite for most Medicare SNF coverage.
Coincidentally, there is growing momentum in Congress to address the issue of “surprise medical bills” – unexpected bills for medical care that patients could not have predicted or prevented, but nevertheless receive. Congressman Joe Courtney (D, CT) has described observation status as “surprise medical bills on steroids.” He is absolutely correct. One of the most surprising medical bills that many beneficiaries receive is the bill for a SNF stay after they have been hospitalized for multiple days.
The issue of how hospitals bill Medicare for a patient’s stay – whether the hospital submits the bill to Medicare Part A (inpatient) or to Medicare Part B (outpatient) for medically necessary hospital care – deprives potentially hundreds of thousands of Medicare patients each year of their Part A SNF benefit. A 2016 report by the HHS Office of Inspector General found that 633,148 patients in Fiscal Year 2014 had spent three or more midnights in the hospital that did not include three inpatient midnights. There is nothing that patients can do about their status in the hospital. Although the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act) requires hospitals to inform patients of their status as outpatients, Medicare regulations expressly prohibit patients from appealing observation status.
The Center supports a comprehensive approach to surprise medical bills that includes addressing outpatient observation status for beneficiaries and incorporating the Improving Access to Medicare Coverage Act of 2019 (H.R. 1682/ S. 753).
Three Recent Calls to the Center Illustrate the Absurdity of Observation Status
- A 94-year old man was sent by his assisted living facility to the hospital when staff were concerned that he might have had a stroke. The World War II veteran remained hospitalized for three days – two days in observation and one day as an inpatient. Since he did not have a three-day inpatient hospital stay, he had to pay out-of-pocket for his SNF stay. The facility required payment of $11,861, in advance, for one month. His total bill, for little more than two months, was nearly $35,000. Since the hospital classified the man as an inpatient, the hospital received the full inpatient hospital payment rate for his care. If it had classified him as an inpatient for all three days, Medicare would have also covered his SNF stay, some or all of it.
- A woman had knee replacement surgery and was hospitalized for three days as an “observation status” patient. Despite her three-day hospital stay, she had to pay for her subsequent 10-day SNF stay, at $455 per day (total $4550). Ten years earlier, knee replacement surgery on her other knee – by the same physician at the same hospital – was done on an inpatient basis. Medicare covered her care in the hospital and for three weeks of rehabilitation in a SNF.
- An older woman fell. With a bone sticking out of her leg, she was hospitalized – the first day (when she had surgery) in observation, followed by two days as an inpatient. Lacking a three-day inpatient stay, she had to pay $7000 for admission to a SNF. Her total SNF bill was more than $18,000. The hospital was paid the inpatient rate for her stay, but Medicare did not pay for her SNF stay because her first day in the hospital was classified as outpatient observation.
Too many Medicare beneficiaries are paying for SNF stays, or foregoing necessary care, because of how hospitals bill Medicare for their patients’ stays. Congress needs to comprehensively address the issue of surprise medical bills to include outpatient observation status issues and the Improving Access to Medicare Coverage Act.
 See the Center’s materials on observation status at https://www.medicareadvocacy.org/?s=observation+status&op.x=0&op.y=0
 CMA, “Congressional Hearing on Surprise Medical Bills; Center for Medicare Advocacy Submits Statement on Observation Status” (CMA Alert, May 23, 2019), https://www.medicareadvocacy.org/congressional-hearing-on-surprise-medical-bills-center-for-medicare-advocacy-submits-statement-on-observation-status/.
 OIG, Vulnerabilities Remain Under Medicare’s 2-Midnight Hospital Policy, 13, OEI-02-15-00020 (Dec. 2016), https://oig.hhs.gov/oei/reports/oei-02-15-00020.pdf.
 42 U.S.C. §1395cc(a)(1)(Y).
 42 C.F.R. §405.926(u).
 The Center’s statement to the Ways and Means Committee is available at https://www.medicareadvocacy.org/wp-content/uploads/2019/07/Surprise%20Medical%20Bills%20Statement%20Center%20for%20Medicare%20Advocacy%20May%202019.pdf
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“which found that from 2012 through 2016, the majority of U.S. hospices that participated in Medicare had one or more deficiencies in the quality of care they provided to their patients. Some Medicare beneficiaries were seriously harmed when hospices provided poor care or failed to take action in cases of abuse.”
In response to these findings, “OIG made several recommendations in both reports to strengthen safeguards to protect Medicare hospice beneficiaries from harm and to ensure hospices are held accountable for deficiencies in their programs.”
The first report, Hospice Deficiencies Pose Risks to Medicare Beneficiaries (OEI-02-17-00020), looks at the overall quality of care provided to hospice beneficiaries and hospice deficiencies nationwide, including both hospices that were surveyed by State agencies and those surveyed by accrediting organizations. The most common deficiencies found, according to the report, “involved poor care planning, mismanagement of aide services, and inadequate assessments.” Hospices must be surveyed at least once every three years to verify compliance with Medicare requirements. However, the only enforcement action the Centers for Medicare & Medicaid Services (CMS) “can initiate against hospices that do not correct deficiencies is termination from Medicare.” This is compared to enforcement actions (such as civil monetary penalties and denial of payment) available for other types of Medicare providers such as nursing facilities and home health agencies. Information about individual hospices’ deficiencies are not available on Hospice Compare.
The companion report, Safeguards Must Be Strengthened To Protect Medicare Hospice Beneficiaries From Harm (OEI-02-17-00021), explores beneficiary harm in greater depth. It features 12 cases of harm to beneficiaries receiving hospice care, and an examination of “each case to identify vulnerabilities that could have led to the harm and to determine how such harm could be prevented in the future.” OIG notes that these cases “reveal vulnerabilities in [CMS’] efforts to prevent and address harm.” Building on previous recommendations made by OIG, the report makes several new recommendations to CMS to protect beneficiaries from harm.
As part of a package of materials accompanying these reports, OIG also issued a one-page “Know Your Rights, Take Action” flyer aimed toward Medicare hospice patients and their families. OIG also provided a one-page summary of their findings, summarized below (OIG Summary Text):
- Beneficiaries have limited access to hospice quality of care information. Centers for Medicare & Medicaid Services (CMS) should improve its Hospice Compare website so beneficiaries can be more informed about the quality of care provided by each hospice.
- Most hospices that participate in Medicare have at least one deficiency in the quality of care they provide, and hundreds are poor performers. CMS should educate hospices about common deficiencies and increase oversight of hospices with a history of serious deficiencies.
- Hospice beneficiaries face barriers to making complaints, and hospice and surveyor reporting requirements are limited. CMS should make it easier to file complaints and strengthen hospice and surveyor reporting requirements.
- Hospices with patient harm cases do not always face serious consequences from CMS. CMS should seek statutory authority to extend beneficiary protections found in other health care settings to hospices and ensure remedies are available to address poor performers.
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