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Here it is January 2015, and we are still struggling with a rule put in place back in October 2013. The reasons behind the struggles vary from hospital to hospital but have a resounding theme behind most of them. If only the Centers for Medicare & Medicaid Services (CMS) could be clear in its definition of inpatient versus outpatient, we would all be able to determine the “status” of each patient. 

CMS has replaced the 24‐hour care benchmark with a two‐midnight benchmark, under which “a physician or other qualified practitioner … should order admission if he or she expects that the beneficiary’s length of stay will exceed (two midnights) or if the beneficiary requires a procedure specified as inpatient‐only.”

Many did not understand this decision – or the definition of a two-midnight benchmark versus a two-midnight presumption. Just about all acute-care, critical access and behavioral health hospitals began to struggle with the reasoning behind the rule. We are the same people that began to participate in the CMS open door forums (ODFs) to seek answers.

CMS’s First ODF gave us this definition: “You need to put Medicare patients in inpatient if they will be in the hospital for greater than two midnights and they meet medical necessity. We define medical necessity as care that is provided in a hospital setting.” Well, that made it easy, right? No! We can provide a good deal of care in a hospital, but does this mean that it should or would always need to be provided there? It does not, nor should it.

Hospitals are advocates for patients, and we want care provided in the least restrictive environment necessary for the patient. CMS may not believe this in all circumstances, but hospitals do not want to provide acute inpatient care (whether medical, surgical or behavioral) to people who do not need it. 

What about screening tools to determine inpatient versus outpatient? It was not to be. I can understand this in many ways, because the tools are just that, tools. We can identify some patients who should be treated as inpatients yet would not pass the inpatient screen. However, if we, by our Medicare Conditions of Participation (also in CFR 42), have a utilization management plan that included second-level physician review in place, we all should be abiding by it and seeking physician approval for those patients.

The implementation of the CMS two-midnight rule began to take a life of its own. The actual intent – to take care of the beneficiaries who remain in outpatient settings for long stays – is a tough issue. It remains a challenge to determine who requires a hospital level of care versus who is there for the sake of safety.

If we think of the hospital level of care as inpatient or outpatient based only on time frames (keeping in mind the inpatient-only procedure list), then we could all abide by the rule and use a clock for status. After all, status is only a billing issue. You need the status on the UB04. Physicians don’t need the status to provide a treatment plan for a patient. Nurses don’t need the status to implement that treatment plan.  PT/OT/ST may need to know if they enter their own charges on the bill, as would radiology for particularly expensive tests, but honestly, we all care first and foremost for the patient and their immediate needs and concerns, not status. 

The most unfortunate part of all of this is that the beneficiary is stuck in the middle. If the beneficiary is indeed ill enough to require hospital care and would possibly need post-acute services (such as a stay in a skilled nursing facility), he or she still has to have a qualifying three-day inpatient hospital stay (three midnights in an inpatient setting).

Hello, CMS? This is making us all crazy! Two days here, three days there; when will it end? Oh, and don’t forget the 72-hour rule before admission!

Effective Jan. 1 2015, the certification piece of the hospital stay has been moved from being required on all inpatients to being required on outliers and those inpatients with lengths of stay (LOS) greater than 20 days. The rule changed ”need for hospitalization” to ”need for continued hospitalization.” This seems to me like double documenting. If the physician has not documented why a patient remains hospitalized after that long, perhaps that physician should not be practicing in any setting, let alone a hospital setting. 

Wouldn’t prior authorization for every inpatient stay be the right way to handle this? Hospitals have become used to this with commercial and managed care patients for years. Although I will say that we are seeing a lot of these managed care insurances begin to audit post-hospital stay and look to take their money back – just like recovery auditors. All insurance carriers should provide the ability to discuss a treatment plan with a physician (or with utilization review, which is who is reading the physician-documented treatment plan) and determine based on their own rules whether the patient would be inpatient or outpatient. But please, pay hospitals for what they do: caring for each patient with the most recent, evidence-based guidance we have. Reimbursement would have to change drastically for this to happen, but with the age of bundled payments and accountable care organizations, I think this has merit. Let us work together, insurance company and healthcare team, to determine the most appropriate care for each person in the most appropriate setting.

If only CMS would say, “hey, we messed up and we really did not mean to make this so difficult.” I wish it were that easy.

About the Author   

Mary Beth Pace is the care management system director  for Trinity Health.  

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