[Senate Hearing 113-905]
[From the U.S. Government Publishing Office]


                                                      S. Hrg. 113-905

                            ADMITTED OR NOT?
                         THE IMPACT OF MEDICARE
                     OBSERVATION STATUS ON SENIORS

=======================================================================

                                HEARING

                               BEFORE THE

                       SPECIAL COMMITTEE ON AGING

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS


                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                             JULY 30, 2014

                               __________

                           Serial No. 113-27

         Printed for the use of the Special Committee on Aging
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


        Available via the World Wide Web: http://www.govinfo.gov
        
                              __________

                                
                    U.S. GOVERNMENT PUBLISHING OFFICE                    
46-917 PDF                 WASHINGTON : 2023                    
          
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                       SPECIAL COMMITTEE ON AGING

                     BILL NELSON, Florida, Chairman

ROBERT P. CASEY JR, Pennsylvania     SUSAN M. COLLINS, Maine
CLAIRE McCASKILL, Missouri           BOB CORKER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     ORRIN HATCH, Utah
KIRSTEN E. GILLIBRAND, New York      MARK KIRK, Illinois
JOE MANCHIN III, West Virginia       DEAN HELLER, Nevada
RICHARD BLUMENTHAL, Connecticut      JEFF FLAKE, Arizona
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
JOE DONNELLY Indiana                 TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts      TED CRUZ, Texas
JOHN E. WALSH, Montana
                              ----------
                              
                  Kim Lipsky, Majority Staff Director
               Priscilla Hanley, Minority Staff Director
                         
                         C  O  N  T  E  N  T  S

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                                                                   Page

Opening Statement of Senator Bill Nelson, Chairman...............     1
Opening Statement of Senator Susan M. Collins, Ranking Member....     2
Opening Statement of Senator Richard Blumenthal, Committee Member     3
Opening Statement of Senator Elizabeth Warren, Committee Member..     4
Opening Statement of Senator Tammy Baldwin, Committee Member.....     5

                           PANEL OF WITNESSES

Sylvia C. Engler, Medicare Beneficiary, (accompanied by Toby 
  Edelman), Senior Policy Attorney, Center for Medicare Advocacy, 
  Framingham, Massachusetts......................................     5
Marna Parke Borgstrom, Chief Executive Officer, Yale-New Haven 
  Hospital, President and Chief Executive Officer, Yale-New Haven 
  Health System, New Haven, Connecticut..........................     7
Bob Armstrong, Vice President, Elder Care Services, St. Mary's 
  Health System, Lewiston, Maine.................................     9
Ann M. Sheehy, M.D., Chief, Division of Hospital Medicine, 
  University of Wisconsin School of Medicine and Public Health, 
  and Member, Public Policy Committee, Society of Hospital 
  Medicine, Madison, Wisconsin...................................    11

                                APPENDIX
                      Prepared Witness Statements

Sylvia C. Engler, Medicare Beneficiary, (accompanied by Toby 
  Edelman), Senior Policy Attorney, Center for Medicare Advocacy, 
  Framingham, Massachusetts......................................    31
Marna Parke Borgstrom, Chief Executive Officer, Yale-New Haven 
  Hospital, President and Chief Executive Officer, Yale-New Haven 
  Health System, New Haven, Connecticut..........................    34
Bob Armstrong, Vice President, Elder Care Services, St. Mary's 
  Health System, Lewiston, Maine.................................    40
Ann M. Sheehy, M.D., Chief, Division of Hospital Medicine, 
  University of Wisconsin School of Medicine and Public Health, 
  and Member, Public Policy Committee, Society of Hospital 
  Medicine, Madison, Wisconsin...................................    43

                       Statements for the Record

Toby Edelman, Senior Policy Attorney, Center for Medicare 
  Advocacy.......................................................    59
U.S. Department of Health and Human Services, Office of the 
  Inspector General..............................................    67
Joyce A. Rogers, Senior Vice President, Government Affairs, AARP.    72

 
                            ADMITTED OR NOT?
                         THE IMPACT OF MEDICARE
                     OBSERVATION STATUS ON SENIORS

                              ----------                              


                        WEDNESDAY, JULY 30, 2014

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 1:57 p.m., Room 
418, Russell Senate Office Building, Hon. Bill Nelson, Chairman 
of the Committee, presiding.
    Present: Senators Nelson, Whitehouse, Blumenthal, Baldwin, 
Warren, and Collins.
    Also Present: Senator Brown.

                 OPENING STATEMENT OF SENATOR 
                     BILL NELSON, CHAIRMAN

    The Chairman. Good afternoon.
    Forty-nine years ago today, President Johnson signed the 
Medicare bill into law. Times have changed, but we are 
constantly trying to strengthen and improve this important 
program so that seniors and folks with disabilities get the 
care they deserve, and, as part of that process of continuing 
to improve Medicare, today's topic impacts a lot of Medicare 
beneficiaries financially, more than we realize, and that is 
the impact of Medicare's hospital observation status.
    Now, most folks, after spending the night in the hospital, 
would say that they had been admitted to the hospital, but, now 
we find out that they really have not been admitted, that they 
were there under observation, even though everything, save for 
the two words' difference, ``admitted'' and ``observation,'' 
everything else is the same.
    In observation status, it can cost less than Medicare's 
inpatient deductible, even when a beneficiary has copayments 
for outpatient services, but, the real problem comes when a 
senior citizen learns that they are the one that after their 
observation status in the hospital, they need nursing home 
coverage, and, despite staying in the hospital for the required 
three days or more, Medicare will not cover that nursing home 
stay because the beneficiary was never admitted, instead, was 
under observation, and, it is a coding change in Medicare that 
can add up to big out-of-pocket expenses.
    Well, we ought to do better by our Medicare beneficiaries. 
They deserve better than being in this back and forth rigmarole 
of terminology.
    Senator Brown, one of our colleagues, has introduced a bill 
that Senator Collins and I support to count any three days a 
beneficiary stays in the hospital as eligible for nursing home 
coverage. That is one way to get at this problem.
    Medicare officials are at a critical juncture right now to 
determine payment rules for both inpatient and outpatient 
services for the coming year, and so we need to shine a 
spotlight on the importance of this issue to the beneficiaries 
around the nation, and that is the essence of the discussion 
today.
    Senator Collins is going to take over the Committee when I 
have to go to a classified briefing on the Ukraine, of which I 
am headed to the Ukraine in another week and a half. Senator 
Collins, thank you for offering to do that.
    Senator Collins.

                 OPENING STATEMENT OF SENATOR 
                SUSAN M. COLLINS, RANKING MEMBER

    Senator Collins. Thank you very much, Mr. Chairman.
    I appreciate you calling this hearing to highlight the 
increasing use of hospital observation stays and the financial 
implications for Medicare patients and their families.
    Medicare originally intended observation stays as a way to 
give hospital physicians more time to run tests or do lab work 
in order to decide whether or not a patient should be admitted 
to the hospital or is stable enough to go home. These 
observation stays, which Medicare considers to be outpatient 
care, usually lasted between 24 and 48 hours. Hospitals, 
however, are increasing their use of observation stays and they 
are also keeping Medicare patients in observation status 
longer.
    The number of seniors entering the hospital for observation 
increased by nearly 70 percent over five years, to 1.6 million 
in 2011. Moreover, eight percent of Medicare patients had 
observation stays longer than 48 hours in 2011, up from three 
percent in 2006.
    According to the HHS Inspector General, in 2012, Medicare 
beneficiaries had more than 600,000 observation stays that 
lasted three nights or more. Many of these patients find 
themselves in kind of a Medicare twilight zone, where they may 
be in a hospital bed for days, receiving care and treatment 
from doctors and nurses, but still have not been officially 
admitted to the hospital as an inpatient.
    The financial consequences can be severe for seniors. For 
example, they are held responsible for outpatient copayments 
and prescription drug costs that they would not have incurred 
as an inpatient. There also is no out-of-pocket cap on these 
costs.
    More important, as the Chairman has mentioned, if a 
Medicare patient is not formally admitted as an inpatient, 
Medicare will not pay for any subsequent skilled nursing or 
rehabilitation care. A Medicare patient must spend three 
consecutive midnights in the hospital as an admitted patient in 
order to qualify for coverage for care in a skilled nursing 
facility. As a consequence, if a patient who has been on 
observation status needs follow-up nursing home care, they must 
pay the entire cost themselves, even if they have spent the 
last three midnights in a hospital bed being cared for by the 
hospital's doctors and nurses. How confusing is that.
    Many patients on observation stays may not even realize 
that they have never been admitted officially as an inpatient. 
They just know that they are in the hospital. If they are 
admitted later to a skilled nursing facility for follow-up 
care, they may be shocked to learn that they will be liable for 
out-of-pocket costs totaling thousands of dollars.
    I recently heard from a woman from Portland, Maine, whose 
mother-in-law went to the ER complaining of chest pain. She was 
put in the hospital on observation status, where she remained 
for five days. During that time, she became very weak, had 
difficulty swallowing, and lost 20 pounds. She was discharged 
to a nursing facility, where she stayed for nearly a month for 
follow-up care. Her family had been told that she was being 
observed while she was in the hospital, but they had no idea 
what that meant. They were, therefore, stunned to learn that 
they would have to pay more than $9,000 because Medicare would 
not cover the skilled nursing care. This imposed a huge 
financial burden for this family.
    Mr. Chairman, I am also concerned that many beneficiaries 
may be foregoing needed skilled nursing or rehabilitation care 
simply because they cannot afford the out-of-pocket costs, and, 
as you mentioned, you and I have both cosponsored a bill to 
resolve this situation by deeming time spent in hospitalization 
observation status as inpatient care for the purpose of 
Medicare's three-day prior hospital stay requirement.
    In closing, I also want to take this opportunity to welcome 
Bob Armstrong from Maine, who will be testifying on our panel 
this afternoon. Bob and I happen to be from the same hometown 
in Maine, Caribou, Maine, and he has a long and stellar career 
in long-term care administration and advocacy. He currently 
serves as Vice President of Elder Care Services for St. Mary's 
Health Care Systems in Lewiston, Maine, and I look forward to 
hearing his perspective as well as that of the remainder of our 
excellent panel of witnesses.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Collins.
    Senator Blumenthal, would you do the honors of introducing 
Ms. Borgstrom.

