February 5, 2014

CMS Open Door Forum Opens the Door to More Uncertainty

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The Centers for Medicare & Medicaid Services (CMS) held one of its special Open Door Forums (ODFs) yesterday (Feb. 4, 2014) with the purpose of the conference call being to address providers’ questions about the extension of the Medicare Administrative Contractor (MAC) “probe-and-educate audits” and the widely misunderstood “two-midnight rule” created by the 2014 Inpatient Prospective Payment System (IPPS) final rule.

Four days prior to yesterday’s call (on the afternoon of Friday, Jan. 31) CMS had issued new sub-regulatory guidance which did nothing to clarify many confusing aspects of the rule which lays out requirements for hospital admission orders and creates a requirement for “certification” of admission by the attending physician. What was arguably most frustrating to listeners was that the CMS representatives had a great deal of difficulty answering many of the questions. They frequently had to put callers on hold while they held offline discussions. And the responses they often came back with were “send us your question in an email,” thereby limiting the eventual response to the single caller rather than providing information to the industry – as is expected during an Open Door Forum.

The CMS representatives confirmed that the MAC probe-and-educate audits of one-midnight admissions will continue through Sept. 30, 2014, and that during that time Recovery Auditors and MACs will not be performing any other audits of medical necessity for inpatient admission. The number of cases reviewed will not be increased above the limits initially announced (i.e., 10 cases for most hospitals and 25 cases for large hospitals) with a repeat audit of the same number for small to medium-sized hospitals with more than two deficiencies and more than three deficiencies for a large one. CMS has yet to announce how they define the size of the hospital. A small hospital that has seven or more deficiencies or a large hospital that has 14 or more on the second probe audit will receive a third audit of 100 and 250 cases, respectively. MACs will now have until Sept. 30, 2014 to complete this process, including the education they are charged with providing based on each hospital’s performance. Several callers pointed out that they already have been audited inappropriately for cases above this limit; to this CMS could only say that the audits may have been for inpatient-only procedures performed on patients who stayed one night (these cases are supposed to be excluded from the MAC probe-and-educate audits). The caller pointed out, however that this was not the case. In this and other instances reported by callers in which the auditors did not appear to be following CMS restrictions, the CMS representatives said to contact them through their IPPSadmissions@cms.hhs.gov mailbox. They added that if a MAC pulls an inpatient procedure for review, it can review the medical necessity for the procedure even though these cases are exempt from the two midnight benchmark, and that the Comprehensive Error Rate Testing (CERT) contractors will continue to randomly review cases that may include two-midnight stays.

Several callers had questions about the admission order – specifically, about who can sign it and the timing of completion. In previous guidance issued last September, CMS had said that the admission order only can be given by a provider who was familiar with the patient’s condition, allowed to admit patients to hospitals in accordance with state law, and granted admitting privileges by the medical staff. This restriction caused serious problems for teaching hospitals, where residents routinely give admission orders but do not have admitting privileges. Did residents now have to call an attending physician at 3 a.m. to get an admission order? At many hospitals, the emergency department physician writes an initial “bridge order” to admit the patient and begin inpatient care. These orders were not valid under previous guidance because emergency department physicians rarely have admitting privileges. The ODF confirmed new guidance given last week stating that an emergency department physician now can write the admission order if permitted by hospital rules and bylaws – but they also stated that the order must be countersigned by the admitting physician prior to discharge. If this order or a telephone admission order is not cosigned prior to discharge, there is no valid admission order, and the hospital must bill for an outpatient Part B stay.

A caller noted that the new guidance defined “authentication” of an order as cosigning of the order. Previously this term had been undefined, with the implication that authentication could be accomplished by a confirming statement provided by the attending physician in the medical record. CMS could not explain why the language had changed, implying that they did not mean to change the rule and leaving open the question of just how an order may be authenticated.

One caller (this writer) asked CMS to clarify a basic concept: When does admission begin, and when does discharge take place? Admission date and time is of critical importance as it pertains to the two-midnight benchmark and the presumption of medical necessity. Written guidance issued last week referred several times to “formal admission” being “pursuant to” the admission order, implying that the admission time is determined by the hospital recording the patient as an inpatient, not the admission order itself (which is nonetheless commonly used by hospitals to mark the beginning of the inpatient stay). In its discussion of conditional discharge orders, the new guidance also raised the question of when discharge is “effectuated.” CMS cited an example of an order to “discharge after supper” by indicating that the patient would be discharged after he or she completed the meal. Clearly, the patient is not discharged based on finishing dessert and putting down his or her fork, but the CMS representatives could not account for this strange guidance except to say that it was meant to provide flexibility in determining discharge time. Nor could CMS explain whether the admission order initiates the inpatient stay – the representatives only repeated earlier guidance indicating that admission orders can be issued prior to the start of care for planned surgical admissions. There was also no answer as to whether an attending physician can authenticate a resident’s admission order in the morning if the order was written by the resident the night before. This question like several others was referred to the IPPS admissions mailbox.

