Case Management

Clearing up 2-midnight rule confusion

Case Management Insider, September 8, 2015

Many details about the 2-midnight rule and its enforcement remain unclear. When does the clock start ticking when it comes to counting a patient’s midnights in a hospital stay? How can a physician predict how long a patient will need to stay in the hospital?

To clear up some of this confusion. Steven Greenspan, JD, LLM, vice president of regulatory affairs at Executive Health Resources in Newtown Square, Pennsylvania, and Kurt Hopfensperger, MD, JD, vice president of compliance and physician education for Executive Health Resources, recently fielded questions during HCPro’s webcast “Medical Necessity Documentation and Short Stays.”

Below is a summary of a few of the questions they answered for audience members.

Q: We have a very busy ED and many patients arrive at the hospital before midnight, but don’t actually leave for the hospital floor until after midnight. What does CMS consider acceptable when it comes to starting the clock in terms of counting midnights?

In a December 23, 2013, guidance document, CMS stated that the clock starts at the time the patient’s actual care is initiated. Often a patient will be checked in to the hospital and will receive triage services, such as blood pressure check, or will have his or her temperature taken. CMS does not consider these services to be the start of medical care, because they are given to any patient who comes into the ED, regardless of his or her condition. CMS says the clock actually starts when the medical personnel, the nurse, or physician begin treatment for that patient based on his or her individual condition.

Q: Many physicians have asked me, “How am I supposed to know how long a patient will be in the hospital? I don’t have a crystal ball, how can CMS expect me to predict the future?” Does CMS have any guidance on what standards physicians are held do when a reasonable expectation of 2-midnights is required?

I have heard this question a fair amount. CMS does not expect you to have a crystal ball, but they did give us some guidance on this topic in the December 23, 2013, document mentioned above. CMS said to make this determination the physician has to look at the individual’s condition, taking into account how sick the patient is, the severity of their signs and symptoms, their individual risk factors. This means that a physician might expect two patients with the same condition to have a different length of stay. The expectation is calculated looking forward, it’s a reasonable estimate based on the information you have on hand at the time the decision is made. It’s not determined by looking back.

Q: Does outpatient time toward the 2-midnight rule begin at the time of actual treatment or at the time the order is written for observation status?

The time for computing the 2-midnight benchmark begins when the patient first starts to receive services. For example, if the patient is treated in the ED, the clock starts ticking at that point. Similarly if the patient is transferred in from another facility, the clock starts at the time he or she started being treated at the initial facility, not at the time the order is written.

Do you have more questions about the 2-midnight rule? Check out the October issue of Case Management Monthly for a more detailed article on this topic.

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