President Obama Expected to Sign Soon
Congress presented President Obama with a bill for his signature to require a hospital or critical access hospital to provide both oral and written notification to any patient who receives observation services for more than 24 hours, explaining the reasons and implications of their status as an outpatient, as opposed to inpatient status. Said notifications must be provided and receipt acknowledged by signature of the patient or their representative within 36 hours of the beginning of the observation services. The bill, H.R.876, entitled “Notice of Observation Treatment and Implication for Care Eligibility Act” was unanimously passed by both chambers (passed by the House on March 16, 2015, and by the Senate on July 27, 2015) and the President is expected to sign it into law, shortly.
Some states already require observation care notices, including New York, Connecticut, Maryland, Pennsylvania, and Virginia. While some hospitals already provide such notifications before discharge, The Centers for Medicare and Medicaid Services (CMS) has been reluctant to issue any such requirements – a rather astounding reluctance given the existence of many regulations and guidance issues that go far beyond such requirements – e.g., the notorious Two Midnight Rule. In a recent Senate hearing, CMS told Senators that CMS had been “encouraging” hospitals to notify and educate patients about the practical and financial implications of such care and the accompanying status, but that CMS did not feel they could “require” hospitals to do so.
Hence, Congress took the hint and created the NOTICE Act. Hospitals must comply within 12 months, after the bill is signed into law.
Specifically, the new law would “require a hospital or critical access hospital [participating in Medicare and/or Medicaid] to give each individual who receives observation services as an outpatient for more than 24 hours an adequate oral and written notification within 36 hours after beginning to receive them which:
- explains the individual’s status as an outpatient and not as an inpatient and the reasons why;
- explains the implications of that status on services furnished (including those furnished as an inpatient), in particular the implications for cost-sharing requirements and subsequent coverage eligibility for services furnished by a skilled nursing facility;
- includes appropriate additional information;
- is written and formatted using plain language and made available in appropriate languages; and
- is signed by the individual or a person acting on the individual’s behalf (representative) to acknowledge receipt of the notification, or if the individual or representative refuses to sign, the written notification is signed by the hospital staff who presented it.”
CMS has yet to issue any guidance, since the bill has yet to be signed into law. So, it remains to be seen how CMS will define and/or interpret these requirements.