                 OPENING STATEMENT OF SENATOR 
              RICHARD BLUMENTHAL, COMMITTEE MEMBER

    Senator Blumenthal. I would be delighted, Mr. Chairman, and 
I very much appreciate your giving me that honor.
    Before I do so, just let me join in thanking you for having 
this hearing. The issues that are going to be addressed by our 
panel today and by your questions, I think, are profoundly 
important to the future of health care in America.
    I apologize that I have to leave to chair a hearing of 
another committee that we share, the Commerce Committee, on 
some important consumer issues, so, I just want to say to our 
entire panel of experts, thank you for being here.
    Thank you especially to Marna Borgstrom, who has ably led 
the Yale-New Haven Health System. It is really a tribute to her 
work that she is here today. I have read her testimony. Her 
observations about the harm and the costs of the so-called 
``two-midnight'' policy, I think, are a very instructive set of 
information for this hearing to consider.
    As President and CEO of Yale-New Haven Health System, whose 
flagship is the Yale-New Haven Hospital, she has been a leader 
not only in that hugely important institution, but also for our 
entire State and, indeed, the nation. Just to give you some 
idea of the scope of Yale-New Haven, it deals with about 18,000 
employees and a medical staff of 5,675, with more than 90,000 
discharges in 2012 alone and $2.6 billion in revenue, so, it 
has examples and lessons for us in this here and many, many 
others, and, she has been a leader in health care delivery 
reform, reducing costs, improving the quality of health care in 
a way that has set a model for the nation and certainly for our 
State.
    I welcome her here, and thank you for being here.
    The Chairman. Senator Warren, I will give Harvard equal 
time.
    Senator Blumenthal. Wait a minute. If I had known that, I 
would have gone on----
    The Chairman. Do you want to introduce Mrs. Engler?

                 OPENING STATEMENT OF SENATOR 
               ELIZABETH WARREN, COMMITTEE MEMBER

    Senator Warren. I am very pleased to have Mrs. Engler here 
today and to say thank you very much for being here. We welcome 
hearing from you and hearing the personal story that you have 
to tell. You know, it is powerfully important here.
    I want to thank the Chairman and the Ranking member for 
holding this hearing. This is a serious problem and it is a 
problem that is getting worse. According to a 2012 study 
published in Health Affairs, the number of Medicare patients 
who are in the hospital for more than three days under 
observation status increased by 88 percent just from 2007 to 
2009, and, the Inspector General reported that over a quarter 
of the 1.5 million Medicare observation stays in 2012 lasted 
for more than two nights.
    The reasons for this increase are complex, and this 
afternoon, we are going to talk a lot, I know, about billing 
and coding and admissions and prospective payments systems and 
audits and all the ways that we can fix every one of those, 
but, while we talk about those things, I know that we are going 
to work hard to stay focused on what is really important here, 
and it is making sure that seniors get the care they need and 
can afford that care. That is the promise of Medicare, and if 
we are letting some of our seniors down, then we need to fix 
it.
    Thank you all very much for being here. Thank you, Mrs. 
Engler, for being here. We very much appreciate it. It is so 
important to hear personal stories about how this affects 
people.
    Thank you, Mr. Chairman.
    The Chairman. Mrs. Engler is accompanied by Toby Edelman 
from the Center for Medicare Advocacy. Thank you for coming.
    All right. Senator Baldwin, to introduce our final 
panelist. Please, do the honors for Dr. Sheehy.
    Senator Baldwin.

                 OPENING STATEMENT OF SENATOR 
                TAMMY BALDWIN, COMMITTEE MEMBER

    Senator Baldwin. Thank you, Chairman Nelson, Ranking Member 
Collins, for holding this incredibly important hearing on such 
an important and timely issue.
    I am honored to get the opportunity to introduce Dr. Ann 
Marie Sheehy, head of the Division of Hospital Medicine at the 
University of Wisconsin School of Medicine and Public Health.
    With a strong background in academic medicine, Dr. Sheehy 
conducts research on health care disparities and the effect of 
health care policy on patient care in the hospital, and, as a 
practicing hospitalist, she experiences firsthand the impact of 
observation status on Wisconsin's seniors and physicians. She 
received her M.D, and a Master's in Clinical Research from the 
Mayo Medical School and Graduate School and completed her 
residency at Johns Hopkins Hospital.
    Dr. Sheehy, welcome to the Committee and thank you for 
joining us here today to share your experience. We very much 
appreciate it.
    The Chairman. We will go in the order of Mrs. Engler, Ms. 
Borgstrom, Mr. Armstrong, and Dr. Sheehy.
    Mrs. Engler.

            STATEMENT OF SYLVIA C. ENGLER, MEDICARE

          BENEFICIARY, (ACCOMPANIED BY TOBY EDELMAN),

               SENIOR POLICY ATTORNEY, CENTER FOR

          MEDICARE ADVOCACY, FRAMINGHAM, MASSACHUSETTS

    Mrs. Engler. Committee Chairman Nelson, Ranking Member 
Collins, and members of the Committee, thank you for the 
opportunity to tell you the story of my family and the Medicare 
observation rules.
    My name is Sylvia C. Engler, age 83. I am still employed in 
the medical field and still working. I live in Framingham, 
Massachusetts. My husband, Harold, age 92, and I have been 
married for 60 years. He was Vice President of Sales and 
Marketing for the Convention and Traveling Industry. He worked 
until age 90.
    For most of his life, the only medical conditions Harold 
had was COPD and asthma, which have been controlled for years. 
Five years ago, at age 87, Harold had a heart triple-bypass, 
went back to work in three months. Three months later, he had 
urgent hernia surgery. The doctor told him that it was 
required. He was in the hospital for only two-and-a-half days 
and was classified as inpatient. There was no problem with 
that. He recovered and then continued to work.
    Last year, on March 28, 2013, at age 91, he again urgently 
needed hernia surgery. This time, it was a double hernia. His 
doctor told me to take him to the emergency room at Beth Israel 
Hospital in Boston. He had emergency surgery, stayed in the 
hospital for five days as complications set in. He was 
bleeding, passing clots in his urine. For the first time, he 
had to have a catheter. Five days later, on April 2, 2013, he 
was discharged home with the catheter still in place.
    He was only home for two days when he had to return to the 
hospital. On April 4th, he woke up vomiting bile, with 
diarrhea, and had a high temperature. He was sent back to the 
same Boston hospital by ambulance. He had fluid in his lungs, a 
temperature of 101, and possible pneumonia. Again, he had blood 
in his urine. I was told that he had contracted a virus in the 
hospital. They had to tap fluid from his lungs. He stayed in 
this hospital for another five days.
    On April 10th, 2013, he was sent home again, unable to walk 
or stand alone. The Foley catheter was still in place. He could 
not get out of the automobile. My daughter and I actually had 
to try to pull him from the car, as he could not walk by 
himself. Harold had to use a walker while I helped balance him. 
He sat down on our bed and collapsed. His complexion turned 
gray. He had chest pains, shortness of breath, and severe pain 
from the catheter. Thinking it was his heart, I gave him a 
nitroglycerin pill, which made his condition worse.
    I called the local ambulance and he was taken to the local 
hospital. The ER doctor stated that, ``If he was my patient, he 
never would have been sent home in this condition.'' Harold 
could not walk or stand up on the same day that he was released 
from the Boston hospital the second time. After a total of ten 
days in the hospital, he was sent from the local ER to a local 
nursing home for rehab.
    I thought Medicare would pay for Harold's nursing home care 
because he had been in the hospital for ten days and he needed 
rehab. I learned from the nursing home that Harold had never 
been admitted to the hospital as an inpatient. The nursing home 
told me that Harold was ``medical observation'' when he was in 
the hospital. This did not make sense to me, because Harold was 
on a floor with other inpatients and received care just like an 
inpatient in a hospital. The hospital never told me that he was 
medical observation. They said nothing about it. Harold 
remained in the nursing home six weeks for rehab.
    The administrator told me that we had to pay the nursing 
home $7,859 immediately upon leaving or the bill would be put 
into collection for the full amount of $15,000, or my house 
would have been attached for the full amount. We paid the 
$7,859, but I had to cash a money market account to pay the 
bill.
    I looked for someone who could help us fight this and found 
a wonderful lawyer, Diane Paulson of the Medicare Advocacy 
Project at Greater Boston Legal Services. Diane has been 
working with me for over a year to try to get Medicare to cover 
the nursing home bill. She keeps appealing, but Medicare keeps 
telling us that we cannot appeal the hospital's decision to 
call my husband ``medical observation,'' that since he was not 
an inpatient, Medicare will not cover his nursing home bill. I 
later found out that the hospital had to pay back millions of 
dollars to Medicare because they called some patients 
inpatients instead of outpatients. I think this is why my 
husband was called observation.
    Harold was able to remain at home for several months after 
he was discharged from the rehab, but then he had to go to a 
nursing home for patients with dementia, where he remains to 
this day. I am still fighting this battle with the help of my 
lawyer.
    Thank you for listening to my unfortunate situation. I hope 
you will make changes so this will not happen to anyone else. 
Thank you.
    The Chairman. Well, there you have it stated quite clearly. 
We thank you. We want to thank Senator Whitehouse and Senator 
Brown. I have already uttered your name, Senator Brown, as the 
sponsor of the legislation which we, Senator Collins and I, 
have cosponsored.
    Let me just take care of a delightful little administrative 
item here. Would our summer interns please stand up, Hannah 
Berner, Allison Gottman, Danielle Spiegelman, Selena Qian, 
Michael Watson, and Al Haidar. We want to thank you. This is 
the last time, since we are going into the August ``go back 
home'' time period, and so we want to thank you for your good 
work on our Committee. We appreciate it very much.
    Ms. Borgstrom.

