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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1486 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1486

 To amend title XVIII of the Social Security Act to clarify and expand 
 on criteria applicable to patient admission to and care furnished in 
long-term care hospitals participating in the Medicare program, and for 
                            other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2011

Mr. Roberts (for himself, Mr. Nelson of Florida, Mr. Crapo, Mr. Wyden, 
 Mr. Toomey, and Mr. Heller) introduced the following bill; which was 
          read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL

 
 To amend title XVIII of the Social Security Act to clarify and expand 
 on criteria applicable to patient admission to and care furnished in 
long-term care hospitals participating in the Medicare program, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Long-Term Care 
Hospital Improvement Act of 2011''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Specification of criteria for patient preadmission, admission, 
                            and continuing stay assessments.
Sec. 3. Specification of core services and patient care requirements.
Sec. 4. Additional long-term care hospital payment classification 
                            criteria.
Sec. 5. Application of criteria for certain hospitals.

SEC. 2. SPECIFICATION OF CRITERIA FOR PATIENT PREADMISSION, ADMISSION, 
              AND CONTINUING STAY ASSESSMENTS.

    (a) In General.--Section 1861(ccc) of the Social Security Act (42 
U.S.C. 1395x(ccc)) is amended--
            (1) in paragraph (4)(A)--
                    (A) by inserting ``in accordance with paragraph 
                (2)'' after ``screens patients prior to admission for 
                appropriateness of admission to a long-term care 
                hospital'';
                    (B) by striking ``validates within 48 hours of 
                admission'' and inserting ``validates, in accordance 
                with paragraph (3), within 24 hours of admission'';
                    (C) by inserting ``in accordance with paragraph 
                (4)'' after ``regularly evaluates''; and
                    (D) by inserting ``in accordance with paragraph 
                (5)'' after ``assesses the available discharge 
                options'';
            (2) in paragraph (4), by redesignating subparagraphs (A), 
        (B), and (C) as clauses (i), (ii), and (iii), respectively;
            (3) by redesignating paragraphs (1), (2), (3), and (4) as 
        subparagraphs (A), (B), (C), and (D), respectively;
            (4) by inserting ``(1)'' after ``(ccc)''; and
            (5) by adding at the end the following new paragraphs:
    ``(2) An institution provides for screening of patients prior to 
admission in accordance with this paragraph by using a standardized 
preadmission patient screening process that meets the following 
criteria:
            ``(A)(i) Preadmission patient screening shall be conducted 
        by a clinical health care professional (as defined in clause 
        (ii)) who is licensed or certified by the State in which the 
        institution is located and permitted to conduct preadmission 
        patient screening (as defined in subparagraph (C)) within the 
        scope of practice of the professional under such State law.
            ``(ii) For purposes of clause (i), the term `clinical 
        health care professional' means a physician, a registered 
        professional nurse, a licensed practical or licensed vocational 
        nurse, a physician assistant, a respiratory therapist, and such 
        other clinical health care professionals as the Secretary may 
        specify.
            ``(B)(i) Except as provided in clause (ii), preadmission 
        patient screening shall be conducted during the 36-hour period 
        preceding admission of the patient to the institution.
            ``(ii) In the case of preadmission patient screening that 
        takes place before the 36-hour period described in clause (i), 
        such screening shall be updated by telephone or otherwise 
        during such 36-hour period.
            ``(C) In this paragraph, the term `preadmission patient 
        screening' means a process, with respect to a patient, for the 
        determination whether admission to a long-term care hospital 
        for care is medically reasonable and necessary for the patient 
        based on the following:
                    ``(i) The medical status of the patient.
                    ``(ii) The planned level of improvement in the 
                condition of the patient if admitted to the 
                institution.
                    ``(iii) Estimation of the expected length of stay 
                of the patient in the institution to achieve health 
                care goals with respect to the patient.
                    ``(iv) Evaluation of risk for clinical 
                complications of the patient.
                    ``(v) The primary and secondary diagnoses of the 
                patient for which treatment in the institution is 
                appropriate.
                    ``(vi) Identification of the primary treatments the 
                patient will need in the institution.
                    ``(vii) Evaluation of whether there is a more 
                appropriate treatment setting for the patient at a 
                lower level of care instead of in the institution.
                    ``(viii) The anticipated post-institutional 
                discharge settings and available treatments.
                    ``(ix) Such other clinical rationale for the 
