Emergency physicians don’t need to comply just yet with the two-midnight rule, and if a group of health care associations and hospitals has its way, the rule as currently written may never get implemented.

Issued in August 2013 under the 2014 Inpatient Prospective Payment System final rule of the Centers for Medicare & Medicaid Services (CMS), the two-midnight rule aims for physicians to designate patients, upon hospital admission, as inpatients who’ll be kept at the hospital more than two midnights or as outpatients who’ll be kept under observation status.

If implemented, the two-midnight rule could put pressure on emergency physicians when they are asked to make a decision on how a patient should be admitted, said Paul Kivela, MD, MBA, FACEP, managing partner at Napa Valley Emergency Medical Group, medical director of Medic Ambulance, and part owner of Elan Medical Corporation, Fairfield, Calif. “I know emergency physicians try to stay out of that, but they are often put in that [position],” Dr. Kivela said. “I can see where the government is trying to do what it thinks is right, but it’s a very complicated rule and seems somewhat arbitrary.”

The rule is potentially confusing to patients as well, Dr. Kivela said. “If a patient is an outpatient under the two-midnight rule, they have a 20 percent copayment, plus they do not qualify for skilled nursing after they are discharged. That could be a pretty substantial burden to the patient and family.”

The Delays, the Lawsuit

Although the rule was scheduled to go into effect after September 30, 2014, its implementation was delayed in April when President Barack Obama signed the Protecting Access to Medicare Act of 2014, which prevented steep cuts to Medicare physician reimbursement from going into effect and also delayed the rule. Currently, the two-midnight rule is not expected to go into effect until after March 31, 2015.

In mid-April, the American Hospital Association (AHA) banded together with other health care associations and hospitals to file two lawsuits against the U.S. Department of Health & Human Services to challenge the rule. The other plaintiffs are the Greater New York Hospital Association; the Healthcare Association of New York State; New Jersey Hospital Association (NJHA); The Hospital & Healthcare Association of Pennsylvania; Wake Forest Baptist Medical Center, Winston-Salem, North Carolina; Mount Sinai Hospital, New York; and hospitals within the Banner Health, Phoenix, and Einstein Healthcare Network, Philadelphia.

CMS also wants to obtain public comments on how to define hospital short stays, said Sean Cavanaugh, CMS deputy administrator, in a May 2014 meeting with the U.S. House Committee on Ways and Means’ Subcommittee on Health. The call for public comments comes out of the criticism the two-midnight rule is facing.

“The lawsuits contend that several provisions included in the [CMS] final inpatient prospective payment rule for 2014 burden hospitals with unlawful arbitrary standards and documentation requirements, and deprive hospitals of proper Medicare reimbursement for caring for patients,” according to an AHA press release.

The hospitals involved with the suit have stated that it is a “wholly arbitrary requirement” to have a physician certify during admission whether a Medicare patient is expected to need inpatient care spanning two midnights.

“New Jersey Hospital Association is participating in the lawsuit because of deep concerns over both the substantive changes made in the rule and the procedural method that CMS used to circumvent public comment and debate,” said Kerry McKean Kelly, vice president of communications and member services for NJHA.

“For our emergency physician partners, when a patient presents in the emergency department, it should be a clinical judgment how a patient should be treated or whether the patient should be observed for the time being,” said Kelly. “By setting this black-line rule, the clinical decisions are being taken out of the physician’s hands.”

Vanessa Caceres is a medical writer in Bradenton, Florida.