An Observation on the “Observation Status” Law: It Doesn’t Work

The law, called the NOTICE Act, requires hospitals to notify patients hospitalized for more than 24 hours if they are on observation status. The law won’t go into effect until next August, which is great, because it could be better.

The way the law is written right now, it’s almost like asking a patient under anesthesia to sign a consent form. Within the first 24 hours of being admitted to the hospital for a medical event, many people—especially older people—aren’t able to focus on complicated issues of their status and its consequences.

Being on observation status has significant financial consequences. Observation status is considered outpatient service by Medicare. All care, supplies and procedures are covered under Part B, not Part A, and therefore are subject to Part B's higher deductible and co-pays. On top of that, most hospital pharmacies do not contract for Part D drug payments. Patients who have to take their normal medicines while under observation status will have to submit reimbursement requests to Medicare.

If a patient requires skilled nursing care after being discharged, Medicare will only pay for it following three days of inpatient hospitalization. Being on observation status—an outpatient—doesn't count toward the three-day requirement.

One Woman’s $3,900 Surprise

Jean Arnau, an 84-year-old who spent five days in the hospital with a fractured spine is a perfect example of how observation status poses consequences after discharge. She was in a hospital bed, wore a hospital gown and ID bracelet, ate hospital food and received regular nursing care.

When she was discharged and needed to transfer to a skilled nursing facility for rehabilitation, her family learned that she had never been formally admitted as an inpatient to the hospital at all. Instead, she'd been classified as an outpatient under observation and the nursing facility would charge almost $4000.

What To Do Until There’s a Real Fix

It’s great that the NOTICE Act requires patients receive “accurate, real-time information with respect to their classification, the services and benefits available to them, and the respective cost-sharing requirements they are subject to." It’s just that doing it within 24 hours of admission is too often not fair.

Talk to your clients, and their loved ones, before the need arises. The Center for Medicare Advocacy has put together a thorough packet explaining what your clients can do to protect themselves.

You can help by discussing these things with them:

• Urge them to ask about their status each day they are in the hospital. It can change from day to day.
• Tell them to ask the hospital doctor to reconsider your case or refer it to the hospital committee that decides status.
• Tell them to ask their primary care physician to state whether observation status is justified. If not, ask him or her to call the hospital to explain the medical reasons why you should be admitted as an inpatient.
• If they need rehab or other continuing care but learn that Medicare won't cover a a skilled nursing facility, tell them to ask their doctor if they qualify for similar care at home through Medicare's home health care benefit, or for Medicare-covered care in a rehabilitation hospital.
• After the fact, let them know they can appeal a Medicare decision of non-coverage. All the avenues for appeal are spelled out in the Center for Medicare Advocacy’s packet.

Preparing loved-ones before they are hospitalized isn't a fix to law, but it will empower future patients with a plan and knowledge of their rights. After having these conversations, patients will be more enabled to fight for their rights while Washington hopefully gets around to making much needed improvements to the law.

Phillip Lanier
Health Policy Intern
Health & Disability Advocates