                admission of the patient that the clinical health care 
                professional determines to be appropriate.
            ``(D) A patient may not be admitted to the institution 
        unless a physician (as defined in subsection (r)(1)) reviews 
        and concurs with the most current results of the preadmission 
        patient screening with respect to the patient and approves, in 
        advance, the admission of the patient to the institution.
    ``(3) An institution validates patients meeting admission criteria 
in accordance with this paragraph if, not later than 24 hours from the 
time of admission of a patient to the institution, the institution 
provides for a face-to-face evaluation of the patient by a physician 
(as defined in subsection (r)(1)) and, with respect to patients who are 
identified as medically appropriate for admission to the institution 
based on such evaluation, the physician attests that the patient meets 
the following patient admission criteria and provides in the medical 
record of the patient for the documentation of such attestation as well 
as any additional clinical rationale that the physician determines to 
be appropriate that establishes the medical reasonableness and 
necessity of furnishing care to the patient in the institution based on 
such admission criteria:
            ``(A) The patient has two or more active secondary 
        diagnoses.
            ``(B) It is reasonable to expect that the patient will--
                    ``(i) require the level of care furnished to an 
                inpatient of a hospital;
                    ``(ii) benefit from a medically necessary program 
                of care furnished by the institution; and
                    ``(iii) require an extended stay for care in a 
                hospital that is typical of the extended stays for care 
                provided by long-term care hospitals.
            ``(C)(i) The furnishing of intensive therapy (as defined in 
        clause (ii)) to the patient is not the primary medical 
        justification for the admission of the patient to the 
        institution.
            ``(ii) For purposes of clause (i), the term `intensive 
        therapy' means a program of physical or occupational therapy or 
        speech-language pathology services furnished three hours per 
        day, five days per week in such an institution or similar 
        institution such as a rehabilitation facility (as described in 
        section 1886(j)).
    ``(4) An institution regularly evaluates patients in accordance 
with this paragraph if--
            ``(A) not later than 7 days after the date of admission of 
        the patient to the institution, and weekly thereafter until 
        discharge, the institution provides for a face-to-face 
        evaluation of the patient by a physician (as defined in 
        subsection (r)(1)) to assess whether the continuation of the 
        furnishing of inpatient hospital services to the patient is 
        medically reasonable and necessary;
            ``(B) such an assessment is based on the medical 
        reasonableness and necessity of the continuation of the 
        furnishing of inpatient hospital services to the patient and is 
        not based on the admission criteria described in paragraph (3) 
        applicable to the patient; and
            ``(C) the physician performing the evaluation provides in 
        the medical record of the patient for the documentation of the 
        evaluation as well as any additional clinical rationale that 
        the physician determines to be appropriate that establishes the 
        medical reasonableness and necessity of the continuation of 
        inpatient hospital services for the patient in the institution 
        based on the outcome of each such evaluation.
    ``(5)(A) Subject to subparagraph (B), an institution assesses 
available discharge options in accordance with this paragraph if, upon 
a determination by a physician (as defined in subsection (r)(1)) that a 
patient admitted to the institution no longer requires the furnishing 
of hospital inpatient care, the patient is discharged from the 
institution when a safe and appropriate discharge option is available 
to the patient.
    ``(B)(i) In the case of a patient for whom a determination 
described in subparagraph (A) has been made but for whom a safe and 
appropriate discharge option is unavailable, such patient may continue 
as an inpatient of the institution for such period of days until a safe 
and appropriate discharge option is available to the patient.
    ``(ii) Clause (i) shall only apply if the institution--
            ``(I) notifies the patient that a determination described 
        in subparagraph (A) has been made with respect to that patient; 
        and
            ``(II) actively seeks to identify a safe and appropriate 
        discharge option that is available to the patient for the 
        furnishing of post long-term care hospital care.
    ``(iii) Subject to clause (ii), the period of days described in 
clause (i) shall be included for purposes of paragraph (1)(B) (relating 
to determination of average inpatient length of stay) but, for purposes 
of section 1886(m) (relating to prospective payment for inpatient 
hospital services furnished by long-term care hospitals), such days 
shall be paid at the lesser of such prospective payment amount or 
cost.''.
    (b) Effective Date.--The amendments made by subsection (a) shall--
            (1) take effect on the day that is six months after the 
        date of the enactment of this Act; and
            (2) apply with respect to cost reporting periods beginning 
        on or after the effective date described in paragraph (1).

