II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Long-Term Care Hospital Improvement Act of 2011’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

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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. 

1 SEC. 2. SPECIFICATION OF CRITERIA FOR PATIENT 

2 PREADMISSION, ADMISSION, AND CON3 TINUING STAY ASSESSMENTS. 

4 (a) IN GENERAL.—Section 1861(ccc) of the Social 

5 Security Act (42 U.S.C. 1395x(ccc)) is amended— 

6 (1) in paragraph (4)(A)— 

7 (A) by inserting ‘‘in accordance with para8 graph (2)’’ after ‘‘screens patients prior to ad9 mission for appropriateness of admission to a 

10 long-term care hospital’’; 

11 (B) by striking ‘‘validates within 48 hours 

12 of admission’’ and inserting ‘‘validates, in ac13 cordance with paragraph (3), within 24 hours 

14 of admission’’; 

15 (C) by inserting ‘‘in accordance with para16 graph (4)’’ after ‘‘regularly evaluates’’; and 

17 (D) by inserting ‘‘in accordance with para18 graph (5)’’ after ‘‘assesses the available dis19 charge options’’; 

20 (2) in paragraph (4), by redesignating subpara21 graphs (A), (B), and (C) as clauses (i), (ii), and 

22 (iii), respectively; 

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1 (3) by redesignating paragraphs (1), (2), (3), 

2 and (4) as subparagraphs (A), (B), (C), and (D), re3 spectively; 

4 (4) by inserting ‘‘(1)’’ after ‘‘(ccc)’’; and 

5 (5) by adding at the end the following new 

6 paragraphs: 

7 ‘‘(2) An institution provides for screening of patients 

8 prior to admission in accordance with this paragraph by 

9 using a standardized preadmission patient screening proc10 ess that meets the following criteria: 

11 ‘‘(A)(i) Preadmission patient screening shall be 

12 conducted by a clinical health care professional (as 

13 defined in clause (ii)) who is licensed or certified by 

14 the State in which the institution is located and per15 mitted to conduct preadmission patient screening (as 

16 defined in subparagraph (C)) within the scope of 

17 practice of the professional under such State law. 

18 ‘‘(ii) For purposes of clause (i), the term ‘clin19 ical health care professional’ means a physician, a 

20 registered professional nurse, a licensed practical or 

21 licensed vocational nurse, a physician assistant, a 

22 respiratory therapist, and such other clinical health 

23 care professionals as the Secretary may specify. 

24 ‘‘(B)(i) Except as provided in clause (ii), 

25 preadmission patient screening shall be conducted 

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1 during the 36-hour period preceding admission of 

2 the patient to the institution. 

3 ‘‘(ii) In the case of preadmission patient screen4 ing that takes place before the 36-hour period de5 scribed in clause (i), such screening shall be updated 

6 by telephone or otherwise during such 36-hour pe7 riod. 

8 ‘‘(C) In this paragraph, the term ‘preadmission 

9 patient screening’ means a process, with respect to 

10 a patient, for the determination whether admission 

11 to a long-term care hospital for care is medically 

12 reasonable and necessary for the patient based on 

13 the following: 

14 ‘‘(i) The medical status of the patient. 

15 ‘‘(ii) The planned level of improvement in 

16 the condition of the patient if admitted to the 

17 institution. 

18 ‘‘(iii) Estimation of the expected length of 

19 stay of the patient in the institution to achieve 

20 health care goals with respect to the patient. 

21 ‘‘(iv) Evaluation of risk for clinical com22 plications of the patient. 

23 ‘‘(v) The primary and secondary diagnoses 

24 of the patient for which treatment in the insti25 tution is appropriate. 

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1 ‘‘(vi) Identification of the primary treat2 ments the patient will need in the institution. 

3 ‘‘(vii) Evaluation of whether there is a 

4 more appropriate treatment setting for the pa5 tient at a lower level of care instead of in the 

6 institution. 

