CMS CAVES ON TWO-MIDNIGHT RULE

At the end of April, CMS proposed a permanent adjustment in its inpatient prospective payment system that would effectively eliminate penalties associated with the two-midnight policy. This ‘policy’ required patients to stay two nights to qualify for inpatient status reimbursement. This change would affect all hospitals enrolled in Medicare.

THERE’S A DOG IN THE WAITING ROOM?

Recently, I received an inquiry from one of our clients about dealing with patients who bring their ESAs to your facility. The Americans with Disability Act (ADA) does not entitle assistance or comfort animals – ESAs – access to public accommodations such as businesses. ESAs have a fundamental difference from service animals under ADA. Service animals are defined as dogs that are trained to do work or perform a task for the benefit of an individual with a disability.

The problem is that ESA owners can try to present their comfort animal as a service animal. That someone may desire emotional comfort from an animal, does not entitle the animal to be present in a healthcare facility.

No law prevents you from granting access to ESAs, but it is often difficult to tell visibly whether a dog is a service animal or a comfort animal. The fact that “service animal” vests and collars for dogs are available on the internet for only a few dollars, makes determining by merely looking difficult.

In general, under ADA rules, you may ask only two questions:

1. Is that animal required because of a disability?

2. What work or task has the animal been trained to perform?

You can’t ask for a demonstration, and apparently, you can’t ask for proof of the training.

Assuming the animal is well behaved and appears well groomed, you may choose to simply allow the dog to be in your practice facility and to accompany their patient.

Another option is to post rules in your waiting room and provide them to new patients by email or other methods, that explain the difference between ESAs and service animals, and you may indicate that you will not allow ESAs.

A third choice, is to try to group patients with ESAs into a period, perhaps, at the end of your patient day, so that the ESAs will not disturb or bother your other patients, and where you will have an opportunity to clean your facility before the next days’ patients arrive. This may address the concern that even the best groomed pets may introduce dirt or infections that might otherwise not be present. In other words, the concern about ESAs is not about the dislike for dogs, but rather concern for other patient’s safety. Hopefully, ESA owners, and physicians and hospitals, will be better served by the adoption of a comprehensive set of rules. Until then:

• Have your staffed trained to be sensitive to this kind of situation. In other words, train for this and have a plan;
• Try to gently identify ESAs and service animals;
• Understand that The Center for Disease Control (CDC) supports allowing the presence of service animals in almost all non-gowned and masked treatment locations;
• Try to find agreement with ESA patients. Help them understand your concerns and listen to theirs. Try to find a location, treatment room or time of day that will accommodate your concerns and theirs.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.