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While hospitals have been busy weighing the pros and cons of the Centers for Medicare and Medicaid Services (CMS) appeals backlog settlement, preparing their spreadsheets and figuring out if their 68 percent will be 52 percent or 78 percent, the never-ending fun of the two-midnight rule is continuing.

Within the last several weeks, the Medicare Administrative Contractors (MACs) have started issuing record requests and the second round of probe audits have started. And early indications are that things are not going to be pretty, based on the information I have obtained. A West Coast hospital was kind enough to share its results with me, and the same denials due to MAC misinterpretation of the rule that we saw in the first round are continuing to occur.

Their first denial was a patient with a history of colon cancer who had found a mass in her abdomen. She had declined surgical exploration of the mass several weeks earlier but presented to the hospital with severe pain, enlargement of the mass, bowel wall thickening on imaging, and obstruction of her ureter.  She was admitted and treated for pain and obstruction. A surgeon was consulted and advised surgery. The patient declined and left the hospital against medical advice. The MAC denial noted that pain control could have been expected to be accomplished in under two midnights, and that therefore admission was incorrect. It completely ignored the patient’s new presentation with pain and obstruction, new clinical indications for surgery, and her decision to leave the hospital against the advice of her physicians. Leaving the hospital against medical advice is an exception to the two-midnight rule. Her previous refusal of treatment should not mean she is not offered optimal treatment when she presents with new symptoms, nor should the hospital be penalized for providing patient-centered care and not passing judgment prematurely based on her previous actions.

Another incomprehensible denial was that of an elderly patient who was recently started on a new medication and presented with nausea, vomiting, diarrhea, and chest pressure, with serum sodium of 113, which is dangerously low. Correction of very low sodium must be done slowly to prevent a potentially fatal complication called central pontine myelinolysis, and a sodium level of 113 should ideally be corrected over several days to prevent that complication. This patient was admitted as inpatient and even though the doctors ordered the correct treatment, the sodium rose much faster than expected. The level normalized the next day and she was discharged. The MAC denied the admission, stating the expectation of two midnights in the hospital was not correct. At two recent medical conferences, I asked 150 doctors how many thought that a patient with that presentation would be expected to have a stay less than two midnights, and there was not one hand in the air. I suspect that Medicare claims data on inpatient admission and observation services would show the average length of stay for a principal diagnosis of hyponatremia would far exceed two days.

At a visit the next week to a hospital in Vermont for physician education, I used that case example to illustrate the improper interpretation of the two-midnight rule. The case management staff told me that during their MAC educational session, after their first round of probe audits they were told by the MAC nurse educator that unexpected recovery should be “beyond rare” and the nurse said that to be called an unexpected recovery as an exception to the two-midnight rule and billed inpatient, there should be “angels at the bedside” because the rapid recovery could only be attributed to divine intervention.

This cannot be what CMS intended. I sent these denials and the nurse’s explanation of unexpected recovery to the CMS mailbox, MedicareMedicalReview@cms.hhs.gov, and encourage readers to send their questionable denials as well, indicating the claim number and including no protected health information, as examples of continued misinterpretation of CMS guidance. My email was acknowledged with a promise of follow-up. The respondent seemed generally sincere in her interest and I took that as a good sign.

If patients who are properly admitted are unexpectedly ready for discharge the next day, doctors should not have to document that the recovery was unexpected, but it sounds like that is what the MACs will need to see to approve such an admission, if at all. Unless we get further clarification from CMS on criteria for using the unexpected recovery exception to the two-midnight rule, it seems to be wise for doctors to include the phrase“unexpectedly fast recovery” in their progress note, discharge summary, or as an addendum after discharge and to explain just what parameters got better.

According to one MAC representative, they would accept such a statement in an addendum added any time prior to the point at which they request the record for review, but earlier documentation seems wiser than later to avoid accusations of gaming. And if there are angels at the bedside, see if you can get the patient to take a selfie with them and include the photograph in the medical record; perhaps that will get the admission approved!

About the Author

Ronald Hirsch, MD, is vice president of the Regulations and Education Group at Accretive Physician Advisory Services at Accretive Health. 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 American Case Management Association and a Fellow of the American College of Physicians.

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