An additional question hinged on whether a patient is admitted by the admission order or by hospital registration. CMS has advised that if a resident or other provider who does not have admitting privileges writes an admission order and the attending disagrees with the decision, the attending could just refuse to cosign the order.  Lack of a valid admission order would make the patient’s status outpatient and allow the hospital to bill for Part B outpatient services without invoking Condition Code 44. In such a case, however, a caller pointed out that the hospital already would already have registered the patient as an inpatient, pursuant to the physician’s order. If it’s hospital registration that defines an inpatient, this process would violate the principle that conversion of a Medicare patient from inpatient to outpatient requires the involvement of the utilization review committee and implementation of Condition Code 44. But once a patient is formally admitted, the patient is an inpatient and CMS regulations, the caller maintained, indicate that the only manner in which an inpatient can be changed to an outpatient is through Condition Code 44. CMS denied that the rule violates the Code of Federal Regulations and agreed to disagree with the caller on this point.

There were many questions concerning certification and the need for a certification statement. CMS reiterated on the call that it is not necessary for physicians to document an expected length of stay, nor to sign any specific certification statement or form if the required information can be found in the admission and progress notes. Certification can be accomplished, the CMS representatives said, with “regular good documentation” found in progress notes and plan of care. In other words, they said, there is no “magical word” and no need for a physician to write “I certify…” According to the responses provided during the call, the required documentation of medical necessity for hospital care and continued stay should be found in progress notes and other documentation written by non-physician providers. The attending physician is expected to review the entire record and document that the necessary information is found in the notes. This would appear to require specific documentation to this effect by the attending physician, but CMS said that it is not necessary for the attending to have written or cosigned every note in the chart that is used to meet the medical necessity requirement.

A caller who asked about the status of transfers of inpatients from another hospital for tertiary care was told that CMS is working on a policy covering transfers, and that this would be forthcoming soon. In the meantime, each hospital is left to its own interpretation of how to manage this. The expectation has been that a hospital would judge an incoming transfer according to the two-midnight rule and admit those with an expected length of stay of an additional two nights or more, but this approach may change when CMS releases new sub-regulatory guidance.

This is one of several CMS Open Door Forums that have failed to provide clarity on the new admission rules. By delaying enforcement of the various elements of the two-midnight rule by a year, CMS appears to be admitting that the rule is confusing and unenforceable. This is evidenced by the difficulty the agency has in answering provider questions. If CMS can’t answer questions about the policies it has written, how can providers be expected to follow them? Each subsequent release of sub-regulatory guidance changes the rules slightly and requires hospitals to readjust their approach to compliance. This wastes time and resources and is particularly damaging when it undermines physician support for hospitals’ efforts. Hospitals across the country, while reading every document CMS publishes and analyzing every word on the ODF calls, often find themselves unable to get definitive answers to many of their questions.

Hospitals are not opposed to change. They will adapt to new rules. They just want to know what they are.

About the Author

Steven J. Meyerson, M.D., is a Senior Vice President of the Regulations and Education Group (the “REGs Specialists”) for AccretivePAS®. He is Board Certified in Internal Medicine and Geriatrics. He has recently been the Medical Director of Care Management and a compliance leader of a large multi-hospital system in Florida. Dr. Meyerson has distinguished himself by creating innovative service lines and managing education for Accretive PAS®.

Contact the Author

SMeyerson@accretivehealth.com

Comment on this article

editor@racmonitor.com

References

Link to September 5 CMS subregulatory guidance:https://tinyurl.com/mupc892

Link to MAC Probe and Educate Extension: https://tinyurl.com/lojmp4p

Link to January 31 CMS subregulatory guidance: https://tinyurl.com/moto7ke

Steven J. Meyerson, MD, CHCQM-PHYADV

Steven Meyerson, MD, CHCQM-PHYADV, is the founder of Steven Meyerson Consulting. Dr. Meyerson is a nationally recognized expert and consultant in the physician advisor role, case management, and hospital Medicare compliance. He is board certified in internal medicine and geriatrics and serves on the board of the American College of Physician Advisors (ACPA). He edits and writes for the ACPA online blog.

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