7 ‘‘(viii) The anticipated post-institutional 

8 discharge settings and available treatments. 

9 ‘‘(ix) Such other clinical rationale for the 

10 admission of the patient that the clinical health 

11 care professional determines to be appropriate. 

12 ‘‘(D) A patient may not be admitted to the in13 stitution unless a physician (as defined in subsection 

14 (r)(1)) reviews and concurs with the most current 

15 results of the preadmission patient screening with 

16 respect to the patient and approves, in advance, the 

17 admission of the patient to the institution. 

18 ‘‘(3) An institution validates patients meeting admis19 sion criteria in accordance with this paragraph if, not later 

20 than 24 hours from the time of admission of a patient 

21 to the institution, the institution provides for a face-to22 face evaluation of the patient by a physician (as defined 

23 in subsection (r)(1)) and, with respect to patients who are 

24 identified as medically appropriate for admission to the 

25 institution based on such evaluation, the physician attests 

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1 that the patient meets the following patient admission cri2 teria and provides in the medical record of the patient for 

3 the documentation of such attestation as well as any addi4 tional clinical rationale that the physician determines to 

5 be appropriate that establishes the medical reasonableness 

6 and necessity of furnishing care to the patient in the insti7 tution based on such admission criteria: 

8 ‘‘(A) The patient has two or more active sec9 ondary diagnoses. 

10 ‘‘(B) It is reasonable to expect that the patient 

11 will— 

12 ‘‘(i) require the level of care furnished to 

13 an inpatient of a hospital; 

14 ‘‘(ii) benefit from a medically necessary 

15 program of care furnished by the institution; 

16 and 

17 ‘‘(iii) require an extended stay for care in 

18 a hospital that is typical of the extended stays 

19 for care provided by long-term care hospitals. 

20 ‘‘(C)(i) The furnishing of intensive therapy (as 

21 defined in clause (ii)) to the patient is not the pri22 mary medical justification for the admission of the 

23 patient to the institution. 

24 ‘‘(ii) For purposes of clause (i), the term ‘inten25 sive therapy’ means a program of physical or occumstockstill on DSK4VPTVN1PROD with BILLS

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1 pational therapy or speech-language pathology serv2 ices furnished three hours per day, five days per 

3 week in such an institution or similar institution 

4 such as a rehabilitation facility (as described in sec5 tion 1886(j)). 

6 ‘‘(4) An institution regularly evaluates patients in ac7 cordance with this paragraph if— 

8 ‘‘(A) not later than 7 days after the date of ad9 mission of the patient to the institution, and weekly 

10 thereafter until discharge, the institution provides 

11 for a face-to-face evaluation of the patient by a phy12 sician (as defined in subsection (r)(1)) to assess 

13 whether the continuation of the furnishing of inpa14 tient hospital services to the patient is medically rea15 sonable and necessary; 

16 ‘‘(B) such an assessment is based on the med17 ical reasonableness and necessity of the continuation 

18 of the furnishing of inpatient hospital services to the 

19 patient and is not based on the admission criteria 

20 described in paragraph (3) applicable to the patient; 

21 and 

22 ‘‘(C) the physician performing the evaluation 

23 provides in the medical record of the patient for the 

24 documentation of the evaluation as well as any addi25 tional clinical rationale that the physician determstockstill on DSK4VPTVN1PROD with BILLS

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1 mines to be appropriate that establishes the medical 

2 reasonableness and necessity of the continuation of 

3 inpatient hospital services for the patient in the in4 stitution based on the outcome of each such evalua5 tion. 

6 ‘‘(5)(A) Subject to subparagraph (B), an institution 

7 assesses available discharge options in accordance with 

8 this paragraph if, upon a determination by a physician (as 

9 defined in subsection (r)(1)) that a patient admitted to 

10 the institution no longer requires the furnishing of hos11 pital inpatient care, the patient is discharged from the in12 stitution when a safe and appropriate discharge option is 

13 available to the patient. 

