December 5, 2013

CMS Reveals Potential Two-Midnight Rule Exception; Hints of More to Come

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Over the coming weeks, and most likely months, we will continue to see updates to the FY 2014 Hospital IPPS Final Rule CMS 1599-F in the form of sub-regulatory guidance.

As this guidance will come sporadically and in no certain order, it is important that we all try to review, decipher, and stay abreast of this moving target to survive this huge change.

CMS issued an update to CMS-Reviewing Hospital Claims for Admission on November 27, 2013, via CMS.gov Medical Review. This update was in response to CMS asking providers to submit examples of exceptions to the two-midnight rule. The update states:

CMS has identified the following potential exception to the two-midnight rule:

1. Mechanical Ventilation Initiated During Present Visit:

CMS stated in its discussion of rare and unusual circumstance that treatment in an Intensive Care Unit, by itself, does not support an inpatient admission absent an expectation of medically necessary hospital care spanning two or more midnights. Stakeholders have notified CMS that they believe beneficiaries with newly initiated mechanical ventilation support an inpatient admission and Part A payment. CMS believes newly initiated mechanical ventilation to be rarely provided in hospital stays less than two midnights, and to embody the same characteristics as those procedures included in Medicare’s inpatient–only list. While CMS believes a physician will generally expect beneficiaries with newly initiated mechanical ventilation to require two or more midnights of hospital care, if the physician expects that the beneficiary will only require one midnight of hospital care, inpatient admission and Part A payment is nonetheless generally appropriate.

NOTE: This exception is not intended to apply to anticipated intubations related to minor surgical procedures or other treatment.”

Mechanical ventilation is a process by which gases are moved into the lungs by means of a mechanical device that assists respiration by augmenting or replacing the patient's own ventilatory effort. With continuous mechanical ventilation, a patient is intubated or receives a tracheostomy and receives variable degrees of assistance to meet respiratory requirements in an uninterrupted fashion.

The exception above, as illustrated by CMS, allows ventilatory management for a stay fewer than two midnights as generally appropriate for inpatient admission but does note this should be a rare occurrence.  CMS goes on to state procedures that require intubations that are expected should not fall into this category of exception. This is consistent with AHA Coding Clinic guidance as well: “Do not use procedure codes 96.70–96.72 to capture mechanical ventilation used during a surgical procedure. The ventilatory support provided to a patient during surgery is usually anesthesia-induced and is considered an integral part of the surgical procedure. This is not coded separately. (Reference: AHA Coding Clinic for ICD-9-CM, Fourth Quarter 1991) Use codes 96.70–96.72 in cases where the patient is documented to be on mechanical ventilation for an extended period of time following surgery, when the physician clearly documents an unexpected, extended period of mechanical ventilation, such as several days.”  (Reference: AHA Coding Clinic for ICD-9-CM, Second Quarter, 1992).

Discussion with many physician advisors reveals the occurrence of mechanical ventilation would be rare with a stay of fewer than two midnights that did not result in death or transfer, and most feel they are capturing this appropriately as inpatient.

There is, however, some concern for those patients who may have difficulty being “extubated in recovery due to prolonged sedation or pseudocholinesterase deficiency,” as mentioned by Ronald irsch, MD()Hirsch, MD. Patients may also be on mechanical ventilation for respiratory threats due to underlying pulmonary or cardiac conditions, in the setting of drug overdose, or for musculoskeletal causes. If the patient is compromised from a respiratory standpoint, clinical indicators should be present in the documentation, such as PO2<60 mmHg and PCO2>50 mmHG in lungs considered normal. Keep in mind the time mechanical ventilation begins with endotracheal intubation and ends with extubation, or if tracheostomy performed begins when ventilation started.

From a patient standpoint, the decision to admit will need to be based on the presumption, physician expectation, and clear, concise documentation, such as with the 5Ws for Documentation/Auditing.

Indications for Mechanical Ventilation

INDICATIONS
DESCRIPTION
EXAMPLES
Apnea
Absence of breathing
Cardiac Arrest
Acute Respiratory Failure (ARF)
Inability of a patient to maintain adequate PaO2, PaCO2, and potentially pH.
Two types
Impending Respiratory Failure
Respiratory failure is imminent in spite of therapies:
Commonly defined as: Patient is barely maintaining (or experiencing gradual deterioration) of normal blood gases but with significant WOB.
Neuromuscular Disease (N-M)
Status Asthmaticus
Prophylactic Ventilatory Support
Clinical conditions in which there is a high risk of future respiratory failure. Ventilatory support is instituted to ↓ WOB, minimize O2 consumption and hypoxemia, reduce cardiopulmonary stress, and/or control airway with sedation
Brain Injury, heart muscle injury, major surgery, shock (prolonged), smoke injury
Hyperventilation Therapy
Ventilatory support is instituted to control and manipulate PaCO2 to lower than normal levels
Acute head injury
The Virtual Critical Care Library – Respiratory Update; Mech Vent Indications

Keep in mind the FY 2013 OIG Work Plan includes review of mechanical ventilation to “determine whether the DRG assignments and resultant payments were appropriate. We will review selected Medicare payments to determine whether patients received fewer than 96 hours of mechanical ventilation. Mechanical ventilation is the use of a ventilator or respirator to take over active breathing for a patient. CMS requires that claims be completed accurately to be processed correctly and promptly. For certain DRG payments to qualify for Medicare coverage, a patient must receive 96 or more hours of mechanical ventilation.”

The FY 2014 Workplan will be released in January of 2014. This may or may not continue to be a focus area.

Potential High-Risk ighighh Mechanical ventilation MSDRGS:

  • 003 Extracorporeal membrane oxygenation or tracheostomy with mechanical ventilation 96+ hours or principal diagnosis except face, mouth, and neck with major operating room procedure,
  • 004 Tracheostomy with mechanical ventilation 96+ hours or principal diagnosis except face, mouth, and neck without major operating room procedure
  • 207 Respiratory system diagnosis with ventilator support 96+ hours
  • 870 Septicemia or severe sepsis with mechanical ventilation 96+ hours
  • 927 Extensive burns or full thickness burns with mechanical ventilation 96+ hours with skin graft
  • 933 Extensive burns or full thickness burns with mechanical ventilation 96+ hours without skin graft, relative weight

Continuous Invasive Mechanical Ventilation

96.70, Continuous invasive mechanical ventilation of unspecified duration
96.71, Continuous invasive mechanical ventilation for less than 96 consecutive hours
96.72, Continuous invasive mechanical ventilation for 96 consecutive hours or more

In terms of defense, the key will be ensuring that if your claim is denied via contractor review and your patient has mechanical ventilation as an exception, as defined by CMS, you are appealing and defending your status based on the CMS definition above.

A denial could possibly occur with deaths or transfer, as mentioned, or in stays of three or more days (as time goes on). Denials related to inpatient-only procedures with a valid order have shown us we may have unnecessary battles. Ensure you also can justify the codes assigned with supporting documentation and clinical evidence, and can validate time spent on mechanical ventilation. Be aware, be alert, and be attentive.

Be sure to check the CMS site/documents regularly for updates or stay tuned to the RAC monitor and Monitor Monday.

About the Author

Sharon Easterling is president and CEO of Recovery Analytics.

Contact the Author

sharon.easterling@recoveryanalyticsllc.com

To comment on this article please go to editor@racmonitor.com

Reference: The 5 Ws for Documentation/Auditing. Sharon Easterling, MHA, RHIA, CCS, CDIP, CPHM
Recovery Analytics, LLC

Sharon Easterling, MHA, RHIA, CCS, CDIP, CPHM

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