Livanta and CMS Have Lost Their Collective Minds over “Risk”

EDITOR’S NOTE: The following op-ed is exclusively comprised of the opinions of the individual author, which are not necessarily shared by RACmonitor or Monitor Mondays.

In a recent RACmonitor article, Dr. Ronald Hirsch provided insights into the “case-by-case” exception to the Two-Midnight Rule, specifically addressing “risk” as a justification for short-stay inpatient admissions   (https://link.edgepilot.com/s/ec2ef30b/clhrXL2sS0aT-PFZLANl9Q?u=https://racmonitor.medlearn.com/cms-tells-livanta-to-reassess-short-stay-memo/)  

Let me begin by stating right away that using risk factors as support for an inpatient admission is contrary to the Two-Midnight Rule. I will explain.

At the core of the Two-Midnight Rule is the requirement that care can be delivered safely only in the hospital, and not with intermittent care. That’s pretty clear. The Rule screams “prove it.” 

Livanta’s claim that they do not exist to second-guess physician decision-making is hilarious at face value. Second-guessing physician decision-making is the basis for each and every coverage decision. Otherwise, what would be the need for costly investment in competent utilization management (UM) professionals? How would I earn my bloated paycheck?

It’s not that risk as justification for inpatient admission has no role. I use it frequently. Risk of readmission, risks to optimal recovery for lack of close outpatient follow-up, lack of ready access to specialists, risks posed by access to caregivers or other social determinants of health (SDoH) – all of these are important. The difference is context. The risk does not stand alone. Treatment typically deferred to intermittent care is still treatment if administered. The patient must be under active treatment to effect an optimal recovery, specific to them, which cannot be deferred. 

As it applies to a one-day stay, I am not ready to embrace “risk,” even if the mandate came from a deity. 

Heightened risk never worked for me in my years fighting Medicare auditors, including at the administrative law judge (ALJ) level. It’s not for lack of trying. As time went on, I could no longer support the risk argument. Risk is noteworthy; manifestation of risk is demanded. 

Subjectivity is the best argument against any reliance on the risk argument. Until there is a textbook definition with a high degree of specificity, I will not rely on it. And what about the frequency of use? What is a reasonable frequency of short inpatient stays for risk? How will this be reported on Program for Evaluating Payment Patterns Electronic Report (PEPPER)? 

Who will pay for this drain on the trust fund?

As to Medicare Advantage plans, the Centers for Medicare & Medicaid Services (CMS) tolerates deviance from regulation on just about every issue of importance. Without a doubt, CMS will allow health plans to leverage the lack of clarity. A good argument exists already: health plans approve admissions on a stay-by-stay basis anyway, so use of artificial intelligence (AI) or not is irrelevant. There is abundant opportunity for loophole exploitation, and who can blame them, in our profit-driven perversity we call healthcare. 

It’s not that risk plays no role in an admission decision. The presence of risk alone is a yellow flag that deserves attention. If, for example, during an observation stay, a patient with known risk factors indeed manifests significant instability in one of those known factors, it is reasonable to admit them if a stay will meet the Rule. The treatment plan must demonstrate active treatment for that instability. And therein lies a glimmer of hope: documentation of the need to consider a risk factor of such significance that admission, short stay or otherwise, can only be managed in the hospital, with a treatment plan that demonstrates the importance of risk in medical decision-making. 

There it is again. Only physician documentation can carry the day.