A bipartisan bill has been introduced in the U.S. Senate that would establish new guidelines for the Centers for Medicare and Medicaid Services by addressing the so-called “two midnight rule” issued last year by CMS. Part of the 2014 Inpatient Prospective Payment System finalized in August, under the new rule a Medicare beneficiary is automatically deemed to be an inpatient if their hospital stay spans more than two consecutive midnights.  

"While this approach addresses some longstanding issues for beneficiaries requiring longer hospital stays, it fails to acknowledge instances where it is medically necessary for a beneficiary to receive inpatient services for a period spanning less than two midnights," stated Senators Robert Menendez (D-N.J.) and Deb Fisher (R-Neb.) in a joint announcement.

"The rigid approach currently taken by this rule could lead to instances where a physician is unable to make the proper medical determination for a beneficiary’s treatment," they argued. "Almost immediately after CMS finalized the rule it became clear it was inherently flawed and the rule’s enforcement has been delayed on three separate occasions."

As the senators noted, the current enforcement delay - which was announced on January 30 - is in effect through September 30. However, Fisher and Menendez are not waiting around for enforcement of the rule to take effect.  

Their co-sponsored legislation, the Two-Midnight Rule Coordination and Improvement Act of 2014, would establish new CMS guidelines "in consolation with hospitals, physicians and other experts, to establish criteria and payment methodologies applicable to beneficiaries in need of short inpatient stays." In addition, while the bill "codifies the enforcement delays CMS has already imposed," it would also "ensure that hospitals are not subjected to potentially onerous audits while these criteria are being developed."

The proposed legislation has gotten endorsements from officials at the American Hospital Association and the Association of American Medical Colleges, among other groups. However, the American Coalition for Healthcare Claims Integrity, which represents Medicare Recovery Audit Contractors and contractors operating other government health audit programs, opposes the legislation.

The bill soon will be available at Congress.gov.

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