ACS intervenes to resolve questions about the 96-hour rule

In the fall of 2013, the American College of Surgeons (ACS) listserv for rural surgery began receiving inquiries from surgeons at critical access hospitals (CAHs), who were getting requests from their administrators to sign certification that inpatients would reasonably be discharged within four days. Thus was the introduction of most rural surgeons, and the physicians and staff in the ACS Division of Advocacy and Health Policy (DAHP), to a minor clause in a long-standing federal law known as the 96-hour rule.

Background

The federal government created the CAH system as part of the Balanced Budget Act (BBA) of 1997 to ensure the financial viability of hospitals in remote rural areas, and thereby improve access to care for patients in these areas of the nation. In contrast to other hospitals, which are paid a set fee for patient hospital admissions under a diagnosis-related group (DRG) schedule, Medicare pays CAHs 101 percent of the actual hospital costs of caring for these patients. However, CAHs must comply with specific rules to participate in the program.

In the 1997 BBA, Congress defined both conditions of participation and conditions of payment for CAHs, requiring them to “provide acute inpatient beds… for a period not to exceed 96 hours.” In the 1999 Balanced Budget Refinement Act (BBRA), Congress changed the conditions of participation to a period that does not exceed, as determined on an annual average basis, 96 hours per patient.* This language change allowed surgeons in CAHs to care for patients who might require inpatient care exceeding 96 hours, as long as the average care for patients treated at these institutions on an annual basis remained at 96 hours or less. However, the conditions of payment were never updated to reflect the new language. The discrepancy was not noted in Washington, DC, until 2013, when new mandates regarding the two-midnight rule for inpatient admission were to take effect.

Administrators at the Centers for Medicare & Medicaid Services (CMS) began to notify rural CAHs that, in addition to the requirements for the two-midnight rule for hospital admissions, the conditions of payment in the BBA of 1997 would apply, which meant that CMS would not pay CAHs for inpatient stays exceeding 96 hours. According to posts on the rural surgery listserv, administrators at a handful of small hospitals began confronting surgeons about their compliance with the new requirements and asked the surgeons to sign attestations stating that their patients would be reasonably discharged within 96 hours. This new regulation would of course greatly restrict the patients who could receive health care services at a CAH.

From confusion, clarity

Members of the ACS Advisory Council for Rural Surgery (ACRS) responded to the listserv traffic and contacted the DAHP in Washington, DC. Vinita Ollapally, JD, ACS Regulatory Affairs Manager, investigated the 96-hour rule and learned that the only real option for overturning the 96-hour rule was legislative; Congress would have to pass a new law. Ms. Ollapally briefed the ACS leadership, including the ACS Health Policy Advisory Group (HPAG), individuals involved in the ACS grassroots advocacy program (ACS-SurgeonsVoice), and the ACRS on her findings.

Meanwhile, the American Hospital Association (AHA), the National Rural Healthcare Association (NRHA), and other professional societies were discovering the same information and rushing to develop a strategy to change the rule. ACS advocacy staff contacted these organizations and began to work on a plan.

A plan emerges

In early discussions, ACRS members and the DAHP staff, agreed that a multifaceted approach involving ACS-SurgeonsVoice was needed to mitigate the damage caused by the 96-hour rule, as even the best-laid plans in Washington often fall victim to politics, inaction, or unforeseeable events. The proposal presented at the December 2013 ACS Health Policy and Advocacy Group meeting featured a three-pronged strategy:

• Work with CMS to explore administrative options to offer relief from the rule
• Develop a legislative solution to repeal the 96-hour rule
• Inform surgeons and prepare them for the impact of the rule

ACS DAHP staff, along with their counterparts at the American Medical Association, AHA, and NRHA, began discussions with CMS staff to attempt to find solutions to the conflicting rules. In these discussions, CMS staff explained that they had limited ability to act, and due to the fact that the 96-hour rule was established under a federal law, only Congress could correct the unintended consequences of this legislation.

