BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1076| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 1076 Author: Hernandez (D) Amended: 8/18/16 Vote: 21 SENATE HEALTH COMMITTEE: 8-1, 4/13/16 AYES: Hernandez, Hall, Mitchell, Monning, Nielsen, Pan, Roth, Wolk NOES: Nguyen SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/2/16 AYES: Lara, Beall, Hill, McGuire, Mendoza, Nielsen NOES: Bates SENATE FLOOR: 32-5, 5/12/16 AYES: Allen, Anderson, Beall, Block, Cannella, De León, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, McGuire, Mendoza, Mitchell, Monning, Moorlach, Nielsen, Pan, Pavley, Roth, Vidak, Wieckowski, Wolk NOES: Bates, Berryhill, Morrell, Nguyen, Stone NO VOTE RECORDED: Fuller, Liu, Runner ASSEMBLY FLOOR: 65-12, 8/22/16 - See last page for vote SUBJECT: General acute care hospitals: observation services SOURCE: California Nurses Association DIGEST: This bill establishes new requirements for observation services provided by a hospital, including that observation services provided in an outpatient observation unit comply with the same nurse-to-patient ratios as emergency services, and SB 1076 Page 2 requiring patients to receive written notice when they are receiving observation services in an inpatient unit of the hospital. Assembly Amendments delete the requirement that observation services be reported separately from other outpatient services to the Office of Statewide Health Planning and Development (OSHPD), and instead requires OSHPD to include summaries of observation services data, upon request, along with other summary data reports it already publishes. ANALYSIS: Existing law: 1)Licenses general acute care hospitals under the California Department of Public Health (CDPH). 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 CDPH 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 CDPH 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. 4)Requires CDPH 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 SB 1076 Page 3 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. This bill: 1)Defines "observation services," for purposes of this bill, 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. Permits observation services to 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)Defines "observation unit," for purposes of this bill, 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. 3)Permits a hospital to establish an observation unit, and requires these units to be marked with signage identifying the unit as an outpatient area to indicate clearly to all patients and family members that the observation services are not inpatient services. Requires observation services provided in an outpatient observation unit to comply with the same licensed nurse-to-patient ratios as supplemental emergency services, notwithstanding provisions of law that prohibit the state from enforcing higher standards for outpatient services located in a freestanding physical plant of a hospital than is required for licensed clinics. 4)Specifies that identifying an observation unit by another name or term does not exempt the hospital from compliance with the staffing and signage requirements in 3) above. 5)Requires a patient, when he or she is receiving observation SB 1076 Page 4 services in an inpatient or observation unit of a hospital, to receive written notice as soon as practicable that he or she is on observation status, and 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. 6)Requires, for purposes of a provision of existing law that requires OSHPD to compile and publish summaries of individual hospital and aggregate data for the purpose of public disclosure, to include summaries of observation services data upon request. Comments 1)Author's statement. 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. 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. 2)Medicare's two-midnight rule. California law has long drawn a distinction between outpatient medical care, which is care provided for less than 24 hours, and inpatient medical care, which is when a patient is formally admitted and will be spending at least one night in the hospital. However, third-party payers are increasingly unwilling to authorize inpatient admissions for patients who are not expected to have an extended stay at the hospital, and asking instead that these patients be kept in the hospital under "observation," as an outpatient. This has been driven, in part, by a Medicare policy known as the "two-midnight rule," which states that inpatient admission, and therefore payment under Medicare 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 SB 1076 Page 5 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 very 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 two-midnight rule. In response to numerous complaints, in early 2014, the Center for Medicare and Medicaid Services (CMS) announced that it would delay enforcement of the rule through September 2014, and this delay was subsequently extended several times. Beginning in January of this year, enforcement by recovery audits could proceed, but only for those hospitals that have been referred by a Quality Improvement Organization as exhibiting persistent noncompliance with the two-midnight rule. The two-midnight rule has had a number of repercussions. One issue that has been widely reported is that in order to qualify for skilled nursing care, Medicare beneficiaries have to spend three days in the hospital as an inpatient. With the CMS pushing 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, 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 shoulder much higher out-of-pocket costs. Finally, many hospitals and other providers are reporting that observation care is increasing across all types of payers, not just for Medicare patients. Medicare is frequently a trend-setter, and may be setting a trend of increasing use of outpatient "observation care," even for patients who spend 48 hours or more in a hospital. 