The Two-Midnight Rule – Whose Expectation Matters?

Let me start with a wild Medicare Advantage (MA) denial of inpatient admission. This was a 75-year-old male who fell. The patent had chronic atrial fibrillation and a mechanical heart valve, and was on warfarin, an anticoagulant. He had a CT scan and was found to have a subdural hematoma. He was given intravenous vitamin K and intravenous desmopressin, and was admitted to the intensive care unit (ICU) for close monitoring.

He was monitored past the second midnight and had a repeat CT scan, which showed no further expansion of the hematoma, and the patient was discharged to outpatient follow-up. The MA plan denied inpatient admission, noting that the patient was “only being watched,” and inpatient admission criteria were not met. A peer-to-peer conversation between the physician and a payor medical director was also unsuccessful. The MA plan insisted that the Two-Midnight Rule provisions were not met.

Now, let me contrast that with a case I mentioned last week: the elderly patient with traditional Medicare who was on aspirin and had a fall with head injury, but no bleeding, nor any mental status changes. In this case, the patient was monitored overnight and had no changes. But here the patient was initially admitted as inpatient, then changed to observation via Condition Code 44, and stayed for three days, as the family was not cooperating with discharge planning. In this case, the Beneficiary and Family Centered Care-Quality Improvement Organization (BFCC-QIO) determined that inpatient admission was warranted due to the risk of a delayed subdural hematoma.

So the patient with no intracranial bleeding and on aspirin was at high risk and warranted inpatient admission for monitoring in case there is bleeding in the brain, but the patient with actual bleeding on the brain and on a potent anticoagulant who stayed over two midnights, including one day in the ICU, did not warrant inpatient admission?

Now, what the MA plan did not anticipate was that they were dealing with Eileen Sullivan – and if you know her, she was not going to let this denial stand, instead ensuring that the Centers for Medicare & Medicaid Services (CMS) recognizes that the MA plan was blatantly ignoring federal regulations.

Her patient absolutely warranted inpatient admission. On admission, the patient clearly had a two-midnight expectation, with bleeding and the presence of an anticoagulant, even though reversal agents were given. In addition, this patient would fit the case-by-case exception for patients who are at high risk of an adverse outcome. Not any of us would be allowed to ignore a federal regulation almost a year and a half after it became effective. We would be one of the headlines on the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) webpage. Yet the MA plans continue to second-guess physician judgement and appropriate standards of medical care, time after time.

Moving on from the status determination confusion, a discussion that recently came up online is one that many will face – and planning ahead may prevent a compliance issue in the future. Say a patient is brought to the ED by police. He was arrested for a felony, and in the process was severely injured. The police state that they are leaving him for care and ask you to call them when his care is done, so they can come back and take him back into custody. Do you call them when he is ready for discharge? Or does the patient have the right of privacy afforded every other patient, and without patient consent you should not call the police?

In cases like this, the police are trying to avoid taking on the financial responsibility for the hospital care mandated for persons in custody, but at what cost to their mission to protect the safety of the community? And what is your obligation to not let an accused felon walk free, versus respecting their privacy, as with any patient?

If you have not been faced with this scenario, now is the time to talk to compliance and determine what you should do.