[Federal Register Volume 71, Number 227 (Monday, November 27, 2006)]
[Rules and Regulations]
[Pages 68708-68725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20131]
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Part IV
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 405, 412, 422, and 489
Medicare Program; Notification of Hospital Discharge Appeal Rights;
Final Rule
Federal Register / Vol. 71, No. 227 / Monday, November 27, 2006 /
Rules and Regulations
[[Page 68708]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 405, 412, 422, 489
[CMS-4105-F]
RIN 0938-AO41
Medicare Program; Notification of Hospital Discharge Appeal
Rights
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule.
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SUMMARY: This final rule sets forth requirements for how hospitals must
notify Medicare beneficiaries who are hospital inpatients about their
hospital discharge rights. Notice is required both for original
Medicare beneficiaries and for beneficiaries enrolled in Medicare
Advantage (MA) plans and other Medicare health plans subject to the MA
regulations. (For purposes of this preamble, these entities will
collectively be known as ``Medicare health plans''). Hospitals will use
a revised version of the Important Message from Medicare (IM), an
existing statutorily required notice, to explain the discharge rights.
Hospitals must issue the IM within 2 days of admission, and must obtain
the signature of the beneficiary or his or her representative.
Hospitals will also deliver a copy of the signed notice prior to
discharge, but not more than 2 days before the discharge. For
beneficiaries who request an appeal, the hospital will deliver a more
detailed notice.
EFFECTIVE DATE: These regulations are effective on July 1, 2007.
FOR FURTHER INFORMATION CONTACT:
Eileen Zerhusen, (410) 786-7803, (For issues related to Original
Medicare).
Tim Roe, (410) 786-2006, (For issues related to Medicare Advantage).
SUPPLEMENTARY INFORMATION:
I. Background
In recent years, we have published several rules regarding hospital
discharge notice policy, as well as rules regarding required notices in
other provider settings when Medicare services are terminated. (See our
proposed rule published April 5, 2006 in the Federal Register (71 FR
17052) for a description of these rules.) In accordance with section
1866 of the Social Security Act (the Act), hospitals currently must
deliver, at or about the time of admission, the ``Important Message
from Medicare'' (IM) to all hospital inpatients with Medicare to
explain their rights as a hospital patient, including their appeal
rights at discharge. In addition, a hospital must provide a Hospital-
Issued Notice of Noncoverage (HINN) to any beneficiary in original
Medicare that expresses dissatisfaction with an impending hospital
discharge. Similarly, Medicare health plans are required to provide
enrollees with a notice of noncoverage, known as the Notice of
Discharge and Medicare Appeal Rights (NODMAR), when an enrollee
disagrees with the discharge decision (or when the individual is not
being discharged, but the Medicare health plan no longer intends to
cover the inpatient stay). See section III of this preamble for more
information about the HINN and NODMAR, under ``Existing Notices.''
On April 5, 2006, CMS published a proposed rule in the Federal
Register (71 FR 17052) proposing revised discharge notice requirements
for hospital inpatients who have Medicare. The provisions of that
proposed rule, the related public comments and our responses, and the
final regulations in this regard are set forth below.
Requirements for Issuance of Regulations
Section 902 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA) amended section 1871(a) of the Act and
requires the Secretary, in consultation with the Director of the Office
of Management and Budget, to establish and publish timelines for the
publication of Medicare final regulations based on the previous
publication of a Medicare proposed or interim final regulation. Section
902 of the MMA also states that the timelines for these regulations may
vary but shall not exceed 3 years after publication of the preceding
proposed or interim final regulation except under exceptional
circumstances.
This final rule responds to comments on the April 5, 2006 proposed
rule. In addition, this final rule has been published within the 3-year
time limit imposed by section 902 of the MMA. Therefore, we believe
that the final rule is in accordance with the Congress's intent to
ensure timely publication of final regulations.
II. Provisions of the Proposed Regulations
As noted above, on April 5, 2006, we published a proposed rule
regarding hospital discharge notice requirements under both the
original Medicare and the Medicare Advantage program. The proposed rule
set forth a two-step notice process for hospital discharges similar to
the process in effect for Medicare service terminations in home health
agencies (HHAs), skilled nursing facilities (SNFs), swing beds,
comprehensive outpatient rehabilitation facilities (CORFs), and
hospices. In general, we proposed to require hospitals to deliver,
prior to discharge, a standardized, largely generic notice of non-
coverage to each Medicare beneficiary whose physician concurs with the
discharge decision. Hospitals or Medicare health plans, as applicable,
would also deliver a more detailed discharge notice to beneficiaries
who exercised their right to appeal the discharge. The specific details
of the proposal are set forth below.
Proposed Sec. 405.1205
We proposed to add a new Sec. 405.1205, to require hospitals to
deliver a standardized, largely generic discharge notice to original
Medicare beneficiaries.
We proposed in Sec. 405.1205 that hospitals would be required to
deliver a standardized notice of non-coverage to beneficiaries on the
day before the planned discharge from an inpatient hospital stay. The
notice would include: (1) The date that coverage of inpatient hospital
services ends; (2) the beneficiary's right to request an expedited
determination including a description of the expedited determination
process as specified in Sec. 405.1206, and the availability of other
appeal procedures if the beneficiary fails to meet the deadline for an
expedited determination; (3) the beneficiary's right to receive more
information as provided in Sec. 405.1206(e); (4) the date that
financial liability for continued services begins; and (5) any other
information required by CMS.
Proposed Sec. 405.1206
We proposed to replace existing Sec. 405.1206 with a new provision
similar to the notice requirement associated with the expedited review
process for home health, hospice, skilled nursing, swing bed, and CORF
settings set forth in Sec. 405.1202. Proposed section 405.1206 set
forth the responsibilities of the hospitals, Quality Improvement
Organizations (QIOs), and beneficiaries relative to the expedited
determination process. Most notably, we proposed in Sec. 405.1206 that
hospitals would be required to deliver a detailed notice to
beneficiaries if beneficiaries exercise their right to request an
expedited determination. The hospital would be required to deliver the
detailed notice by the close of business of the day of the QIO's
notification of the beneficiary's request for an expedited
determination.
[[Page 68709]]
The detailed notice would include: (1) A detailed explanation why
services are either no longer reasonable and necessary or are otherwise
no longer covered; (2) a description of any applicable Medicare
coverage rule, instruction, or other Medicare policy, including
citations to the applicable Medicare policy rules or information about
how the beneficiary may obtain a copy of the Medicare policy; (3) facts
specific to the beneficiary and relevant to the coverage determination
that are sufficient to advise the beneficiary of the applicability of
the coverage rule or policy to the beneficiary's case; and (4) any
other information required by CMS.
Proposed Sec. 422.620 and Sec. 422.622
In these two sections, we proposed to replace the existing NODMAR
notice and review regulations for Medicare health plan enrollees with
notice requirements that largely parallel those proposed for
beneficiaries in original Medicare. That is, proposed Sec. 422.620
would require the hospitals to deliver the standardized, largely
generic notice to all enrollees who are hospital inpatients, on the day
before a planned discharge. The content of the notice would be
essentially the same as under original Medicare. Similarly, Sec.
422.622 would require the Medicare health plan to deliver a detailed
notice to those enrollees who request an immediate QIO review of the
discharge decision. Again, the timing and content requirements
paralleled those in proposed Sec. 405.1206.
Section 422.622 also specified the procedural responsibilities of
Medicare health plans, hospitals, and QIOs as well as any possible
liability for hospitals and Medicare health plans during the immediate
QIO review process.
Conforming Changes Proposed to Sec. 489.27 and Sec. 412.42
Finally, we proposed to make conforming changes to two related
existing regulatory provisions. First, we proposed to amend the
provider agreement requirements in Sec. 489.27(b) to cross-reference
the proposed notice requirements. Thus, proposed Sec. 489.27(b) would
specify that delivery of the hospital discharge notices consistent with
proposed Sec. 405.1205 and Sec. 422.620 is required as part of the
Medicare provider agreement. The other conforming change would affect
Sec. 412.42(c), which involves limitations on charges to beneficiaries
in hospitals operating under the prospective payment system.
As revised, proposed Sec. 412.42(c)(3) would simply include a
cross-reference to the notice and appeal provisions set forth in Sec.
405.1205 and Sec. 405.1206. This change would clearly establish that
the provision of the appropriate expedited review notices would be one
of the prerequisites before a hospital could charge a beneficiary for
continued hospital services.
III. Analysis of and Responses to Public Comments
We received approximately 500 public comments on the proposed rule
from healthcare professionals and professional associations, hospitals,
State and national hospital associations, beneficiary advocacy groups,
and managed care organizations.
Comments centered on the details of the proposed notice procedures
and the relationship between those procedures and the current hospital
discharge and notification processes, including the IM. In general,
healthcare professionals, hospitals, and hospital associations strongly
opposed the proposed notification process. Patient advocacy groups
generally supported the rule as proposed. Managed care organizations
also opposed the notice process and pointed out MA-specific issues with
the rule. Summaries of the public comments received on the proposed
provisions and our responses to those comments are set forth below.
The Proposed Notice Process
Comment: The overwhelming majority of commenters strongly opposed
the hospital discharge notification procedures set forth in the April
5, 2006 proposed rule. Only a few commenters supported the process.
Those commenters supporting the proposed process stated that it
would provide Medicare beneficiaries with a timely notice of the right
to challenge a discharge decision that may be premature and harmful to
that beneficiary's health. They believe that the proposed changes would
serve as a check against existing financial incentives for hospitals
and health plans to discharge beneficiaries too early. These commenters
supported the proposed requirement that the generic notice be delivered
on the day before discharge, stating that it gives beneficiaries the
information they need to initiate an appeal at the time they need it,
and allows beneficiaries enough time to consider their right to appeal
and obtain the help of representatives, if needed. Several of these
commenters suggested the generic notice be given 2 days in advance of
discharge or even earlier when possible.
As noted, however, the vast majority of commenters opposed the
proposed process. These commenters focused their objections on two key
issues--the overall need for the new notice and the timing of its
delivery.
Need for Notice Process
Many commenters noted that, because hospitals are already required
to deliver the Important Message from Medicare (IM) to all Medicare
inpatients, the proposal actually constituted a 3-step notice process
that adds unnecessary burden to hospitals and managed care plans. Many
commenters stated that the current notice process--delivery of the IM
at or near admission, and a Hospital Issued Notice of Noncoverage
(HINN) if the beneficiary disputes the discharge decision--adequately
informs beneficiaries of their appeal rights. They saw no compelling
reason to warrant the implementation of the proposed notice process.
Other commenters noted that there are problems with the current notice
delivery process that CMS should address before deciding to add another
notice. These commenters agreed with many others that CMS should
strengthen the current notice delivery process, rather than adding an
additional notice at discharge. Specifically, some commenters stated
that the IM is often handed to the beneficiary at admission without any
explanation, along with many other papers. Thus, more often than not,
the IM ends up unread. Additionally, several commenters noted that the
current process is not enforced by CMS and recommended that CMS
sanction hospitals that are not complying with notice delivery
requirements.
Many commenters made recommendations for improving the current
notice delivery process including revising the IM to be a more complete
notice of discharge appeal rights (similar to the proposed generic
notice), or replacing the IM with the proposed generic notice and
providing it at or near admission. Several commenters suggested we
allow the generic notice to be given at admission or during the course
of the hospital stay, and some commenters recommended that the hospital
review the information with the beneficiary and that the beneficiary
sign the notice.
Timing of the Generic Notice
Commenters also strongly objected to the requirement that hospitals
provide the proposed generic notice on the day before discharge, as
proposed in Sec. 405.1205 and Sec. 422.620. They indicated that,
given the rapidly changing conditions of most hospital patients, it is
often difficult or impossible to predict the exact date of
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discharge a day in advance. Commenters pointed out that physicians
often make discharge decisions and write the discharge order on the day
of discharge. Several commenters stated that they cannot assume
physician concurrence until the discharge order is written.