14 ‘‘(B)(i) In the case of a patient for whom a deter15 mination described in subparagraph (A) has been made 

16 but for whom a safe and appropriate discharge option is 

17 unavailable, such patient may continue as an inpatient of 

18 the institution for such period of days until a safe and 

19 appropriate discharge option is available to the patient. 

20 ‘‘(ii) Clause (i) shall only apply if the institution— 

21 ‘‘(I) notifies the patient that a determination 

22 described in subparagraph (A) has been made with 

23 respect to that patient; and 

24 ‘‘(II) actively seeks to identify a safe and ap25 propriate discharge option that is available to the 

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1 patient for the furnishing of post long-term care 

2 hospital care. 

3 ‘‘(iii) Subject to clause (ii), the period of days de4 scribed in clause (i) shall be included for purposes of para5 graph (1)(B) (relating to determination of average inpa6 tient length of stay) but, for purposes of section 1886(m) 

7 (relating to prospective payment for inpatient hospital 

8 services furnished by long-term care hospitals), such days 

9 shall be paid at the lesser of such prospective payment 

10 amount or cost.’’. 

11 (b) EFFECTIVE DATE.—The amendments made by 

12 subsection (a) shall— 

13 (1) take effect on the day that is six months 

14 after the date of the enactment of this Act; and 

15 (2) apply with respect to cost reporting periods 

16 beginning on or after the effective date described in 

17 paragraph (1). 

18 SEC. 3. SPECIFICATION OF CORE SERVICES AND PATIENT 

19 CARE REQUIREMENTS. 

20 (a) IN GENERAL.—Section 1861(ccc) of the Social 

21 Security Act (42 U.S.C. 1395x(ccc)), as amended by sec22 tion 2, is amended— 

23 (1) in paragraph (1)(D)(ii), by inserting ‘‘, and 

24 meets the requirements of paragraph (6)’’ before the 

25 semicolon; and 

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1 (2) by adding at the end the following new 

2 paragraph: 

3 ‘‘(6) The following are the requirements of this para4 graph applicable to an institution: 

5 ‘‘(A) The types of items and services furnished 

6 to inpatients of the institution include at least the 

7 following items and services furnished by clinicians 

8 who are licensed or certified by the State in which 

9 the services are furnished to furnish such services: 

10 ‘‘(i) Complex respiratory services, including 

11 the availability on site of respiratory therapists 

12 24 hours a day, 7 days a week and access to 

13 consultation by pulmonologists 24 hours a day, 

14 7 days a week. 

15 ‘‘(ii) Complex wound services, including 

16 provision of wound care by registered nurses 

17 and access to consultations by physicians (as 

18 defined in subsection (r)(1)) for infectious dis19 ease. 

20 ‘‘(iii) Care for patients with medically com21 plex conditions. 

22 ‘‘(iv) The availability on site 24 hours a 

23 day, 7 days a week of advanced cardiac life sup24 port furnished by health care personnel trained 

25 in advanced cardiac life support. 

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1 ‘‘(B) The institution develops a plan of care for 

2 each patient admitted to the institution which in3 cludes the following: 

4 ‘‘(i) Not later than 24 hours after the time 

5 of admission of a patient to the institution, a 

6 physician (as defined in subsection (r)(1)) con7 ducts an in-person evaluation of the patient; be8 gins to develop a plan of care for the patient; 

9 and documents the clinical status of the pa10 tient. 

11 ‘‘(ii) Not later than 7 days after the date 

12 of admission of the patient to the institution, 

13 and weekly thereafter until discharge, a physi14 cian-directed interdisciplinary team establishes 

15 and updates, as appropriate, an individualized 

16 plan of care for the patient. 