SEC. 3. SPECIFICATION OF CORE SERVICES AND PATIENT CARE REQUIREMENTS.

    (a) In General.--Section 1861(ccc) of the Social Security Act (42 
U.S.C. 1395x(ccc)), as amended by section 2, is amended--
            (1) in paragraph (1)(D)(ii), by inserting ``, and meets the 
        requirements of paragraph (6)'' before the semicolon; and
            (2) by adding at the end the following new paragraph:
    ``(6) The following are the requirements of this paragraph 
applicable to an institution:
            ``(A) The types of items and services furnished to 
        inpatients of the institution include at least the following 
        items and services furnished by clinicians who are licensed or 
        certified by the State in which the services are furnished to 
        furnish such services:
                    ``(i) Complex respiratory services, including the 
                availability on site of respiratory therapists 24 hours 
                a day, 7 days a week and access to consultation by 
                pulmonologists 24 hours a day, 7 days a week.
                    ``(ii) Complex wound services, including provision 
                of wound care by registered nurses and access to 
                consultations by physicians (as defined in subsection 
                (r)(1)) for infectious disease.
                    ``(iii) Care for patients with medically complex 
                conditions.
                    ``(iv) The availability on site 24 hours a day, 7 
                days a week of advanced cardiac life support furnished 
                by health care personnel trained in advanced cardiac 
                life support.
            ``(B) The institution develops a plan of care for each 
        patient admitted to the institution which includes the 
        following:
                    ``(i) Not later than 24 hours after the time of 
                admission of a patient to the institution, a physician 
                (as defined in subsection (r)(1)) conducts an in-person 
                evaluation of the patient; begins to develop a plan of 
                care for the patient; and documents the clinical status 
                of the patient.
                    ``(ii) Not later than 7 days after the date of 
                admission of the patient to the institution, and weekly 
                thereafter until discharge, a physician-directed 
                interdisciplinary team establishes and updates, as 
                appropriate, an individualized plan of care for the 
                patient.
            ``(C) The institution provides that, 24 hours per day, 7 
        days per week, a physician (as defined in subsection (r)(1)) is 
        on-site or is on call and immediately available by telephone or 
        radio contact and available on site within 30 minutes (or 60 
        minutes in the case of an institution located in a rural area 
        (as defined for purposes of section 1886(d))). If a physician 
        (as so defined) is not on-site 24 hours per day, 7 days per 
        week, the institution shall furnish each patient (or their 
        representative), at the beginning of their stay at the 
        institution, notice of such fact. Such notice shall contain 
        such information as the Secretary determines appropriate.
            ``(D) The institution provides for on-site registered 
        nurses 24 hours per day, 7 days per week.''.
    (b) Effective Date.--The amendments made by subsection (a) shall--
            (1) take effect on the day that is six months after the 
        date of the enactment of this Act; and
            (2) apply with respect to cost reporting periods beginning 
        on or after the effective date described in paragraph (1).

SEC. 4. ADDITIONAL LONG-TERM CARE HOSPITAL PAYMENT CLASSIFICATION 
              CRITERIA.