Many commenters pointed out that although hospitals begin the
discharge planning process at admission, hospital staff, physicians
(and health plans, if applicable) must wait for the results of blood
work and other diagnostic tests and are constantly monitoring patients
for signs of clinical progress before the discharge decision can be
made. Commenters offered many clinical examples in support of this
contention, including the following: Surgical patients' diets are
gradually progressed from liquids to solids based on their tolerance,
which varies from patient to patient; patients on oxygen therapy must
be evaluated frequently to determine if it is appropriate to wean and
later to determine if home oxygen is appropriate; patients receiving
medications such as narcotics or steroids must be weaned from these
medications and observed for complications, and patients cannot be
expected to respond in a predictable manner.
In addition, many commenters pointed out that giving a notice on
the day before discharge to a beneficiary experiencing a short stay (1
or 2 day stay) would in practice necessitate that the discharge notice
be given at admission, when the course of treatment may not be known.
Others stated that many of these beneficiaries also are waiting for
test results and the discharge decision will depend on the results of
those tests.
Other commenters stated that predicting the discharge date a day or
more in advance would be particularly difficult for beneficiaries with
complicated cases, since many of these beneficiaries are under the care
of more than one physician while in the hospital, requiring
coordination among specialists regarding the discharge decision.
For beneficiaries who need to be placed in facilities such as a SNF
or psychiatric facility, discharge will depend on that facility's
acceptance of the beneficiary, and the hospital may not know about
placement 24 hours in advance in order to give a notice. In addition,
commenters noted that it is not unusual for a physician to discharge a
patient earlier than anticipated because of that individual's progress,
making notice delivery on the day before discharge impossible.
Commenters also stated that it often takes time to reach the
representative of a beneficiary who is incompetent or unable to make
informed decisions. Some commenters said representatives are often more
available near the time of admission than on the day before discharge.
Response: We have carefully considered the numerous comments
regarding the extent to which a new notice is needed and the timing of
such a notice. We recognize that the proposed generic notice clearly
contains nearly the same information as IM, which is already delivered
at or near admission as required by Section 1866(a)(1)(M) of the Social
Security Act (the Act). Moreover, we fully appreciate, as many
commenters pointed out, the difficulties inherent in predicting the
precise date of discharge in advance in the hospital setting. At the
same time, we are committed to ensuring that all Medicare beneficiaries
are made aware of their hospital discharge rights in an effective
manner.
As the comments made clear, a hospital's frequent inability to
predict a discharge in advance in acute care settings constitutes the
fundamental obstacle to the 24-hour advance notice proposal. This
problem is particularly pronounced for patients with complicated
medical concerns, those under the care of more than one physician, and
those requiring subsequent placement in other facilities. Clearly,
discharge decisions are normally made by physicians, and physicians
generally depend on test results, other outcome-related indicators, and
observations gained from patient rounds in making these decisions. Many
of these indicators may not become evident or available sufficiently
early to permit 24-hour advance notice on a routine basis.
Thus, we considered other alternatives to the proposed ``24-hour
notice'' requirement that could still ensure that beneficiaries are
made aware of their discharge appeals rights in time to exercise them,
without adversely affecting the hospital discharge process or the
availability of hospital beds. This is consistent with our commitment
in the proposed rule to consider comments on all aspects of hospital
notice procedures. One option that we considered carefully was to
establish the 24-hour advance notice requirement as a general rule, but
allow for exceptions when this requirement was impractical, such as the
situations described above where a beneficiary's discharge date could
not reliably be predicted in advance. We concluded, however, that such
a standard would be highly subjective and difficult to administer,
given the variety of reasons why a discharge decision could be made on
the day of discharge, while still potentially leaving a large
proportion of hospital patients unaware of their discharge rights until
they would have little or no time to exercise them.
Moreover, we also had to take into account the high percentage of
short stays in the hospital setting. (The most recent available CMS
data--2003 data from the 2005 CMS Statistical Supplement--regarding
acute inpatient hospital admissions show that over 43 percent of
hospitals stays are 3 days or less in duration, and nearly 30 percent
are 2 days or less.) In those situations, given the statutory
requirement that hospitals deliver an IM to each patient at or about
the time of admission, requiring a generic discharge notice as well
would be of questionable value because they would be given at about the
same time. As many commenters pointed out, the proposed generic notice
contains much of the same information as the IM. Thus, requiring
hospitals to deliver both notices at roughly the same time would place
an administrative burden on hospitals without any apparent benefit to
patients.
Based on all these considerations, we decided not to adopt an
exception-based standard. Instead, we considered additional
alternatives for meeting our goal of designing hospital notice
procedures that balance a beneficiary's need to be informed about his
or her appeal rights in an appropriate manner and at an appropriate
time, and take into account the statutory requirements associated with
the IM, but do not impose impractical requirements on hospitals, or
interfere with appropriate discharge decision-making practices. As many
commenters recommended, we concluded that the most viable approach
would be to build on the existing requirement that hospitals deliver
the IM to all beneficiaries, which already takes into account hospital
discharge processes. Accordingly, under Sec. 405.1205(b)(Sec.
422.620(b) for MA enrollees), this final rule establishes a revised
version of the IM as the advance written notice of hospital discharge
rights.
As revised, the IM will contain virtually all of the elements that
would have been included in the proposed standardized generic notice,
with the exception of the discharge date. Thus, the revised IM will
continue to meet the requirements of section 1866(a)(1)(M) of the Act,
including a statement of patients' rights, information about when a
beneficiary will and will not be liable for charges for a continued
stay in a
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hospital, as well as a more detailed description of the QIO appeal
rights that corresponds to the content of the proposed generic notice.
We have revised requirements for notice content at Sec. 405.1205(b)
and Sec. 422.620(b) to reflect these changes. Proposed Sec. 489.27
has also been revised accordingly. However, similar to the generic
notice, the revised IM must be signed by the beneficiary (or
representative, if applicable) to indicate that he or she has received
the notice and comprehends its contents. The hospital must provide the
original, signed notice to the beneficiary and retain a copy of the
signed notice. As with the proposed generic notice, we anticipate that
the revised IM will also include language stressing the importance of
discussing discharge planning issues with physicians, plans, or
hospital personnel to try to minimize the potential for disputes. The
precise language of the revised IM will be subjected to public review
and comment through the Office of Management and Budget's Paperwork
Reduction Act process.
Sections 405.1205(b) and 422.620(b) also establish the time frames
for notice delivery. Specifically, hospitals must deliver the advance
written notice at or near admission, but no later than 2 calendar days
after the beneficiary's admission to the hospital. We believe that
requiring this revised IM be delivered and signed at or near the time
of admission gives the hospital flexibility in developing processes to
deliver the notice in a timely manner and makes the IM a more
meaningful notice for beneficiaries and representatives, allowing them
ample time to consider acting on those rights.
At the same though, we continue to believe that it is important for
beneficiaries to receive information about their discharge rights at or
near the time of discharge when they may need to act on this
information. Therefore, Sec. 405.1205(c), and Sec. 422.620(c) for
Medicare health plan enrollees also requires that hospitals deliver a
copy of the signed IM to each beneficiary before discharge. The notice
should be given as far in advance of discharge as possible, although
not more than 2 calendar days before the day of discharge. This time
frame would be consistent with the suggestions of several commenters
who advocated for delivery of discharge rights notices 2 days before
discharge.
This follow-up notice would serve as a reminder of the earlier
notification about the beneficiary's discharge rights. It would not be
required if the initial delivery and signing of the IM took place
within 2 days of discharge. This means that hospitals will have some
flexibility to tailor their notice delivery practices to meet their own
needs, with the possibility of eliminating the need to deliver a copy
of the notice for stays of up to 5 days. (We note that the average
hospital length of stay in an acute care setting for a Medicare
beneficiary is approximately 5 days and, again, large numbers of
beneficiaries experience stays ranging from overnight to 2 or 3 day
stays.) Although the follow-up notice often would not be needed in
short-stay situations, it would serve as an important reminder of
beneficiary rights in longer stay cases. Thus, all individuals will
receive the original notice at or near admission, in addition to
receiving a copy of the signed notice if the original notice is
delivered more than 2 days before discharge.
Section 405.1206(b)(1) and Sec. 422.622(b)(1), will allow
beneficiaries to request an expedited determination at any time up
through the day of discharge, either in writing or by telephone.
However, we believe that the better alternative will be for
beneficiaries to be aware of their rights as early as possible and then
communicate with their physicians, plans and appropriate hospital staff
to reach a consensus on their appropriate discharge date.
Given that there is no longer a noon deadline for a beneficiary to
request an expedited QIO determination, we recognize that such requests
could be made near or after the close of the business day. Thus, we
have revised the appropriate sections to specify that the subsequent
deadline for the hospital or plan to provide beneficiaries with
detailed notices as soon as possible but no later than noon of the day
after the QIO notifies the hospital or plan that the beneficiary has
requested QIO review. We have also specified that the hospital or plan
must submit necessary information to the QIO as soon as possible, but
no later than noon of the day after the QIO notifies the hospital or
plan of the request. We note that a beneficiary's liability protection
would continue throughout this process.
In summary, we believe that the revised notification process being
set forth in this final rule will offer several advantages over the
proposed approach, while still containing many similar elements and
achieving the same goals. The process is consistent with the existing
IM requirements--while also establishing much greater hospital
accountability (and enforceability) for delivering the IM--promotes
beneficiary understanding of their discharge rights, and gives
hospitals appropriate discretion in notice delivery practices and, more
importantly, in discharge decision-making, rather than letting notice
delivery rules dictate when patients are discharged.
Consequences of the 24-Hour Notice Requirement
Many commenters believed that if hospitals were not able to deliver
the generic notice on the day before discharge, that patients would be
entitled to stay an additional day in order to meet the 24-hour
requirement. We received many comments regarding what commenters
believed would be the consequences of this additional day.
Comment: Many commenters addressed the perceived consequences of
their belief that, in most cases, hospitals would not be able to give
the notice until the actual day of discharge. In general, commenters
indicated that beneficiaries would then be entitled to stay another day
in order to decide if they want to appeal. Commenters contended that
delaying discharge an additional day to allow hospitals to satisfy the
notice requirement conflicted with the discharge planning process set
forth at section 1861(ee)(2) of the Act, which directs the Secretary to
develop guidelines to ensure a smooth and timely discharge to the most
appropriate setting. Several commenters pointed to the Joint Commission
on Accreditation of Healthcare Organizations (JCAHO) requirements at
LD.3.15 that require hospital leadership to mitigate impediments to
efficient patient flow throughout the hospital. Other commenters stated
that the Hospital Conditions of Participation (COP) for patients'
rights at Sec. 482.13 already makes clear that a patient has the right
to make informed decisions, and has the right to a process for
submitting grievances, including concerns about quality of care and
premature discharge.
Many commenters feared that the proposed process and the
possibility of an additional day would severely impact the hospital's
bed capacity, ability to move patients within and outside of the
hospital, and costs. Many commenters believed that this requirement
would cause unnecessary delays in a patient's discharge or transfer to
a more appropriate level of care.
Several commenters gave the example of the Medicare beneficiary who
has secured a bed in another facility such as a skilled nursing
facility (SNF). If the hospital were not able to provide the generic
notice until the day of discharge, and Medicare beneficiaries were able
to stay an additional day to ensure they received the notice at least
24 hours in advance of discharge,
[[Page 68712]]
commenters said, this beneficiary would risk losing that bed and
finding another bed could take several more days. Commenters believed
that hospitals would then be required to provide additional notices to
this beneficiary and work within new timeframes.
Response: We agree with the commenters that to the extent that
hospitals are not able to deliver the generic notice until the day
beneficiaries are ready to be discharged, the proposed 24-hour notice
requirement could potentially affect the hospital's compliance with the
requirement for a smooth and timely discharge to a more appropriate
setting. As noted above, we find persuasive comments regarding the
fluidity of the discharge process. Thus, as explained in detail above,
we have modified the proposed notification procedures to attempt to
mitigate the potential for disruption of the discharge planning
process.
Existing Notices
Comment: Hospitals asked whether the existing HINN and NODMAR would
continue to be necessary.
