A Call to Order

A Call to Order

Inpatient admission orders don’t necessarily have to be written.

Last month, I participated in a webinar about the Two-Midnight Rule for the Association for Healthcare Denial and Appeal Management (AHDAM). The session generated several good questions. The most common question was, “wait, so you don’t need a written order for a patient to be considered an inpatient?” 

Hopefully, most of you have seen information from Ronald Hirsch, M.D. as he reported on the fact that in 2018, the Centers for Medicare & Medicaid Services (CMS) eliminated the need for a written order to justify inpatient admission. Now, to be clear, I am not saying that admission is always completely appropriate without any order. This is a good time to dive into some semantics and focus on why it is important to read and listen very carefully to each and every word when talking about Medicare regulations. 

The Two-Midnight Rule requires an order from a physician who has admitting privileges and is knowledgeable about the patient’s hospital course, medical plan of care, and current condition. There is a huge difference between the requirement for an “order” and a “written order.” An order can be oral, not written. As I have mentioned in the past, people often speak of verbal orders. I really would like to banish that phrase from our vocabulary. All orders are verbal, whether they are spoken, written, or transmitted via Morse code. “Verbal” means it is in the form of words. “Oral” means it is spoken aloud (I do not think you need me to tell you what “written” means!) So, the order can be oral, and it need not come from the physician who is primarily treating the patient. Any physician who has admitting privileges and is knowledgeable about the patient’s hospital course can issue the order. I do not see any reason that a utilization management (UM) physician would be barred from issuing the order, as long as that physician has taken the time to review the patient’s hospital course and plan of care. (Dr. Hirsch has pointed out some old guidance from CMS suggesting that they don’t believe that UM physicians may write the order. However, the plain language of the regulation would allow any physician with privileges and knowledge of the patient’s condition to do so.)

Now, I should emphasize that everything I just said applies solely to Medicare. It is entirely possible that in your state, your Medicaid program has different requirements. Private payors are entitled to have whatever conditions they wish to impose. But for Medicare, you do not need to have a written order. 

Another question related to situations in a post-COVID waiver world in which a patient is ready to leave the hospital for a skilled nursing facility (SNF), but no skilled nursing bed is available. In that situation, is it reasonable to admit the patient if they are going to be in for more than two midnights? I think this is a really good question, and I am interested in Dr. Hirsch’s thoughts. While preparing for that webinar, I learned that the Quality Improvement Organization (QIO) Manual, chapter 7, section 7005, states that Medicare pays for hospital days for patients awaiting placement until a swing bed is available. I think that language strongly suggests that admission is appropriate when a skilled nursing bed is unavailable, but I will not claim to be completely confident in that answer. 

Finally, let’s deal with a softball. If the patient is admitted as an inpatient but unexpectedly improves after one midnight and is discharged, is it still permissible to treat them as an inpatient? Absolutely. Admission status is determined by the expected course at the time of the admission decision. Unanticipated results, whether death or improvement, that alter the planned course of care do not change the validity of the original assessment. The only problem would be if the physician’s initial expectation of a two-midnight stay, based on the facts available at that time, was unreasonable.

The bottom line is that if you have an oral order, there is no need for you to get a new order. Nor is there a need to refund. Written orders are a good idea, but not a regulatory requirement.   


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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