Think You’ve Been “Admitted” to the Hospital? Think Again

It feels like a hospital stay. You waited six hours in the ER, you have a  roommate who loves to talk and you want to sleep, lukewarm meals, a full spectrum of tests, doctors and nurses overseeing your care, but then two days later you are  discharged.  Just a short enough time to be hospitalized without the benefits of an in-hospital stay.  Confusing? Yes. Shocking?  More so. It’s called “Observation Status” and it’s bad news.  The article which appeared in The New York Times on January 10, 2014, written by Susan Jaffe, does justice to the injustice bestowed by Medicare. The website below provides more information.

Fighting ‘Observation’ Status


Every year, thousands of Medicare patients who spend time in the hospital for observation but are not officially admitted find they are not eligible for nursing home coverage after discharge.

A Medicare beneficiary must spend three consecutive midnights in the hospital — not counting the day of discharge — as an admitted patient in order to qualify for subsequent nursing-home coverage. If a patient is under observation but not admitted, she will also lose coverage for any medications the hospital provides for pre-existing health problems. Medicare drug plans are not required to reimburse patients for these drug costs.

The over-classification of observation status is an increasingly pervasive problem: the number of seniors entering the hospital for observation increased 69 percent over five years, to 1.6 million in 2011.

The chance of being admitted varies widely depending on the hospital, the inspector general of the Department of Health and Human Services has found. Admitted and observation patients often have similar symptoms and receive similar care. Six of the top 10 reasons for observation — chest pain, digestive disorders, fainting, nutritional disorders, irregular heartbeat and circulatory problems — are also among the 10 most frequent reasons for a short hospital admission.

Medicare officials have urged hospital patients to find out if they’ve been officially admitted. But suppose the answer is no. Then what do you do?

Medicare doesn’t require hospitals to tell patients if they are merely being observed, which is supposed to last no more than 48 hours to help the doctor decide if someone is sick enough to be admitted. (Starting on Jan. 19, however, New York State will require hospitals to provide oral and written notification to patients within 24 hours of putting them on observation status. Penalties range as much as $5,000 per violation. )

To increase the likelihood of being formally admitted, “get yourself in the door before midnight,” advised Dr. Ann Sheehy, division head of hospital medicine at the University of Wisconsin Hospital in Madison, Wisc. A new Medicare regulation — the so-called “pumpkin rule” — requires doctors to admit people they anticipate staying for longer than two midnights, but to list those expected to stay for less time as observation patients.

Although the rule applies now, Medicare officials won’t enforce it until April 1, having already pushed the deadline back. The American Medical Association and the American Hospital Association have called the pumpkin rule “impossible” to comply with and have urged that enforcement be delayed again until October.

“It doesn’t make any sense,” said Dr. Sheehy, who studied how the rule would have affected admissions at her hospital over an 18-month period and published the results in JAMA Internal Medicine. “Some patients will be admitted because they came in at the right time of day, not because they have more complicated medical problems.”

The two-midnight rule doesn’t change Medicare’s three-midnight rule, the one limiting post-hospital nursing home coverage. Officials at the federal Centers for Medicare and Medicaid Services declined comment for this story because of pending litigation seeking to eliminate observation status.

If you or a family member land in the hospital as an observation patient and think you should be admitted, it’s better to act sooner than later.

“I would talk to anyone who would listen to me,” said Terry Berthelot, a senior attorney at the Center for Medicare Advocacy, which offers a free self-help packet for observation patients. “Make as much noise as you can, because it’s much easier to change your status while you’re still in the hospital than to go through Medicare’s appeals process later.”

Ms. Berthelot suggests asking your regular physician to speak with the doctor treating you in the hospital about why you need to be admitted, based on your medical condition and risk factors.

“It’s got to be a medical argument,” said Ms. Berthelot. “You can’t say, ‘Mom will need rehab after this,’ or ‘We can’t take her home because no one can stay with her.’”

If that doesn’t work, sometimes a strongly worded letter or call from a lawyer describing the patient’s medical needs can be effective.

In some cases, help from a professional can make a difference. Shari Polur, an elder-law attorney in Louisville, Ky., recently hired a geriatric care manager to persuade a local hospital to admit her client. Since admission status can change from one day to the next, the manager, who is also a registered nurse, called the hospital every morning to make sure the patient was still officially admitted until she could be transferred to a nursing home.

If the situation isn’t resolved while you’re in the hospital and you require follow-up care at a nursing home, you’ll have to pay the bill of often thousands of dollars up front. At that point, Ms. Berthelot suggests, you should file what amounts to a special doubled-barreled appeal with Medicare.

It’s not for the faint of heart: the process is long and arduous, and it requires beneficiaries to first receive and pay for the care — often an expensive proposition — before seeking reimbursement.