Response: Currently, hospitals or plans issue a HINN or NODMAR at
discharge only when the patient disagrees with the discharge decision.
In this context, the HINN and NODMAR are used to tell a patient why a
hospital or plan believes their stay will no longer be covered, to
provide information about the QIO review process, and to describe the
patient's potential liability. Under the process set forth in this
final rule, ALL individuals will be provided with information upon
admission about the QIO review process and associated liability, and
individuals who disagree with the discharge decision will receive
detailed information about why the hospital or plan believes their stay
will no longer be covered. Thus, with this new process, the HINN and
NODMAR will no longer be used to notify patients of their right to a
QIO review of a stay. In the vast majority of cases, a beneficiary will
agree to the discharge decision. In almost all other cases,
beneficiaries who disagree with the discharge decision will initiate a
QIO review, so that their stay can continue without liability until the
QIO confirms the discharge decision or determines that the stay should
continue. Only in the extremely rare instance where patients decide to
remain in the hospital past the ordered discharge date and do not
choose to initiate a review would they be notified of liability via a
traditional liability notice akin to the existing HINN. (Note that the
term ``HINN'' actually refers to several different notices, used under
various circumstances, to inform patients under original Medicare that
all or part of a hospital stay may not be covered by Medicare. For
example, a HINN is also used in pre-admission situations. This final
rule addresses only HINNs now used at the end of a hospital stay when a
patient disputes a discharge decision. Under these circumstances, the
HINN is no longer needed.) The NODMAR will be discontinued.
Aligning Hospital Discharge Notice Processes With Those of Other
Settings
We received multiple comments on our proposal to align hospital
discharge notice processes with those used in other settings such as
HHAs, SNFs, and CORFs.
Comment: Many commenters indicated that it was unrealistic and of
little value to achieve consistency between hospital discharge notice
processes and those of other providers such as SNFs and HHAs.
Commenters stated that hospitals are fundamentally different from these
non-hospital settings because of hospitals' focus on the provision of
acute medical care. The commenters stated that hospital lengths of stay
are generally shorter, the conditions of acutely ill patients are more
unpredictable, there is a greater volume of discharges per day, and
they contended that discharge decisions are generally made on the day
of discharge often based on the availability of diagnostic tests
results. Conversely, commenters stated that SNFs and other settings
have more predictable patient outcomes and longer lengths of stay that
allow advance notice of discharge under most circumstances. Moreover,
they pointed out that in the non-hospital setting, beneficiaries could
be liable for additional days if they request a review; conversely, in
the hospital setting, beneficiaries may stay without additional
liability while the QIO's decision is pending. Finally, unlike
hospitals, other providers are not required to provide the IM that
already includes an explanation of the discharge appeal rights. Thus,
they urged that CMS reconsider its proposed hospital notice approach.
A few commenters did support aligning the provider notice
procedures. These commenters believe that uniformity among appeals
notice process in all settings would increase public understanding and
utilization of the QIO appeal process. The commenters noted that
protections against premature discharge are even more necessary in the
hospital setting than in other settings because of the vulnerability
and acute care needs of hospital patients. Further, they argued,
inpatient hospital providers are at least as capable of complying with
these requirements, as are SNFs and other outpatient providers.
Response: We agree that there are notable differences between the
hospital setting and the other provider settings where an expedited
determination notice process is in effect. As commenters pointed out,
the critical differences for purposes of this rule are the presence of
the IM in the hospital setting, the shorter and less predictable
lengths of stay, and the statutory liability protections afforded to
hospital inpatients in accordance with section 1869(c)(3)(C)(iii)(III)
of the Act. We found the comments on these issues to be especially
persuasive. Thus, in developing this final rule, we have attempted to
set forth a process that better takes into account the unique
circumstances of the hospital setting.
Discharge Planning Process
Many commenters stated that the hospital notice requirements needed
to take into consideration the discharge planning requirements in the
Conditions of Participation (COPs).
Comment: A number of commenters stated that the existing discharge
planning process carried out by hospitals already informs beneficiaries
of discharge plans and facilitates smooth transitions to post-hospital
settings. The commenters stated that the discharge planning COP at
Sec. 482.43 addresses the development of a discharge plan and requires
that the patient and representative be involved in the discharge
planning process. Commenters also stated that discharge decisions are
made by physicians, not hospitals.
Commenters noted that discharge planners are very effective at
developing individualized discharge plans, making arrangements for
post-hospital care, and preparing patients and caregivers for
discharge. Commenters also pointed out that because discharge planners
are involved in arranging patients' post-hospital care, they are able
to identify patients early on who will have special needs at discharge
and work with them (or their representatives) to address their issues.
Thus, many commenters questioned the need for written discharge
notices, given the extensive discharge planning process already
required in hospitals. Alternatively, several commenters suggested that
we add language to the notice that informs beneficiaries of the
discharge planning process.
Response: We recognize the important work of hospital discharge
planners in
[[Page 68713]]
the development of individualized discharge plans and preparing
patients for post-hospital care, and we agree that any process to
notify beneficiaries of their appeal rights must be consistent with the
discharge planning process required by section 1861(ee)(2) of the Act
and the COPs at Sec. 482.43. However, we note that while hospitals
must have in effect discharge planning procedures that apply to all
patients, discharge planning generally focuses on identifying
individuals who are likely to have special or ongoing needs following
discharge. Obviously, not all hospital inpatients will require post-
hospital care, therefore some patients will have very limited
involvement with the discharge planning process. Thus, we are not
convinced that it is appropriate to rely on the discharge planning
process as the mechanism for ensuring all patients receive timely
notification of discharge rights under the Medicare program. Instead,
we believe that the Medicare discharge notice should be able to stand
alone, or complement discharge planning.
To reflect the importance of discharge planning, we intend to
incorporate language into the revised IM about planning for discharge
and encouraging beneficiaries to talk to their physician or other
hospital staff if they have a concern about being discharged. If
beneficiaries are still not satisfied with their discharge decision,
they can request a QIO review.
Liability
Many commenters were concerned about the prospect of hospitals
being financially liable for additional patient care days during the
QIO process.
Comment: Many commenters asked that CMS clarify who would be liable
for the extended days during the appeal. They stated that because the
beneficiary will have no liability, Medicare should pay the hospital
for the additional days or the additional days should be incorporated
into the DRG payment. A few commenters stated that the liability
protections set forth in section 1879(a)(2) of the Act should relieve
the hospital of any liability because the hospital would not have known
that payment would not be made for hospital services beyond the planned
day of discharge.
Response: This rule has no effect on existing policy with respect
to liability during a QIO review. All operating costs incurred during
the beneficiary's inpatient stay are considered part of the overall DRG
payments.
Impact on Number of Appeals
Many commenters believe that this notification process would
increase in the number of appeals to the QIO.
Comment: Many commenters believe that once beneficiaries become
aware of their right to a review without liability, there will be a
large increase in the number of beneficiaries appealing and staying
additional days during the review. Many commenters stated these extra
days could seriously affect hospital processes, have a significant
effect on hospital costs. Longer lengths of stay, they contended, would
hinder the hospital's ability to move patients through the system,
seriously affecting bed capacity. Hospitals would not be able to accept
new admissions, would experience backups in already crowded emergency
rooms, and would not be able to move patients out of post-anesthesia
care units or intensive care units. Most importantly, commenters said,
the longer Medicare beneficiaries remain in the hospital, the greater
their risk of hospital-acquired infections, falls and other negative
outcomes.
Several commenters said CMS should assess whether the 1 to 2
percent estimate of the number of beneficiaries who currently request
QIO reviews in the nursing home or home health settings would hold up
in the hospital setting where liability is not an issue for
beneficiaries while their appeal to the QIO is pending.
Response: The right to a QIO review without beneficiary liability
is a longstanding statutory feature of the Medicare inpatient hospital
prospective payment system. To the extent that commenters are correct
that beneficiaries are not aware of the existing QIO review right,
there could be an increased use of the process under the new notice
rules. However, we view this contention as evidence of the need for a
more effective notice process, as opposed to an argument against
notification.
At the same time, however, we have historically believed, based on
the limited evidence available, that hospital beneficiaries who are
notified of their discharge rights are not significantly more likely to
exercise them. For example, as discussed in previous rulemaking, the
proportion of Medicare health plan enrollees that disputed their
discharge historically has been no higher than that of original
Medicare beneficiaries, despite the more stringent notice requirements
under the Medicare + Choice program (68 FR 16664). Moreover, several
commenters noted, and we agree that the vast majority of inpatients
welcome their discharge. Therefore, we believe that the revised notice
process will not increase the number of requests for a QIO review nor
have a significant impact on hospital bed capacity, patient access, or
hospital revenue.
Impact on Beneficiaries
Many commenters were concerned about the impact of the proposed
notice process on beneficiaries, and the possibility that some
beneficiaries would use the process to game the system. Some commenters
offered suggestions on how to better educate beneficiaries about their
rights.
Comment: Many commenters were concerned that the notices in the
proposed process would confuse beneficiaries and increase their anxiety
level during an already stressful time. Many commenters stated that
beneficiaries are under an inordinate amount of stress during a
hospital stay and that issuing a notice regarding potential financial
liability would only serve to alarm them. Several other commenters
stated that the notices as written would be difficult for many frail
elderly Medicare beneficiaries to understand. Other commenters stated
that beneficiaries are already overwhelmed by the number of notices
they receive and that an additional notice would exacerbate the
problem. Still other commenters stated that many beneficiaries these
days are cautious about signing forms.
Conversely, some commenters felt that Medicare beneficiaries
generally are not aware of their right to appeal a discharge and that
the current process for communicating the information to them is not
effective.
Response: We believe that it is important for Medicare
beneficiaries to understand their discharge appeal rights and be able
to act on them. Moreover, based on the often conflicting comments
received on the proposed rule, we believe that not all beneficiaries
are made aware of these rights uniformly under the current process. We
recognize that liability issues in particular can be difficult for
beneficiaries to understand, and we intend to make sure the revised IM
is as clear as possible in this regard. We also intend to consumer test
the notices prior to requesting OMB approval. Finally, it is important
to keep in mind that hospitals will be expected to review the notices
with beneficiaries (or representatives when appropriate), answer any
questions and, if necessary, help them to initiate the QIO review
process. We believe these efforts will serve to reduce confusion and
enhance beneficiaries' understanding of their rights and their ability
to act on them.
[[Page 68714]]
Comment: Many commenters stated that this proposed process would
encourage beneficiaries who do not want to leave the hospital to
``game'' the system in order to stay for reasons other than medical
necessity. These commenters said that some beneficiaries might want to
remain in the hospital, either for reasons of convenience, because the
hospital offers a more secure and comfortable environment, or because a
bed is not available in a setting of their choice. Additionally, a few
commenters pointed out that beneficiaries who do not meet the 3-day
qualifying stay for a nursing facility might use the appeal process to
get the extra day(s) in order to qualify.
Response: We understand that hospitalized beneficiaries and their
family members may be anxious about discharge for many reasons.
Nevertheless, we expect the vast majority of beneficiaries who exercise
their statutory right to a QIO review to do so for legitimate purposes.
As discussed above, we also recognize the benefits of an effective
discharge planning process in identifying those beneficiaries who may
have concerns about their discharge and in working with these patients
early on in order to facilitate a smooth discharge.
Finally, in accordance with Sec. 409.30, a 3-day qualifying stay
must be for medically necessary hospital or inpatient CAH care.
Therefore, if a patient has not met the 3-day qualifying stay and
requests a review, the QIO will determine whether the decision to
discharge was the correct one.
Thus, we do not expect significant numbers of individuals to use
this process to ``game'' the system, although we note that opportunity
has always existed. Again, we believe that patients should be informed
of their statutory rights.
Comment: Some commenters recommended that, instead of adding to the
number of notices that hospitals are required to deliver, we educate
consumers about their discharge rights through other methods. Several
commenters recommended specific measures such as educational campaigns,
mailings, or printing appeal rights on the back of the Medicare card.
