I 

113TH CONGRESS 

1ST SESSION H. R. 3698 

To delay the enforcement of the Medicare two-midnight rule for short inpatient hospital stays until the implementation of a new Medicare payment 

methodology for short inpatient hospital stays, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 11, 2013 

Mr. GERLACH (for himself, Mr. CROWLEY, Mr. REED, Mr. ROSKAM, and Mr. 

KIND) introduced the following bill; which was referred to the Committee 

on Ways and Means 

A BILL 

To delay the enforcement of the Medicare two-midnight rule 

for short inpatient hospital stays until the implementation of a new Medicare payment methodology for short 

inpatient hospital stays, 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. 

4 This Act may be cited as the ‘‘Two-Midnight Rule 

5 Delay Act of 2013’’. 


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1 SEC. 2. ENFORCEMENT DELAY OF MEDICARE TWO-MID2 NIGHT RULE TO PERMIT DEVELOPMENT OF A 

3 NEW MEDICARE PAYMENT METHODOLOGY 

4 FOR SHORT INPATIENT HOSPITAL STAYS. 

5 (a) DELAY IN ENFORCEMENT OF TWO-MIDNIGHT

6 RULE.— 

7 (1) IN GENERAL.—The Secretary of Health and 

8 Human Services (referred to in this section as the 

9 ‘‘Secretary’’) shall not enforce the provisions of the 

10 two-midnight rule (as defined in paragraph (2)) with 

11 respect to admissions to a hospital (as defined in 

12 subsection (d)) for which payment is made under the 

13 Medicare program under title XVIII of the Social 

14 Security Act (42 U.S.C. 1395 et seq.) for admissions 

15 occurring before October 1, 2014. 

16 (2) TWO-MIDNIGHT RULE DEFINED.—In this 

17 section, the term ‘‘two-midnight rule’’ means the fol18 lowing numbered amendments to 42 CFR Chapter 

19 IV contained in the IPPS FY 2014 Final Rule (and 

20 includes any sub-regulatory guidance issued in the 

21 implementation of such amendments and any por22 tion of the preamble of section XI.C. of such rule re23 lating to such amendments): 

24 (A) Amendment 2 (on page 50965), which 

25 adds a section 412.3 of title 42, Code of Fed26 eral Regulations (relating to admissions). 


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1 (B) Amendment 3 (on page 50965), which 

2 revises section 412.46 of such title (relating to 

3 medical review requirements). 

4 (C) Amendment 23 (on page 50969), 

5 which amends paragraphs (d) and (e)(2) of sec6 tion 424.11 of such title (relating to conditions 

7 of payment: General procedures). 

8 (D) Amendment 24 (on pages 50969 and 

9 50970), which revises section 424.13 of such 

10 title (relating to requirements for inpatient 

11 services of hospitals other than inpatient psy12 chiatric facilities). 

13 (E) Amendment 25 (on page 50970), 

14 which revises paragraphs (a), (b), (d)(1), and 

15 (e) of section 424.14 of such title (relating to 

16 requirements for inpatient services of inpatient 

17 psychiatric facilities). 

18 (F) Amendment 26 (on page 50970), 

19 which revises section 424.15 of such title (relat20 ing to requirements for inpatient CAH serv21 ices). 

22 (3) IPPS FY 2014 FINAL RULE DEFINED.—In 

23 this section, the term ‘‘IPPS FY 2014 Final Rule’’ 

24 means the final rule (CMS–1599–F, CMS–1455–F) 

25 published by the Centers for Medicare & Medicaid 


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1 Services in the Federal Register on August 19, 

2 2013, entitled ‘‘Medicare Program; Hospital Inpa3 tient Prospective Payment Systems for Acute Care 

4 Hospitals and the Long-Term Care Hospital Pro5 spective Payment System and Fiscal Year 2014 

6 Rates; Quality Reporting Requirements for Specific 

7 Providers; Hospital Conditions of Participation; Pay8 ment Policies Related to Patient Status’’ (78 Fed9 eral Register 50496 et seq.). 

