MA and the Two-Midnight Rule: What’s Wrong with this Picture?

Well, we are only three weeks into the year, so three weeks into the applicability of the Two-Midnight Rule to Medicare Advantage (MA) plans, but it already looks like I need to apologize for being wrong.

I had great faith that the MA plans would respect federal regulations and the rule of law, and with their billions of dollars of profits, they would properly educate their utilization review staff and medical directors on the rule. But it appears it is not happening, across the board.

In California, a Blue Cross MA plan told a hospital they were denying inpatient admission for an elderly patient with a hip fracture who had surgery, and they also denied a four-day admission for heart failure, both for “not meeting MCG criteria for inpatient admission.”

Now, any of us could perhaps review short heart-failure admissions and argue that the doctor was not aggressive enough with diuresis, and the patient really didn’t need that last day. But there is no excuse with an acute hip fracture. In fact, MCG does not even have any observation criteria for a hip fracture.

To add to this, as part of the Two-Midnight Rule, MA plans must approve inpatient admission for patients having a surgery on the Medicare Inpatient-Only List. I will admit I was negligent in not finding out what surgery was performed and then determining if it was inpatient only, but most surgeries performed to repair a hip fracture are inpatient only, again supporting the inpatient admission decision.

In addition, the case manager told me that a skilled nursing facility (SNF) referral was also denied. A hip fracture not needing SNF care? Give me a break. And to think, it was not long ago that Blue Cross was considered the “Cadillac” of insurance plans. But then again, Cadillac is to many no longer considered the Cadillac of cars, so maybe it’s expected that Blue Cross would adopt many of the egregious practices of the other MA plans.

In addition to these cases, there were also several posts on RAC Relief user group about MA plan medical directors claiming a complete lack of knowledge of the Two-Midnight Rule.

As a reminder, what can you do about it?

First, always review the case to ensure the Rule is truly followed; remember, just because a doctor says they expect two midnights does not mean it will be the case. Then challenge the payer with their interpretation and offer to educate. But if they maintain their position, I would tell them something like the following (my suggestion, and not endorsed by any organization): “Thank you for your opinion, but I disagree. This case meets the provisions of the Two-Midnight Rule. I will be filing a complaint with CMS about your violation of the federal regulations found at 42 CFR 422.101(b)(2). Also, can I get your name and your area of expertise to determine if you meet the standard set at 42 CFR 422.629(k)(3) for issuing an adverse organization determination?”

Then keep a list of these cases, and periodically send an email to your Centers for Medicare & Medicaid Services (CMS) regional office with the number of cases and the payer names, without personal health information (PHI), offering to provide case details, and request that CMS take action. Now, will that work? We don’t know, but we can only hope that the regional offices will get so tired of the flood of complaints that they will insist that the CMS bosses in Baltimore set up a formal process to assess these. The MA plans also need to remember that this Rule did not take effect until Jan. 1, so that they could adjust their bids and their per-patient payment from CMS could compensate for the expected increase in inpatient admissions and post-acute care resulting from the regulatory changes (and that continuing to use the 2023 rules could be perceived as the plans intentionally acting to receive improper payments.)

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Ronald Hirsch, MD, FACP, CHCQM, CHRI

Ronald Hirsch, MD, is vice president of the Regulations and Education Group at R1 Physician Advisory Services. Dr. Hirsch’s career in medicine includes many clinical leadership roles at healthcare organizations ranging from acute-care hospitals and home health agencies to long-term care facilities and group medical practices. In addition to serving as a medical director of case management and medical necessity reviewer throughout his career, Dr. Hirsch has delivered numerous peer lectures on case management best practices and is a published author on the topic. He is a member of the Advisory Board of the American College of Physician Advisors, a member of the American Case Management Association, and a Fellow of the American College of Physicians. Dr. Hirsch is a member of the RACmonitor editorial board and is regular panelist on Monitor Mondays. The opinions expressed are those of the author and do not necessarily reflect the views, policies, or opinions of R1 RCM, Inc. or R1 Physician Advisory Services (R1 PAS).

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