BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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            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  








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            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. 










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          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.









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          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  








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               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  








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               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  








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                 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.









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          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  








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               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










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          California School Employees Association


          One individual


          Opposition


          Marin Healthcare District




          Analysis Prepared by:Lara Flynn / HEALTH / (916)  
          319-2097