10 (4) APPLICATION TO MEDICARE REVIEW CON11 TRACTORS.— 

12 (A) IN GENERAL.—Paragraph (1) shall 

13 also apply to Medicare review contractors (as 

14 defined in subparagraph (B)). No Medicare re15 view contractor may deny a claim for payment 

16 for inpatient hospital services furnished by a 

17 hospital, or inpatient critical access hospital 

18 services furnished by a critical access hospital, 

19 for which payment may be made under title 

20 XVIII of the Social Security Act for discharges 

21 occurring before the date specified in paragraph 

22 (1)— 

23 (i) for medical necessity due to the 

24 length of an inpatient stay in such hospital 

25 or due to a determination that the services 


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1 could have been provided on an outpatient 

2 basis; or 

3 (ii) for requirements for orders, cer4 tifications, or recertifications, and associ5 ated documentation relating to the matters 

6 described in clause (i). 

7 (B) MEDICARE REVIEW CONTRACTOR DE8 FINED.—In subparagraph (A), the term ‘‘Medi9 care review contractor’’ means any contractor 

10 or entity that has entered into a contract or 

11 subcontract with the Centers for Medicare & 

12 Medicaid Services with respect to the Medicare 

13 program to review claims for items and services 

14 furnished for which payment is made under 

15 title XVIII of the Social Security Act, includ16 ing— 

17 (i) Medicare administrative contrac18 tors under section 1874A of the Social Se19 curity Act (42 U.S.C. 1395kk–1); and 

20 (ii) recovery audit contractors under 

21 section 1893(h) of such Act (42 U.S.C. 

22 1395ddd(h)). 

23 (5) CONTINUATION OF MEDICARE PROBE AND

24 EDUCATE PROGRAM FOR INPATIENT HOSPITAL AD25 MISSIONS.— 


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1 (A) IN GENERAL.—Subject to subpara2 graph (B), nothing in this subsection shall be 

3 construed to preclude the Secretary from con4 tinuing the conduct by Medicare administrative 

5 contractors of the Medicare Probe and Educate 

6 program (as defined in subparagraph (C)) for 

7 hospital admissions during the delay of enforce8 ment under paragraph (1). 

9 (B) MAINTENANCE OF SAMPLE PREPAY10 MENT RECORD LIMITS.—The Secretary may not 

11 increase the sample of claims selected for pre12 payment review under the Medicare Probe and 

13 Educate program above the number and type 

14 established by the Secretary under such pro15 gram as of November 4, 2013, such as 10 

16 claims for most hospitals and 25 claims for 

17 large hospitals. 

18 (C) MEDICARE PROBE AND EDUCATE PRO19 GRAM DEFINED.—In this paragraph, the term 

20 ‘‘Medicare Probe and Educate program’’ means 

21 the program established by the Secretary as in 

22 effect on November 4, 2013 (and described in 

23 a public document made available by the Cen24 ters for Medicare & Medicaid Services on its 

25 Website entitled ‘‘Frequently Asked Questions 2 


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1 Midnight Inpatient Admission Guidance & Pa2 tient Status Reviews for Admissions on or after 

3 October 1, 2013’’) under which Medicare ad4 ministrative contractors— 

5 (i) conduct prepayment patient status 

6 reviews for inpatient hospital claims with 

7 dates of admission on or after October 1, 

8 2013, and before March 31, 2014; and 

9 (ii) based on the results of such pre10 payment patient status reviews, conduct 

11 educational outreach efforts during the fol12 lowing 3 months. 

13 (b) SHORT INPATIENT HOSPITAL STAY PAYMENT

14 METHODOLOGY.— 

15 (1) IN GENERAL.—The Secretary shall develop 

16 a payment methodology under the Medicare program 

17 for hospitals for short inpatient hospital stays (as 

18 defined in paragraph (2)). Such payment method19 ology may be a reduced payment amount for such 

20 inpatient hospital services than would otherwise 

21 apply if paid for under section 1886(d) of the Social 

22 Security Act (42 U.S.C. 1395ww(d)) or may be an 

23 alternative payment methodology. The Secretary 

24 shall promulgate such payment methodology as part 

25 of the annual regulations implementing the Medicare 


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1 hospital inpatient prospective payment system for 

2 fiscal year 2015. 