           STATEMENT OF MARNA PARKE BORGSTROM, CHIEF

               EXECUTIVE OFFICER, YALE-NEW HAVEN

                 HOSPITAL, PRESIDENT AND CHIEF

               EXECUTIVE OFFICER, YALE-NEW HAVEN

             HEALTH SYSTEM, NEW HAVEN, CONNECTICUT

    Ms. Borgstrom. Thank you, Chairman Nelson, Ranking Member 
Collins, and distinguished members of the Committee, and thank 
you for inviting me to testify. I am Marna Borgstrom, the 
President and CEO of the Yale-New Haven Health System. I also 
served as the Chair of the Association of American Medical 
Colleges, Council of Teaching Hospitals and Health Systems.
    As Senator Blumenthal said, our system is large. We have 
over 20,000 employees, 6,000 medical staff members. The 
flagship hospital is Yale-New Haven, which is a 1,541-bed 
academic medical center, which, in affiliation with the Yale 
University School of Medicine, includes a mission of educating 
tomorrow's health care professionals and advancing medical 
care.
    My remarks today are going to focus on CMS's ``two-
midnight'' policy rule related to inpatient care. As you know, 
under this policy, hospital admissions spanning two midnights 
are considered inpatient care for purposes of Medicare payment. 
In contrast, hospital stays of less than two midnights are 
considered outpatient care, regardless of clinical severity or 
a doctor's judgment on whether inpatient care is needed.
    A primary concern regarding the two-midnight policy is the 
financial impact and confusion it creates for patients. I would 
like to--when a patient is deemed outpatient, as my colleague 
noted, she is responsible for 20 percent of a copay. Also, her 
outpatient time does not count toward the three-day stay 
requirement for nursing home care.
    I would like to share one example of the two-midnight rule 
very recently in our hospital. On July 5th, an 88-year-old 
frail female with known breast cancer metastatic to her bones 
and lungs came in with chest pain and difficulty breathing. She 
needed to be hospitalized and was appropriately predicted to 
require less than two midnights in the hospital. She was placed 
in observation and was discharged late the next day. She lives 
with her son, who works full time, and the patient is 
frequently home alone. The family wanted her to go to a skilled 
nursing facility and was upset because she could not, due to 
her observation status.
    She saw her doctors over the next two weeks, but continued 
to get weak. Her family brought her back to the hospital on 
July 21st. She was dizzy, not eating well, and could not care 
for herself during the day. Again, a review was done and the 
patient did not meet the inpatient criteria, so she was again 
placed in observation. The family wanted her to go to a skilled 
nursing facility, but could not afford $250 a day, nor $20 at 
home for a home health aide. They had no choice but to take her 
home with the limited services they can afford.
    We have little doubt that we will be seeing this patient 
again, and all of her care providers secretly hope that when 
she comes back, she will be sick enough to meet the inpatient 
criteria so that she can get into a facility and be cared for 
in a loving and dignified way.
    Beyond the direct impact on patients, the two-midnight 
policy penalizes hospitals like ours that, with improved 
technology, can evaluate, treat, and transition certain 
patients to an appropriate care setting in less than the two-
midnight time frame. This is the very medical efficiency that 
CMS should be encouraging, but instead, hospitals are seeing 
dramatic reimbursement cuts. In addition, the two-midnight 
policy ignores physicians' clinical judgment on medical 
necessity and instead relies on a rigid and arbitrary time-
based approach.
    The two-midnight policy disproportionately impacts academic 
medical centers and safety net hospitals, as it shifts payment 
for necessary hospital care to the outpatient setting. As a 
result, teaching and safety net hospitals experience decreases 
in their direct Graduate Medical Education payments and lose 
altogether their payments for indirect medical education and 
disproportionate share. These mission-related payments are 
intended to support the delivery of care to vulnerable patients 
and those who require services that are unique to teaching 
hospitals, including trauma centers and burn units. We cannot 
afford for these social missions to be jeopardized at a time 
when medical education for new practitioners is critical to 
meet the demands of the United States aging population.
    My colleagues across the country and I believe that CMS's 
policy must change for stays lasting fewer than two midnights. 
We should return to the policy in place prior for short stays 
before October 13th that defers to a clinician's judgment, 
understanding that the decision to admit a patient to the 
hospital is not made lightly.
    Additionally, we support your recommendation that Congress 
eliminate the three-day inpatient stay requirement for Medicare 
coverage of nursing home care and provide some sort of cap to 
patient copays.
    Yale-New Haven and hospitals across the country stand ready 
to work with policy makers on these important efforts, and I 
thank you for the opportunity to testify today.
    The Chairman. Thank you, Ms. Borgstrom.
    Senator Brown, I know you have to leave. Did you want to 
say something about your bill?
    Senator Brown. Thank you. Only to say thank you to you, as 
the Chair of this Committee, and Ranking Member Collins, for 
holding this hearing and for this discussion and for your 
cosponsorship of the legislation that a number of us have been 
working on, the Improving Access to Medicare Coverage Act.
    I think, when I heard the last two-thirds of Mrs. Engler's 
testimony, and we have all in our own States heard a number of 
these stories, that our case workers tell us about, that people 
on the street tell us about--a woman in Cleveland came to me. 
She had a 90-year-old mother taken to the emergency room. The 
same thing happened. She was stuck with this huge bill, and, we 
know the kind of anxiety and fear inflicted on the individual 
patient and inflicted on the family that comes from this quirk 
in the Medicare law, and I just wanted to say how appreciative 
I am that the Committee is taking it up and hopeful that we can 
move on this legislation.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Brown.
    Mr. Armstrong.