And the legal arguments can be tangled. The Medicare appeals process typically addresses disputes over whether certain treatments or services rendered should have been covered. Observation patients have actually received hospital coverage and services a doctor says is medically necessary — so they don’t really have anything to appeal, said Marc Hartstein, director of Medicare’s hospital and ambulatory policy group, at a recent briefing in Washington.

“My limited understanding of this is that the patient cannot appeal a decision not to order or not to do something,” he said.

But observation patients may claim that they received treatment usually provided to admitted patients only in a hospital. Therefore, the hospital incorrectly billed Medicare for an outpatient service instead of for inpatient services. The patient should have been admitted and therefore qualifies for nursing home coverage.

“It’s absolutely confusing as heck,” said Michael Sgobbo, an elder law attorney in Charleston, S.C., who recently won an appeal on behalf of a 98-year-old woman who will be reclassified as an admitted patient. That means Medicare will pay her nursing home bill of nearly $10,000.

Lawyers at the Center for Medicare Advocacy recommend fighting observation care on two fronts.

First, follow the appeal instructions in the Medicare summary notice, a quarterly statement of services. Circle the charges on the statement from the hospital and explain that these items were inappropriately billed under Medicare’s Part B as outpatient services. They should have been billed under Medicare’s Part A for hospital services, because the patient received treatment that could only have been provided in a hospital. Mail the statement within 120 days (from the date on the statement) to the address provided for appeals.

Second, after challenging the hospital’s observation designation, file a separate appeal to seek reimbursement for the nursing home charges, said Ms. Berthelot. To begin, ask the nursing home to bill Medicare. You should receive a Medicare summary notice indicating that it did not pay the nursing home charges because the patient didn’t have the required three-day hospital stay. Circle those charges, and explain that the beneficiary was hospitalized for three days and received an inpatient level of care. Then send it within 120 days to the address provided for appeals.

Be prepared to dig in. If either appeal is denied, you must appeal again to the next level, following the instructions in the denial letters.

“Both appeals can take at least a year and are fraught with difficulty,” said Ms. Berthelot. “The reality is that most people can’t get through and those who do, get lucky.”

Some observation patients appeal and never get decisions, warned Diane Paulson, senior attorney at Greater Boston Legal Services. Some of her clients’ cases were dismissed because they were not admitted to the hospital — the very point they were challenging.

“You can’t appeal if you don’t have a denial,” she said. When that happens, the case falls into “a black hole.”

But the chances of winning improve as you continue to appeal, as Nancy and George Renshaw, of Bozrah, Conn., discovered. After spending nearly four years going through the process, a Medicare judge decided last February that Mr. Renshaw’s father should have been admitted to the hospital instead of classified as an observation patient. Medicare finally paid his nursing home bill, and in November the Renshaws received a refund of $4,410.

“I was shocked,” said Ms. Renshaw. “I never expected to see a penny of it.”

Problem in the Nursing Home? Call the Ombudsman

Here in Westchester County, New York, there are approximately 30 nursing homes. They vary in size from as few as 43 residents to others that exceed 200 residents. The quality of care fluctuates as well.  Some look pretty but don’t provide particularly noteworthy care and others look downright dismal but the care is quite good. Big or small, good care or not, all nursing homes, in Westchester County, and throughout the United States have an Ombudsman. He or she is the go to person when you have talked to the nursing home staff and a problem persists

 So what does an Ombudsman do? He or she is an advocate for nursing home residents. While as a geriatric care manager I will often sit down with nursing home personnel when a problem arises, not every resident has access to a geriatric care manager. But every resident and their family has the services of an Ombudsman available to them.  It’s the law!

The mandate for the Ombudsman came about as a result of the Older Americans Act, started in 1972. The goal continues to be to improve residents’ care and quality of life. To be a voice for residents and their families. In New York State, Ombudsmen attend a minimum of 36 hours of training before becoming certified. This training covers the aging process including common illnesses and conditions, the long term care setting, residents’ rights, communication, and the complaint process.

According to the Administration on Aging in 2011 the five most frequent nursing home facility complaints were:

  1.  Improper or inadequate discharge planning
  2.  Lack of respect for residents
  3.  Poor staff attitudes
  4.  Administration of medications
  5.  Resident conflict, including roommate to roommate

To this end, it is the responsibility of the Ombudsman to:

  1. Identify, investigate and resolve complaints made by or on behalf of residents
  2. Provide information to residents about long-term care services
  3. Represent the interests of residents before governmental agencies
  4. Seek administrative, legal and other remedies to protect residents

So how to you find out who your Ombudsman is?  Here in Westchester County, his or her name should be posted in the room of the resident or where other State mandated information is displayed. In the State of New York you can also go to: or call 1-800-342-9871.  This website will also direct you to Ombudsman Programs throughout the United States.