New E&M Rules May Require Medical Staff Rule Changes; New CMS Rules May See SNFs Close

Last week I wrote about the lack of adoption of the new evaluation and management (E&M) coding rules by physicians and urged all of you to get out there and make some noise at your hospitals to get it done. Well, two RACmonitor readers, coding expert Betsy Nicoletti and Dr. Robert Oubre, the doctor of documentation, pointed out that it’s not quite as simple as it seems.

They astutely noted that many hospitals have provisions in their medical staff rules that outline the required elements in a history and physical (H&P) examination. Hospitals added these provisions years ago in response to accreditation surveyors who would come into the operating room (OR), pull a random chart, and cite the hospital because the ophthalmologist doing a cataract extraction did not document if the patient was asked about the number of times they wake up to urinate.

So, before you tell your doctors to stop documenting the review of systems they did not ask about, check with your medical staff office and work to get the medical staff rules changed. And while changing them to fit these new visit documentation rules, perhaps the requirements for preoperative evaluations can also be reviewed. In many hospitals, no patient can undergo surgery without a complete H&P and a battery of preoperative tests. That is, in many cases, absolutely unnecessary.

For example, in cataract surgery, studies have clearly demonstrated that preoperative evaluations result in no clinical benefit or increased safety for the patient, but simply add cost and inconvenience. If the patient has a cataract that meets the standard for extraction, the surgery can be done. It’s really that simple. Imagine the millions or billions of dollars that have been spent on unnecessary visits and tests on cataract patients over the years. I trust my colleagues to do the right thing for every patient, and strict guidelines requiring non-indicated evaluations are as far from patient-centered as possible.

On Monitor Monday, one listener recently commented that a review of systems can find pertinent abnormalities, and eliminating the requirement may have adverse health outcomes. I contend that a competent doctor will ask the right questions even without a required review-of-system list of bullet points. The presenting medical condition, the patient’s description of their medical history, and the physical examination will lead the physician to ask about other potential clues. A physician seeing a patient with shortness of breath does not need a checklist to ask about smoking, travel, leg swelling, nocturia, etc.

In other news, the Centers for Medicare & Medicaid Services (CMS) released a flurry of rules last week. One rule addresses nursing homes and will set specific staffing ratios for nursing. The rule mandates a total nurse staffing standard of 3.48 hours per resident, per day, including at least 0.55 hours of care per resident by registered nurses and 2.45 hours by nurse aides, and a requirement for at least one registered nurse to be on-site 24 hours a day. There are also reporting requirements and some flexibilities for rural areas. This rule received almost 47,000 comments; that’s a crazy high number. By comparison, CMS-4201-F, our new favorite rule that requires the Medicare Advantage (MA) plans to follow the Two-Midnight Rule, received less than a thousand comments. I certainly hoped CMS was able to ask ChatGPT to read all the comments and provide a summary for them.

I suspect we all support the CMS intent here to improve the care of nursing home residents, and more nursing care certainly will lead to better care, but my hope is that these new requirements do not lead some owners to determine that the requirements are too onerous, especially with the staffing shortages many are seeing, and start closing facilities. That is certainly not the outcome anyone would want.

CMS also released two rules related to Medicaid and Managed Medicaid, totaling almost 2,000 pages, to try to standardize care and access in both traditional and managed Medicaid, ensure health equity, and assess payment adequacy.

While I admit I only reviewed these three rules superficially, the most interesting thing I found was that each rule has a section describing severability of the provisions, stating “If any provision is held to be invalid or unenforceable, the remaining provisions, which could function independently, should take effect and be given the maximum effect permitted by law.” I searched back and it has never been part of any other CMS proposed or final rule.

Knicole and David keep talking on Monitor Monday about a case at the U.S. Supreme Court that has something to do with Chevron and new regulations, and I wonder if this addition to new rules is intended to prevent one provision that is found to not meet that “Chevron” standard from killing the whole rule.

I will gladly leave that analysis to the lawyers.