    (a) In General.--Section 1861(ccc) of the Social Security Act (42 
U.S.C. 1395x(ccc)), as amended by sections 2 and 3, is amended--
            (1) in paragraph (1)--
                    (A) by striking ``and'' at the end of subparagraph 
                (C);
                    (B) by striking the period at the end of 
                subparagraph (D) and inserting ``; and''; and
                    (C) by adding at the end the following new 
                subparagraph:
                    ``(E) meets the requirements of paragraph 
                (7)(A).''; and
            (2) by adding at the end the following new paragraph:
    ``(7)(A) With respect to a 12-month period specified by the 
Secretary (which may be a cost reporting period) of a long-term care 
hospital for a fiscal year, the hospital meets the requirements of this 
subparagraph if each of the discharges comprising not less than the 
applicable percent (as defined in subparagraph (B)) of the total 
discharges of Medicare fee-for-service beneficiaries (as defined in 
subparagraph (C)) of such hospital for such period meets one or more of 
the following criteria:
            ``(i) The discharge has a length of stay of 25 days or 
        greater.
            ``(ii)(I) The discharge applies to an inpatient who was a 
        short-term acute care hospital outlier (as defined in subclause 
        (II)) immediately prior to admission to the long-term care 
        hospital.
            ``(II) For purposes of subclause (I), the term `short-term 
        acute care hospital outlier' means an inpatient discharge of a 
        subsection (d) hospital in which inpatient hospital services 
        were furnished for a diagnosis-related group or groups for 
        which a payment adjustment under section 1886(d)(5)(A) 
        (relating to outlier payments for subsection (d) hospitals) was 
        made to such subsection (d) hospital for such services 
        furnished to such inpatient.
            ``(iii) The discharge applies to an inpatient who received 
        ventilator services in the long-term care hospital.
            ``(iv) The discharge has three or more of any Medicare-
        Severity-Long-Term-Care-Diagnosis-Related-Group complications 
        and comorbidities or major complications and comorbidities.
    ``(B) For purposes of subparagraph (A), the term `applicable 
percentage' means--
            ``(i) with respect to the first 12-month period specified 
        by the Secretary of a long-term care hospital, 50 percent;
            ``(ii) with respect to the 12-month period specified by the 
        Secretary that begins after the 12-month period described in 
        clause (i), 60 percent;
            ``(iii) with respect to the 12-month period specified by 
        the Secretary that begins after the 12-month period described 
        in clause (ii)--
                    ``(I) in the case of a long-term care hospital that 
                is government-owned and operated, 65 percent; and
                    ``(II) in the case of a long-term care hospital 
                other than such a hospital described in subclause (I), 
                70 percent; and
            ``(iv) with respect to the 12-month period specified by the 
        Secretary that begins after the 12-month period described in 
        clause (iii) and each succeeding 12-month period so specified, 
        70 percent.
    ``(C) For purposes of subparagraph (A), the term `Medicare fee-for-
service beneficiary' means an individual who is entitled to benefits 
under part A and enrolled under part B who is not enrolled in an 
Medicare Advantage plan under part C.
    ``(D)(i) In the case of a determination by the Secretary that a 
long-term care hospital does not meet the criteria under subparagraph 
(A) with respect to a 12-month period or the criteria under paragraph 
(1)(B) (relating to average inpatient length of stay (as determined by 
the Secretary) of greater than 25 days) with respect to a cost 
reporting period--
            ``(I) the Secretary shall provide notice to such long-term 
        care hospital of such determination; and
            ``(II) the Secretary shall provide such long-term care 
        hospital a cure period (as defined in clause (ii)) to comply 
        with such criteria for purposes of such 12-month period or cost 
        reporting period, as the case may be.
    ``(ii) For purposes of clause (i)(II), the term `cure period' means 
a 6-month period, beginning on the first day of the first month that 
begins after the date of a notice under clause (i)(I) during which the 
hospital meets the criteria under subparagraph (A) or paragraph (1)(B), 
as the case may be, for not less than 5 months.
    ``(iii) In the case of a hospital for which a determination is made 
under clause (i) and with respect to which the Secretary finds, during 
the cure period, fails to meet the criteria under subparagraph (A) or 
paragraph (1)(B), as the case may be, for not less than 5 months, the 
Secretary shall provide notice to such hospital of such finding. Any 
change in the payment classification of such hospital under this title 
from a long-term care hospital to a subsection (d) hospital (as defined 
in section 1886(d)(1)(B)) as a result of a finding under this clause or 
a determination under clause (i), shall apply with respect to the next 
cost reporting beginning after the date of such finding.
