From the Washington Office


This month I am writing to encourage Fellows to contact their representatives and senators to ask that they support the Critical Access Hospital Relief Act, H.R. 169 and S. 258.

Approximately 2 years ago, surgeons working at Critical Access Hospitals (CAHs) began to encounter a new barrier to caring for their patients and in some cases have been forced to send patients to other hospitals far from their homes to receive care. The barrier responsible is contained in legislation originally passed in the Balanced Budget Act of 1997, the same legislation responsible for the sustainable growth rate (SGR) and the current caps on Medicare-sponsored graduate medical education positions.

Dr. Patrick V. Bailey

Dr. Patrick V. Bailey

Under current law, for facilities to qualify for Medicare certification and thus participate in the Medicare program itself, CAHs must meet minimum health and safety standards known as conditions of participation. In addition, the Centers for Medicare & Medicaid Services (CMS) imposes certain Medicare conditions of payment that must be met for a CAH to receive Medicare Part A reimbursement.

The CAH 96-hour rule imposes both a condition of participation and a condition of payment on CAHs. As mentioned above, though this provision has been in the law since 1997, it was not until fall of 2013 that the condition of payment began to be enforced. Prior to that time, only the condition of participation, requiring that acute inpatient care not exceed 96 hours per patient on an average basis, had been enforced by the CMS. Despite being written in the same legislation passed in 1997, the condition of payment was virtually unknown until September of 2013 when the CMS released a statement in a document pertaining to a related policy. At that time, it was indicated that the condition of payment in the 96-hour rule would be more strictly enforced. That condition of payment states that CAHs will receive Medicare Part A reimbursement only if the admitting physician certifies, at the time of admission, that the patient can reasonably be expected to be discharged or transferred within 96 hours. This was the first time many CAHs and the surgeons and other physicians working in such facilities had ever heard of the 96-hour rule’s condition of payment certification requirement.

Since the advisory was released, administrators at some CAHs have begun requiring surgeons to sign certifications upon admission stating that the patient being admitted can reasonably be expected to be discharged or transferred within 96 hours of admission. Obviously, this has caused great concern for surgeons and other providers serving populations who receive care in CAHs. Many surgeons practicing in such rural settings routinely perform procedures and provide care for surgical patients in those CAHs with expected stays likely to exceed 4 days. On the other hand, while any individual patient may require inpatient admission exceeding 96 hours, CAHs have generally not had difficulty maintaining the 96-hour average required by the condition of participation.

In response to the CMS notice on enforcement of the 96-hour rule, Representative Adrian Smith (R-Neb.) and Senator Pat Roberts (R-Kan.) introduced the Critical Access Hospital Relief Act (H.R. 169/S. 258). The legislation proposes to simply remove the 96-hour rule condition of payment, leaving in place the currently enforced 96-hour average patient stay required by the condition of participation. As of Aug. 26, 2015, there were 75 cosponsors (58 R and 17 D) in the House of Representatives for H.R. 169 and 30 cosponsors (19 R and 11 D) in the Senate for S. 258.

While it is unlikely this legislation will progress to the floor of either the House or Senate as a “standalone” bill, it is entirely possible that the Critical Access Hospital Relief Act could be included in a larger package of legislation moving in the coming months before Congress recesses for the holidays.

The American College of Surgeons strongly supports this straightforward legislation and we would urge Fellows, especially those who either serve populations receiving care in CAHs or those practicing in states with large numbers of CAHs, to contact their representatives and senators to request that they sign on as cosponsors of H.R. 169 or S. 258 and support the inclusion of the bill in any legislation coming to the floor of either chamber for a vote this year.

Until next month …

Dr. Bailey is a pediatric surgeon and Medical Director, Advocacy, for the Division of Advocacy and Health Policy, in the ACS offices in Washington.

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