                STATEMENT OF BOB ARMSTRONG, VICE

                PRESIDENT, ELDER CARE SERVICES,

           ST. MARY'S HEALTH SYSTEM, LEWISTON, MAINE

    Mr. Armstrong. Good afternoon, Chairman Nelson, Ranking 
Member Collins, and distinguished members of the Committee. I 
would like to thank you for holding this important hearing to 
examine the impact of Medicare observation status on seniors. I 
especially appreciate the opportunity to appear before you here 
today.
    My name is Bob Armstrong and I am the Vice President of 
Elder Care Services for St. Mary's Health System in Lewiston, 
Maine. Our nursing home, St. Mary's d'Youville Pavilion, is one 
of the largest nursing homes north of Boston and a flagship 
component of the elder care services offered through St. Mary's 
Health System, which, by the way, also includes St. Mary's 
Medical Center, so, we actually deal with this issue on both 
the hospital and the nursing home side.
    With our state-of-the-art rehab center, we have a 
specialized dementia care unit, skilled and long-term care, and 
we provide our residents with the most advanced technology and 
skilled nursing care in the region. More importantly, we offer, 
hopefully, respect, care, and compassion to every one of our 
residents.
    The St. Mary's Health System is proud to be a member of the 
Maine Health Care Association and the American Health Care 
Association. The Maine Health Care Association represents over 
200 nursing homes and assisted living facilities in Maine, 
including for-profit and not-for-profit facilities. The most 
recent Statewide occupancy report indicates that Maine nursing 
homes care for over 6,300 residents every day. Sixty-five 
percent are in long-term care being paid for by Medicaid, 23 
percent are paid for by private pay, and 12 percent are covered 
by Medicare, usually a Medicare Part A skilled benefit.
    The American Health Care Association is the nation's 
largest association of long-term care and post-acute care 
providers. Our Association advocates for quality of care and 
services for the frail elderly and those with disabilities. Our 
members provide essential care to millions of individuals in 
more than 12,000 not-for-profit and for-profit member 
facilities.
    Our Association and its affiliates, including the Maine 
Health Care Association and member providers, advocate 
continuing vitality of long-term care provider community. The 
Association is committed to developing and advocating for 
public policies, such as the one being addressed today, that 
support quality of care and quality of life for our nation's 
most vulnerable population that I, as an administrator, deal 
with every day. We also would like to state that the support of 
the American Health Care Association and the Maine Health Care 
Association is in strong support of the policies that address 
the observation stays issue. I thank you, Senators Nelson and 
Collins, for bringing this critical issue to the forefront.
    As a long-term care administrator, which I have been for 29 
years, I have seen the last several years firsthand the impact 
the observation stays issue has had on residents and their 
families. For example, one resident, a sixty-six year-old 
gentleman, was admitted to my facility for short-term rehab 
care after a hospital stay and care for the treatment of a left 
humerus fracture and two broken ribs and some other injuries 
accompanying his fall.
    According to the discharge documentation sent to us from 
the hospital, the resident was admitted to the hospital on 
November 9th, 2013, and was discharged on November 14th, 2013. 
The paperwork clearly gave an admitting hospital diagnosis with 
the fall injuries, including the left humerus fracture, which 
indicated the resident qualified under Medicare for post-
hospital skilled rehab care. The paperwork also clearly 
indicated that we received that he was an inpatient in the 
hospital.
    We provided appropriate skilled rehab care to this 
resident, who then successfully returned home. We believed, as 
the family did, that the resident's stay would be covered by 
Medicare Part A because the hospital discharge paperwork 
clearly showed that the resident was admitted to the hospital, 
and then they stayed in the hospital for at least the required 
three days.
    My facility then appropriately billed Medicare for the 
resident and was told that the resident was, by the way, not 
really admitted to the hospital as an inpatient, similar to the 
case of our panelist today. The resident was in the hospital 
for five days under observation, even though, again, I say that 
the paperwork I have clearly stated that he was an inpatient as 
well as being admitted. My facility lost thousands of dollars 
for providing care for this resident in need with no payment 
from Medicare, even though this resident clearly should have 
received their Medicare Part A skilled nursing care benefit.
    Now, in our case, because of our mission, we did not charge 
the family or attempt to recover the funds from the family 
because it was not their fault. They were under the assumption 
that the Medicare benefit would cover them. We were all under 
the assumption the Medicare benefit would cover them, and we 
did not feel it appropriate to burden the family with the bill, 
so we absorbed the thousands of dollars as a bad debt and took 
it that way.
    This is just one, as we have heard today, of the countless 
heart wrenching stories from across the country.
    We all--this is why we are having the hearing here today--
must do more to ensure our nation's most vulnerable have access 
to their Medicare benefit they have earned and so rightly 
deserve. I am asking, along with the American Health Care 
Association, that Congress pass and sign into law bipartisan 
legislation that Representatives Joe Courtney and Tom Latham, 
along with Senator Brown, introduced, the Improving Access to 
Medicare Coverage Act of 2013, S. 569, H.R. 1179, which many on 
the Committee, including Senator Nelson and Senator Collins--
thank you--are cosponsors of. It seems to count all hospital 
days spent in observation towards the three-day inpatient 
required for Medicare coverage of Part A skilled nursing care 
benefits.
    Our Association also supports legislation eliminating the 
three-day requirement, which effectively solves the related 
issue of observation stays. Representative Jim Renacci's 
bipartisan Creating Access to Rehabilitation for Every Senior, 
called the CARES Act of 2013, or H.R. 3531, eliminates the 
three-day inpatient stay requirement by allowing all seniors 
that meet particular criteria to automatically qualify to waive 
the prior hospitalization requirement. The criteria are based 
on the CMS Nursing Home Compare Program.
    In addition, we also back a similar bill introduced by 
Representative Jim McDermott, the Fairness for Beneficiaries 
Act of 2013, called H.R. 3144, which also seeks to eliminate 
the three-day stay requirement.
    It is important to note that several national patient and 
provider organizations have written to CMS and advocated on the 
Hill in support of addressing this observation stays issue. In 
fact, the American Health Care Association is part of an 
Observation Stays Coalition, which consists of 30 provider and 
beneficiary organizations working to address this issue. It is 
simply not right, and I think the members of the Committee 
understand it is certainly not fair, to limit the access to the 
quality of care for those who are most in need.
    Hopefully, now is time for Congress to pass this 
legislation to solve this problem, and again, I thank you for 
the opportunity to weigh in on this important matter, and I and 
the members of the Maine Health Care Association and the 
American Health Care Association look forward to working with 
the members of Congress in both chambers on this issue as it 
goes forward, and I would be more than happy to answer any of 
your questions. Thank you.
    The Chairman. Thank you, Mr. Armstrong.
    Those of you standing in the back, we have some seats 
available up here on the side walls, so avail yourself of that, 
please.
    Dr. Sheehy.