3 (2) SHORT INPATIENT HOSPITAL STAY DE4 FINED.—In this section. the term ‘‘short inpatient 

5 hospital stay’’ means, with respect to an inpatient 

6 admission of an individual entitled to benefits under 

7 part A of title XVIII of the Social Security Act to 

8 a hospital, a length of stay that is less than the 

9 length of stay required to satisfy the 2-midnight 

10 benchmark described in section 412.3 of title 42, 

11 Code of Federal Regulation, as amended under the 

12 Amendment 2 referred to in subsection (a)(2)(A). 

13 (c) CROSSWALK OF ICD–10 CODES AND CPT 

14 CODES; CROSSWALK OF DRG AND CPT CODES.— 

15 (1) ICD10–TO–CPT CROSSWALK.— 

16 (A) IN GENERAL.—Not later than 2 years 

17 after the date of the enactment of this Act, the 

18 Secretary shall develop general equivalency 

19 maps (referred to in this subsection as ‘‘cross20 walks’’) to link the relevant ICD–10 codes to 

21 relevant CPT codes, and the relevant CPT 

22 codes to relevant ICD–10 codes, in order to 

23 permit comparisons of inpatient hospital serv24 ices, for which payment is made under section 

25 1886 of the Social Security Act (42 U.S.C. 


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1 1395ww), and hospital outpatient department 

2 services, for which payment is made under sec3 tion 1833(t) of such Act (42 U.S.C. 1395l(t)). 

4 In this subsection the terms ‘‘ICD–10 codes’’ 

5 and ‘‘CPT codes’’ include procedure as well as 

6 diagnostic codes. 

7 (B) PROCESS.— 

8 (i) IN GENERAL.—In carrying out 

9 subparagraph (A), the Secretary shall de10 velop a proposed ICD10–to–CPT crosswalk 

11 which shall be made available for public 

12 comment for a period of not less than 60 

13 days. 

14 (ii) NOTICE.—The Secretary shall 

15 provide notice of the comment period 

16 through the following: 

17 (I) Publication of notice of pro18 posed rulemaking in the Federal Reg19 ister. 

20 (II) A solicitation posted on the 

21 Internet Website of the Centers for 

22 Medicare & Medicaid Services. 

23 (III) An announcement on the 

24 Internet Website of the Centers for 

25 Medicare & Medicaid Services of the 


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1 availability of the proposed crosswalk 

2 and the deadline for comments. 

3 (IV) A broadcast through an ap4 propriate Listserv operated by the 

5 Centers for Medicare & Medicaid 

6 Services. 

7 (iii) USE OF THE ICD–9–CM COORDI8 NATION AND MAINTENANCE COMMITTEE.— 

9 The Secretary also shall instruct the ICD– 

10 9–CM Coordination and Maintenance 

11 Committee to convene a meeting to receive 

12 input from the public regarding the pro13 posed ICD10–to–CPT crosswalk. 

14 (iv) PUBLICATION OF FINAL CROSS15 WALKS.—Taking into consideration com16 ments received on the proposed crosswalk, 

17 the Secretary shall publish a final ICD10– 

18 to–CPT crosswalk under subparagraph (A) 

19 and shall post such crosswalk on the Inter20 net Website of the Centers for Medicare & 

21 Medicaid Services. 

22 (v) UPDATING.—The Secretary shall 

23 update such crosswalk on an annual basis. 

24 (2) DRG–TO–APC CROSSWALK.— 


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1 (A) IN GENERAL.—The Secretary shall, 

2 using the ICD10–to–CPT crosswalk developed 

3 under paragraph (1), develop a second cross4 walk between diagnosis-related group (DRG) 

5 codes for inpatient hospital services and Ambu6 latory Payment Class (APC) codes for out7 patient hospital services. 

8 (B) DATA TO BE USED.—In developing 

9 such crosswalk, the Secretary shall use claims 

10 data for inpatient hospital services for dis11 charges occurring in fiscal years beginning with 

12 fiscal year 2015 and for outpatient hospital 

13 services furnished in years beginning with 2015. 

14 (C) PUBLICATION.—Not later than June 

15 30, 2017, the Secretary shall publish the DRG– 

16 to–APC crosswalk developed under this para17 graph. 

18 (d) HOSPITAL DEFINED.—For purposes of this sec19 tion, the term ‘‘hospital’’ means the following (insofar as 

20 such terms are used under title XVIII of the Social Secu21 rity Act): 

22 (1) An acute care hospital. 

23 (2) A critical access hospital. 

24 (3) A long-term care hospital. 


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1 (4) An inpatient psychiatric facility. 

Æ 


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