AN ACT CONCERNING RESPONSIBILITY FOR HOSPITAL "NEVER" EVENTS.

This bill prohibits hospitals and outpatient surgical facilities from billing for reimbursement from insurers for expenses incurred from (1) underlying procedures or services that directly result from specified events (“never” events) or (2) subsequent ameliorative or corrective services done as a result of such events.

The bill also prohibits a hospital or outpatient surgical facility from requiring an insured individual to pay for such expenses that the insurer has refused to pay.

The bill defines a “hospital” as an institution primarily engaged in providing, by or under the supervision of physicians, to inpatients (1) diagnostic, surgical, and therapeutic services for medical diagnosis, treatment and care of injured, disabled, or sick persons, or (2) medical rehabilitation services for the rehabilitation of injured, disabled, or sick persons, but does not include a residential care home, nursing home, rest home, or alcohol or drug treatment facility.

An “outpatient surgical facility” is any entity, individual, firm, partnership, corporation, limited liability company or association, other than a hospital, providing surgical services or diagnostic procedures for human health conditions that include use of moderate or deep sedation, moderate or deep analgesia or general anesthesia, as these levels are defined by the American Society of Anesthesiologists or by other professional or accrediting entity recognized by the Department of Public Health.

It does not include a medical office owned and operated exclusively by a licensed physician or surgeon if it (1) has no operating room or designated surgical area, (2) does not bill facility fees to third party payors, (3) does not administer deep sedation or general anesthesia, (4) performs only minor surgical procedures incidental to the work performed there, and (5) uses only light or moderate sedation or analgesia in connection with such incidental surgical procedures.

Under the bill, “insurer” means any insurance company, health care center (HMO), corporation, Lloyd's insurer, fraternal benefit society or other legal entity authorized to provide health care benefits in the state. This includes benefits provided under health, disability, worker's compensation and automobile insurance, or any person, partnership, association, or legal entity that is self-insured and provides health care benefits to its employees, governmental entity that provides such benefits to its employees, or government entity that provides medical benefits to Medicare, Medicaid, HUSKY plan, Charter Oak Plan, or state-administered general assistance recipients.

1. surgery performed on the wrong body part that is not consistent with the documented informed consent for the patient other than situations requiring prompt action that occurs in the course of surgery or where urgency precludes obtaining informed consent;

2. surgery performed on the wrong patient;

3. the wrong surgical procedure performed on a patient not consistent with the patient's documented informed consent, excluding situations requiring prompt action as discussed above;

4. unintended retention of a foreign object in a patient after surgery or another procedure, but excluding objects intentionally implanted as part of a planned intervention and objects present prior to surgery that are intentionally retained;

5. death during or immediately after surgery of a normal, healthy patient who has no organic, physiologic, biochemical, or psychiatric disturbance and for whom the pathologic processes for the operation are localized and do not involve a systemic disturbance;

6. patient death or serious disability caused by the use of contaminated drugs, devices or biologics provided by a hospital or ambulatory surgical center when the contamination is the result of generally detectable contaminants in drugs, devices, or biologics regardless of the contamination source;

7. patient death or serious disability caused by the use or function of a device in patient care in which the device is used for functions other than as intended (devices include catheters, drains and other specialized tubes, infusion pumps and ventilators);

8. patient death or serious disability caused by an intravascular air embolism that occurs while being cared for in a hospital or outpatient surgical facility but excluding deaths associated with neurosurgical procedures known to present a high risk of intravascular air embolism;

9. an infant's being discharged to the wrong person;

10. patient death or serious disability caused by a patient's disappearance, excluding events involving adults with decision-making capacity;

11. patient suicide or attempted suicide resulting in serious disability while being cared for in the health care facility due to patient actions after admission, excluding deaths resulting from self-inflicted injuries that were the reason for admission;

12. patient death or serious disability caused by a medication error such as an error involving the wrong drug dose, patient, time, rate, preparation or route of administration, but excluding reasonable differences in clinical judgment on drug selection and dose;

13. patient death or serious disability caused by a hemolytic reaction due to the administration of incompatible blood or blood products;

14. maternal death or serious disability caused by labor or delivery in a low-risk pregnancy, labor, and delivery while being cared for in the health care facility, including events that occur not later than 42 days from the delivery date, but excluding deaths from pulmonary or amniotic fluid embolism, acute fatty liver of pregnancy, or cardiomyopathy;

15. patient death or serious disability caused by hypoglycemia, the onset of which occurs while the patient is being cared for in the health care facility;

16. death or serious disability caused by failure to identify and treat hyperbilirubinemia (jaundice, bilirubin levels greater than 30 milligrams per deciliter) in newborns during the first 28 days of life;

17. stage 3 or 4 pressure ulcers acquired after admission to the health care facility, but excluding progression from stage 2 to state 3 if stage 2 was recognized upon admission;

18. patient death or serious disability due to spinal manipulative therapy;

19. artificial insemination with the wrong donor sperm or wrong egg;

20. patient death or serious disability caused by an electric shock while being cared for in the health care facility, but excluding events involving planned treatments such as electric countershock;

21. any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances;

22. patient death or serious disability caused by a burn incurred from any source while being cared for in the health care facility;

23. patient death caused by a fall by a patient who was or should have been identified as requiring precautions due to risk of falling while being cared for in the health care facility;

24. patient death or serious disability caused by the use of or lack of restraints or bedrails while being cared for in the health care facility;

25. any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed health care provider;

26. abduction of a patient;

27. sexual assault of a patient within or on the grounds of the health care facility; and

28. death or significant injury of a patient resulting from a physical assault that occurs within or on the grounds of the health care facility.

For purposes of the bill and the never events list, “serious disability” means (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, such as seeing, hearing, speaking, walking, or breathing, or a loss of bodily functions, if the impairment or loss lasts more than seven days or is still present at the time of discharge from an inpatient health care facility or (2) loss of a body part.

PA 09-2, § 8 requires the Department of Social Services (DSS) commissioner to amend the Medicaid state plan to indicate that the approved inpatient hospital rates it pays for Medicaid-eligible patients are not applicable to hospital-acquired conditions that the Medicare program identifies as “nonpayable” (also called “never happen” events) in accordance with a 2005 federal law to ensure that hospitals are not paid for these conditions.

The federal Deficit Reduction Act of 2005 required the federal Medicare agency, beginning October 1, 2008, to limit payments to hospitals for preventable medical errors that result in serious consequences for patients. Since then the Medicare program identified selected costly or common conditions that it considered to be reasonably preventable by following evidence-based guidelines. For example, it includes a foreign object left in a patient's body following surgery. When this occurs, Medicare will not pay a hospital for any increased costs it incurs as a result of one of these events occurring (i. e. , treating a condition that was not present when the patient was admitted to the hospital). Medicare continues to pay for the physician and other covered items or service needed to treat the hospital acquired condition. This takes effect April 1, 2009.