       STATEMENT OF ANN M. SHEEHY, M.D., CHIEF, DIVISION

              OF HOSPITAL MEDICINE, UNIVERSITY OF

            WISCONSIN SCHOOL OF MEDICINE AND PUBLIC

          HEALTH, AND MEMBER, PUBLIC POLICY COMMITTEE,

        SOCIETY OF HOSPITAL MEDICINE, MADISON, WISCONSIN

    Dr. Sheehy. Thank you, Chairman Nelson, Ranking Member 
Collins, and members of the Committee. Thank you for the 
opportunity to discuss observation policy today, and thank you, 
Senator Baldwin, for the kind introduction.
    I am a physician at the University of Wisconsin Hospital in 
Madison, Wisconsin. I am a hospitalist, which is a physician 
who cares for patients primarily in the acute care hospital 
setting. I also conduct research on how observation impacts 
hospitals and patients, and I am a member of the Society of 
Hospital Medicine, an association that represents the nation's 
more than 44,000 hospitalists.
    I would like to make three points today. First, observation 
status is problematic for Medicare beneficiaries and it needs 
reform.
    I became interested in researching observation about four 
years ago because I was concerned about what was happening to 
patients under observation. As the Committee is aware, patients 
hospitalized under observation are considered outpatients, so 
are covered under Medicare Part B, subject to copays and 
pharmacy charges with no cumulative limit, and do not qualify 
for skilled nursing facility care as inpatients do, even if 
they stay three midnights. What I see as a physician are 
patients who stay overnight in a hospital and receive care that 
is often indistinguishable from inpatient care, yet Medicare 
views them as outpatients, as if they were in a clinic.
    I will never forget the patient who first opened my eyes to 
the problem of observation. Of limited financial means, this 
woman had a new diagnosis of cancer. Her only worry should have 
been her health, yet her main concern was what her hospital 
bill and skilled nursing facility bill were going to be because 
her hospital stay was on observation. Here was a patient who 
had paid into the Medicare program her whole life, only to 
realize when she needed it most, she was not eligible.
    What should observation really be? Most physicians 
recognize a role for observation in providing a few additional 
hours of care for low-complexity patients immediately following 
an emergency department visit to decide whether a patient needs 
admission as an inpatient or can discharge home. In fact, that 
is exactly what the CMS Benefit Manual says, that observation 
should be used for a well-defined subset of patients and should 
last less than 24 hours. In only rare and exceptional cases do 
outpatient observation services span more than 48 hours.
    Unfortunately, this is no longer what observation looks 
like in clinical practice. We published our University of 
Wisconsin data in JAMA Internal Medicine last year. Of more 
than 43,000 hospital encounters, we found that over half of our 
observation patients stayed longer than 24 hours, and one in 
six stayed longer than 48 hours, indicating that stays longer 
than 48 hours were no longer rare and exceptional. Any attempt 
to reform observation status must recognize how far observation 
status in clinical practice has drifted from CMS's original 
intent, and, more patients are being hospitalized under 
observation, as documented by MedPAC and others.
    The second point I would like to make is that the new two-
midnight rule is not a fix for the observation problem.
    As the Committee is aware, CMS recently established a new 
rule to determine observation. Effective October 21, 2013, most 
patients hospitalized less than two midnights were to be 
considered observation, and those staying two midnights or more 
would be considered inpatient, although full enforcement of 
this rule has been delayed through March 31, 2015.
    There are several problems with this rule. First, time of 
day a patient becomes ill, not different clinical needs, 
determine insurance benefits. Say a patient requires 40 hours 
of hospital care before they are safe to go home. If this 
patient is hospitalized at 9:00 p.m. on Wednesday, they will 
discharge at 1:00 p.m. on Friday, a two-night stay, so they are 
inpatient, but, if this exact same patient needing the exact 
same clinical care is hospitalized at 1:00 a.m. on Thursday 
morning, they will discharge at 5:00 p.m. on Friday, a one-
midnight stay, and will be considered observation.
    This is not just theoretical. At the University of 
Wisconsin Hospital, in a second publication last year, we 
retrospectively determined that nearly half of our less than 
two-midnight encounters would have been considered observation 
instead of inpatient solely based on time of day they became 
sick, not different clinical needs.
    The two-midnight rule also hurts a new population of 
patients, those requiring less than two midnights of care. A 
patient with diabetic ketoacidosis may present to the hospital 
acutely ill and need intensive care unit admission, a level of 
care that could never safely be delivered in an outpatient 
clinic setting. Yet, these patients can also improve quickly, 
sometimes in less than 48 hours. Now, short stays, even in an 
intensive care unit, can be considered outpatient.
    Finally, as the Committee is aware, the Recovery Audit 
Contractor Program charged with enforcing observation 
determinations needs major reform. Given the recent roundtable 
this Committee hosted earlier this month, I will not spend more 
time here other than to state that no plan to reform 
observation will be successful without concomitant reform of 
the RAC system.
    Thank you for conducting this hearing today. The Society of 
Hospital Medicine looks forward to working with the Committee 
to improve observation care for Medicare patients, and I 
appreciate Senator Brown and all of the members of this 
Committee who have supposed S. 569, the bill that counts time 
spent in observation towards the two-midnight requirement for 
skilled nursing facility care, which SHM also strongly 
supports.
    Senator Collins. [Presiding.] Thank you very much for your 
testimony.
    Let me start by thanking Mrs. Engler for being with us 
today and putting a human face on the consequences of this very 
complex and troubling problem.
    I want to start my questioning with Dr. Sheehy and Ms. 
Borgstrom. There has been, as both of you have referenced, an 
increase in the number of observation stays that hospitals are 
doing, and I am wondering why that is. We see it in the 
Inspector General's report, that there has been measurable and 
substantial increase in the number of observation stays. Why 
are we hearing these stories where hospitals are keeping people 
for fairly substantial amounts of time and not admitting them 
as inpatients? What incentives are there that are driving the 
decision to keep someone in observation status rather than just 
admitting them as an inpatient patient?
    Dr. Sheehy. Thank you for that question. I think the simple 
answer is there is increased auditing pressure from the 
Recovery Audit Contractors that have increased scrutiny and 
increased surveillance of our admission and observation 
determinations. At the University of Wisconsin Hospital, we 
have seen a marked escalation in our audits, on the several-
hundredfold increase over the last four years. Hospitals are 
very fearful of mislabeling a patient. We do not want to commit 
Medicare fraud. We want to follow the rule of the land and that 
is what we have been doing.
    I will also say there is a marked fear of the length and 
the cumbersome nature of these audits. Our audits at the 
University of Wisconsin that are still in appeals since 2010 
have been in the appeals process for over 500 days, and so a 
hospital is also looking at that as a decision about whether 
they are willing to put a case through a very lengthy appeals 
process.
    Senator Collins. Ms. Borgstrom.
    Ms. Borgstrom. I cannot add a lot, because I agree 
completely. You know, we have read the rules, we understand 
them, and we want to follow them, and, I think, frankly, as a 
non-clinician, but talking with a lot of our clinicians, they 
feel that the criteria for making a patient inpatient are quite 
clear, and when they do not honestly believe that a patient 
meets that criteria, they do not feel that they have the 
ability to use their judgment to override the regulation and 
instead admit those patients to observation status.
    Senator Collins. Well, I learned a lot attending the 
roundtable that we had at which the Recovery Audits were 
discussed at length. It is clear that they are producing 
unintended consequences because of the way the incentive 
structure is set up, where they get a percentage of whatever 
they recover, and yet, if you look at the success that 
hospitals, home health care agencies, nursing homes, other 
providers, doctors, dentists, et cetera, have when they appeal 
the decision of the Recovery Audit, it really shows you that 
there is something wrong with the system, so, it is interesting 
that that is playing into this problem, as well.
    Ms. Borgstrom, do hospitals use observation status with 
individuals with other forms of insurance, or just with 
Medicare? As a related question, do non-Medicare plans have 
similar policies or limitations with regard to follow-up 
nursing home care? Mr. Armstrong, that might be a question for 
you, as well.
    Ms. Borgstrom. You know, I cannot speak uniformly to them, 
but we do admit patients other than Medicare patients to 
observation status. Each contract that we have with a third-
party payer is different in terms of what they pay and how they 
determine the appropriate location for a patient. To the best 
of my knowledge, Medicare Advantage and the commercial policies 
do not have the three-day requirement before skilled nursing is 
paid for.
    Senator Collins. Mr. Armstrong, is that your experience, as 
well?
    Mr. Armstrong. Yes, Senator. In our hospital, we admit, and 
we actually in our hospital are trying to limit, because of the 
cause and effect of this issue, the number of observation days 
that our hospital actually utilizes, but, it usually just 
generally affects negatively the Medicare recipients. Where the 
insurance payers do not have the same limitations in their 
contracts with us, they do not require the three-day midnight. 
They do not require some of these things. They just require 
that a person need the skilled care, so it really does not 
affect them as it would a Medicare recipient. This falls mostly 
on Medicare recipients for skilled care.
    Ms. Edelman. Excuse me, Senator, if I could say something 
about----
    Senator Collins. Yes, Ms. Edelman.
    Ms. Edelman. [continuing.] About the Recovery Auditors. 
There are a lot of programs that the Federal Government has to 
prevent fraud, to make sure that Medicare payments are 
appropriate. What is unique about Recovery Auditors is if they 
come in and look at the hospital's decisions and decide that a 
patient should have been called an outpatient instead of an 
inpatient, the hospital is basically required to repay to 
Medicare everything that it got. It gets zero payments for 
medically necessary care. Nobody is disputing that the care is 
medically necessary and appropriate, but because the wrong term 
was used--a person was called inpatient instead of outpatient--
hospitals do not get paid.
    It is understandable that they want to err on the side of 
