Senators Introduce Bill to Fix “Two Midnight Rule”

U.S. Senators Robert Menendez (D-N.J.) and Deb Fisher (R-Neb.) have introduced legislation that would require the Centers for Medicare and Medicaid Services (CMS) to change its new guidelines around when a Medicare patient hospital stay is judged to be an inpatient stay.

The so-called “two-midnight rule” that CMS established last year has proven to be a large financial and administrative hurdle for hospital operators, even as the rule has been delayed three times to fix issues identified by stakeholders.

The senator’s bipartisan “Two-Midnight Rule Coordination and Improvement Act of 2014” (S. 2082), would require CMS to work with hospitals, physicians and other experts, to establish criteria and payment methodologies applicable to beneficiaries in need of short inpatient stays. In addition, it would prohibit CMS from auditing and potentially penalizing hospitals for violations of the “two-midnight rule” while the new criteria are developed. (CMS has already voluntarily delayed its own enforcement of the rule.)

“While I understand CMS’s intent in establishing the two midnight rule, there are some fundamental issues with the rule that still need to be addressed,” said Senator Menendez in a statement. "This common-sense, bipartisan legislation will ensure an open, collaborative and transparent process is in place to address these issues and ultimately ensure physicians are able to determine the best course of action for their patients." 

Senator Fischer added that the regulation is particularly burdensome for rural hospitals, such as those in her home state of Nebraska. “I’m pleased to work with Senator Menendez to offer this reasonable, bipartisan measure to help prevent another instance of the federal government coming in between patients and their doctors,” she stated.

The bill is endorsed by the New Jersey Hospital Association, the Nebraska Hospital Association, the Greater New York Hospital Association, the American Hospital Association, America’s Essential Hospitals and the Association of American Medical Colleges.