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Midnight blue

Clarification on Medicare's two-midnight rule

December 2013

Published in the December 2013 issue of Today’s Hospitalist

THE FEDERAL GOVERNMENT has become a spectacular tragicomedy lately. Government shutdown. Debt ceiling standoff. Healthcare.gov debacle.

And as if those weren’t enough, we somehow got the two-midnight rule.

Keep up with the latest coding changes: May 2014 – Coding News & Strategies

Kristy Welker provided some early guidance in her “Medicare’s two-midnight rule” column in November. She noted, quite politely, that “a lot about the new rule has yet to be worked out.” Another month has passed, and we’ll be more blunt: The Centers for Medicare and Medicaid Services (CMS) seem to be inventing this on the fly.

An organization with an $850 billion budget should be able to do better. Think of everything that Apple and Google are doing with a combined market capitalization in roughly the same neighborhood.

The CMS seem to be inventing the two-midnight rule on the fly. 

Fortunately, the CMS has granted an amnesty period that began with the rule’s inception on Oct. 1. The grace period was initially for three months but has since been extended to March 31, 2014. Delayed enforcement may not bring any clarity, but it should indemnify us from financial penalties for failing to apply the rule (whatever it eventually is) properly.

This month, we’ll take a closer look at certification, a key component of the new rule.

The CMS now requires physician certification that inpatient care was medically necessary. The four elements, taken straight from a CMS document issued Sept. 5, include:

  • authentication of the practitioner’s order;
  • reason for inpatient services;
  • estimated time the Medicare beneficiary requires being in the hospital; and
  • plans for post-hospital care, if appropriate.

Through authentication, the provider attests in writing that he or she will play by Medicare’s rules (as if we weren’t doing so already). Or in somewhat opaque lawyer-speak, “that the inpatient services were ordered in accordance with the Medicare regulations governing the order.”Certification begins with the order for hospital admission and must be documented in the medical record prior to discharge. Only physicians, dentists and podiatrists can provide certifications. Providers can cover for each other as long as the admission order originates with a practitioner familiar with the patient’s care. The CMS appears surprisingly ambivalent about the actual logistics of documentation. “No specific procedures or forms are required for certification … The provider may adopt any method that permits verification”¦ [S]tatements may be entered on forms, notes, or records that the appropriate individual signs, or on a special separate form.”

In our health system, a PowerPoint has been used for provider education. We’ve also distributed a one-page cheat sheet, which other organizations are also doing.

Questions at first existed about whether residents “we have a bunch running around our hospitals “could provide certification. The majority are licensed physicians supervised by board certified attendings, and those attendings must now cosign residents’ admission orders.

That’s also true for nurse practitioners (NPs) and physician assistants (PAs). According to the CMS’ Sept. 5 clarification, providers who don’t have admitting privileges “PAs, residents or NPs “may issue admitting orders, including verbal ones, at the direction of (and following a discussion with) an “ordering practitioner.” Residents and allied professionals issuing admitting orders will need to identify who their admitting physician is, and admitting physicians will need to countersign those orders before discharge.

In our system, midlevel providers have been writing their own admission orders “which will now need to be cosigned by an attending prior to discharge, part of the certification form that attendings will need to complete.

How’s this all going to play out? Let’s move on to some cases.

Belly pain
Mr. Jones, a 65-year-old male, presented to the ED at 10 p.m. with right lower quadrant abdominal pain. Labs demonstrated leukocytosis with a left shift. Computed tomography strongly suggested acute appendicitis.

Mr. Jones was seen in the ED by a general surgeon who took him directly to surgery at about 2 a.m. A laparoscopic appendectomy was performed without complications. He recovered on an acute care ward with plans to be discharged home later that day.

Appropriate status: post-procedure care. The patient was placed in only observation status and won’t meet the two-midnight rule for admission.

“I can’t breathe”
Mrs. Smith, a 72-year-old female with a known history of chronic lung disease, presented to the ED at 6 a.m. on Monday with acute cough, dyspnea greater than baseline and mild hypoxemia.

She received several nebulizer treatments in the ED, steroids and supplemental oxygen. Although there was some symptomatic improvement, the ED physician and the patient’s office-based internist thought she should stay overnight to demonstrate stability before returning home.

Appropriate status: observation care. Again, no one expects her to spend more than two midnights in the hospital.

“I’ve fallen”
Mr. Black, a 78-year-old male in otherwise good health, presented to the ED by ambulance after falling in his bathroom at home. The rig arrived at the hospital shortly before 9 p.m. on a Thursday.

The ED physician was unable to establish a clear mechanism for falling. Mr. Black was noted to have a deep forehead laceration and objective weakness on the right side of his body. Continuous telemetry demonstrated frequent premature ventricular contractions.

Mr. Black was admitted to the hospital under the care of the hospital medicine service. The receiving hospitalist estimated “and documented “that Mr. Black would require hospital-based care until at least Saturday morning secondary to the need for various diagnostic tests and consultations.

Appropriate status: inpatient.

Patient presentations, however, are seldom this predictable or tidy. What should you do when you can’t predict length of stay on the front end?

The final rule, published in the Federal Register on Aug. 19, counsels thus, “For those hospital stays in which the physician cannot reliably predict the beneficiary to require a hospital stay greater than 2 midnights, the physician should continue to treat the beneficiary as an outpatient and then admit as an inpatient if and when additional information suggests a longer stay or the passing of the second midnight is anticipated.”

In plain language: Begin with observation status. Then flip to inpatient, if needed, when the clinical picture becomes clearer.

Lou Gramm, who rode “Midnight Blue” to stardom in the 1980s, might be a Medicare recipient by now. Here are some prescient lyrics from that song:

“I won’t say where
And I don’t know when,
But soon there’s gonna come a day, baby,
I’ll be back again.”

Unfortunately, the two-midnight rule won’t exculpate us from bounceback penalties. An overnight observation stay followed in short order by another visit, even if two consecutive midnights are involved, doesn’t translate into an inpatient admission.

Besides, the CMS is already anticipating shenanigans. It has warned that it will be looking closely for dubious reasons that extend hospitalizations past the second midnight threshold. So stay tuned.

davidfrenzDavid Frenz, MD, is a hospitalist for HealthEast Care System and is board certified in both family and addiction medicine. (You can learn more about him and his work at www.davidfrenz.com.) Sue A. Lewis, RN, CPC, PCS, is a compliance consultant with HealthEast Care System.