Two CMS initiatives continue to cause confusion among healthcare providers

EDITOR’S NOTE: The following is a summary of a broadcast segment on Monitor Monday, May 14 by the author.

Do you realize that the two-midnight rule has been the law of the land for the last four years, seven months and 14 days? And there is still widespread confusion about it. Of course, part of that continuing confusion is the inability to get straightforward answers from the Centers for Medicare & Medicaid Services (CMS) on what seem to us to be straightforward questions. And of course, they changed the rule in 2015 by removing the need for certification of all admissions, and changed it again in 2016 with the case-by-case exception, and may change it a third time this year with the proposed softening of the admission order rules. I guess it is no wonder people are confused.

When I give two-midnight talks at hospitals to physicians and utilization review (UR) staff I start by telling the audience that I want the doctors to get a basic understanding of the rule and stress the importance of their documentation and I want the UR staff to be the masters of the rule. Doctors have enough on their plate trying to keep up with advances in medical care and meeting all the quality measures adopted by the many oversight agencies. Many of these quality measures, by the way, have very little actual evidence to support their use. But that’s another story.

And if physicians do try to master these admission rules, it is inevitable that the rules will once again change and then they’ll have to start all over again. So that’s why we need to provide them access to UR staff and physician advisors who can look at the case and guide them to the right status whenever they need it.

Speaking of needing help, I am also not surprised that there is also continued confusion about the status for total knee replacements. I’ve done several presentations recently and it’s tough. The orthopedists fall back on the position statement from their professional society which espoused inpatient admission as the default status, which of course CMS flatly rejected.

The orthopedists see an added burden of more documentation without any gain for them. In fact many are still upset when their judgment was questioned several years ago by being required to document medical necessity for the surgery itself. And I have heard from many hospitals where the orthopedists are just taking a stand, admitting all as inpatient, and letting the hospital deal with it.

So how should a hospital deal with that? Of course, efforts should continue to get them on board. But until that point, hospitals are obligated to follow the CMS rules even if the doctors won’t cooperate. Therefore, every admission should be reviewed during or after discharge by the UR staff and a physician advisor to determine if the patient did in fact warrant inpatient admission based on documented risks, delayed recovery or complication, need for in hospital therapy or need for skilled nursing facility care.

If inpatient admission was not warranted, an attempt could be made to change to outpatient prior to discharge by following the condition code 44 process. But most likely the physician will resist, or not even return the call. so perhaps the better plan would be to review all surgeries performed as inpatient after discharge and use the self-denial and rebill process to make the switch from Part A to Part B. As with the condition code 44 process, this requires involvement of at least one physician member of the UR committee and notification of the patient and physician.

Cash flow will be slowed since a no-pay claim must first be submitted, but the self-denial process can be done without physician concurrence, payment is the same at the end, and most importantly you are complying with Medicare regulations.

And that should keep everyone content.


Program Note

Listen to Dr. Hirsch every Monday on Monitor Mondays, 10-10:30 a.m. EDT.


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