    ``(iv) The provisions of section 1878 (relating to rights to a 
hearing before the Provider Reimbursement Review Board and judicial 
review) shall apply in the case of a long-term care hospital with 
respect to which the Secretary has made a determination under clause 
(i).''.
    (b) Effective Date.--The amendments made by subsection (a) shall--
            (1) take effect on the day that is six months after the 
        date of the enactment of this Act; and
            (2) apply with respect to 12-month periods (as specified by 
        the Secretary of Health and Human Services under section 
        1861(ccc)(7)(A) of the Social Security Act) beginning on or 
        after the effective date described in paragraph (1).
    (c) Regulations.--
            (1) Substitution.--
                    (A) In general.--The Secretary of Health and Human 
                Services (in this section referred to as the 
                ``Secretary'') shall promulgate regulations to carry 
                out the amendments made by this section by substituting 
                the criteria made applicable to long-term care 
                hospitals and facilities by reason of paragraph (7) of 
                section 1861(ccc) of the Social Security Act (42 U.S.C. 
                1395x(ccc)), as added by subsection (a)(2) (in this 
                subsection referred to as the ``section 1861(ccc)(7) 
                criteria''), for the payment adjustments applicable to 
                such hospitals under sections 412.534 and 412.536 of 
                title 42, Code of Federal Regulations (relating to 25 
                percent patient threshold payment adjustments), and 
                under any related section of such title. The Secretary 
                shall implement the substitution referred to in the 
                preceding sentence in a seamless manner such that 
                payment adjustments applicable to long-term care 
                hospitals and facilities under such sections 412.534 
                and 412.536, and other related sections, shall have no 
                force or effect in law with respect to periods 
                applicable to a long-term care hospital or facility 
                that begin after the substitution by the Secretary of 
                the section 1861(ccc)(7) criteria with respect to that 
                hospital or facility.
                    (B) Application prior to substitution.--Until such 
                time as the Secretary implements the substitution 
                described in this subparagraph (A), the modifications 
                to the payment adjustments under such sections 412.534 
                and 412.536, and other related sections, pursuant to 
                Public Law 110-173 (42 U.S.C. 1395ww note), as amended, 
                shall continue to apply.
            (2) Repeal.--Payment adjustments applicable to long-term 
        care hospitals and facilities under section 412.529(c)(3)(i) of 
        title 42, Code of Federal Regulations, shall have no force or 
        effect in law on or after the date of the enactment of this 
        Act.
            (3) Prohibition.--The Secretary shall not promulgate any 
        payment adjustment that is similar to the payment adjustments 
        referred to in paragraph (1) or (2).
    (d) No Application of Adjustment to Standard Amount.--
            (1) In general.--Notwithstanding any other provision of 
        law, the Secretary shall not make a one-time prospective 
        adjustment to long-term care hospital prospective payment rates 
        under section 412.523(d)(3) of title 42, Code of Federal 
        Regulations, or any similar provision.
            (2) Conforming amendment.--Section 114(c)(4) of the 
        Medicare, Medicaid, and SCHIP Extension Act of 2007 (42 U.S.C. 
        1395ww note), as amended by sections 3106(a) and 10312(a) of 
        the Patient Protection and Affordable Care Act (Public Law 111-
        148), is amended by striking ``, for the 5-year period 
        beginning on the date of the enactment of this Act,''.

SEC. 5. APPLICATION OF CRITERIA FOR CERTAIN HOSPITALS.

    (a) Section 1814(b)(3) Hospitals.--
            (1) In general.--Section 1861(ccc) of the Social Security 
        Act (42 U.S.C. 1395x(ccc)), as amended by sections 2, 3 and 4, 
        is amended by adding at the end the following new paragraph:
    ``(8) This subsection (other than paragraph (7)) shall apply to a 
long-term care hospital that is paid under section 1814(b)(3).''.
            (2) Effective date.--The amendments made by paragraph (1) 
        shall--
                    (A) take effect on the day that is six months after 
                the date of the enactment of this Act; and
                    (B) apply with respect to cost reporting periods 
                beginning on or after the effective date described in 
                subparagraph (A).
    (b) Exemption of Section 1886(d)(1)(B)(iv)(II) Hospitals.--Section 
1861(ccc) of the Social Security Act (42 U.S.C. 1395x(ccc)), as amended 
by sections 2, 3 and 4, and subsection (a) of this section, is amended 
by adding at the end the following new paragraph:
    ``(9) Paragraphs (2) through (8) of this subsection shall not apply 
to a long-term care hospital described in section 
1886(d)(1)(B)(iv)(II).''.
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