17 ‘‘(C) The institution provides that, 24 hours per 

18 day, 7 days per week, a physician (as defined in sub19 section (r)(1)) is on-site or is on call and imme20 diately available by telephone or radio contact and 

21 available on site within 30 minutes (or 60 minutes 

22 in the case of an institution located in a rural area 

23 (as defined for purposes of section 1886(d))). If a 

24 physician (as so defined) is not on-site 24 hours per 

25 day, 7 days per week, the institution shall furnish 

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1 each patient (or their representative), at the begin2 ning of their stay at the institution, notice of such 

3 fact. Such notice shall contain such information as 

4 the Secretary determines appropriate. 

5 ‘‘(D) The institution provides for on-site reg6 istered nurses 24 hours per day, 7 days per week.’’. 

7 (b) EFFECTIVE DATE.—The amendments made by 

8 subsection (a) shall— 

9 (1) take effect on the day that is six months 

10 after the date of the enactment of this Act; and 

11 (2) apply with respect to cost reporting periods 

12 beginning on or after the effective date described in 

13 paragraph (1). 

14 SEC. 4. ADDITIONAL LONG-TERM CARE HOSPITAL PAY15 MENT CLASSIFICATION CRITERIA. 

16 (a) IN GENERAL.—Section 1861(ccc) of the Social 

17 Security Act (42 U.S.C. 1395x(ccc)), as amended by sec18 tions 2 and 3, is amended— 

19 (1) in paragraph (1)— 

20 (A) by striking ‘‘and’’ at the end of sub21 paragraph (C); 

22 (B) by striking the period at the end of 

23 subparagraph (D) and inserting ‘‘; and’’; and 

24 (C) by adding at the end the following new 

25 subparagraph: 

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1 ‘‘(E) meets the requirements of paragraph 

2 (7)(A).’’; and 

3 (2) by adding at the end the following new 

4 paragraph: 

5 ‘‘(7)(A) With respect to a 12-month period specified 

6 by the Secretary (which may be a cost reporting period) 

7 of a long-term care hospital for a fiscal year, the hospital 

8 meets the requirements of this subparagraph if each of 

9 the discharges comprising not less than the applicable per10 cent (as defined in subparagraph (B)) of the total dis11 charges of Medicare fee-for-service beneficiaries (as de12 fined in subparagraph (C)) of such hospital for such pe13 riod meets one or more of the following criteria: 

14 ‘‘(i) The discharge has a length of stay of 25 

15 days or greater. 

16 ‘‘(ii)(I) The discharge applies to an inpatient 

17 who was a short-term acute care hospital outlier (as 

18 defined in subclause (II)) immediately prior to ad19 mission to the long-term care hospital. 

20 ‘‘(II) For purposes of subclause (I), the term 

21 ‘short-term acute care hospital outlier’ means an in22 patient discharge of a subsection (d) hospital in 

23 which inpatient hospital services were furnished for 

24 a diagnosis-related group or groups for which a pay25 ment adjustment under section 1886(d)(5)(A) (relatmstockstill on DSK4VPTVN1PROD with BILLS

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1 ing to outlier payments for subsection (d) hospitals) 

2 was made to such subsection (d) hospital for such 

3 services furnished to such inpatient. 

4 ‘‘(iii) The discharge applies to an inpatient who 

5 received ventilator services in the long-term care 

6 hospital. 

7 ‘‘(iv) The discharge has three or more of any 

8 Medicare-Severity-Long-Term-Care-Diagnosis-Relat9 ed-Group complications and comorbidities or major 

10 complications and comorbidities. 

11 ‘‘(B) For purposes of subparagraph (A), the term 

12 ‘applicable percentage’ means— 

13 ‘‘(i) with respect to the first 12-month period 

14 specified by the Secretary of a long-term care hos15 pital, 50 percent; 

16 ‘‘(ii) with respect to the 12-month period speci17 fied by the Secretary that begins after the 12-month 

18 period described in clause (i), 60 percent; 

19 ‘‘(iii) with respect to the 12-month period speci20 fied by the Secretary that begins after the 12-month 

21 period described in clause (ii)— 

22 ‘‘(I) in the case of a long-term care hos23 pital that is government-owned and operated, 

24 65 percent; and 

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1 ‘‘(II) in the case of a long-term care hos2 pital other than such a hospital described in 

3 subclause (I), 70 percent; and 

4 ‘‘(iv) with respect to the 12-month period speci5 fied by the Secretary that begins after the 12-month 

6 period described in clause (iii) and each succeeding 

7 12-month period so specified, 70 percent. 

