New CMS guidance on audits and the two midnight rule

Audit News.    On Friday, January 31, 2014 CMS extended the Medicare Administrative Contractor (MAC) “Probe and Educate” reviews for an additional six months beyond March 31, 2014 through September 30, 2014.  The release from CMS provides that “MACs will continue to review and deny (emphasis added) claims found not in compliance with CMS-1599—F (commonly known as the ‘2-Midnight Rule’).”  The Recovery Auditors and reviewers other than the MAC will not conduct post-payment patient status reviews of inpatient hospital claims with dates of admission on or after October 1, 2013 through September30, 2014, although the Recovery Auditors may continue audits of inpatient admissions prior to October 1, 2013 and may audit all inpatient admissions for issues other than inpatient status issues.

Certification Guidance.  CMS also released new guidance on certification.  The link to the certification guidance is here. There is a special open door forum on Tuesday, February 4, from 1-2pm ET.  The Participation Dial-In Number is 877-251-0301. The Conference ID# is 47736519. As is the case with previous transmittals the guidance raises questions, but new detail is added to most certification elements.  The guidance provided lengthy explanation of the inpatient order requirements.  The ordering practitioner must be licensed by the state to admit patients to hospitals, have admitting privileges at the hospital, and must be knowledgeable about the patient’s hospital course, medical plan of care and current condition at the time of admission.  “The ordering practitioner is not required to write the order but must sign the order reflecting that he or she has made the decision to admit the patient for inpatient services.”  There is language in the new guidance that a medical resident, physician assistant or nurse practitioner or other non-physician practitioner may “act as a proxy” for the ordering practitioner “provided they are authorized under state law to admit patients…” and meet the other requirements in the regulations, including being authorized by hospital by-laws or policies to admit.  In addition, the admission order by the proxy must be countersigned by the ordering practitioner prior to patient discharge.  While there is a great deal of ambiguity and detail in the language, there is clarity regarding the necessity of a clear inpatient order signed by a qualified ordering practitioner with admitting privileges.  Processes must be in place to ensure countersignatures are in place prior to patient discharge any time verbal orders or non-qualified admitting practitioners are used for the initial order.

The ordering practitioner is defined as follows:

“..the admitting physician of record (“attending”) or a physician on call for him or her, primary or covering hospitalists caring for the patient in the hospital, the beneficiary’s primary care practitioner or a physician on call for the primary care practitioner, a surgeon responsible for a major surgical procedure on the beneficiary or a surgeon on call for him or her, emergency or clinic practitioners caring for the beneficiary at the point of inpatient admission, and other practitioner qualified to admit inpatients and actively treating the beneficiary at the point of the inpatient admission decision.”   

In-house physician advisors and utilization review physicians who do not have direct responsibility for the care of the patient are not considered to have sufficient knowledge to order the inpatient admission. The guidance provides that “…a utilization committee physician may only write the order to admit if he or she is not acting in a utilization review capacity and fulfils one of the direct patient care roles…Utilization

review may not be conducted by any individual who was professionally involved in the care of the patient whose case is being reviewed.”  

Since orders and certifications must be signed and in the chart prior to discharge it is important to know when discharge occurs. CMS provided the following guidance as to when discharge occurs:

“With regard to the time of discharge, a Medicare beneficiary is considered a patient of the hospital until the effectuation of activities typically specified as having to occur prior to discharge (e.g. ”discharge after supper” of “discharge after voids”).  So discharge itself can but does not always coincide exactly with the time the discharge is written rather it occur when the physician’s order for discharge is effectuated.”

Discharge orders that are non-specific could create timing issues for the hospital. “Discharge in the morning if patient is able to void” could mean that the patient is deemed “discharged” prior to the time appropriate signatures are in place. Best practice still requires signatures prior to or simultaneous with the discharge order.

There are different requirements for the certifying practitioner and the ordering practitioner.  The certifying practitioner must be the admitting physician (which CMS also says is the “attending”) or a physician on call for him or her, a surgeon responsible for a major surgical procedure on the beneficiary, or a surgeon on call for him or her; a dentist that is functioning as the admitting practitioner or with respect to non-physician, non-dentist ordering practitioners, a physician member of the hospital staff who reviews the case can sign the certification on behalf of such non-physician.  The certifying physician does not have to have inpatient admission privileges.

As noted previously, though the regulations do not require a specific certification form (and this guidance affirms that no specific form is required) the guidance provides “…there must be a separate signed statement for each certification or recertification.  If all the required information is included in progress notes, the physician’s statement could indicate that the individual’s medical record contains the information required and that hospital inpatient services are or continue to be medically necessary.”  Just as the MACs ask the hospital to send “the certification,” the language implies that a separate signed statement is preferred (if not required), in addition to the signed progress notes and orders.


We will provide more detailed information on this guidance shortly, but wanted to alert you as to the issuance of the guidance and some of the concepts covered.

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