BILL ANALYSIS Ó SB 1076 Page 1 Date of Hearing: June 28, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair SB 1076 (Hernandez) - As Amended April 18, 2016 SENATE VOTE: 32-5 SUBJECT: General acute care hospitals: observation services. SUMMARY: Requires a hospital patient receiving observation services, either in an inpatient or observation unit of a hospital, as defined, to be notified that they are on observations status. Specifically, this bill: 1)Defines observation services as outpatient services provided by a general acute care hospital and that have been ordered by a provider, to those patients who have unstable or uncertain conditions, potentially serious enough to warrant close observation, but not so serious as to warrant inpatient admission to the hospital. Specifies that observation services may include the use of a bed, monitoring by nursing and other staff, and any other services that are reasonable and necessary to safely evaluate a patient's condition or determine the need for a possible inpatient admission to the hospital. 2)Requires, when a patient in an inpatient unit of a hospital or SB 1076 Page 2 in an observation unit, as defined, is receiving observation services, or following a change in a patient's status from inpatient to observation, that the patient receive written notice that he or she is on observation status. 3)Requires the patient to receive the notice in writing, as soon as practicable. Requires the notice to state that while on observation status, the patient's care is being provided on an outpatient basis, which may affect his or her health care coverage reimbursement. 4)Defines "observation unit" as an area in which observation services are provided in a setting outside of any inpatient unit and that is not part of an emergency department of a general acute care hospital. 5)Allows a hospital to establish one or more observation units that must be marked with signage identifying the observation unit area as an outpatient area. Requires the signage to use the term "outpatient" in the title of the designated area to clearly indicate to all patients and family members that the observation services provided in the center are not inpatient services. 6)Specifies that identifying an observation unit by a name or term other than that used in these provisions does not exempt the hospital from compliance with these requirements. 7)Requires an observation unit to comply with the same licensed nurse-to-patient ratios as supplemental emergency services, as specified. 8)Requires hospitals, as part of their quarterly reports to the SB 1076 Page 3 Office of Statewide Health Planning and Development (OSHPD) to report observation service visits and the number of hours of observation services provided separately from the number of outpatient visits they report. Requires hospitals to also report total observation service gross revenues by payer, including Medicare, Medi-Cal, county indigent programs, other third parties, and other payers. EXISTING LAW: 1)Licenses general acute care hospitals under the California Department of Public Health (DPH). Defines general acute care hospitals as hospitals that provide 24-hour inpatient care, including the following basic services: medical; nursing; surgical; anesthesia; laboratory; radiology; pharmacy; and, dietary services. 2)Permits general acute care hospitals, in addition to the basic services all hospitals are required to offer, to be approved by DPH to offer special services, including, but not limited to, a radiation therapy department, a burn center, an emergency center, a hemodialysis center or unit, psychiatric services, intensive care newborn nursery, cardiac surgery, cardiac catheterization laboratory, and renal transplant. 3)Permits general acute care hospitals to apply to DPH for approval of supplemental outpatient clinic services. Limits the outpatient clinic services to providing nonemergency primary health care services in a clinical environment to patients who remain in the outpatient clinic for less than 24 hours. SB 1076 Page 4 4)Requires DPH to adopt regulations that establish nurse-to-patient ratios by hospital unit for all general acute care hospitals. Defines "hospital unit" as a critical care unit, burn unit, labor and delivery room, post-anesthesia service area, emergency department, operating room, pediatric unit, step-down/intermediate care unit, specialty care unit, telemetry unit, general medical care unit, subacute care unit, and transitional inpatient care unit. 5)Requires nurse-to-patient ratios in a hospital providing basic emergency medical services or comprehensive emergency medical services in an emergency department to be 1:4 or fewer at all times that patients are receiving treatment. 6)Establishes OSHPD, and designates OSHPD as the single state agency to collect specified health facility or clinic data for use by all state agencies. Requires hospitals to make specified reports to OSHPD, including quarterly summary financial and utilization data that includes the number of discharges, the number of inpatient days, the number of outpatient visits, total operating expenses, and inpatient and outpatient gross revenues by payer. FISCAL EFFECT: According to the Senate Appropriations Committee: 1)Ongoing costs, less than $50,000 per year, for additional licensing enforcement activity by DPH and Los Angeles County (Licensing and Certification Fund). Under this bill, DPH (and Los Angeles County, under contract with the state) would experience a minor increase in workload when performing licensing surveys of hospitals that provide observation services. SB 1076 Page 5 2)Ongoing costs of $100,000 per year (and an additional $10,000 in the first year) for OSHPD to amend existing regulations, update data reporting tools, and audit data reported by hospitals under this bill (California Health Data and Planning Fund). This bill requires hospitals that provide observation services to include specific data on observation services as part of the existing requirement for hospitals to report certain data to the state. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, this bill is intended to address problems associated with the growing trend of patients being treated under "observation status," as an outpatient, for extended periods of time. Outpatient services are not subject to many of the laws and regulations designed to ensure patient safety and adequate staffing standards in acute care hospitals. The author states that, often, patients are not even aware they have not been admitted to the hospital, even when they have been moved outside of the emergency room into a hospital bed and kept overnight. The author concludes that, additionally, hospitals are not required to report data to the state on observation service utilization, which leaves the public with a lack of information on how often and for what reasons outpatient observation services are used. 2)BACKGROUND. a) Two midnight rule. On August 2, 2013, the Centers for Medicare and Medicaid Services (CMS) issued a final rule updating its Medicare payment policies. This rule, commonly known as the two-midnight rule, states that inpatient admission, and therefore payment under Medicare SB 1076 Page 6 Part A, is generally only appropriate when the physician expects