calling people outpatients. At least, then, they get Part B 
payments from Medicare, the Part B copayments from the patient, 
and they can also bill the patient for the prescription drugs 
in the hospital, but, if they make a mistake and call them 
inpatient, they get nothing.
    Senator Collins. That is an excellent point. What we really 
need to do with the Medicare program to reduce improper 
payments, whether it is fraud or mistakes, is to have better 
controls up front and more collaboration with stakeholders up 
front rather than doing the pay-and-chase model, which is what 
we have now.
    I am going to turn to my colleagues and then I will have 
some additional questions. Senator Warren.
    Senator Warren. Thank you very much, Chairman.
    Some seniors need additional care at a skilled nursing 
facility after leaving the hospital before they can return home 
safely, as Mrs. Engler so eloquently pointed out, and, that is 
the reason that I am also a cosponsor of Senator Brown's bill, 
along with Senator Collins and Chairman Nelson and Senator 
Baldwin, but, I see that as a good start, but we also recognize 
that some seniors still need skilled nursing facilities without 
spending any time in the hospital.
    In 2010, as part of a CMS Care Management Pilot Program, 
Massachusetts General Hospital allowed patients to be sent 
directly to a skilled nursing facility after evaluation by a 
doctor. These were patients who needed rehab after a fall or 
needed some extra care to recover from an illness. Compared to 
similarly situated patients who were sent home instead of being 
directly admitted from the hospital to the nursing facility, 
patients in the pilot experienced fewer subsequent admissions 
to the hospital and cost Medicare less money over the 
subsequent 60 days.
    I understand that the three-day rule was put in place to 
try to protect against over-utilization of highly specialized 
care, but I also understand that we are trying to move toward a 
payment system that rewards for value and not for providing 
unnecessary services. Today, almost all of the Pioneer ACOs, 
including Massachusetts General Hospital, waive the three-day 
rule.
    Given the results from pilot programs like the one at MGH 
and the ongoing experience of our ACOs across the country, do 
you think that a three-day rule is still the most appropriate 
measure of the need for a skilled nursing facility? I thought I 
might start with you, Ms. Borgstrom.
    Ms. Borgstrom. I have a little bit of familiarity with the 
Massachusetts General experience, and again, I will say, as a 
non-clinician, no, I do not think that the three-day stay as a 
preparatory requirement for skilled nursing facility makes 
sense, and, in addition to what the Pioneer ACOs permit, which 
is direct admission to skilled nursing, also, in CMS's 
experience with bundled payments--we are participating in 11 of 
the bundled payments--you can admit patients directly to 
skilled nursing if you want.
    I think it gets down to the economic issue versus clinical 
judgment, because clinical judgment in the case of the 
Massachusetts General experience said these patients will do 
better and we will bypass the inpatient environment, and for 
older Americans, not go through the confusion of being moved on 
two occasion. I think that that is--there is real opportunity 
for reform.
    Senator Warren. Right. I just want to be clear when you say 
the clinical versus the economic. In fact, relying on clinical 
judgment, according to our best evidence, saved money. It did 
not cost money.
    Ms. Borgstrom. Right.
    Senator Warren. These two things were not in tension with 
each other. When used appropriately, they seem to reinforce 
each other.
    Ms. Borgstrom. I absolutely agree with you, but the 
prevailing CMS payment methodology is currently DRGs.
    Senator Warren. Well, so that is why we are talking about--
--
    Ms. Borgstrom. Right.
    Senator Warren. [continuing.] Alternative ways to do this, 
and, I thought, perhaps, you would like to weigh in on this, 
Mr. Armstrong.
    Mr. Armstrong. Yes. I think, as stated in the opening 
remarks, the three-day requirement was implemented years and 
years and years ago and it just continues to be on the books.
    As my colleague on the panel just spoke to, in Bangor, we 
have Eastern Maine Medical Center, which is a Pioneer ACO and 
they are not required to do this. Other programs, like the PACE 
program, or Program for All-Inclusive Care for the Elderly that 
operates very successfully in 29 States, including successfully 
in Massachusetts and Rhode Island in the New England area, they 
do not require the three-day hospitalization because they have 
a capitated payment for Medicare and Medicaid for the residents 
that cover a whole host of services, that keep people at home, 
or if they have to go to a nursing home, like I say, directly 
without going to the hospital, the PACE program pays for that, 
so, there are currently other CMS programs that do not require 
the three-day hospitalization at all.
    Senator Warren. As you rightly point out, and within that, 
there are other ways to manage the access question.
    Mr. Armstrong. Yes.
    Senator Warren. We understand we do not want to have over-
utilization. We want to get appropriate utilization.
    Mr. Armstrong. For example, the three-day hospitalization 
stay is just one of the triggers now that qualifies for 
someone. They still have to meet the need for skilled nursing 
care or skilled therapy care or a combination of those to 
qualify for skilled care in our facility, so, if you waive the 
three-day requirement altogether, they would still have to meet 
that criteria to need the service, and that is currently 
already in the CMS requirements for Medicare reimbursement, so, 
if you just did away with the three-day requirement, they would 
still be required to meet the need for the service before we 
could provide it.
    Senator Warren. Good. Well, thank you very much. I have 
more questions on this, but I will wait for the next round. 
Thank you, Madam Chairman.
    Senator Collins. Thank you.
    Senator Baldwin.
    Senator Baldwin. Thank you. I wanted to add the voice of 
another patient experience to what we have heard today, and 
thank you, Mrs. Engler, for being here to put a face and a 
story behind the issues that we are dealing with today.
    I heard this from a constituent in Port Washington, 
Wisconsin. This gentleman had heart surgery to treat atrial 
fibrillation at a Wisconsin hospital. He stayed overnight, but 
was discharged the following day with a catheter and further 
instructions from his doctor. He was shocked to find out that 
his treatment was billed under observation status, requiring 
him to shoulder 20 percent of the cost, and, he was also so 
frustrated that he called another area hospital and was told 
that the same procedure there would have been billed under Part 
A as an inpatient at their facility, which, of course, only 
added to his substantial confusion about what was going on, so, 
I thank all of you for being here today to shed additional 
light and help us as we move forward.
    Although full enforcement of the two-midnight rule has been 
delayed, hospitals and physicians across the country have 
already made, it seems, significant administrative changes in 
anticipation of compliance with the policy, and these changes 
are exposing the consequences of using observation status when 
it is not based on clinical needs.
    Dr. Sheehy, I wonder if you could describe the experience 
and challenge faced by the University of Wisconsin Hospital in 
preparing for enforcement of the two-midnight rule and 
additional information on how it has impacted you and your 
fellow hospitalists in their practice.
    Dr. Sheehy. Thank you for that question. We had very little 
time to prepare for the two-midnight rule. The final rule was 
posted in the Federal Register on August 19th and the rule went 
into effect on October 1st. This was a major, major change in 
all hospitals. We had changed from looking at clinical decision 
tools, such as InterQual and Milliman, to make our observation 
determinations to one based on time. Further, we had to 
interpret the rule and understand what kind of documentation 
CMS was going to be looking for, what their auditors would be 
looking for to enforce this rule. At the time, we did not know 
there were going to be delays, so we--every possible prepared 
for the rule as if it was going to be, and it is still the law 
of the land. Although enforcement is delayed, we are trying to 
comply.
    I think this has impacted physicians negatively. I think we 
feel that our clinical judgment has really been overridden by 
kind of a time-based rule which will be enforced by auditors. 
When I see a patient, say, in the emergency department--and I 
was working this weekend--I am looking at a patient and I am 
trying to determine when I first see them whether they are 
going to need two midnights or not, and sometimes a Medicare 
beneficiary will come in with something simple like a fever, 
which can be a very self-limited virus or it could be a life-
threatening bloodstream infection, and I cannot know that up 
front and I have to make that decision right away and my 
determination is going to be subject to scrutiny down the road.
    Senator Baldwin. I thank you, and particularly that your 
answer helps shed some light for us on sort of who is in the 
decision making position, the fact that you need to predict the 
future without having perfect clarity about the future.
    I guess I am interested, also, in the role that you and 
your colleagues play in the necessity to improve the 
conversation and communication with the patients about what it 
means to be under observation rather than as an inpatient. 
Obviously, you are providing the care, but this function is 
also very important so that they are as informed consumers of 
health care as they possibly can be, and talking about these 
issues before they perhaps decide to forego further care. Tell 
me a little bit about what role you and your fellow 
hospitalists play in that regard.
    Dr. Sheehy. Well, I completely agree that patients need to 
be informed about what their status is. One of the tricky parts 
of this is, sometimes, I will not know right away, so a patient 
who may decide whether or not they want to agree to the care I 
am proposing does not have that information in front of them. 
They may be admitted to the hospital, and then the next day it 
may look like they are actually going to get better quicker and 
they are going to be observation based on length of stay, so, 
patients really are not equipped with that information at the 
right time.
    We have--at the University of Wisconsin, our case managers 
inform all of our patients who are under observation. We feel 
it is very important, and we field a lot of questions on that. 
One of the downsides, which is part of this process, is that, 
like I mentioned in my oral testimony, once patients find out 
they are under observation, a lot of them are very concerned, 
and, when they only should be focusing on getting themselves 
better and worrying about their health, now they are worrying 
about observation. That said, patients still need to know and 
we need to deal with those questions that come.
    Senator Baldwin. Thank you.
    Senator Collins. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman, and thank you to 
the witnesses.
    The Rhode Island Governor's Advisory Commission on Aging 
