ElderLaw News-The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News
ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Beware Hospital “Outpatient” Observation Status

Picture this: You’re 80 years old and you suffer a fall that lands you in the hospital for a week. At the end of your stay, you are discharged to a rehab facility for three weeks of rehabilitation and skilled nursing care. The time you spend in the hospital and at rehab is stressful, but you rest assured knowing that you have Medicare coverage. Weeks later, the bills start pouring in, and you learn that Medicare has covered almost nothing. You now owe both the hospital and the rehab facility several thousand dollars. How did this happen?

Three words: Outpatient observation status. Hospital patients and their families are often blindsided by the effect of these words. Outpatient observation status is a billing code hospitals use to protect themselves from penalty by Medicare for admitting patients for treatment which Medicare believes should have been provided on an outpatient basis. Use of this code is on the rise, having doubled between 2006 and 2014, according to The Center for Medicare Advocacy. Unfortunately, this can result in Medicare patients who do not have Medicare Part B paying entirely out of pocket for their the full cost of their hospital stay, hospital prescriptions, and/or nursing facility (rehab) care following a hospital stay. The financial effects can be devastating.

Use of the word “outpatient” in this context is misleading. You may spend the night (or several nights) in a hospital and technically still be classified as outpatient. It has nothing to do with where you receive the care or what kind of treatment you receive.

To address the issue, Congress passed the Notice of Observation Treatment and Implication for Care Eligibility Act in 2015. The NOTICE Act requires hospitals to notify individuals who receive observation services as an outpatient for more than 24 hours with written and oral notification of the classification within 36 hours after they begin receiving the services. The notice must explain the individual’s status as an outpatient and the reasons for the classification. It must explain the implication of that status on services furnished, particularly the implications for cost-sharing requirements and subsequent coverage eligibility for services furnished by a skilled nursing facility. It must be written in “plain English” and be provided in the individual’s own language, and the individual or a person acting on his behalf must sign to acknowledge receipt of the notification. If the individual or his representative refuses to sign, the hospital staff who presents it must sign.

If you or a loved one is classified as outpatient observation status during a hospital stay, fighting the classification can be extremely difficult. The Center for Medicare Advocacy recommends the following:

• At the BEGINNING of a hospital stay, have a proactive discussion with the hospital about your classification. Don’t wait to receive a written notice; try to prevent the use of outpatient observation status from the start.

• Ask the hospital doctor to admit (or reclassify) you as an “inpatient,” based on needed care, tests, and treatments; then have your primary care physician call to support this request.

• File an appeal with Medicare if your nursing home (rehab) coverage is denied.

File a complaint with your state health department if you did not receive a notice about outpatient observation status.


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The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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