Corporate Compliance

Note from the instructor: Extension of probe and educate audits; new guidance on inpatient orders by residents and ED docs

Medicare Insider, February 4, 2014

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This week’s note from the instructor is written by Kimberly Anderwood Hoy Baker, JD, CPC, regulatory specialist for HCPro.

On January 31, CMS announced on its Inpatient Hospital Reviews website that itextended the probe and educate period for implementation of the 2-midnight benchmark through September 30, 2014. Along with the announcement of the extension, it also released an updated version of the guidance documents on inpatient hospital reviews and on the new order and certification requirements.

The announcement on January 31 has been touted as a delay of the 2-midnight benchmark, however, this is not the case. The 2-midnight benchmark remains the rule for determining the status of Medicare patients. The extension announced January 31extends the probe and educate period to one full year, through September 30, 2014. During this time, the 2-midnight benchmark is still the rule, however, hospitals are subject only to the limited probe and educate audits related to patient status.

Along with its recent announcement, CMS also posted a new version of “Reviewing Hospital Claims for Patient Status” dated January 31, 2014, which gives details of the probe and educate audits. CMS added clarification on triage time before the patient receives services in the ED, which follows closely its prior guidance. Additionally, CMS added guidance reiterating its prior statements that the expected length of stay can be inferred from documentation such as plan of care, treatment orders, or physician notes, in lieu of a specific attestation on the expected length.

One clarification is specifically directed at commercial screening tools. CMS had previously stated that a patient need not meet commercial screening criteria for an inpatient level of care as long as the 2-midnight benchmark is met (i.e., there is a reasonable expectation of two nights of medically necessary hospital care). The new clarification specifically emphasizes the reverse, stating that meeting commercial screening criteria for an inpatient level of care does not make the admission appropriate unless there is also an expectation of a 2-midnight stay.

CMS also updated the guidance document, previously published September 5, 2013, on the new order and certification requirements. Unlike other recent updates, this document doesn’t highlight in red the new information, but there is nonetheless some significant changes, including a new type of inpatient status order referred to as an “initial order”.

In the new guidance, CMS introduces the concept of an initial order by a resident, non-physician practitioner, or even an ED physician as a proxy for the “ordering practitioner”. Under the former guidance, verbal orders seemed to be the only way for these practitioners to write inpatient orders effective at the time they were written. However, this created stumbling blocks because verbal orders require a discussion with the ordering practitioner, which was not always the practice for these types of providers.

The new guidance requires the ordering practitioner to countersign the initial order prior to the patient’s discharge, thereby approving and accepting responsibility for the admission decision. The proxy provider must be allowed to admit patients both under state law and hospital by-laws or polices. CMS does allow that the ED physician may not have admitting privileges as long as he or she is authorized to write temporary admitting orders.

The importance of this new guidance is that inpatient status starts at the time of the initial order, rather than the time the ordering physician later countersigns it. If that initial order occurs prior to midnight, that additional midnight will count in the inpatient stay. This may allow some cases to meet the two midnights required under the 2-midnight presumption or the three-day stay required for SNF admission when they otherwise wouldn’t.

The guidance also provides that if the ordering practitioner does not approve of the admission and they don’t countersign the order for inpatient status, the patient is not considered an inpatient and is billed as an outpatient. This takes away any penalty for inappropriate decisions by NPPs or residents.

Other clarifications include additional information about verbal orders and a definition of the time of discharge for purposes of completion of the certification or countersignature of initial orders. The patient is not considered discharged until “effectuation” of the discharge orders of the physician. For example, if the physician orders the patient to be discharged after dinner, then the patient won’t be considered discharged until that time.

One troubling clarification relates to outlier certification, which specifically states that the timing cannot extend past the point of discharge. This is problematic because most hospitals do not know when a case may hit cost outlier until after the patient is discharged and all charges are entered and cumulated. Even at this point, few hospitals run a calculation to determine whether the charges will result in outlier, so this requirement may be very difficult for hospitals to actually operationalize.

One clarification that will be of interest to critical access hospitals relates to their 96-hour admission limit. CMS specifically states that if the physician cannot “in good faith” certify that the patient will be discharged or transferred within 96 hours, Medicare will not reimburse any portion of the stay. CMS does allow for unforeseen circumstances that result in a longer stay, as long as the physician certified they expected in good faith that the patient would be discharged or transferred within 96 hours. Additionally, the hospital must maintain their annual average of less than 96 hours length of stay.

I encourage hospitals to take a close look at the new order and certification guidance because some clarifications may allow more latitude in the hospital’s policies, while others may require that they further restrict their policies or implement new processes.

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