has written to formally express to me its concern over the 
severe impact of the designation of an observational status 
upon Medicare patients when seeking health services at a 
hospital upon the onset of an injury or illness, and they go on 
to say that the significant lack of information, although 
available in, quote, ``the fine print,'' and the enormous 
unexpected financial responsibility consequences which this 
designation unloads upon an unsuspecting Medicare-eligible 
participant cannot be overstated.
    Health Affairs published back in 2012 a study by Brown 
University researchers, including a guy named Dr. Vincent 
Moore, who we work with a lot on these issues, that reviewed 
the outpatient Medicare claims data from 2007 to 2009 on these 
observation stays and they found that the number of observation 
stays increased by 34 percent and inpatient admissions 
decreased, suggesting a shift by the hospitals, and, whether 
they are doing it for their own accounts or whether they are 
doing it because they are afraid of audits and it is a response 
to pressure, would be my first question. Do you think that they 
have changed their behavior in response to this, and is it 
self-interested in the sense that this is somehow beneficial 
for the hospitals, or is it simply trying to duck the risk of 
CMS audits?
    Ms. Borgstrom, you seem--or Dr. Sheehy, whichever.
    Dr. Sheehy. I think that is a wonderful question, and 
MedPAC also has data looking from 2006 to 2012 that show about 
a 28.5 percent increase in observation--actually, outpatient 
stays, and a decrease in inpatient stays of about 12 percent 
over that time.
    I think it is important to point out that, financially, at 
the University of Wisconsin, we have looked at our data pretty 
carefully and our hospital loses money on observation stays, 
so, there is no incentive for a hospital, other than to avoid 
an audit, to put a patient in observation. I truly feel this is 
hospitals trying to comply with Medicare rules and accepting 
the consequences of that.
    Senator Whitehouse. Got you. I am not sure I understand the 
two-midnight rule exactly.
    Senator Collins. That is because no one understands the 
two-midnight rule exactly.
    Senator Whitehouse. Is it actually two midnights? Because, 
if it actually is two midnights----
    Senator Collins. It is not 48 hours.
    Senator Whitehouse. [continuing.] Then it seems to me that 
if you are taken ill at 11:00 p.m.----
    Senator Collins. Exactly.
    Senator Whitehouse. [continuing.] You can be in the 
hospital for 25 hours and pass the two-midnight rule and be on 
your way, whereas if you are slow in the ambulance and got in 
after midnight, you could be 47 hours in the hospital and fail 
the two-midnight rule, and, I am getting nods that that is, 
indeed, correct, so, 25 could be enough to make it and 47 too 
little to make it, even though 25 is less than 47. It does not 
seem to make mathematical sense.
    Of course, Senators dabbling in mathematics is a dangerous 
thing, so I will leave it at that, but, I appreciate very much 
the testimony that you all have brought, and particularly, Mrs. 
Engler, the personal story that you, unfortunately, had to 
bring here, and, to our Chairman and to Ranking Member Collins, 
thank you to you both.
    Senator Collins. Thank you.
    Ms. Edelman. There are actually two two-midnight rules, 
Senator.
    Senator Whitehouse. Oh, it gets better.
    Ms. Edelman. I mean, one is what the doctor is supposed 
to--well, the doctor is supposed to predict, and as Dr. Sheehy 
said, that is not how doctors think. It is not what they are 
doing, so, they are supposed to decide, this person should be 
an inpatient because I believe this patient will be here for 
two midnights.
    The second two midnight is what the auditors do, so, if the 
doctor is not sure or thinks the person may not be in the 
hospital for two midnights, what CMS says is the physician 
should say this patient is an outpatient, and then the next 
day, if the person is still there and still needs to be there, 
maybe that person should become an inpatient, so, the second 
two-midnight rule is what the auditors do. If they see somebody 
was an outpatient for a day and then an inpatient for a day, 
they are not going to review those cases. It is extremely 
confusing.
    Senator Whitehouse. Have you ever----
    Ms. Edelman. If you think it is confusing, I mean, the 
patients have no idea, because they think--they have come from 
the emergency room, and the doctor says, you need to stay. We 
are not done. We need to figure out what is wrong, and, you are 
upstairs in a bed and getting care, and as Dr. Sheehy says, 
indistinguishable if you are an inpatient or an outpatient.
    Senator Whitehouse. Have you ever come across a patient who 
came into the emergency room, was directed by their doctor that 
they had to be, I guess ``admitted'' is probably not the 
precise word in this, but, in any event, taken to a room 
upstairs and treated as if admitted, that they were somehow in 
outpatient status? Does anybody think that?
    Ms. Edelman. Do patients think that they are outpatients?
    Senator Whitehouse. Yes.
    Ms. Edelman. No. People think they are----
    Senator Whitehouse. Because they are not. They are
    in.
    Ms. Edelman. [continuing.] They think--they are in a bed. 
They are----
    Senator Whitehouse. In is in. Out is out.
    Ms. Edelman. Right.
    Senator Whitehouse. Yes.
    Thank you.
    Senator Collins. Ms. Edelman, we have heard all these 
stories that Mrs. Engler and Mr. Armstrong have told about the 
confusion that Senator Whitehouse has just referred to, and I 
just cannot imagine anyone who is ill and has been put into a 
hospital bed making a distinction or even realizing there is a 
distinction between being in inpatient status or in observation 
status.
    My question--and we have also heard Mr. Armstrong talk 
about how his nursing home, to its great credit and to St. 
Mary's Health System's great credit, absorbed the cost of 
treating a patient because of this lack of clarity so that it 
did not fall on the patient's family, but, not every nursing 
home is going to do that. They did not in the case of Mrs. 
Engler's husband, for example.
    My question to you is this. How does CMS respond to 
complaints from beneficiaries or their families about the lack 
of clarity in what their status was which leads to tremendous 
financial penalties for them? Is there an established appeals 
process for beneficiaries dealing with this issue?
    Ms. Edelman. There is no established appeals process. 
Medicare does not consider outpatient status a denial of 
Medicare. It is just payment under Part B instead of Part A, 
and, in fact, CMS does not require hospitals to inform people 
that they are outpatients. If somebody goes from the hospital--
from the emergency room to a bed and is an outpatient, there is 
no requirement that the patient be told.
    The only time CMS says that there needs to be information 
is if the physician says, my patient is an inpatient and that 
decision gets reversed. Then, CMS says, okay, hospital, under 
those circumstances, you must tell the patient your status has 
changed from inpatient to outpatient.
    There is no right of appeal at that point. There is no due 
process. Usually, in due process, you get notice and an 
opportunity for a hearing. There is no opportunity for a 
hearing.
    CMS tells people all kinds of things. Sometimes, they tell 
patients, call the Quality Improvement Organization, but they 
say--QIOs say, we only handle Part A, not Part B, so we do not 
handle those cases. Increasingly, we hear from people that they 
are being told by CMS that there is no appeal. There is just 
nothing they can do about it.
    We came up with a system on our own to say, appeal from the 
Medicare Summary Notice, but that is after the fact. That is 
only if people have actually gone to the skilled nursing 
facility, paid out-of-pocket, gotten a Medicare covered level 
of care, and then try to fight with CMS and try to get the 
payment back, which is what Mrs. Engler described. They are 
appealing. This happened over a year ago. They have lost at the 
first two levels of appeal. Now, the next level is the 
Administrative Law Judge. Maybe that is a year in the future, 
but, sometimes people win those cases and frequently they lose 
those administrative appeals, and CMS is not making it clear.
    Senator Collins. You know, when I think of all the 
confusion that already exists over whether or not Medicare pays 
for nursing home care and under what circumstances, to expect a 
beneficiary to understand whether or not they have been in a 
hospital bed as an inpatient versus in observation status is 
just absurd. I just cannot imagine that the vast majority of 
patients would know there was any difference at all. Is that 
your experience in trying to help people?
    Ms. Edelman. People have no idea of what has happened and 
they do not hear frequently until they are about to be 
discharged, when they are told, you know, bring your checkbook 
to the nursing home because you are going to have to pay for 
it, so, people have no idea of what to do.
    That is why the legislation you are all supporting is so 
important. It just says--it is so simple. It is one sentence. 
If you are in the hospital for three midnights, you have met 
that requirement, and, as Mr. Armstrong said, there are many 
other requirements, still, which would still continue to exist, 
but, if you have been in the hospital for three nights, they 
count.
    I would just say in response to what Senator Warren said 
before, when Medicare was enacted in 1965, that is where the 
three-midnight rule came in. The average length of stay for 
people 65 and older in an acute care hospital was 13-plus days. 
As of a couple of years ago, it was five-plus days, so, it is a 
huge reduction in the time people spend in a hospital, and 
people assume if they are in a bed, they are really in the 
hospital.
    Senator Collins. A very logical assumption to make.
    Mr. Armstrong, have you seen elderly beneficiaries with 
Medicare forego care because they are--they become aware that 
it is not going to be covered under the Medicare program? Have 
you seen cases where seniors actually do not get the follow-up 
nursing home care or rehabilitation services that they need 
because of the cost?
    Mr. Armstrong. Yes, Senator, and unfortunately, I have seen 
cases where--in many cases, they do not know they are in an 
observation status. There are cases where they sort of discover 
it in some fashion and they do not then want to go in and get 
the rehab care they need because they are then realizing they 
have to pay thousands of dollars to get this care.
    There are cases where we have seen people not get the care 
they need go home and return to us through the hospital, and 
eventually to us again because they did not get the care they 
needed properly the first time, and those cases are the saddest 
cases because, because they did not get rehab properly the 
first time, then Medicare also, from a cost perspective, pays 
for another hospital visit which ends up being covered by 
Medicare, and then they go to a nursing home again anyway and 
then end up being taken care of, but, this poor person in the 
meantime did not get the care they should have gotten up front, 
and those are the saddest cases, really, because they go home 
and they are not properly rehabbed and then they fall and they 