3)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 SB 1076 Page 6 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: a) Explain the individual's status as an outpatient and not as an inpatient and the reasons why; b) 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 furnished by a skilled nursing facility; c) Include appropriate additional information; d) Be written and formatted using plain language and made available in appropriate languages; and, e) Be signed by the individual or a person acting on the individual's behalf to acknowledge receipt of the notification. Related/Prior Legislation 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." SB 483 (Beall, 2015) would have required a general acute care hospital that provides observation services in an observation unit, as defined, to apply for approval from the CDPH for observation services as a supplemental service, as specified; SB 1076 Page 7 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. SB 1269 (Beall, 2014) was very similar to SB 483. SB 1269 was held on the Senate Appropriations Committee Suspense File. SB 1238 (Hernandez, 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Assembly Appropriations Committee: 1)Ongoing costs, less than $50,000 per year, for additional licensing enforcement activity by CDPH and Los Angeles County (Licensing and Certification Fund). Under the bill, the Department (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. 2)Minor and absorbable costs to OSHPD to add data on observation services to existing reports (California Health Data and Planning Fund). SUPPORT: (Verified8/22/16) SB 1076 Page 8 California Nurses Association (source) California Alliance for Retired Americans California Labor Federation California Psychiatric Association California School Employees Association Tenet Health OPPOSITION: (Verified 8/22/16) Marin Healthcare District ARGUMENTS IN SUPPORT: This bill is sponsored by the California Nurses Association (CNA), which states that more and more, hospitals are placing patients who cannot be safely discharged to their homes in "observation units" as an alternative to hospital admission. CNA states that many patients are not aware that they are in observation, leaving them to believe they are admitted as inpatients. According to CNA, outpatient units are not subject to many of the laws and regulations designed to ensure patient safety and adequate staffing standards. CNA states that this bill will address these concerns by doing the following: requiring hospitals to require observation units to meet the nurse-to-patient staffing ratios as emergency rooms, or the applicable ratio wherever the observation bed is placed; and requiring hospitals to provide notice to patients that observation services are "outpatient" and that third-party reimbursement may be impacted. The California Labor Federation (CLF) states in support that hospitals have increased their use of observation services as a strategy to improve care, contain costs, control readmissions, and reduce emergency room overcrowding. However, CLF states that state and federal laws have not kept up with the dramatic increase in the use of observation units, and that the impact on patients of the misuse of observation units can be devastating. SB 1076 Page 9 Noting that observation services are considered outpatient care, CLF states that 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, and that patients might not even know they are in observation. ARGUMENTS IN OPPOSITION:Marin Healthcare District (MHD) states in opposition that this bill would require hospitals that have an observation unit to staff the unit at a 1:4 nurse-to-patient ratio, which is the same as an emergency department. According to MHD, this level of staffing is much too high for these low acuity patients. MHD states that the patients it places on observation status are not sick enough to be admitted to the hospital, and that the monitoring done for observation patients is typically limited to simple fluids and routine vitals (no complex monitoring). MHD points out that even when looking at the patients who are admitted, the nurse to patient ratio is at 1:5. MHD states that staffing levels should be left to the hospital to determine for these low acuity patients. ASSEMBLY FLOOR: 65-12, 8/22/16 AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Linder, Lopez, Low, Maienschein, Mathis, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood, Rendon NOES: Travis Allen, Bigelow, Brough, Dahle, Beth Gaines, Harper, Jones, Lackey, Obernolte, Patterson, Wagner, Wilk NO VOTE RECORDED: Kim, Mayes, Melendez SB 1076 Page 10 Prepared by:Vince Marchand / HEALTH / (916) 651-4111 8/22/16 22:15:46 **** END ****