8 ‘‘(C) For purposes of subparagraph (A), the term 

9 ‘Medicare fee-for-service beneficiary’ means an individual 

10 who is entitled to benefits under part A and enrolled under 

11 part B who is not enrolled in an Medicare Advantage plan 

12 under part C. 

13 ‘‘(D)(i) In the case of a determination by the Sec14 retary that a long-term care hospital does not meet the 

15 criteria under subparagraph (A) with respect to a 12- 

16 month period or the criteria under paragraph (1)(B) (re17 lating to average inpatient length of stay (as determined 

18 by the Secretary) of greater than 25 days) with respect 

19 to a cost reporting period— 

20 ‘‘(I) the Secretary shall provide notice to such 

21 long-term care hospital of such determination; and 

22 ‘‘(II) the Secretary shall provide such long-term 

23 care hospital a cure period (as defined in clause (ii)) 

24 to comply with such criteria for purposes of such 12- 

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1 month period or cost reporting period, as the case 

2 may be. 

3 ‘‘(ii) For purposes of clause (i)(II), the term ‘cure 

4 period’ means a 6-month period, beginning on the first 

5 day of the first month that begins after the date of a no6 tice under clause (i)(I) during which the hospital meets 

7 the criteria under subparagraph (A) or paragraph (1)(B), 

8 as the case may be, for not less than 5 months. 

9 ‘‘(iii) In the case of a hospital for which a determina10 tion is made under clause (i) and with respect to which 

11 the Secretary finds, during the cure period, fails to meet 

12 the criteria under subparagraph (A) or paragraph (1)(B), 

13 as the case may be, for not less than 5 months, the Sec14 retary shall provide notice to such hospital of such finding. 

15 Any change in the payment classification of such hospital 

16 under this title from a long-term care hospital to a sub17 section (d) hospital (as defined in section 1886(d)(1)(B)) 

18 as a result of a finding under this clause or a determina19 tion under clause (i), shall apply with respect to the next 

20 cost reporting beginning after the date of such finding. 

21 ‘‘(iv) The provisions of section 1878 (relating to 

22 rights to a hearing before the Provider Reimbursement 

23 Review Board and judicial review) shall apply in the case 

24 of a long-term care hospital with respect to which the Sec25 retary has made a determination under clause (i).’’. 

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1 (b) EFFECTIVE DATE.—The amendments made by 

2 subsection (a) shall— 

3 (1) take effect on the day that is six months 

4 after the date of the enactment of this Act; and 

5 (2) apply with respect to 12-month periods (as 

6 specified by the Secretary of Health and Human 

7 Services under section 1861(ccc)(7)(A) of the Social 

8 Security Act) beginning on or after the effective date 

9 described in paragraph (1). 

10 (c) REGULATIONS.— 

11 (1) SUBSTITUTION.— 

12 (A) IN GENERAL.—The Secretary of 

13 Health and Human Services (in this section re14 ferred to as the ‘‘Secretary’’) shall promulgate 

15 regulations to carry out the amendments made 

16 by this section by substituting the criteria made 

17 applicable to long-term care hospitals and facili18 ties by reason of paragraph (7) of section 

19 1861(ccc) of the Social Security Act (42 U.S.C. 

