Looking Back on Regulation Week: The Week That Was

The week of July 11 was one that was full of regulatory excitement.

As expected, the U.S. Department of Health and Human Services (HHS) extended the COVID-19 public health emergency (PHE), giving us at least 90 more days of the waivers. And with the uncertainty of the new COVID variant with some areas reporting increasing hospitalization rates, it is nice to have the extension. But there are many who are not happy with HHS for waiting until the last minute to make the extension official. This was totally unnecessary and created a lot of anxiety. HHS has also promised to give 60-day notice if they plan to cancel the PHE so that did provide some reassurance that this extension was coming but a promise has no regulatory weight so until that extension shows up on the PHE page, interested parties are right to be nervous.

I hope all of you read my RACmonitor article from last week. There are lots of Medicare regulations that are confusing but how to properly apply the case-by-case exception is definitely in the top five. As I discuss in the article, if you carefully read the 2016 Outpatient Prospective Payment System (OPPS) Final Rule, the Centers for Medicare & Medicaid Services (CMS) make it clear it is not a rare and unusual exception. And to support that, what I did not mention in my article, is that CMS included a discussion of the use of the case-by-case exception in the 2018 OPPS Final rule when they removed total knee arthroplasty from the inpatient-only list. Every single patient undergoing knee arthroplasty is clinically stable and yet CMS allows the exception to be used there for patients at higher risk. Now of course the trick is getting the documentation to support the use of the exception because we all know surgeons just love to document.

Moving on, I noted last week that there are going to be major changes to the physician documentation rules for hospital visits. Well, it looks like the people who write the coding rules created a new controversy. Throughout the new explanations they refer to patients who are either Inpatient status or Observation status. Yep, they call observation a status despite the fact it is a service provided to patients whose status is outpatient. Now of course many of us colloquially refer to observation as a status when talking about those outpatients who are receiving observation services, but the problem is that there are many patients in the hospital who are neither inpatient nor observation such as outpatient surgery patients in routine recovery overnight. And the new coding rules from the American Medical Association (AMA) make absolutely no mention of how those visits are to be coded. In 2022, the physicians use the office visit codes but is that the intent of AMA and CMS for 2023? I doubt it. I always thought that simplifying things usually does not include making things more complicated, but they seemed to have done just that. I have raised this issue on the phone and in writing with the AMA and CMS so hopefully we will see clarification.

Finally, CMS released the proposed 2023 OPPS rule, and the good news is that nothing is changing with the Two-Midnight rule. There are 10 surgeries proposed to be removed from the inpatient-only list with none of them of any consequence and one surgery added to the ASC list.

The big news though is that they are adding 10 facet joint interventions, including injections, to the hospital outpatient prior authorization program as of March 2023. This is going to place a big administrative burden on hospital pain management clinics so starting preparations soon seems wise.

I have a lot more reading to do so continue to listen to Monitor Monday and read RACmonitor for more details.

Programming Note: This to Dr. Hirsch every Monday on Monitor Mondays as he makes his Monday Rounds, sponsored by R1 RCM.