Nonetheless, the ACS DAHP staff realized that there were some means of mitigation. Because CMS had previously overlooked the mandate, prior violations would not be pursued. CMS also revealed that enforcement would be through audits of claims paid and Recovery Audit Contractor (RAC) recovery. Although CMS did not have the authority to simply “ignore” the rule, they did have some leeway in their approach to enforcement. DAHP’s involvement probably played a role in ensuring that no hospitals would be forced to repay CMS for these patients over the first six months of the 96-hour rules issued in 2013.

The College also prepared two educational documents: a PowerPoint presentation titled Critical Access Hospital 96-Hour Rule, and Advice For the Rural Surgeon Regarding the 96-Hour Rule. Both have been posted to the ACS rural listserv and uploaded to the rural community website (acscommunities.facs.org) for reference.

The third part of the strategy to resolve questions related to the 96-hour rule was legislative in nature, and led by members of DAHP, specifically John Hedstrom, JD, Deputy Director, and Matt Coffron, Government Affairs Associate. Once again engaging in collaborative efforts with other stakeholder organizations, the ACS began lobbying lawmakers for relief. Much of the early advocacy effort occurred at the grassroots level, with individual rural surgeons contacting members of Congress with whom they already had established relationships. The result of this effort was the quick (by Washington standards) introduction of S.B. 2037 and H.B. 3991, the Critical Access Hospital Relief Act. The bills were introduced in both houses in March by Sens. Pat Roberts (R-KS) and Jon Tester (D-MT) and Rep. Adrian Smith (R-NE). This legislation would change the wording of the conditions of payment to match that of the conditions of participation, allowing surgeons and CAHs to treat patients as they had been all along.

Gathering support

The College used several tools to successfully gather support for the bill. First, rural surgeons were mobilized on the listserv to contact their representatives and senators. A second wave of advocacy was initiated via the ACS-SurgeonsVoice action alerts, recruiting more surgeons to contact their legislators. At the ACS Leadership & Advocacy Summit in April, the 96-hour rule was designated an item for discussion for surgeons who were participating in Capitol Hill visits.

Around the time that surgeons were mobilizing to overturn the 96-hour rule, the ACS was involved in a larger attempt to repeal the sustainable growth rate (SGR) formula used to calculate Medicare physician payments. The political and economic climate of 2014 brought the medical community closer than ever to fully repealing the SGR, with bills making it through committees in both the House and Senate. Unfortunately, just before the Leadership & Advocacy Summit, Congress scratched the permanent SGR fix and rapidly adopted another temporary patch. This legislation contained some important provisions, however. One suspended implementation of the two-midnight rule—the regulation that brought the 96-hour rule to light. By suspending this provision, Congress essentially halted further administrative pursuit of the 96-hour rule, leaving CMS in limbo but taking the pressure off the CAHs.

These legislative efforts, especially grassroots lobbying by individuals, effectively generated support for the Critical Access Hospital Relief Act. At the end of July, the bill had 81 cosponsors in the House and 29 in the Senate. At press time, however, the legislation seemed to be languishing. Perhaps with the temporary patch for the SGR, attention is elsewhere, or, perhaps, the impending mid-term elections are preventing movement on some pieces of legislation. For whatever reason, H.R. 3991/S.B. 2037 had not been scored by the Congressional Budget Office, a necessary step for the passage of any bill.

Outlook

To ensure that Congress returns attention to the legislation, DAHP Medical Director of Advocacy, Patrick V. Bailey, MD, FACS, has brought up the legislation in meetings with the Congressional Medical Caucus (a group of legislators with medical backgrounds) and other congressional leaders. Dr. Bailey predicts that for the bill to succeed, it will need to be attached to a larger piece of legislation, such as an appropriations bill. However, he doesn’t foresee Congress acting on this issue until later this fall.

So, at press time, the 96-hour rule remained dormant, but still hung over the heads of surgeons in rural practices who use CAHs. The best source of relief will almost certainly emanate from new legislation. Knowing how important this issue is to rural surgeons and CAHs, the ACS DAHP, ACRS, and College leadership will continue their efforts to achieve passage of this legislation.

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*American Hospital Association. Critical care access hospitals. CAH legislative history. Accessed August 26, 2014.