Comments were mixed as to whether Medicare beneficiaries are
knowledgeable about their rights or are confused by the complexity of
the program and the large number of notices they already receive.
Response: The IM is a statutorily required notice that hospitals
are required to deliver at or about the time of an individual's
admission as an inpatient to the hospital. Neither educational
campaigns nor mailings can meet that requirement. We do agree with
commenters, however, that it is necessary to educate beneficiaries
about their discharge appeal rights using other means. Currently,
information about these rights is in the ``Medicare and You Handbook''
and the Medicare health plans' ``Evidence of Coverage'' (EOC), and we
will work with hospitals, beneficiary advocates, and other partners to
help educate beneficiaries about their rights.
Burden
We received a large number of comments on the burden estimates for
both the proposed generic and detailed notices.
Comment: The vast majority of commenters believed that the 5-minute
time estimate by CMS for the delivery of the generic notice was much
too low, and did not acknowledge the time necessary to complete the
notice, explain it to the beneficiary, answer questions, or contact a
representative, particularly in cases where the beneficiary's
competency is at issue or there is a language barrier. Generally,
commenters offered a range of 10 to 30 minutes to complete the notice,
deliver and explain the notice and obtain a signature, with more time
required when interpreters or representatives were involved.
In addition, some commenters thought the time required to complete
the detailed notice would be comparable to the current notification
process that utilizes the HINN and NODMAR. A few commenters stated that
the detailed notice could take from 120 to 180 minutes to fill out,
accounting for additional tasks such as calling the QIO, or providing
evidence to the QIO for its review in their estimate. Also included in
this estimate was the burden associated with having to research
specific Medicare coverage rules and citations.
Response: Although this final rule no longer requires issuance of
the separate generic notice, as specified in the proposed rule, we have
taken these comments into consideration in estimating the time required
for delivery of a revised, signed IM. Thus, we now estimate the average
time for IM delivery at 12 minutes--which represents an 11 minute
increase over the estimated time for delivery of the current IM. We
note that this estimate reflects an ``average'' amount of time needed
to deliver the notice; some beneficiaries will be able to read the
notice easily and others will need more time and assistance. Further,
we estimate that delivery of the signed copy of the IM that may be
required for longer hospital stays should only take an average of 3
minutes to deliver to the beneficiary or representative because it is
essentially a review of information received at or near admission and
questions regarding the process can also be referred to the QIO.
Regarding the detailed notice, in response to suggestions that it
would be especially difficult for hospital staff to research and list
specific citations to applicable Medicare policy rules, we no longer
require the notice to list specific citations to the applicable
Medicare policy rules. We have, however, maintained the requirements
that the detailed notice explain why services are no longer necessary
and describe relevant Medicare coverage rules, instruction or other
policy. Commenters recognized that the detailed notice essentially
replaces the HINN and NODMAR processes when beneficiaries and enrollees
do not agree with the discharge. Therefore, we believe that the
detailed notice will not constitute a new burden, but will essentially
replace the time associated with filling out and delivering the HINN
and NODMAR. We believe that, in addition to the time it currently takes
to complete the HINN and NODMAR, an extra 60 minutes is sufficient for
filling out and delivering the detailed notice. We intend to permit, in
guidance, that hospitals and plans may use predetermined language
regarding medical necessity and other Medicare policy. Both the IM and
the detailed notice will be published for public comment through the
OMB Paperwork Reduction Act process. Therefore, we welcome further
input on the form and content of the detailed notice through the OMB
approval process.
QIOs
Several commenters noted that the current QIO schedule for hospital
reviews could delay the appeal process.
Comment: Several commenters stated that QIOs do not currently
review hospital stays on weekends, which could cause additional delay
in the processing of these appeals.
Response: QIO reviews of disputed hospital discharges are a long-
standing feature of the Medicare program. However, we will work closely
with the QIOs to ameliorate any difficulties associated with the notice
procedures. We note that the QIO review process for other providers
requires QIO involvement 7 days a week.
[[Page 68715]]
Information Technology (IT)
Some commenters were concerned that the notice process would affect
their IT systems.
Comment: A few commenters stated that hospitals, especially larger
centers, would have to develop or change their IT process to, for
example, track ``next day'' discharges, based on the proposed rule.
Several commenters stated that the proposed rule was contrary to the
movement toward electronic medical records.
Response: As described above, based on the comments, we have
revised the requirement for delivery of the notice so that it may be
delivered up to 2 days prior to discharge. We believe this added
flexibility will relieve hospitals of any burden of developing an IT
process to track ``next day'' discharges. We also agree that the
movement toward electronic medical records is an important advancement.
However, given that section 1866(a)(1)(M) of the Act requires a written
statement of rights, there is still a need for a hard copy delivery of
the IM. Hospitals may choose to store the signed copy of the notice
electronically.
Delivery to a Representative
Several commenters asked that we allow hospitals to provide
notification to representatives via a telephone call.
Comment: Several commenters requested that CMS clarify what ``valid
delivery'' means if a beneficiary is incompetent and a representative
must be contacted. Other commenters suggested that we allow telephone
notification to beneficiary representatives.
Response: We intend to provide guidance regarding how hospitals and
health plans may deliver the appropriate notice in cases where a
beneficiary's representative may not be immediately available.
Managed Care
Several commenters noted there were specific issues with regulation
in terms of managed care and also commented on the scope of the
regulation and coordination issues among hospitals, plans and the QIO.
Comment: Several commenters pointed out coordination issues among
Medicare health plans, hospitals, and QIOs, regarding the proposed
process. Several commenters specifically described issues of
coordination regarding delivery of the proposed detailed notice. One
commenter stated that an MA private-fee-for-service (PFFS) plan may not
have knowledge of the hospital stay to comply with these rules. Another
commenter stated that plans may not have a contract with the treating
hospital in order to delegate responsibility for the detailed notice
delivery. Other commenters stated that plans are too far removed from
the hospital setting to have the information to fill out and deliver a
meaningful detailed notice in a timely manner. Some stated that it
would be unworkable for the plan to provide the detailed notice by
close of business of the day the beneficiary contacts the QIO. In this
case, commenters suggested requiring plans to provide written
explanation of the discharge decision to the enrollee by the close of
business on the day following notification of the plan by the QIO. Some
commenters pointed out difficulties hospitals have following two
different sets of regulations, one for original Medicare and one for
MA.
Response: We believe, consistent with the immediate QIO review
process in the non-hospital settings at Sec. 422.622, that Medicare
health plans are in the best position to deliver the detailed notices
regarding their specific policies and the criteria that they applied in
evaluating an enrollee for discharge. Moreover, in view of the fact
that Medicare health plans are responsible for making coverage
determinations for their enrollees, we believe it is appropriate that
plans be responsible for preparing and delivering the detailed notice
in a timely manner. Therefore, we are maintaining the requirement that
the plan be responsible for delivery of the detailed notice. Although
we expect that the plans will deliver the detailed notice as soon as
possible, we have revised the timeframe for delivery of the detailed
notice as well as any information the QIO needs to complete the review,
to noon of the day following the QIO's notification of the enrollee's
request, as discussed previously.
We recognize that the PFFS model presents unique challenges to
plans in terms of notice delivery requirements. We believe hospitals,
as part of their daily business practices, should be informing all
plans, including PFFS plans, of an enrollee's admission as soon as
possible, and have a financial interest in doing so. Therefore, we are
maintaining requirements that plans participate in the discharge
process and deliver the detailed notice to their enrollees when
appropriate.
In addition, we have attempted to create a consistent notification
and appeal process by aligning the regulations for original Medicare
and the MA program. Thus, we have reordered the requirements at Sec.
422.620 and Sec. 422.622 to parallel those at Sec. 405.1205 and Sec.
405.1206. For example, QIO requirements at Sec. 422.622 have been
revised to parallel those at Sec. 405.1206, and requirements that
hospitals provide information needed for the QIO review at Sec.
422.622 now parallel those at Sec. 405.1206. We believe this will
strengthen beneficiary rights regarding hospital discharges and make
the QIO review process easier to understand and administer.
Comment: Some commenters asked if these rules apply to Medicare
Cost Plans.
Response: In accordance with 42 CFR 417.600(b), Medicare Cost Plans
are subject to the regulations at 42 CFR part 422, Subpart M.
Therefore, these rules apply to them to the same extent that they apply
to all other Medicare health plans.
Comment: Some commenters expressed concern that MA organizations
might be responsible for additional costs if hospitals fail to provide
a timely generic notice on the day before discharge and the enrollee
needed to stay an extra day to request an appeal.
Response: As discussed in detail above, we have removed the 24-hour
requirement for delivery of the generic notice and replaced the generic
notice with a signed IM given at or near admission. Under this revised
approach, a patient will not need to stay in a hospital an extra day
merely to request an appeal. We believe our revised approach addresses
the commenters' concern.
Definition of Discharge
We received a few comments on the definition of discharge provided
in proposed Sec. 405.1205 and Sec. 422.620.
Comment: Some commenters asked that we clarify the definition of
discharge. Specifically, they asked that we clarify that a transfer to
another hospital does not constitute a discharge. Commenters suggested
that, for purposes of the proposed notice process, the definition of
discharge should not include beneficiaries who exhaust Part A benefits.
Response: In response to these comments, we have revised the
definition of discharge in both Sec. 405.1205 and Sec. 422.620 to
state that a discharge is the formal release of a beneficiary or
enrollee from an inpatient hospital. This definition is consistent with
the definition at Sec. 412.4 for hospitals paid under the prospective
payment system. We removed the term ``complete cessation of coverage''
from the proposed definition in order to reduce confusion about
beneficiaries who exhaust Part A days. We believe
[[Page 68716]]
that the number of beneficiaries who exhaust Part A days during a
hospital stay is low. However, if this were to occur, hospitals would
not be required to issue a follow up copy of the signed IM. Current
guidance states that the HINN may be used voluntarily by hospitals to
notify beneficiaries who exhaust Part A days (See Transmittal 594,
Section V) and Medicare health plans would give the Notice of Denial of
Medical Coverage. Under this new process, hospitals would use a
liability notice akin to the HINN for this purpose. Hospitals will be
required to deliver the IM at or near admission, thus all beneficiaries
and enrollees will receive information on their right to a QIO review.
Content of Notices
We received many comments that the wording of the generic notice
does not reflect hospital processes and is not beneficiary friendly.
Comment: Many commenters stated that the generic notice was
alarmist and focused too much on termination of Medicare payment and
financial liability and not enough on the fact that the discharge
decision was made based on whether the beneficiary could safely go home
or could safely receive care in another setting. For example, they
believed that the use of the words such as ``liability,''
``noncoverage'' and ``immediate review'' might upset some beneficiaries
who are facing discharge. In the commenters opinion, hospitals must
give beneficiaries the confidence they need to transition to a
different level of care and the wording of the notice would cause
beneficiaries to doubt the discharge decision unnecessarily.
Response: As discussed above, the process set forth in this final
rule no longer entails a new, generic notice. However, we have taken
these comments into consideration as we have developed the revised IM.
For example, as discussed above, we intend to include information about
discharge planning in the IM.
Please note that the precise wording and content of the notices is
generally not subject to the rulemaking process, but instead is subject
to OMB's Paperwork Reduction Act process. Thus, we intend to republish
these notices through that process, providing an additional opportunity
for public input prior to implementation.
Other Recommendations
Many commenters made other recommendations for how CMS could get
feedback on the proposed notification process.
Comment: Some commenters recommended that CMS pilot the proposed
process and notices. Others said that the notices themselves should be
tested with beneficiaries. Other commenters recommended that CMS
convene a national workgroup to review the hospital notices and
recommend changes.
Response: The process set forth here builds on existing hospital
notice requirements regarding a patient's right to a QIO review of a
discharge decision. Thus, we do not believe that a pilot of either the
proposed process or the proposed notices is appropriate or necessary.
However, as noted above, there will be ample opportunity for public
input on the notices through the PRA process. We also intend to carry
out consumer testing of the notices prior to implementation of the new
process.
Scope
Several commenters asked for clarification on issues related to the
scope of the rule.