20 1395x(ccc)), as added by subsection (a)(2) (in 

21 this subsection referred to as the ‘‘section 

22 1861(ccc)(7) criteria’’), for the payment adjust23 ments applicable to such hospitals under sec24 tions 412.534 and 412.536 of title 42, Code of 

25 Federal Regulations (relating to 25 percent pamstockstill on DSK4VPTVN1PROD with BILLS

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1 tient threshold payment adjustments), and 

2 under any related section of such title. The Sec3 retary shall implement the substitution referred 

4 to in the preceding sentence in a seamless man5 ner such that payment adjustments applicable 

6 to long-term care hospitals and facilities under 

7 such sections 412.534 and 412.536, and other 

8 related sections, shall have no force or effect in 

9 law with respect to periods applicable to a long10 term care hospital or facility that begin after 

11 the substitution by the Secretary of the section 

12 1861(ccc)(7) criteria with respect to that hos13 pital or facility. 

14 (B) APPLICATION PRIOR TO SUBSTI15 TUTION.—Until such time as the Secretary im16 plements the substitution described in this sub17 paragraph (A), the modifications to the pay18 ment adjustments under such sections 412.534 

19 and 412.536, and other related sections, pursu20 ant to Public Law 110–173 (42 U.S.C. 1395ww 

21 note), as amended, shall continue to apply. 

22 (2) REPEAL.—Payment adjustments applicable 

23 to long-term care hospitals and facilities under sec24 tion 412.529(c)(3)(i) of title 42, Code of Federal 

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1 Regulations, shall have no force or effect in law on 

2 or after the date of the enactment of this Act. 

3 (3) PROHIBITION.—The Secretary shall not 

4 promulgate any payment adjustment that is similar 

5 to the payment adjustments referred to in paragraph 

6 (1) or (2). 

7 (d) NO APPLICATION OF ADJUSTMENT TO STAND8 ARD AMOUNT.— 

9 (1) IN GENERAL.—Notwithstanding any other 

10 provision of law, the Secretary shall not make a one11 time prospective adjustment to long-term care hos12 pital prospective payment rates under section 

13 412.523(d)(3) of title 42, Code of Federal Regula14 tions, or any similar provision. 

15 (2) CONFORMING AMENDMENT.—Section 

16 114(c)(4) of the Medicare, Medicaid, and SCHIP 

17 Extension Act of 2007 (42 U.S.C. 1395ww note), as 

18 amended by sections 3106(a) and 10312(a) of the 

19 Patient Protection and Affordable Care Act (Public 

20 Law 111–148), is amended by striking ‘‘, for the 5- 

21 year period beginning on the date of the enactment 

22 of this Act,’’. 

23 SEC. 5. APPLICATION OF CRITERIA FOR CERTAIN HOS24 PITALS. 

25 (a) SECTION 1814(b)(3) HOSPITALS.— 

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1 (1) IN GENERAL.—Section 1861(ccc) of the So2 cial Security Act (42 U.S.C. 1395x(ccc)), as amend3 ed by sections 2, 3 and 4, is amended by adding at 

4 the end the following new paragraph: 

5 ‘‘(8) This subsection (other than paragraph (7)) shall 

6 apply to a long-term care hospital that is paid under sec7 tion 1814(b)(3).’’. 

8 (2) EFFECTIVE DATE.—The amendments made 

9 by paragraph (1) shall— 

10 (A) take effect on the day that is six 

11 months after the date of the enactment of this 

12 Act; and 

13 (B) apply with respect to cost reporting 

14 periods beginning on or after the effective date 

15 described in subparagraph (A). 

16 (b) EXEMPTION OF SECTION 1886(d)(1)(B)(iv)(II) 

17 HOSPITALS.—Section 1861(ccc) of the Social Security Act 

18 (42 U.S.C. 1395x(ccc)), as amended by sections 2, 3 and 

19 4, and subsection (a) of this section, is amended by adding 

20 at the end the following new paragraph: 

21 ‘‘(9) Paragraphs (2) through (8) of this subsection 

22 shall not apply to a long-term care hospital described in 

23 section 1886(d)(1)(B)(iv)(II).’’. 

Æ 

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