Will Congress Abolish the 96-Hour Rule?

There are rumblings that federal lawmakers may be willing to repeal Medicare's burdensome rule requiring physicians in critical access hospitals to make an educated guess that the patients they're admitting will be either discharged or transferred in less than four days.

I am loathe to write about pending legislation in Congress.

The bills with the most promise for healthcare providers usually are ignored or tabled or lost in some silly legislative procedure or held hostage for some unrelated reason or session adjourns with hopes dashed and no action taken.

Lawmakers who are occasionally called into accountability for doing nothing lament not passing a bill that would have helped rural providers in their states and blame the impasse on the other party.

Then they go home to raise money and get reelected and start the entire process all over again.

Cynical, you say?

Have you ever heard of the SGR permanent fix?

Still, there are rumblings coming out of Washington, DC that lawmakers may be willing to repeal Medicare's burdensome and staggeringly dumb 96-hour rule that requires physicians in critical access hospitals to make an educated guess that the patients they're admitting will be either discharged or transferred in less than four days.

Yes, I know. We've been to this rodeo before. Earlier this year, for example, Sen. Pat Roberts (R-KS) co-chairman of the Senate Rural Health Care Caucus, introduced the Critical Access Hospital Relief Act of 2014, in February. It was assigned to committee, and no further action has been taken. The bill tracking Web site Govtrack.us gives S.2037 a 1% chance of clearing committee and a 0% chance of passing.

That is not encouraging.

Not easily deterred, Sen. Roberts has filed another bill to eliminate the 96-hour rule and there is some buzz about Congress that S.2359 may have some legs.

The Craig Thomas Rural Hospital and Provider Equity Act (R-HoPE), named in honor of the late Sen. Craig Thomas (R-WY), is cosponsored by Sen. Tom Harkin (D-IA), chairman of the Health, Education, Labor, and Pensions Committee, along with Sens. Al Franken (D-MN) and John Barrasso (R-WY).

"The R-HoPE Act recognizes that rural healthcare providers have very different needs than their urban counterparts and that healthcare is not one-size-fits-all," Roberts said in remarks accompanying the bill.

"I am glad we were able to include provisions to get rid of Medicare's 'condition of payment' known as the burdensome 96-hour rule, which is particularly troubling for critical access hospitals and in turn, their patients."

The bill actually helps rural hospitals and providers in other ways, too. For example, it calls for the removal of a 12% cap on Medicare disproportionate share payments for rural hospitals serving higher populations of poor patients.

And It reinstates hold harmless provisions for rural hospitals under the Medicare Outpatient Prospective Payment System at 100% of payment difference through Jan. 1, 2015. It also extends and expands the Low Volume Hospital Adjustment program to 2,000 discharges through Jan. 1, 2016.

Actually, the 38-page bill is sweeping and has about 25 sections that enhance and improve funding for rural healthcare delivery. I don't have the time or space to detail every provision. Read it and judge for yourself.

The American Hospital Association is most definitely on board. In a letter of support to Sen. Harkin, AHA Executive Vice President Rick Pollack said the bill "would extend critical rural provisions that are set to expire or have expired and implement new provisions that would benefit rural hospitals."

All of this is tremendous good news for rural providers, but let's not forget to exhale. This is Congress, after all, where many promises are made and few are kept. Govtrack.us also gives S.2359 a 0% chance of passing. To put that in perspective, the Dallas Cowboys have a better chance of winning the Super Bowl in 2015 than S.2359 has of passing.

AHA says there are signs that the bill's chances are improving. It has broad bipartisan support in both chambers, with 27 co-sponsors signed on so far in the Senate, and 65 co-sponsors in the House.

Unfortunately, all of that is just cheerleading and wishful thinking until we know how much this all will cost. The Congressional Budget Office has yet to score R-HoPE. The AHA and other proponents don't think it will cost that much. But that's what the American Medical Association said about the cost repealing the SGR right before Congress slapped another temporary patch on the reviled payment scheme.

Maggie Elehwany, vice president, government affairs & policy at the National Rural Heath Association, and a veteran Congress watcher, plays the long game when it comes to bills such as R-HoPE.

"The hope is that we continue to gain co-sponsorship because leaders in both the House and Senate realize the importance of this bill and the economic vitality that these hospitals provide for their rural communities," Elehwany says.

"But it does score and obviously that will present challenges and we are just hopeful. The 96- hour rule should not score so we are cautiously optimistic that we can get that common sense fix to occur before the end of Congress."

At this point, Elehwany says, rural healthcare advocates might have to settle for a piecemeal approach.

"We are going to do absolutely everything we can to get these bills passed. But speaking honestly, it is going to be more doable to get the 96-hour rule done. That is something that every member of Congress understand shouldn't have a score. It should be such an easy fix to help the critical access hospitals in their home states," she says.

"We are going to do everything we can to get R-HoPE passed, but we realize we will probably have to get it introduced in the next Congress. But hopefully we can lift out bits and pieces since it is divided into several sections and we are OK if we have to do it in a piecemeal fashion. It's great to have a big enchilada bill, but we are fine with doing it section by section as well."