Comment: Several commenters asked if the notification process would
be applicable to observation stays.
Response: The notice requirements set forth in this rule apply only
to inpatient hospital stays.
Comment: Several commenters stated that Medicare beneficiaries who
are transferred from an acute hospital to another hospital should not
receive the generic notice because they are still using their hospital
Medicare benefit days. Other commenters recommended that no notice be
required in the following situations: when a beneficiary is moved to
the same level of care or to a hospital that provides more complex
medical/surgical care, when there is an emergency transfer from a
psychiatric hospital to an acute care hospital for an acute problem,
when a beneficiary is discharged to a rehabilitation hospital,
psychiatric hospital or skilled nursing facility when the hospital has
been waiting for a bed in one of those facilities. Another commenter
requested that CMS distinguish between inter-hospital transfers and
intra-hospital transfers.
Response: Although this comment was made in response to the
proposed generic notice that is required to be given prior to
discharge, we believe that it is important to restate that, in the
context of the final rule, hospitals are required to deliver the IM at
or near admission to all beneficiaries and enrollees with a copy at or
near discharge except in short stay situations. For purposes of this
rule, and consistent with the revised definition of discharge at Sec.
405.1205 and Sec. 422.620, any patient who is formally released from a
hospital, whether that patient is going to another inpatient hospital,
to a lower level of care such as a SNF (even a swing bed within the
hospital), or to home, is considered discharged from that hospital.
Comment: A few commenters said that the proposed notice process
conflicted with other federal regulations that prohibit Medicare
beneficiaries from being treated differently from other hospital
patients. These commenters stated that the notice requirements give
Medicare beneficiaries rights to which other patients are not entitled.
None of these commenters cited a specific rule.
Response: Although the hospital conditions of participation do
establish standards that hospitals must meet for all patients, these
final notice requirements stem directly from sections 1866(a)(1)(M) and
section 1869(c)(3)(C)(iii)(III) of the Act and are only applicable to
Medicare beneficiaries. However, without further specifics on which
federal regulations the commenters are talking about, we are unable to
address these comments.
IV. Provisions of the Final Regulations
The key provisions of this final rule are as follows:
Section 405.1205(a) defines the scope of this rule for
original Medicare and, as stated above, includes a revised definition
of discharge consistent with Sec. 412.4.
Section 405.1205(b) states that hospitals must deliver
valid, written notice of hospital discharge rights using a standardized
notice specified by CMS.
As discussed earlier, this section has been revised to reflect the
substitution of the IM for the generic notice and describes the revised
notice delivery timeframes, the required content of the notice, and
valid delivery requirements, including beneficiary signature, as stated
above.
Section 405.1205(c) outlines the requirements for the
follow-up copy of the signed notice, as previously described, including
timeframes for delivery of the copy.
Section 405.1206(a) describes a beneficiary's right to
request an expedited determination.
Section 405.1206(b) explains the process for requesting an
expedited determination by a QIO including the timeframes for
requesting such an appeal, which as discussed in earlier sections, has
been amended to require that a beneficiary must submit a request for a
QIO review no later than the day of discharge.
This paragraph also explains the conditions for financial liability
[[Page 68717]]
protections including when the beneficiary makes an untimely request
for a QIO review.
Section 405.1206(c) states that the burden of proof lies
with the hospital to demonstrate that discharge is the appropriate
decision, and Sec. 405.1206(d) describes the procedures that the QIO
must follow in reviewing a discharge, including notification
requirements for timely and untimely requests.
Section 405.1206(e) explains the responsibilities of
hospitals in the expedited determination process, including the
delivery and content requirements of the detailed notice. Although a
description of the applicable Medicare coverage rules or other Medicare
policy is still required, as discussed above, we have removed the
requirement that the notice must list specific citations to the
applicable Medicare policy rules.
Section 405.1206(f) describes the specific financial
liability protections and limitations, including the beneficiary's
right to pursue a reconsideration or appeal through the general claims
appeals process.
Section 405.1208 describes the process for when a hospital
requests a QIO review because the physician does not concur with the
hospital's determination that inpatient hospital care should end. We
have made one technical change in this paragraph by adding a cross
reference to Sec. 405.1206(f)(4), in order to clarify beneficiary
liability when the QIO concurs with the hospital's determination.
Section 412.42(c)(3) includes a cross-reference to the
notice and appeal provisions set forth in Sec. 405.1205 and Sec.
405.1206 and clearly establishes that the provision of the appropriate
expedited review notices would be one of the prerequisites before a
hospital could charge a beneficiary for continued hospital services.
Section 422.620(a) defines the scope of this rule for MA
enrollees and, as indicated above, includes a revised definition of
discharge consistent with Sec. 412.4.
Section 422.620(b) requires hospitals to deliver valid,
written notice of hospital discharge rights using a standardized notice
specified by CMS. This section describes the revised provisions
regarding notice delivery timeframes, the content of the notice, and
valid delivery requirements, including enrollee signature.
Section 422.620(c) outlines the requirements for the
follow-up copy of the signed notice previously discussed, including
timeframes for delivery of the copy.
Section 422.622(a) describes an enrollee's right to
request an immediate review by a QIO.
Section 422.622(b) explains the process for requesting an
immediate review including the timeframes for requesting such an appeal
and the conditions for financial liability protections, including when
the enrollee makes an untimely request for a QIO review.
Section 422.622(b)(1), as described above, states that an
enrollee must submit a request for a QIO review no later than the day
of discharge.
Section 422.622(c) states that the burden of proof lies
with the MA organization to demonstrate that discharge is the
appropriate decision, and Sec. 422.622(d) describes the procedures
that the QIO must follow, including notification requirements for
timely and untimely requests.
Section 422.622(e) explains the responsibilities of the MA
organizations and hospitals in the immediate review process, including
the delivery and content requirements of the detailed notice. Although
a description of the applicable Medicare coverage rules or other
Medicare policy is still required, as stated above, we have removed the
requirement that the notice must list specific citations to the
applicable Medicare policy rules.
Section 422.622(f) describes the specific financial
liability protections and limitations, including the enrollee's right
to pursue a reconsideration or appeal through the standard appeal
process.
Section 489.27(a) has been revised to state that hospitals
must furnish each Medicare beneficiary or enrollee the notice of
discharge rights under section 1866(a)(1)(M) of the Act in accordance
with Sec. 405.1205 and Sec. 422.620. We have also made two technical
changes to Sec. 489.27(b) to add cross references to requirements for
other notices associated with expedited or immediate QIO reviews in
both the hospital and non-hospital settings.
First, current Sec. 489.27 contains a cross reference to Sec.
405.1202. We inadvertently omitted this reference from the proposed
rule, so we are adding it back in this final rule. Second, we are
adding a reference to Sec. 405.1206, the detailed notice in this rule.
Therefore, Sec. 489.27(b) states that hospitals and other providers
participating in the Medicare program must provide the applicable
notices in advance of discharge or termination, as required under Sec.
405.1200, Sec. 405.1202, Sec. 405.1206, and Sec. 422.624.
V. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, we are required to
provide 30-day notice in the Federal Register and solicit public
comment when a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
The information collection requirement associated with
administering the hospital discharge notice is subject to the PRA.
Several commenters addressed the burden associated with the
proposed notice provisions, and these comments are discussed in detail
above in section III of this final rule. As discussed there, this final
rule contains changes to these provisions based on public comments. Our
estimates of the revised information collection requirements are set
forth below, and we welcome further comments on these issues during the
Paperwork Reduction Act approval process.
Section 405.1205 Notifying Beneficiaries of Hospital Discharge Appeal
Rights
As discussed in detail in section III of this preamble, this final
rule does not include the proposed requirements with respect to
delivering a separate, standardized generic notice. Instead, we have
modified the existing IM in order to provide the information about
discharge appeal rights. The IM is currently approved under OMB
0938-0692 and will be revised to reflect any additional
burden and the following PRA requirements associated with this final
rule.
The hospital must provide, explain, and obtain the beneficiary
signature (or that of his or her representative) on the IM within 2
calendar days of admission, followed by delivery of a copy of the
signed IM no more than 2 calendar days before discharge, in accordance
with the requirements and procedures set forth
[[Page 68718]]
in this rule. If the date the signed IM is delivered falls within 2
calendar days of discharge, no additional copy is given.
Since the IM is already required by statute to be provided to all
Medicare beneficiaries who are admitted to the hospital (at an
estimated delivery time of 1 minute per notice) and the notice would be
disseminated during the normal course of related business activities,
we estimate that, to explain the form and obtain a signature, it would
take hospitals an extra 11 minutes on average to explain and provide a
signed IM. We thus use an average of 12 minutes, meaning that some
beneficiaries will be able to read and understand the notice in less
time, and some beneficiaries will need more time and assistance reading
and understanding the notice. In 2003, there were approximately 11.3
million fee-for-service Medicare inpatient hospital discharges. The
total annual burden associated with this requirement is 2,071,667
hours. We estimate that approximately 60 percent of the beneficiaries
will receive a copy of the signed IM in order to meet the requirements
that a copy of the IM also be delivered no more than 2 days before
discharge. We estimate that it will take 3 minutes to deliver a copy of
the signed IM to the roughly 6.78 million beneficiaries. We estimate
that the total annual burden associated with the requirement will be
339,000 hours.
Section 405.1206 Expedited Determination Procedures for Inpatient
Hospital Care
Section 405.1206(b) requires any beneficiary wishing to exercise
the right to an expedited determination to submit a request, in writing
or by telephone, to the QIO that has an agreement with the hospital. We
project that 1 percent of the 11.3 million fee-for-service
beneficiaries who are discharged from inpatient hospital settings,
(that is, 113,000 beneficiaries) will request an expedited
determination. This estimate is based on our experience with the non-
hospital expedited determination process in both original Medicare and
MA, where approximately 1 percent of patients request an expedited
review. However, we believe that this estimate may be high, given
previous use of a standard discharge notice, the NODMAR in managed care
settings showed an appeal rate of less than .5 percent.
The burden associated with this requirement is the time and effort
it would take for the beneficiary to either write or call the QIO to
request an expedited determination. We estimate it would take 5 minutes
(average) per request. Therefore, the total estimated burden hours
associated with this requirement is 9,417 hours.
Section 405.1206(e) requires hospitals to deliver a detailed notice
of discharge to the beneficiary and to make available to the QIO (and
to the beneficiary upon request) a copy of that notice and any
necessary supporting documentation. Hospitals are presently responsible
for providing the Hospital Issued Notice of Non-Coverage (HINN) when a
beneficiary disagrees with the discharge. Therefore, we believe that
the detailed notice will not constitute a new burden, but will
essentially replace the time associated with filling out and delivering
the HINN. We believe that, in addition to the time it currently takes
to complete the HINN, an extra 60 minutes is sufficient for filling out
and delivering the detailed notice.
Therefore, for these 113,000 cases, we estimate that it would take
providers an average of 60 extra minutes to prepare the detailed
termination notice and to prepare a case file for the QIO. Based on
113,000 cases, the total annual burden associated with this proposed
requirement is approximately 113,000 hours.
Section 422.620 Notifying Enrollees of Hospital Discharge Appeal Rights
The hospital must provide, explain, and obtain the enrollee's
signature (or that of the representative) on the IM within 2 days of
admission, followed by delivery of a copy of the signed IM no more than
2 calendar days before discharge in accordance with the requirements
and procedures set forth in this rule. If the date the signed IM is
delivered falls within 2 calendar days of discharge, no additional copy
is given.
Again, we estimate that it would take hospitals an average of 11
extra minutes to explain and provide a signed IM. In 2003, there were
approximately 1.7 million Medicare health plan inpatient hospital
discharges. The total annual burden associated with this proposed
requirement is 311,667 hours.
As mentioned above, we estimate that it will take 3 minutes
(average) to deliver a copy of the signed IM to approximately 60
percent of the 1.7 million inpatient enrollees. We estimate that the
total annual burden associated with delivering a copy to 1.02 million
enrollees will be 51,000 hours.
