WASHINGTON, D.C. –  U.S. Senator Deb Fischer (R-Neb.) today announced she has introduced a bipartisan bill with Sen. Robert Menendez (D-N.J.) to address the ongoing issues surrounding the so-called “two midnight rule.” The Two-Midnight Rule Coordination and Improvement Act of 2014 further delays enforcement of the two midnight rule issued last year by the Center for Medicare and Medicaid Services (CMS) until September 30, 2015, and establishes new guidelines for CMS.


“The two midnight rule creates administrative and financial challenges for too many hospitals in Nebraska. The result is wasted time and resources to comply with this misguided regulation,” said Fischer. “The red tape is especially burdensome for rural hospitals, which are key to providing critical care and job opportunities for countless communities across 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. Importantly, our bill also provides CMS with needed time to develop an alternative system that helps, and doesn't hinder, the ability of these hospitals to provide care to the patients they treat.”


Under the two midnight rule, which was finalized as part of the fiscal year 2014 Inpatient Prospective Payment System final rule in August, 2014, a Medicare beneficiary is automatically deemed to be an inpatient if their hospital stay spans more than two consecutive midnights.  While this approach addresses some longstanding issues for beneficiaries requiring longer hospital stays, it fails to acknowledge instances in which it is medically necessary for a beneficiary to receive inpatient services for a period spanning less than two midnights.


The rigid approach currently taken by this rule could lead to instances in which a physician is unable to make the proper medical determination for a beneficiary’s treatment.  Almost immediately after CMS finalized the rule, it became clear it was inherently flawed and the rule’s enforcement has been delayed on three separate occasions.  The current enforcement delay, announced on January 30, 2014, is in effect through September 30, 2014. 

The Two-Midnight Rule Coordination and Improvement Act seeks to resolve this issue by establishing new guidelines for CMS, in consultation with hospitals, physicians and other experts, to establish criteria and payment methodologies applicable to beneficiaries in need of short inpatient stays.  Further, to ensure that hospitals are not subjected to potentially onerous audits while these criteria are being developed, the legislation codifies the enforcement delays CMS has already imposed.

What Others Are Saying About the Two Midnight Rule Coordination and Improvement Act S. 2082:

“The Nebraska Hospital Association (NHA) appreciates Senator Fischer's leadership and efforts to address CMS' flawed ‘two-midnight’ policy,” said Laura Redoutey, President of the Nebraska Hospital Association. "Excessive and harmful CMS policies, such as the ‘two-midnight’ policy, undermine hospitals' ability to care for the residents of Nebraska. The NHA supports the Two-Midnight Rule Coordination and Improvement Act of 2014."

“The AHA strongly supports this important legislation, which will delay enforcement of the so-called two-midnight policy,” said Rick Pollack, executive vice president of the American Hospital Association.  “This policy is bad news for seniors as it undermines medical judgment of physicians.  The bill also calls on the agency to develop an acceptable long-term payment solution. This legislation not only affects urban hospitals, but also helps ensure rural hospitals are not forced to comply with another burdensome federal policy that further strains a small workforce without producing the intended goals of improved patient care and fiscal responsibility,”

“It’s vitally important that we get this policy right so that we don’t inadvertently destabilize hospitals that care for the vulnerable and serve as cornerstones in their communities,” said Bruce Siegel, MD, MPH, president and CEO of America’s Essential Hospitals. "We appreciate the efforts of Sens. Menendez and Fischer. They suggest a sensible approach to this issue and we look forward to working with Congress and the administration to work out the details.”

"The AAMC applauds Senators Menendez and Fischer's commitment to addressing serious concerns with the CMS two midnight rule,” said Atul Grover, M.D., Ph.D.,  AAMC Chief Public Policy Officer. “The bipartisan Two-Midnight Rule Coordination and Improvement Act takes important steps to ensure patients maintain access to critical inpatient care, including in our nation's teaching hospitals. The AAMC supports this legislation and looks forward to working with Congress to ensure all patients receive the care they need.”