the patient to require a stay that crosses at least two midnights and admits the patient based on that expectation. If the physician does not expect the patient to stay in the hospital for at least two midnights, the expectation is that the patient will be treated as an outpatient, under "observation," and Medicare will reimburse providers under Part B. This has been controversial within the hospital community. The rule had been enforced by contractor audits that reviewed records of patients, and revoked payment for inpatient stays that did not meet the CMS two-midnight rule. In response to numerous complaints, in early 2014, CMS announced that it would delay enforcement of the rule through September 2014, and this delay was subsequently extended several times. Most recently, as part of the Medicare Access and Children's Health Insurance Program Reauthorization Act of 2015 that President Obama signed into law on April 16, 2015, the delay on enforcement was extended through September 30, 2015. b) Inpatient vs. outpatient. Medicare payment rates for inpatient and outpatient hospital stays differ. CMS pays acute care hospitals for inpatient stays under the Hospital Inpatient Prospective Payment System in the Medicare Part A program. CMS sets payment rates prospectively for inpatient stays based on the patient's diagnoses, procedures, and severity of illness. The Hospital Outpatient Prospective Payment System is paid under the Medicare Part B program and is a hybrid of a prospective payment system and a fee schedule, with some payments representing costs packaged into a primary service and SB 1076 Page 7 other payments representing the cost of a particular item, service, or procedure. c) Repercussions. In order to qualify for skilled nursing care, Medicare beneficiaries have to spend three days in the hospital as an inpatient. With CMS encouraging hospitals to treat shorter-stay patients as outpatients under observation, many Medicare patients are finding that one or more of their days spent in the hospital was as an outpatient, and despite spending more than three days in the hospital, they are not qualified to receive skilled nursing care upon discharge. Additionally, if services received in a hospital are billed under Part B as an outpatient, the Medicare beneficiary is likely to have to cover much higher out-of-pocket costs. d) Federal Notice of Observation, Treatment, and Implication for Care Eligibility (NOTICE) Act. Federal legislation passed last year, the NOTICE Act, requires Medicare patients to be notified when they are being held for observation rather than admitted. Under the NOTICE Act, the hospital is required to give each individual Medicare patient who receives observation services as an outpatient for more than 24 hours an adequate oral and written notification within 36 hours after the beginning of the observation service. Requires this oral and written notification to: i) Explain the individual's status as an outpatient and not as an inpatient and the reasons why; ii) Explain the implications of that status on services furnished (including those furnished as an inpatient), in particular the implications for cost-sharing requirements and subsequent coverage eligibility for services SB 1076 Page 8 furnished by a skilled nursing facility; iii) Include appropriate additional information; iv) Be written and formatted using plain language and made available in appropriate languages; and, v) Be signed by the individual or a person acting on the individual's behalf to acknowledge receipt of the notification. The NOTICE Act is scheduled to take effect in August of this year, and CMS is currently preparing rulemaking to implement this law. Several states already require observation care notices including: Connecticut, Maryland, New York, Pennsylvania, and Virginia. 3)SUPPORT. The California Nurses Association (CNA) is the sponsor of this bill and states that because observation units are considered an outpatient service, they are not subject to many of the laws and regulations designed to ensure patient safety and adequate staffing standards. CNA continues, many patients are not aware that they are in observation, leaving them to believe they are admitted as inpatients, which is especially concerning for patients who may need to be discharged to a long-term care facility, as Medicare requires patients to be admitted as inpatients for three days before coverage for long-term care will kick in. SB 1076 Page 9 The California School Employees Association (CSEA) supports this bill noting that for patient safety this bill requires the staffing in observation units to be the same as staffing emergency rooms, and CSEA believes that staffing requirements in observation units are important. The California Labor Federation (CLF) supports this bill stating the impact on patients of the misuse of observation units can be devastating. CLF notes that since observation services are considered outpatient care, patients can be billed for every individual service, test, and drug provided, rather than just paying a single co-pay for inpatient care that includes all services. 4)OPPOSITION. The Marin Healthcare District (MHD) writes in opposition that they believe the 1:4 nurse/patient ratio required by this bill is much too high for these low acuity patients, noting that the patients they place on observation status are not sick enough to be admitted to the hospital. MHD concludes that staffing levels should be left to the hospital to determine for these low acuity patients. 5)PREVIOUS LEGISLATION. a) SJR 8 (Hernandez), Resolution Chapter 135, Statutes of 2015, urged Congress and the President of the United States to reform short stay hospital admissions criteria to more accurately reflect the clinical needs of a patient as determined by a physician and to discontinue the so-called "two-midnight rule." b) SB 483 (Beall) of 2015 would have required a general acute care hospital that provides observation services in an observation unit, as defined, to apply for approval from DPH for observation services as a supplemental service, as SB 1076 Page 10 specified; limited observation services in an observation unit to 24 hours; required observation services in an observation unit to have the same staffing requirements as emergency services; and, required hospitals to report observation service data to OSHPD. SB 483 was held on the Senate Appropriations Committee Suspense File. c) SB 1269 (Beall) of 2014 was very similar to SB 483. SB 1269 was held on the Senate Appropriations Committee Suspense File. d) SB 1238 (Hernandez) of 2014 would have required an outpatient to either be discharged or admitted to inpatient status after no more than 24 hours, but permitted an outpatient stay of longer than 24 hours when discharge was imminent under certain specified circumstances, including when admission to inpatient status would directly conflict with federal Medicare reimbursement requirements. SB 1238 was held on the Senate Appropriations Committee Suspense File. REGISTERED SUPPORT / OPPOSITION: Support California Nurses Association (sponsor) California Labor Federation SB 1076 Page 11 California School Employees Association One individual Opposition Marin Healthcare District Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097