Medicare patients who are hospitalized sometimes find themselves being told to
leave the hospital too soon, before they can safely be cared for at home or at a
The protections provided for hospital patients in this situation have recently
been improved, due to a lawsuit brought by the Center for Medicare Advocacy,
Weichardt v. Thompson, Civil Action No. C 03 5490 (N.C.Cal. 2003), was
filed in federal district court in San Francisco on behalf of three Medicare
beneficiaries who were forced to leave their hospitals before they were
medically ready. Each plaintiff (or a family representative) objected to
being discharged, but got no written notice of the appeal process for
challenging the discharge decision, and was told that if they stayed on they
would be personally liable for the high cost of hospital care.
Several community groups that serve seniors joined the individuals as plaintiffs
in the case. The plaintiffs asked that defendant Department of Health and
Human Services (DHHS) require that beneficiaries be given timely written notice
of the reasons for their discharge and of the procedures for appealing a
Ultimately the Weichardt lawsuit was settled, with the DHHS’ Centers
for Medicare & Medicaid Services (CMS) agreeing to
propose new regulations requiring notice of discharge rights that met
agreed-upon standards under the Medicare statute and due process.
The proposed regulations were published on April 5, 2006, at 71 Fed. Reg. 17052.
They required that a Generic Notice of Hospital Non-coverage be given to all
Medicare hospital patients at least one day before a planned discharge.
This generic notice would specify the date of discharge and explain the
procedure for the patient to obtain an expedited review of the medical necessity
for continued inpatient care. If the patient indicates that she wishes to
appeal, the proposed regulations require that a detailed follow-up notice with
specifics about the medical reasons for individual’s discharge be given to her
by noon of the next day.
The New Hospital Discharge Procedures
Final regulations setting out the new Medicare hospital discharge notice and
appeal procedures were published on November 27, 2006, at 71 Fed. Reg. 68709,
with an effective date of July 1, 2007. The portion of these regulations
applicable to hospitals under original Medicare are codified at 42 C.F.R. §
405.1205 et seq., and the portion applicable to hospitals under Medicare
Advantage (managed care) are codified at 42 C.F.R. § 422.620 et seq. They
contain several changes from the proposed regulations that dilute the
protections for patients, but the new procedures remain an improvement over the
situations experienced by plaintiffs prior to the Weichardt case.
The final regulations provide that hospitalized beneficiaries will receive the
Important Message from Medicare (IM) both on admission and again at discharge.
The IM is a form notice mandated by the Medicare statute, to be given to
patients on admission to advise them of their rights. 42 U.S.C. §
1395cc(a)(1)(M). The hospital can give the IM up to two days after
admission, and up to two days before discharge, so that for patients staying
less than five days, the IM could be given only one time. In a
disappointing dilution of the protections in the proposed regulation, CMS now
allows the second IM to be given on the day of discharge, though it should be
given at least 4 hours prior to the time of discharge.
Under the new regulations, the IM will contain explicit information about the
processes for requesting appeals of discharge decisions, the right to remain in
the hospital without charge if an expedited decision is requested, and the right
to receive a detailed notice of the reasons for discharge. 42 C.F.R. §
405.1205, for hospitals; 42 C.F.R. § 422.620, for Medicare Advantage (MA) plans.
The IM must be given to a patient “at or near admission,” defined as within 2
days of admission.
Under the prior regulations, many hospital patients reported that they were not
aware of having been given the IM on admission. Even if it was given,
critics noted that patients were not likely to read a notice included in the
many papers routinely accompanying a hospital admission, particularly at a time
when acute medical conditions focus the patient’s attention elsewhere.
The new regulations require the patient (or representative) to sign and date the
IM, which should increase the ability to monitor hospital compliance with the
obligation to deliver the IM.
When a hospital or MA plan decides that a Medicare patient should be discharged,
the new regulations require it to give the patient (or representative) another
copy of the IM No patient signature or date is required on this
second copy, an omission that is unfortunate given the greater need for notice
at this point in time than at admission. The follow-up notification must
be given “as far in advance as possible, but no more than 2 calendar days prior
to discharge.” Since this provision would allow crucial information about
appeal rights to be given on the actual day of discharge, its usefulness in
enabling patients to exercise the right to remain in the hospital during an
expedited appeal is compromised.
For the patient who does follow the procedure spelled out in the IM for an
expedited appeal, the expedited appeal process can be very useful. See 42
C.F.R. §405.1206; 42 C.F.R. § 422.622. The patient has the right to
immediate review of the discharge decision by an independent review agency,
called a Quality Improvement Organization (QIO). The patient may remain in
the hospital at least until noon of the day after the QIO expedited review
decision without charge for the stay pending appeal. If the QIO finds that
the discharge decision was wrong, the patient can continue to receive covered
care in the hospital until another discharge decision is made and a new notice
To obtain expedited review, the patient or his representative must contact the
QIO by phone or in writing before the end of the day of requested discharge.
The hospital or MA plan is then contacted by the QIO and required to prepare and
deliver to the patient a detailed notice by noon of the day following contact by
the QIO. This detailed notice must advise the patient of the specific facts of
his condition, as well as the legal rules, upon which the hospital or MA plan
determined that further services would not be covered by Medicare.
The patient may, but is not required to, submit evidence to the QIO in support
of his need for continued inpatient hospital services. (The best evidence
would be a statement by his attending physician, which would have to be obtained
very quickly due to the very short time frame for decision). Most helpfully,
the regulations state that the hospital or MA bears the burden of proving that
inpatient hospital services no longer met Medicare coverage requirements.
These new rules, along with some guidelines for beneficiaries, will be discussed
in further detail in our next Alert. The Center for Medicare Advocacy is
interested in hearing about patients’ experiences after these new hospital
discharge notice procedures go into effect on July 1, 2007.
 Both hospitals and managed care organizations are reimbursed by
Medicare on fixed payment methodologies that make unusually long stays
by Medicare beneficiaries unprofitable.