break a hip and they start the whole cycle over again. It is 
worse than if they just got the proper care in the beginning.
    Senator Collins. Those are terrible cases, because not only 
is there unnecessary suffering, but there is greater expense to 
the system in the long run, so, it reminds me of the therapy 
caps that are put on, which, in my view, prevent people from 
regaining full function in some cases where someone has had, 
for example, a severe stroke, and it just makes no sense and it 
ends up costing the system more plus causing suffering that 
could be avoided.
    Senator Warren.
    Senator Warren. Thank you.
    You know, as we have been talking about, the two-midnight 
rule was put in place to try to deal with the issue of long 
observation stays by saying, anyone who is in the hospital for 
two midnights should be an inpatient, but, I just want to make 
sure we get a couple of questions on the record here that we 
are able to build, and the first one is a fact question, and 
that is, in your experience, has the two-midnight rule 
decreased or increased the number of long observation stays? 
Dr. Sheehy.
    Dr. Sheehy. Yes. Thank you for that question. I think the 
one benefit of the two-midnight rule is likely a decrease in 
those long observation stays.
    However, if I could speak to the--we are currently under 
the probe and educate period under the MACs, the Medicare 
Administrative Contractors, while the RACs are on hiatus, and 
at University of Wisconsin Hospital, we had nine cases that 
were pulled and looked at in the probe and educate period. 
Three of those were determined to be overpayments. All three of 
those cases were cases we tried to claim two-midnight inpatient 
stays for. The MACs--which we thought would be honored because 
the physician's determination was that that patient needed two 
midnights. We went through the appeals process. We watched 
their webinars, did not get further information, requested a 
consult, and just days before our consult occurred, we got 
notification from the MACs that all cases would be paid.
    I think the point of that is, is we are vulnerable. Even 
those two-midnight cases that we think are going to hold as two 
midnights and we would see a reduction in long-stay 
observation, if hospitals start getting audited on cases they 
claim two midnights for, we are going to see that long 
observation stay rate increase.
    Senator Warren. That is a very interesting point.
    Would you like to weigh in on that, Mr. Armstrong.
    Mr. Armstrong. Yes. I mean, I think it is interesting. I 
picked a case in my oral testimony on purpose because of the 
timing of the so-called implementation of the rule. My case was 
actually following the implementation of the two-midnight rule 
time-wise. I actually picked it specifically for that reason, 
that it did not seem to affect that particular case at all, so, 
if it was supposed to be in place, it was supposed to be 
policy, the hospital who referred the person to us did not 
follow the policy, you know, that is supposedly in case, 
because it actually followed in the time frame when it was 
supposed to be implemented, so, I actually picked that case on 
purpose for this question, because in our case, the person 
still was in the hospital for five days----
    Senator Warren. Right. I get it.
    Mr. Armstrong. [continuing.] You know, I mean, it is----
    Senator Warren. Let me ask, then, another part of this, and 
that is that the hospitals in Massachusetts, and, I think, 
around the country, have asked for a way to define and pay for 
hospital stays that are less than two days where inpatient care 
is appropriate, and, in this year's inpatient Prospective 
Payment System proposed rule, CMS asked for feedback on the 
policy options to address these short stays, and I am very glad 
that the agency is working on it, but I want to ask about this, 
and that is, again, this question about the impact on seniors.
    Ms. Borgstrom, I would like to start with you. Will a well-
designed short stay policy greatly reduce or even eliminate 
long hospital stays under observation status? If not, what else 
do you think needs to happen?
    Ms. Borgstrom. It is hard to answer that question because 
the caveat is in well designed.
    Senator Warren. Fair enough.
    Ms. Borgstrom. I think it is--you know, I believe that it--
--
    Senator Warren. I do not want this to be, ``and then a 
miracle occurred.''
    Ms. Borgstrom. No, but I believe that it is possible to 
create a rational short stay payment plan that would decrease 
long-stay observation patient stays.
    Senator Warren. Let me just ask you the same question. Dr. 
Sheehy, do you agree with that?
    Dr. Sheehy. I think you could. I think you could come up 
with some sort of a short stay modifier or some short stay DRGs 
that would accomplish that goal. It would need to be 
accompanied by some check on the auditing of the process, and 
hopefully, these would be paid under Medicare Part A so the 
vulnerability that the Medicare beneficiary feels currently 
would not be felt.
    Senator Warren. I recognize, there is going to be some 
complexity to this. I mean, we cannot get away from that, but, 
the question is, on balance, whether that is a better approach 
than using the two-midnight rule as a way to try, as you 
rightly point out, Mr. Armstrong, to sometimes corral the 
problem of long observation stays.
    Mr. Armstrong.
    Mr. Armstrong. Well, I think, to give CMS some credit, they 
have come up with the ACO concept and the concept of bundled 
payment, which sort of takes that three midnight and this whole 
observation and all this--and the two midnight--all off the 
table by, you know, having to take care of these people in a 
bundled payment, and we are entering in our system into a 
bundled payment agreement as we speak with CMS for several 
bundles which we will not have to deal with some of these 
requirements, because under the bundled payment, we will have a 
settled bundled payment from CMS for the whole continuum of 
care, including the physician practice, including the 
operation, say, for a hip, the inpatient stay for the hip 
fracture or replacement, as well as for the skilled stay in our 
skilled facility will all be covered under the bundle and we 
will not have to deal with, really, any of these issues.
    Senator Warren. Basically, just to underline your point, 
that means we do not need the complexity in the system. We do 
not need the complexity and the resources spent in the 
monitoring, and most importantly, to go back to Ms. Borgstrom's 
point, we are really relying on clinical judgment at that point 
which aligns with the financial incentives, and financial 
responsibility, I should say.
    Mr. Armstrong. Yes.
    Senator Warren. Is that a fair description, Mr. Armstrong?
    Mr. Armstrong. Yes, Senator. Yes.
    Senator Warren. Good. Ms. Borgstrom.
    Ms. Borgstrom. Just adding to that, because I think your 
question and your point is really important, and to Mr. 
Armstrong's point, CMS is trying to support some 
experimentation with the ACOs, with bundled payments, to 
determine a way that allows clinical judgment to determine how 
patients are cared for and create more rational economic 
incentives.
    I think the problem here is we are not giving those time to 
work and we are overlaying it with another policy that, you 
know, as this hearing is demonstrating, very few people 
understand and find rational. It is almost that we are trying 
to do too much without letting some things play out and 
determine what is really going to optimize the delivery of 
patient care and the payment requirements or expectations.
    Senator Warren. Good. Thank you. I think that is at least a 
hopeful sign, so thank you very much, and, again, thank you so 
much for being here, Mrs. Engler, and getting us started in the 
right direction. I am sorry for the need for it, but welcome 
your coming here to talk about it to try to do some good for 
others, so, thank you.
    Senator Collins. Senator Baldwin.
    Senator Baldwin. Thank you.
    There is existing policy and emerging policy discussions 
and pressure to reduce unnecessary hospital readmissions, and I 
am wondering about any observations you might have about the 
interaction between use of observation status versus inpatient 
status and that other whole set of policies. It looks like, Mr. 
Armstrong, you are eager to kick it off.
    Mr. Armstrong. Well, yes. It is a wonderful question, 
Senator, because if a person is never admitted to the hospital, 
then they go home and have other problems, the hospital then 
cannot be punished for a hospital readmission because they were 
never admitted in the first place, so, these policies, you 
know, when implemented, have the interesting consequences in 
the real world when they get implemented, where it is an 
incentive, again, for the hospitals now to use observations 
even more because then the person was never ever admitted, so, 
if they get readmitted, it never happened.
    Senator Baldwin. Dr. Sheehy.
    Dr. Sheehy. I would say, as kind of a--in my clinical 
practice, that the readmission penalty and reclassification of 
patients as inpatient or observation really does not cross our 
mind. It is one of so many things that are out there. We are 
really trying to determine what the patient's clinical needs 
are, what their diagnosis is, how to start their care. A lot of 
times--most of the time, I can see that a patient has been in 
the hospital within 30 days, but I do not know if that 
hospitalization was observation or inpatient or not. It just 
really does not--and my colleagues, I think, at the University 
of Wisconsin, would agree. It just is not a part of our 
decision making to make a patient inpatient or observation.
    We do know that observation is a detriment to patients. It 
is a detriment to our hospital, so, for us to try to make a 
patient observation instead of inpatient for the readmission 
penalty reason just really would not make a lot of sense, 
either.
    Senator Baldwin. Thank you. Any other comments? Thank you.
    Senator Collins. Thank you. Senator Whitehouse, it is my 
understanding that you are all set?
    Senator Whitehouse. All set.
    Senator Collins. Thank you.
    I want to thank our witnesses for being with us today. One 
of the advantages of our Committee is that we are able to take 
the time to delve into very complex issues that have very 
significant impacts on our seniors, and I think we have seen an 
example of that here today. Your testimony has been extremely 
helpful in allowing us to better understand these complex 
issues and the very real life consequences that they have for 
seniors, for nursing homes, for hospitals, for practitioners, 
for advocates, and we very much appreciate your being here.
    I am sure that Senator Nelson is going to have some 
additional questions for the record, and other members who were 
unable to be here today may, as well, so the hearing record 
will remain open for ten days for the submission of any 
additional testimony, questions, and we would appreciate your 
cooperation in answering them.
    Again, thank you so much for being with us today, and this 
hearing is now adjourned.
    [Whereupon, at 3:23 p.m., the Committee was adjourned.]
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                      Prepared Witness Statements

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                       Statements for the Record

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