Section 422.622 Requesting Immediate QIO Review of Decision To
Discharge From Inpatient Hospital Care
This section states that an enrollee who wishes to appeal a
determination by a Medicare health plan or hospital that inpatient care
is no longer necessary, may request QIO review of the determination. On
the date the QIO receives the enrollee's request, it must notify the
plan that the enrollee has filed a request for immediate review. The
plan in turn must deliver a detailed notice to the enrollee.
Again, we project that 1 percent of affected enrollees that is,
17,000 enrollees, will request an immediate review. We estimate that it
will take 5 minutes (average) for an enrollee who chooses to exercise
his or her right to an immediate review to contact the QIO. For these
17,000 cases, the total estimated burden is 1,417 hours.
As specified in Sec. 422.622(c) and (d), Medicare health plans
would be required under this rule to deliver a detailed notice to the
enrollee and to make a copy of that notice and any necessary supporting
documentation available to the QIO (and to the enrollee upon request).
Plans are presently responsible for providing the NODMAR when an
enrollee disagrees with the discharge or he or she is being moved to a
lower level of care. Therefore, we believe that the detailed notice
will not constitute a new burden, but will essentially replace the time
associated with filling out and delivering the NODMAR. We believe that,
in addition to the time it currently takes to complete the NODMAR, an
extra 60 minutes is sufficient for filling out and delivering the
detailed notice.
Therefore, we estimate that it would take plans an extra 60 minutes
to prepare the detailed notice and to prepare a case file for the QIO.
Based on 17,000 cases, the total annual burden associated with this
requirement is approximately 17,000 hours.
The information above is summarized in the table below:
[[Page 68719]]
Aggregate Hourly Burden for This Requirement
----------------------------------------------------------------------------------------------------------------
Time per Fee-for-
Notices delivery service Managed care Annual burden
(minutes) beneficiaries enrollees hours
----------------------------------------------------------------------------------------------------------------
First IM........................................ 11 11.3 million 1.7 million 2,383,334
Copy of IM...................................... 3 6.78 million 1.02 million 390,000
Detailed Notice................................. 60 113,000 17,000 140,834
---------------------------------------------------------------
Total Burden................................ .............. .............. .............. 2,914.168
----------------------------------------------------------------------------------------------------------------
The aggregate new hourly burden estimate associated with this final
rule is 2,914,168 hours per year. The burden increase is mainly due to
the extra 11 minutes on average to explain and provide a signed IM. As
discussed above, the estimate of the hourly burden associated with the
new IM does not include the burden associated with current OMB
0938-0962, which is now estimated at 1 minute per delivery.
There are no current burden estimates for delivery of the HINN or the
NODMAR. As noted above, the actual burden will be developed through the
PRA process.
If you comment on these information collection and record keeping
requirements, please mail copies directly to the following:
Centers for Medicare & Medicaid Services, Office of Strategic
Operations and Regulatory Affairs, Division of Regulations Development,
Attn.: Melissa Musotto, CMS-4105-F, Room C5-14-03, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
Office of Information and Regulatory Affairs, Office of Management and
Budget, Room 10235, New Executive Office Building, Washington, DC
20503, Attn: Carolyn Lovett, CMS Desk Officer, CMS-4105-F, [email protected]. Fax (202) 395-6974.
VI. Regulatory Impact Statement
A. Overall Impact
We have examined the impact of this final rule as required by
Executive Order 12866 (September 1993, Regulatory Planning and Review),
the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-
354), section 1102(b) of the Social Security Act, the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which
merely reassigns responsibility of duties) directs agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major rules with
economically significant effects ($100 million or more in any 1 year).
This final rule will not reach the economic threshold and thus is not
considered a major rule.
The RFA requires agencies to analyze options for regulatory relief
of small businesses. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and small government
jurisdictions. Most hospitals and most other providers and suppliers
are small entities, either by nonprofit status or by having revenues of
$6 million to $29 million in any 1 year. For purposes of this RFA, all
providers affected by this regulation are considered to be small
entities.
We did not prepare analyses for either the RFA or section 1102(b)
of the Act because we have determined that this final rule will not
have a significant economic impact on a substantial number of small
entities. (We estimate a total cost of approximately $15,200 per
provider as discussed below.) Although a regulatory impact analysis is
not mandatory for this final rule, we believe it is appropriate to
discuss the possible impacts of the new discharge notice on
beneficiaries, enrollees, and hospitals, regardless of the monetary
threshold of that impact. Therefore, a brief voluntary discussion of
the anticipated impact of this final rule is presented below.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 604 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a Metropolitan
Statistical Area and has fewer than 100 beds. We do not expect these
entities to be significantly impacted.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. That threshold
level is currently approximately $120 million. This final rule did not
require an assessment under the Unfunded Mandates Reform Act.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. Since this regulation will not impose any costs on State
or local governments, the requirements of E.O. 13132 are not
applicable.
B. Overview of the Changes
This final rule sets forth new requirements for hospital discharge
notices for all Medicare inpatient hospital discharges. This final rule
specifies that hospitals must provide, explain, and have signed by the
beneficiary (or his or her representative) the modified Important
Message for Medicare (IM) within 2 calendar days of admission, followed
by delivery of a copy of the signed IM no later than 2 calendar days
prior to discharge (if 2 or more days have passed since the original IM
was signed). Additionally, a detailed notice must be delivered if the
beneficiary requests a QIO review of the decision. As discussed above,
these notices would replace existing notice requirements under which
only those beneficiaries who express dissatisfaction with a hospital's
(or Medicare health plan's, if applicable) discharge determination or
whose level of care is being lowered in the same facility, receive a
notice of describing the right to a QIO review in detail. In general,
we believe that these changes will enhance the rights of all Medicare
beneficiaries who are hospital inpatients without imposing undue
paperwork or
[[Page 68720]]
financial burdens on hospitals or Medicare health plans.
C. Notifying Beneficiaries and Enrollees of Hospital Discharge Appeal
Rights (Sec. 405.1205 and Sec. 422.620)
We project that providers will be responsible for explaining and
delivering (and obtaining the beneficiary's or representative's
signature) the IM to approximately 13 million Medicare beneficiaries
per year. This includes about 11.3 million fee-for-service
beneficiaries and 1.7 million MA enrollees. The IM is already required
by statute to be provided to all Medicare beneficiaries at an estimated
time of 1 minute per notice. Therefore, as discussed above, we estimate
that it will take approximately 11 extra minutes on average to explain
and deliver a signed IM, at a cost of approximately $5.50 (based on no
more than $30 per hour rate if the notice is delivered by health care
personnel). Based on an estimated 13 million notices annually, we
estimate the cost of delivering these new notices to be roughly $71.5
million. We estimate that it will take 3 minutes to deliver a copy of
the IM to 7.8 million beneficiaries (we assume that 60 percent of
inpatient stays will involve delivering a signed copy of the IM since,
for short stays, hospitals may only need to deliver the IM once). We
estimate that the cost of delivering these copies will be $11.7
million. Since there are roughly 6,000 affected hospitals, the total
average costs associated with this provision would be roughly $13,900
per provider. We believe that this impact is significantly outweighed
by the benefits of establishing a clear, consistent, accountable
process for ensuring that all Medicare beneficiaries are made aware of
their statutory discharge rights on a timely basis, without interfering
with the hospital discharge process.
D. Providing Beneficiaries and Enrollees With a Detailed Explanation of
the Discharge Decision (Sec. 405.1206 and Sec. 422.622)
As discussed in section V of this final rule (Information
Collection section), we project that providers will be responsible for
delivering detailed notices to approximately 1 percent of the 13
million Medicare beneficiaries per year, or 130,000 beneficiaries and
enrollees. The detailed notice will provide a detailed explanation of
why services are either no longer reasonable and necessary or are
otherwise no longer covered; a description of any relevant Medicare
(and Medicare health plan as applicable) coverage rule, instruction, or
other Medicare policy, and information about how the beneficiary may
obtain a copy of the Medicare policy, facts specific to the beneficiary
and relevant to the coverage determination that are sufficient to
advise the beneficiary of the applicability of the coverage rule or
policy to his or her case; and any other information required by CMS.
Hospitals and plans are presently responsible for providing the HINN or
the NODMAR when a beneficiary disagrees with the discharge or he or she
is being moved to a lower level of care. As discussed earlier, the
detailed notice will essentially replace the HINN and NODMAR.
Therefore, we believe that, in addition to the time it currently takes
to complete the HINN and NODMAR, an extra 60 minutes is sufficient for
filling out and delivering the detailed notice. We estimate the per-
notice cost will average $30, based on a $30 per hour rate if the
notice is prepared and delivered by health care personnel. Based on an
estimated 130,000 notices annually, we estimate the aggregate cost of
delivering these notices to be roughly $3.9 million. Since there are
roughly 6000 affected hospitals, the average costs associated with this
provision would be about $650 per provider.
We do not anticipate that the provisions of this final rule will
have a significant financial impact on individual hospitals. We note
that the actual discharge notices must be approved through OMB's
Paperwork Reduction Act process and are also subject to public comment.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
List of Subjects
42 CFR Part 405
Administrative practice and procedure, Health facilities, Health
professions, Kidney diseases, Medical devices, Medicare, Reporting and
recordkeeping requirements, Rural areas, X-rays.
42 CFR Part 412
Administrative practice and procedure, Health facilities, Medicare,
Puerto Rico, Reporting and record keeping requirements.
42 CFR Part 422
Administrative practice and procedure, Health facilities, Health
maintenance organizations (HMO), Medicare Advantage, Penalties,
Privacy, Provider-sponsored organizations (PSO), Reporting and
recordkeeping requirements.
42 CFR Part 489
Health facilities, Medicare, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, the Centers for Medicare &
Medicaid Services amends 42 CFR chapter IV as set forth below:
PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED
0
1. The authority citation for part 405 continues to read as follows:
Authority: Secs. 1102, 1861, 1862(a), 1866, 1869, 1871, 1874,
1881 and 1886(k) of the Social Security Act (42 U.S.C. 1302, 1395cc,
1395ff, 1395x, 1395y(a), 1395hh, 1395kk, 1395rr and 1395ww(k)), and
sec. 353 of the Public Health Service Act (42 U.S.C. 263a).
Subpart J--Expedited Determinations and Reconsiderations of
Provider Service Terminations, and Procedures for Inpatient
Hospital Discharges
0
2. Section 405.1205 is added to read as follows:
Sec. 405.1205 Notifying beneficiaries of hospital discharge appeal
rights.
(a) Applicability and scope. (1) For purposes of Sec. 405.1204,
Sec. 405.1205, Sec. 405.1206, and Sec. 405.1208, the term
``hospital'' is defined as any facility providing care at the inpatient
hospital level, whether that care is short term or long term, acute or
non acute, paid through a prospective payment system or other
reimbursement basis, limited to specialty care or providing a broader
spectrum of services. This definition includes critical access
hospitals.
(2) For purposes of Sec. 405.1204, Sec. 405.1205, Sec. 405.1206,
and Sec. 405.1208, a discharge is a formal release of a beneficiary
from an inpatient hospital.
(b) Advance written notice of hospital discharge rights. For all
Medicare beneficiaries, hospitals must deliver valid, written notice of
a beneficiary's rights as a hospital inpatient, including discharge
appeal rights. The hospital must use a standardized notice, as
specified by CMS, in accordance with the following procedures:
(1) Timing of notice. The hospital must provide the notice at or
near admission, but no later than 2 calendar days following the
beneficiary's admission to the hospital.
(2) Content of the notice. The notice must include the following
information:
(i) The beneficiary's rights as a hospital inpatient including the
right to benefits for inpatient services and for post-hospital services
in accordance with 1866(a)(1)(M) of the Act.
(ii) The beneficiary's right to request an expedited determination
of the
[[Page 68721]]
discharge decision including a description of the process under Sec.
405.1206, and the availability of other appeals processes if the
beneficiary fails to meet the deadline for an expedited determination.
(iii) The circumstances under which a beneficiary will or will not
be liable for charges for continued stay in the hospital in accordance
with 1866(a)(1)(M) of the Act.
