CMS Regulations Continue to Confuse and Confound

The author responds to comments from readers of his recent RACmonitor article.

The May 17, 2018 RACmonitor news article Two-midnight Rule Remains Confusing; Total Knee Replacements Frustrating to Many resulted in several comments before I had even finished my first cup of coffee. Chuck Buck, RACmonitor editor and host of Monitor Monday, asked me to address the comments.

First, in the article I noted that many of the quality measures have very little evidence to support their use. In response to that, on Twitter @barttels2, self-described as a “longtime family caregiver/researcher/patient advocate. BMT journey with brother. Avid reader; walker; lustful eater who wants to perish in a tub of pasta” from Medford, Ore., tweeted, “Tell it.” @barttels2 and I have both seen “quality measures” that have harmed patients. We were required to get all our diabetics to a HbA1c of under 7 to show quality care; several trials, the ACCORD, ADVANCE, and VADT, subsequently showed that for many patients the mortality rate was higher with a lower HbA1c. The emergency department measure of four hours to first dose of antibiotics in pneumonia led to many patients getting unnecessary antibiotics with the attendant risks thereof. That measure was then changed to six hours. And there is a raging debate ongoing now about the sepsis SEP-1 core measure, including the flagrant conflicts of interest of the authors. (For those interested, you can read more at: https://emcrit.org/pulmcrit/ssc-petition/.) And if you really want to see how difficult it is for doctors to stay abreast of all the medical advances, and medical reversals, read about the controversy surrounding stenting patients with angina created by the ORBITA trial and the controversy over ablation of atrial fibrillation created by the CABANA trial. And if you are not on Twitter, get on it. I appreciate the support of @barttels2.

The second comment was sent to Chuck Buck in response to my statement that “I want the doctors to get a basic understanding of the rule and stress the importance of their documentation and I want the utilization review (UR) staff to be the masters of the rule.” The commenter states, “It is markedly disingenuous to think that physicians cannot stay up to date. They have to stay up to date for DME (durable medical equipment) and all sorts of other regulatory requirements. Have full respect for your colleagues and let them lead with expert advice from PA’s (physician advisors). There are (sic) many a case manager that still doesn’t understand the basics of two midnight rule.” To this I responded that physician burnout is at an all-time high. Physician suicide rates are significantly higher than almost any other profession (farmers hold the number one spot). Even I, the master of Medicare regulations, did not go into medicine to become a master of regulations. In fact, to this day I still miss the interactions with my patients and get a little heartbroken when I see one in the grocery store and they tell me that in the six years since I left practice they still have not found a doctor to replace me.

The status of a patient, inpatient or outpatient, has nothing to do with the medical care the patient receives; they get the same doctor, same nurse, the same surgery, and often the same room whether they are inpatient or outpatient. Many doctors don’t even look at the payer source and we all know that most commercial payers do not follow the two-midnight rule unless it allows them to deny an admission, then suddenly they do follow it, at least until the next patient. Imagine telling a doctor that they had to look at the patient’s insurance and reference that payer’s online formulary, and possibly submit a prior authorization, prior to choosing the intravenous antibiotics they were ordering for the patient with pneumonia requiring hospital care. I want them to master the data on what antibiotic to give when, how to treat sepsis properly, and when and if thrombolysis is indicated for stroke, not admission regulations.

As to DME, when I had forms to complete in the office, the DME supplier conveniently placed colored tabs next to each field I needed to complete. I did not need to pull out Chapter 7 of the Medicare Benefit Processing Manual and read the regulations. But I did have to know that the pulse oximetry readings that qualified a patient for home oxygen.

I should point out that I stated that I did not want doctors to be totally oblivious to the rules; I stated they should have a basic understanding. I’d love them all to be experts. Although if I had my way, the doctors would be oblivious to the rules and would only need to know to that every time a patient required hospital care they should turn to the UR staff and PA to get instantaneous help, just as they do when they turn to a respiratory therapist to get help setting up a ventilator for someone needing mechanical ventilation.

As to case managers still not understanding the rule, I offer up my services. I travel the country lecturing at hospitals and state and national meetings of the ACMA, CMSA, HFMA, and any others that invite me. I even co-authored a book on hospital utilization review, the second edition of which will be published in the coming months.

The third comment, a technical one, asked about the need for attending physician concurrence when a hospital self-denies an inpatient admission after discharge. To understand this, a bit of a history lesson is in order. The federal regulations, 42 CFR 482.30, require review of admissions to determine the medical necessity of inpatient admission, along with duration and the professional services. In short, if an inpatient admission was determined by the UR Committee to be inappropriate, the attending physician must be consulted. If the attending concurred, the admission was determined to be unnecessary. If the attending disagreed but a second UR Committee physician agreed, the admission was determined to be unnecessary. If the attending did not respond to the request, the admission was determined to be unnecessary.

In 2004, CMS established condition code 44 to allow inpatient admissions to be changed to outpatient when it was determined that inpatient admission was not medically necessary. In this specific circumstance, CMS requires attending physician concurrence. If the attending does not concur, the inpatient admission cannot be converted to outpatient.

In the specific instance of total knee replacement, my suggestion for review after discharge means that if inpatient admission was found to be medically unnecessary after review by a physician member of the UR Committee, the attending must be notified, the method of notification and time frame to allow response unspecified by the Centers for Medicare & Medicaid Services (CMS). Since we are not doing a condition code 44, concurrence is not required. If the attending does not respond, the determination that the admission was not medically necessary stands and the admission can be self-denied and rebilled.

Since the self-denial does not affect the billing by the physician for their professional services, with the claim remaining billed with place of service inpatient hospital, and the fee is unchanged, and the orthopedists generally unconcerned with hospital billing, I expect most orthopedists will either concur or simply not respond. Then you just notify the patient and the hospital billing staff performs the rebill process as outlined in MLN Matters SE1333.

The reader also asked about the format for the letter for patient notification. CMS leaves that to the hospital to develop but it should be noted that there is no requirement for a signature or proof of delivery. I suggest the letter simply state that their inpatient admission was reviewed, and it was determined that inpatient status was found to be not medically necessary and per CMS regulations the hospital will be changing the claim to be billed to Part B instead of Part A. It should also note the patient will therefore be responsible for applicable Part B costs. Place a notation in the UR notes that the letter was sent.

I should also note that since the claim is remaining as inpatient, if the patient did transfer to a skilled nursing facility (SNF), payment for that stay will not be in jeopardy if it was a three- or more day stay. It is the inpatient status that determines SNF eligibility, not Part A or Part B billing.

I am thrilled that my articles get people commenting; in fact, I am thrilled they are read at all. Please keep the comments coming.

Program Note

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

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