When Definitions Conflict – or Intersect

With regulatory guidance changing faster than ever, it’s important to keep up with what various organizations mean when they use often interchangeable terms.

In the middle of the May 11 broadcast of Monitor Mondays, as I was discussing the difference between possible and presumed cases of COVID-19, Talk Ten Tuesdays panelist Dr. Erica Remer sent a note indicating that the definition of “presumptive” I provided was incorrect. I read her comment and had the horrible sinking feeling of having possibly made a mistake live on the air. But this story has the best possible ending. Not only was definition I read correct, but Dr. Remer’s point was also right. This encounter reflects an incredibly valuable lesson that applies both during and after the COVID emergency.

My original Monitor Mondays segment mentioned the difference between possible and presumed cases of COVID and their impact on some of the programs offering financial assistance to healthcare organizations. I read a definition of a “presumptive” case from a U.S. Department of Health and Human Services (HHS) FAQ about the General Relief Fund. Dr. Remer was focusing on the definitions of “probable,” “presumptive,” and “confirmed,” as they appear in coding instructions. In the ideal world, would the definitions be the same? Of course.  But that is not how the world works, especially when we are talking about entirely different entities: regulation from HHS and coding guidance from the American Hospital Association (AHA) or the Centers for Disease Control and Prevention (CDC). 

This is a good illustration of how the same word may have different definitions in different programs. A private insurer may define the term “inpatient” differently than Medicare. Medicare uses the two-midnight rule, while a private insurer may use InterQual, Milliman, Medicare’s two-midnight rule, or its own invented standard. A state Medicaid program may define a term differently than another state or the Medicare program. But the different definitions of a “presumed case of COVID” discussion highlights how the federal government can use the same term to mean different things. This situation isn’t unique, or even unusual.

For example, Medicare used the term “shared savings” as a synonym for gain sharing for a brief period of time, before it then chose to use the Accountable Care Organization (ACO) program language. I frequently discuss how the word “provider” is used by the Medicare program to refer to entities enrolled in Part A, rather than using it for medical professionals like physicians and nurse practitioners. One big lesson from the story is to be acutely aware of defined terms and word choice.

But there is a second important lesson. When Dr. Remer submitted the question, I will admit that there was a part of me that wanted to wait until I had time to determine whether she was right before mentioning it on the air. But that would have introduced the possibility that I was disseminating inaccurate information. It is always possible to make mistakes, but when rules are changing literally daily, it evolves from the possible to the inevitable. It is imperative that we all keep an open mind, and consider the possibility that we misread a provision or are relying on a document that has since been changed or retracted. (Another important tip: some online guidance is revised without clear demarcation of the changes. It is highly advisable to save static versions of the Centers for Medicare & Medicaid Services, or CMS, issuances, because years from now, it may be difficult to recreate the dates various guidance was issued!) 

During a disagreement about a rule, it is necessary to entertain every possibility. The other person could be right and you are wrong, or you may be right and the other person is wrong – or, as happened here, both parties were correct, and the world is just really confusing. Encouraging people to ask questions and tolerating pushback are always key to compliance, but the current crisis makes it even more valuable. I will close by noting that although I am characterizing my statements on the broadcast as “correct,” I was totally unaware of the CDC and AHA instructions upon which Dr. Remer was relying. So just how right was I?

As a child, I was taught to “stop, look, and listen” at railroad crossings. The same advice applies to regulatory interpretation. Thanks to Dr. Remer for asking the question that stopped me in my tracks. Or, perhaps more accurately, just short of the tracks. 

Programming Note: David Glaser is a permanent panelist on Monitor Mondays. Listen to his live reporting every Monday at 10-10:30 a.m. EST.


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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