(iv) A beneficiary's right to receive additional detailed
information in accordance with Sec. 405.1206(e).
(v) Any other information required by CMS.
(3) When delivery of the notice is valid. Delivery of the written
notice of rights described in this section is valid if--
(i) The beneficiary (or the beneficiary's representative) has
signed and dated the notice to indicate that he or she has received the
notice and can comprehend its contents, except as provided in paragraph
(b)(4) of this section; and
(ii) The notice is delivered in accordance with paragraph (b)(1) of
this section and contains all the elements described in paragraph
(b)(2) of this section.
(4) If a beneficiary refuses to sign the notice. The hospital may
annotate its notice to indicate the refusal, and the date of refusal is
considered the date of receipt of the notice.
(c) Follow up notification. (1) The hospital must present a copy of
the signed notice described in paragraph (b)(2) of this section to the
beneficiary (or beneficiary's representative) prior to discharge. The
notice should be given as far in advance of discharge as possible, but
not more than 2 calendar days before discharge.
(2) Follow up notification is not required if the notice required
under Sec. 405.1205(b) is delivered within 2 calendar days of
discharge.
0
3. Section Sec. 405.1206 is revised to read as follows:
Sec. 405.1206 Expedited determination procedures for inpatient
hospital care.
(a) Beneficiary's right to an expedited determination by the QIO. A
beneficiary has a right to request an expedited determination by the
QIO when a hospital (acting directly or through its utilization review
committee), with physician concurrence, determines that inpatient care
is no longer necessary.
(b) Requesting an expedited determination. (1) A beneficiary who
wishes to exercise the right to an expedited determination must submit
a request to the QIO that has an agreement with the hospital as
specified in Sec. 476.78 of this chapter. The request must be made no
later than the day of discharge and may be in writing or by telephone.
(2) The beneficiary, or his or her representative, upon request by
the QIO, must be available to discuss the case.
(3) The beneficiary may, but is not required to, submit written
evidence to be considered by a QIO in making its decision.
(4) A beneficiary who makes a timely request for an expedited QIO
review in accordance with paragraph (b)(1) of this section is subject
to the financial liability protections under paragraphs (f)(1) and
(f)(2) of this section, as applicable.
(5) A beneficiary who fails to make a timely request for an
expedited determination by a QIO, as described in paragraph (b)(1) of
this section, and remains in the hospital without coverage, still may
request an expedited QIO determination at any time during the
hospitalization. The QIO will issue a decision in accordance with
paragraph (d)(6)(ii) of this section, however, the financial liability
protection under paragraphs (f)(1) and (f)(2) of this section does not
apply.
(6) A beneficiary who fails to make a timely request for an
expedited determination in accordance with paragraph (b)(1) of this
section, and who is no longer an inpatient in the hospital, may request
QIO review within 30 calendar days after the date of discharge, or at
any time for good cause. The QIO will issue a decision in accordance
with paragraph (d)(6)(iii) of this section; however, the financial
liability protection under paragraphs (f)(1) and (f)(2) of this section
does not apply.
(c) Burden of proof. When a beneficiary (or his or her
representative, if applicable) requests an expedited determination by a
QIO, the burden of proof rests with the hospital to demonstrate that
discharge is the correct decision, either on the basis of medical
necessity, or based on other Medicare coverage policies. Consistent
with paragraph (e)(2) of this section, the hospital should supply any
and all information that a QIO requires to sustain the hospital's
discharge determination.
(d) Procedures the QIO must follow. (1) When the QIO receives the
request for an expedited determination under paragraph (b)(1) of this
section, it must immediately notify the hospital that a request for an
expedited determination has been made.
(2) The QIO determines whether the hospital delivered valid notice
consistent with Sec. 405.1205(b)(3).
(3) The QIO examines the medical and other records that pertain to
the services in dispute.
(4) The QIO must solicit the views of the beneficiary (or the
beneficiary's representative) who requested the expedited
determination.
(5) The QIO must provide an opportunity for the hospital to explain
why the discharge is appropriate.
(6)(i) When the beneficiary requests an expedited determination in
accordance with paragraph (b)(1) of this section, the QIO must make a
determination and notify the beneficiary, the hospital, and physician
of its determination within one calendar day after it receives all
requested pertinent information.
(ii) When the beneficiary makes an untimely request for an
expedited determination, and remains in the hospital, consistent with
paragraph (b)(5) of this section, the QIO will make a determination and
notify the beneficiary, the hospital, and the physician of its
determination within 2 calendar days following receipt of the request
and pertinent information.
(iii) When the beneficiary makes an untimely request for an
expedited determination, and is no longer an inpatient in the hospital,
consistent with paragraph (b)(6) of this section, the QIO will make a
determination and notify the beneficiary, the hospital, and physician
of its determination within 30 calendar days after receipt of the
request and pertinent information.
(7) If the QIO does not receive the information needed to sustain a
hospital's decision to discharge, it may make its determination based
on the evidence at hand, or it may defer a decision until it receives
the necessary information. If this delay results in extended Medicare
coverage of an individual's hospital services, the hospital may be held
financially liable for these services, as determined by the QIO.
(8) When the QIO issues an expedited determination, the QIO must
notify the beneficiary, the physician, and hospital of its decision by
telephone, followed by a written notice that must include the following
information:
(i) The basis for the determination.
(ii) A detailed rationale for the determination.
(iii) An explanation of the Medicare payment consequences of the
determination and the date a beneficiary becomes fully liable for the
services.
(iv) Information about the beneficiary's right to a reconsideration
[[Page 68722]]
of the QIO's determination as set forth in Sec. 405.1204, including
how to request a reconsideration and the time period for doing so.
(e) Responsibilities of hospitals. (1) When a QIO notifies a
hospital that a beneficiary has requested an expedited determination,
the hospital must deliver a detailed notice to the beneficiary as soon
as possible but no later than noon of the day after the QIO's
notification. The detailed notice must include the following
information:
(i) A detailed explanation why services are either no longer
reasonable and necessary or are otherwise no longer covered.
(ii) A description of any applicable Medicare coverage rule,
instruction, or other Medicare policy, including information about how
the beneficiary may obtain a copy of the Medicare policy.
(iii) Facts specific to the beneficiary and relevant to the
coverage determination that are sufficient to advise the beneficiary of
the applicability of the coverage rule or policy to the beneficiary's
case.
(iv) Any other information required by CMS.
(2) Upon notification by the QIO of the request for an expedited
determination, the hospital must supply all information that the QIO
needs to make its expedited determination, including a copy of the
notices required as specified in Sec. 405.1205 (b) and (c) and
paragraph (e)(1) of this section. The hospital must furnish this
information as soon as possible, but no later than by noon of the day
after the QIO notifies the hospital of the request for an expedited
determination. At the discretion of the QIO, the hospital must make the
information available by phone or in writing (with a written record of
any information not transmitted initially in writing).
(3) At a beneficiary's (or representative's) request, the hospital
must furnish the beneficiary with a copy of, or access to, any
documentation that it sends to the QIO, including written records of
any information provided by telephone. The hospital may charge the
beneficiary a reasonable amount to cover the costs of duplicating the
documentation and/or delivering it to the beneficiary. The hospital
must accommodate such a request by no later than close of business of
the first day after the material is requested.
(f) Coverage during QIO expedited review--(1) General rule and
liability while QIO review is pending. If the beneficiary remains in
the hospital past midnight of the discharge date ordered by the
physician, and the hospital, the physician who concurred with the
discharge determination, or the QIO subsequently finds that the
beneficiary requires inpatient hospital care, the beneficiary is not
financially responsible for continued care (other than applicable
coinsurance and deductible) until the hospital once again determines
that the beneficiary no longer requires inpatient care, secures
concurrence from the physician responsible for the beneficiary's care
or the QIO, and notifies the beneficiary with a notice consistent with
405.1205 (c).
(2) Timely filing and limitation on liability. If a beneficiary
files a request for an expedited determination by the QIO in accordance
with paragraph (b)(1) of this section, the beneficiary is not
financially responsible for inpatient hospital services (other than
applicable coinsurance and deductible) furnished before noon of the
calendar day after the date the beneficiary (or his or her
representative) receives notification (either orally or in writing) of
the expedited determination by the QIO.
(3) Untimely request and liability. When a beneficiary does not
file a request for an expedited determination by the QIO in accordance
with paragraph (b) of this section, but remains in the hospital past
the discharge date, that beneficiary may be held responsible for
charges incurred after the date of discharge or as otherwise stated by
the QIO.
(4) Hospital requests an expedited review. When the hospital
requests a review in accordance with Sec. 405.1208, and the QIO
concurs with the hospital's discharge determination, a hospital may not
charge the beneficiary until the date specified by the QIO.
(g) Effect of an expedited QIO determination. The QIO determination
is binding upon the beneficiary, physician, and hospital, except in the
following circumstances:
(1) Right to request a reconsideration. If the beneficiary is still
an inpatient in the hospital and is dissatisfied with the
determination, he or she may request a reconsideration according to the
procedures described in Sec. 405.1204.
(2) Right to pursue the general claims appeal process. If the
beneficiary is no longer an inpatient in the hospital and is
dissatisfied with this determination, the determination is subject to
the general claims appeal process.
0
4. In Sec. 405.1208 the following amendments are made:
0
A. In paragraph (a), redesignate the text after the heading ``General
rule'' as paragraph (a)(1) and add a new paragraph (a)(2) to read as
set forth below:
0
B. In paragraph (e)(1), in the third sentence, remove the words
``paragraph (d)(1) of this section'' and add in their place, ``Sec.
405.1204(b)(1)''.
Sec. 405.1208 Hospital requests expedited QIO review.
(a) General rule. (1) * * *
(2) When the hospital requests review, and the QIO concurs with the
hospital's discharge determination, a hospital may not charge a
beneficiary until the date specified by the QIO in accordance with
405.1206(f)(4).
* * * * *
PART 412--PROSPECTIVE PAYMENT SYSTEM FOR INPATIENT HOSPITAL
SERVICES
0
5. The authority citation from part 412 continues to read as follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh), Sec. 124 of Pub. L. 106-113, 113 Stat.
1515, and Sec. 405 of Pub. L. of 108-173, 117 Stat. 2266, 42 U.S.C.
1305. 1395.
0
6. Section 412.42(c) is amended by--
0
A. Republishing the introductory text.
0
B. Revising paragraphs(c)(2) and (c)(3) to read as follows:
Sec. 412.42 Limitations on charges to beneficiaries.
* * * * *
(c) Custodial care and medically unnecessary inpatient hospital
care. A hospital may charge a beneficiary for services excluded from
coverage on the basis of Sec. 411.15(g) of this chapter (custodial
care) or Sec. 411.15(k) of this chapter (medically unnecessary
services) and furnished by the hospital after all of the following
conditions have been met:
* * * * *
(2) The attending physician agrees with the hospital's
determination in writing (for example, by issuing a written discharge
order). If the hospital believes that the beneficiary does not require
inpatient hospital care but is unable to obtain the agreement of the
physician, it may request an immediate review of the case by the QIO as
described in Sec. 405.1208 of this chapter. Concurrence by the QIO in
the hospital's determination will serve in lieu of the physician's
agreement.
(3) The hospital (acting directly or through its utilization review
committee) notifies the beneficiary (or his or her representative) of
his or her discharge rights in writing consistent with Sec. 405.1205
and notifies the beneficiary, in accordance with Sec. 405.1206 of this
chapter (if applicable) that in the hospital's opinion, and with the
attending physician's concurrence
[[Page 68723]]
or that of the QIO, the beneficiary no longer requires inpatient
hospital care.
* * * * *
PART 422--MEDICARE ADVANTAGE PROGRAM
0
7. The authority citation for part 422 continues to to read as follows:
Authority: Secs. 1102, 1866, and 1871 of the Social Security Act
(42 U.S.C. 1302, 1395cc, and 1395hh).
0
8. Section 422.620 is revised to read as follows:
Sec. 422.620 Notifying enrollees of hospital discharge appeal rights.
