CMS Wants to Hear from You on Inpatient-Only List Changes

Let me start this article by asking for your help. Flash back to 2013. The Centers for Medicare & Medicaid Services (CMS) at that time proposed to take total knee arthroplasty off the Inpatient-Only List. They felt that it could safely be performed as an outpatient procedure. But the reality was that at that time, very few orthopedic surgeons were performing joint replacements and sending patients home the next day, much less the same day. And so, many people involved in case management and utilization review sent in comments telling CMS what a bad idea it was, and CMS read ended up leaving it on the List – and didn’t finally remove it for another four years.

Now, as I have discussed previously, for 2026, CMS is proposing to eliminate the Inpatient-Only List altogether over the next three years. Now, I think this is a done deal, so we must just accept it and adapt, but what I need all of you to do is to submit comments to CMS asking them to please address at least two things. The first would be to describe how to get Part A skilled nursing facility (SNF) access for post-surgical patients who require such care, but cannot qualify if their surgery is performed as outpatient. CMS did tell us when they removed total knee arthroplasty from the List that we could consider the need for post-hospital SNF care as a factor in selecting the site of service, but it would be so helpful to have it in writing that such a provision applies to any surgery.

And second is to help us understand the applicability of the case-by-case exception for surgeries when the expected length of stay is one midnight, but the patient is determined to be at higher risk. In requesting this clarification, we’d also stress that we need such guidance, since the case-by-case exception applies not only to traditional Medicare, but also to Medicare Advantage (MA) patients, as some MA plans continue to deny admissions that meet the Two-Midnight Rule. All of us have seen how even a year and a half after the applicability of the Two-Midnight Rule to MA plans, they continue to rely on commercial criteria, deny the medical necessity of a second midnight of care, and of course, deny inpatient payment on an inpatient-only surgery without a stay of two midnights.

Now, I know I am asking a lot, so I prepared a page with the link to submit comments, and even prototype comments that you can use as a guide (or even just copying and pasting them). CMS does allow anonymous comments, if you are concerned about having your name posted. Just go to www.ronaldhirsch.com and you will see a link labeled “Comment on Inpatient Only List.” Just click that. And please add your own comments. Feel free to comment on anything else in the proposed rule as well, such as the proposal to allow any surgery at ambulatory surgery centers (ASCs), the effect of their site-neutral payment proposals, and the proposal to stop collecting data on the social determinants of health (SDoH) that affect our patients. Support them or disagree with them; CMS does read every comment.

One last note. Last week President Trump signed an executive order to allow homeless individuals who have substance abuse or mental health issues to be involuntarily “institutionalized.” There is still no guidance on how this will be operationalized. But as we all know, there is already a huge shortage of providers and facilities for persons with mental health or substance abuse disorders, either in the hospital setting or community-based setting, and I am concerned that this will lead to such patients simply being brought to the hospital and left there for hospital staff to figure out a discharge plan. And that, of course, would only serve to exacerbate the already critical ED boarding problem that exists in many hospitals.

We can only hope that this order is carried out with thoughtfulness and adequate funding for community resources. But as a reminder, the government does not pay for services that are the obligation of another entity, per 42 CFR 411.7(a), which states that “payment may not be made for services that any provider or supplier is obligated to furnish at public expense, in accordance with a law of, or a contract with, the United States.” So billing the entity that is responsible for providing that community-based housing and care should be considered.