Special Bulletin: A Troubling Remark in OIG Language

I’m working on a U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) audit wherein the question invites the reviewer to disregard Medicare regulations. 

The question reads: 

“Does the documentation support inpatient admission and level of care?  (InterQual Level of Care Criteria) [failure to comply with InterQual Level of Care Criteria will not be treated as an error, but will be noted and explained in the RRL.” 

There is so much to pick apart here.  First, I am surprised that the OIG has a question that refers to an “inpatient level of care.” Ron Hirsch (Dr. Ronald Hirsch) and I have written at length about the fact that Medicare admission status is determined by the Two-Midnight Rule.

Under the Two-Midnight Rule, an outpatient is defined as a patient who needs hospital care and is expected to need it for fewer than two midnights. An inpatient is a patient who needs hospital care and is expected to need it for more than two midnights.

Both outpatients and inpatients require hospital care. There is no distinction between the “level of care” needed for an outpatient and an inpatient. I will emphasize this. The amount of care needed by a hospital outpatient can be more, less, or the same than the amount of care needed by a hospital inpatient.

Medicare has determined that the distinction between an inpatient and an outpatient is temporal, not based on the patient’s medical needs. The OIG form should not make any inquiry into the “level of care,” except to the extent the question is “did this patient require hospital care?”

My second concern with the question is the reference to InterQual. To be fair to the OIG, they explicitly said in the form that InterQual would not be used as criteria to determine an error. It will be used in the “RRL,” whatever the heck that is.

If the OIG wants to look at InterQual, they have as much right as the next person to do so. It is a problem only if someone asserts that InterQual determines a patient’s status. But by including it in the question, it invites the reviewer to focus on InterQual, and in a case I am working on, the reviewer did just that.

Services were denied because “the InterQual criteria for the inpatient admission and level of care were not met based on the surgical procedure performed.” Now, what makes this particularly interesting is that the inpatient case in question involved a total knee arthroplasty.

The patients in question were to be discharged to a skilled nursing facility (SNF). In a Monitor Monday segment a few weeks ago, I talked about how days awaiting placement in an SNF counts towards the Two-Midnight Rule. But it’s nice to have really knowledgeable co panelists, because (Dr.) Ron Hirsch taught me something even more important. The 2018 Outpatient Prospective Payment System Final Rule says that:

“We agree that the physician should take the beneficiaries’ need for post-surgical services into account when selecting the site of care to perform the surgery. We would expect that Medicare beneficiaries who are selected for outpatient TKA would be less medically complex cases with few comorbidities and would not be expected to require SNF care following surgery.” 82 FR 52356,52524, https://www.federalregister.gov/d/2017-23932/p-2018, bolding and underlining added. 

The reviewer was clearly unaware of this. Hopefully, the OIG will recognize the error in the review and retract it. If you find yourself under OIG scrutiny, this is something to watch.