(a) Applicability and scope. (1) For purposes of Sec. 422.620 and
Sec. 422.622, the term hospital is defined as any facility providing
care at the inpatient hospital level, whether that care is short term
or long term, acute or non acute, paid through a prospective payment
system or other reimbursement basis, limited to specialty care or
providing a broader spectrum of services. This definition also includes
critical access hospitals.
(2) For purposes of Sec. 422.620 and Sec. 422.622, a discharge is
a formal release of an enrollee from an inpatient hospital.
(b) Advance written notice of hospital discharge rights. For all
Medicare Advantage enrollees, hospitals must deliver valid, written
notice of an enrollee's rights as a hospital inpatient including
discharge appeal rights. The hospital must use a standardized notice,
as specified by CMS, in accordance with the following procedures:
(1) Timing of notice. The hospital must provide the notice at or
near admission, but no later than 2 calendar days following the
enrollee's admission to the hospital.
(2) Content of the notice. The notice of rights must include the
following information:
(i) The enrollee's rights as a hospital inpatient, including the
right to benefits for inpatient services and for post hospital services
in accordance with 1866(a)(1)(M) of the Act.
(ii) The enrollee's right to request an immediate review, including
a description of the process under Sec. 422.622 and the availability
of other appeals processes if the enrollee fails to meet the deadline
for an immediate review.
(iii) The circumstances under which an enrollee will or will not be
liable for charges for continued stay in the hospital in accordance
with 1866(a)(1)(M) of the Act.
(iv) The enrollee's right to receive additional information in
accordance with section Sec. 422.622(e).
(v) Any other information required by CMS.
(3) When delivery of notice is valid. Delivery of the written
notice of rights described in this section is valid if--
(i) The enrollee (or the enrollee's representative) has signed and
dated the notice to indicate that he or she has received the notice and
can comprehend its contents, except as provided in paragraph (b)(4) of
this section; and
(ii) The notice is delivered in accordance with paragraph (b)(1) of
this section and contains all the elements described in paragraph
(b)(2) of this section.
(4) If an enrollee refuses to sign the notice. The hospital may
annotate its notice to indicate the refusal, and the date of refusal is
considered the date of receipt of the notice.
(c) Follow up notification. (1) The hospital must present a copy of
the signed notice described in paragraph (b)(2) of this section to the
enrollee (or enrollee's representative) prior to discharge. The notice
should be given as far in advance of discharge as possible, but not
more than 2 calendar days before discharge.
(2) Follow up notification is not required if the notice required
under 422.620(b) is delivered within 2 calendar days of discharge.
(d) Physician concurrence required. Before discharging an enrollee
from the inpatient hospital level of care, the MA organization must
obtain concurrence from the physician who is responsible for the
enrollee's inpatient care.
0
9. Section 422.622 is revised to read as follows:
Sec. 422.622 Requesting immediate QIO review of the decision to
discharge from the inpatient hospital.
(a) Enrollee's right to an immediate QIO review. An enrollee has a
right to request an immediate review by the QIO when an MA organization
or hospital (acting directly or through its utilization committee),
with physician concurrence determines that inpatient care is no longer
necessary.
(b) Requesting an immediate QIO review. (1) An enrollee who wishes
to exercise the right to an immediate review must submit a request to
the QIO that has an agreement with the hospital as specified in Sec.
476.78 of this chapter. The request must be made no later than the day
of discharge and may be in writing or by telephone.
(2) The enrollee, or his or her representative, upon request by the
QIO, must be available to discuss the case.
(3) The enrollee may, but is not required to, submit written
evidence to be considered by a QIO in making its decision.
(4) An enrollee who makes a timely request for an immediate QIO
review in accordance with paragraph (b)(1) of this section is subject
to the financial liability protections under paragraph (f) of this
section, as applicable.
(5) When an enrollee does not request an immediate QIO review in
accordance with paragraph (b) of this section, he or she may request
expedited reconsideration by the MA organization as described in Sec.
422.584, but the financial liability rules of paragraph (f) of this
section do not apply.
(c) Burden of proof. When an enrollee (or his or her
representative, if applicable) requests an immediate review by a QIO,
the burden of proof rests with the MA organization to demonstrate that
discharge is the correct decision, either on the basis of medical
necessity, or based on other Medicare coverage policies. Consistent
with paragraph (e)(2) of this section, the MA organization should
supply any and all information that a QIO requires to sustain the
organization's discharge determination.
(d) Procedures the QIO must follow. (1) When the QIO receives the
enrollee's request for an immediate review under paragraph (b), the QIO
must notify the MA organization and the hospital that the enrollee has
filed a request for an immediate review.
(2) The QIO determines whether the hospital delivered valid notice
consistent with Sec. 422.620(b)(3).
(3) The QIO examines the medical and other records that pertain to
the services in dispute.
(4) The QIO must solicit the views of the enrollee (or his or her
representative) who requested the immediate QIO review.
(5) The QIO must provide an opportunity for the MA organization to
explain why the discharge is appropriate.
(6) When the enrollee requests an immediate QIO review in
accordance with paragraph (b)(1) of this section, the QIO must make a
determination and notify the enrollee, the hospital, the MA
organization, and the physician of its determination within one
calendar day after it receives all requested pertinent information.
(7) If the QIO does not receive the information needed to sustain
an MA organization's decision to discharge, it may make its
determination based on the evidence at hand, or it may defer a decision
until it receives the necessary information. If this delay results in
extended Medicare coverage of an individual's hospital services, the MA
[[Page 68724]]
organization may be held financially liable for these services, as
determined by the QIO.
(8) When the QIO issues its determination, the QIO must notify the
enrollee, the MA organization, the physician, and hospital of its
decision by telephone, followed by a written notice that must include
the following information:
(i) The basis for the determination.
(ii) A detailed rationale for the determination.
(iii) An explanation of the Medicare payment consequences of the
determination and the date an enrollee becomes fully liable for the
services.
(iv) Information about the enrollee's right to a reconsideration of
the QIO's determination as set forth in Sec. 422.626(f), including how
to request a reconsideration and the time period for doing so.
(e) Responsibilities of the MA organization and hospital. (1) When
the QIO notifies an MA organization that an enrollee has requested an
immediate QIO review, the MA organization must, directly or by
delegation, deliver a detailed notice to the enrollee as soon as
possible, but no later than noon of the day after the QIO's
notification. The detailed notice must include the following
information:
(i) A detailed explanation of why services are either no longer
reasonable and necessary or are no longer covered.
(ii) A description of any applicable Medicare coverage rule,
instruction, or other Medicare policy including information about how
the enrollee may obtain a copy of the Medicare policy from the MA
organization.
(iii) Any applicable MA organization policy, contract provision, or
rationale upon which the discharge determination was based.
(iv) Facts specific to the enrollee and relevant to the coverage
determination sufficient to advise the enrollee of the applicability of
the coverage rule or policy to the enrollee's case.
(v) Any other information required by CMS.
(2) Upon notification by the QIO of a request for an immediate
review, the MA organization must supply any and all information,
including a copy of the notices sent to the enrollee, as specified in
Sec. 422.620(b) and (c) and paragraph (e)(1) of this section, that the
QIO needs to decide on the determination. The MA organization must
supply this information as soon as possible, but no later than noon of
the day after the QIO notifies the MA organization that a request for
an expedited determination has been received from the enrollee. The MA
organization must make the information available by phone (with a
written record made of any information not transmitted initially in
writing) and/or in writing, as determined by the QIO.
(3) In response to a request from the MA organization, the hospital
must supply all information that the QIO needs to make its
determination, including a copy of the notices required as specified in
Sec. 422.620(b) and (c) and paragraph (e)(1) of this section. The
hospital must furnish this information as soon as possible, but no
later than by close of business of the day the MA organization notifies
the hospital of the request for information. At the discretion of the
QIO, the hospital must make the information available by phone or in
writing (with a written record of any information not transmitted
initially in writing).
(4) Upon an enrollee's request, the MA organization must provide
the enrollee a copy of, or access to, any documentation sent to the QIO
by the MA organization, including written records of any information
provided by telephone. The MA organization may charge the enrollee a
reasonable amount to cover the costs of duplicating the documentation
for the enrollee and/or delivering the documentation to the enrollee.
The MA organization must accommodate such a request by no later than
close of business of the first day after the day the material is
requested.
(f) Coverage during QIO expedited review. (1) An MA organization is
financially responsible for coverage of services as provided in this
paragraph, regardless of whether it has delegated responsibility for
authorizing coverage or discharge determinations to its providers.
(2) When the MA organization determines that hospital services are
not, or are no longer, covered,
(i) If the MA organization authorized coverage of the inpatient
admission directly or by delegation (or the admission constitutes
emergency or urgently needed care, as described in Sec. 422.2 and
Sec. 422.112(c)), the MA organization continues to be financially
responsible for the costs of the hospital stay when an appeal is filed
under paragraph (a)(1) of this section until noon of the day after the
QIO notifies the enrollee of its review determination, except as
provided in paragraph (b)(5) of this section. If coverage of the
hospital admission was never approved by the MA organization or the
admission does not constitute emergency or urgently needed care as
described in Sec. 422.2 and Sec. 422.112(c), the MA organization is
liable for the hospital costs only if it is determined on appeal that
the hospital stay should have been covered under the MA plan.
(ii) The hospital may not charge the MA organization (or the
enrollee) if--
(A) It was the hospital (acting on behalf of the enrollee) that
filed the request for immediate QIO review; and
(B) The QIO upholds the non-coverage determination made by the MA
organization.
(3) If the QIO determines that the enrollee still requires
inpatient hospital care, the MA organization must provide the enrollee
with a notice consistent with Sec. 422.620(c) when the hospital or MA
organization once again determines that the enrollee no longer requires
acute inpatient hospital care.
(4) If the hospital determines that inpatient hospital services are
no longer necessary, the hospital may not charge the enrollee for
inpatient services received before noon of the day after the QIO
notifies the enrollee of its review determination.
(g) Effect of an expedited QIO determination. The QIO determination
is binding upon the enrollee, physician, hospital, and MA organization
except in the following circumstances:
(1) Right to request a reconsideration. If the enrollee is still an
inpatient in the hospital and is dissatisfied with the determination,
he or she may request a reconsideration according to the procedures
described in Sec. 422.626(f).
(2) Right to pursue the standard appeal process. If the enrollee is
no longer an inpatient in the hospital and is dissatisfied with this
determination, the enrollee may appeal to an ALJ, the MAC, or a federal
court, as provided for under this subpart.
PART 489--PROVIDER AGREEMENTS AND SUPPLIER APPROVAL
0
10. The authority citation for part 489 continues to to read as
follows:
Authority: Secs. 1102, 1819, 1861, 1864(m), 1866, 1869, and 1871
of the Social Security Act (42 U.S.C. 1302, 1395i-3, 1395x,
1395aa(m), 1395cc, and 1395hh).
0
11. Section 489.27 is revised to read as follows:
Sec. 489.27 Beneficiary notice of discharge rights.
(a) A hospital that participates in the Medicare program must
furnish each Medicare beneficiary or enrollee, (or an individual acting
on his or her behalf), timely notice as required by section
1866(A)(1)(M) of the Act and in accordance with Sec. 405.1205 and
Sec. 422.620. The hospital must be able to demonstrate compliance with
this requirement.
[[Page 68725]]
(b) Notification by hospitals and other providers. Hospitals and
other providers (as identified at 489.2(b)) that participate in the
Medicare program must furnish each Medicare beneficiary, or
representative, applicable CMS notices in advance of discharge or
termination of Medicare services, including the notices required under
Sec. 405.1200, Sec. 405.1202, Sec. 405.1206, and Sec. 422.624 of
this chapter.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program) (Catalog of Federal Domestic Assistance Program
No. 93.773, Medicare--Hospital Insurance; and Program No. 93.774,
Medicare--Supplementary Medical Insurance Program)
Dated: October 13, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
Approved: November 15, 2006.
Michael O. Leavitt,
Secretary.
[FR Doc. E6-20131 Filed 11-24-06; 8:45 am]
BILLING CODE 4120-01-P