Transcript RAC Risk Areas - Alston & Bird LLP

RAC Risk Areas:
Hospital Patient Status
Robert D. Stone, Esq.
Alston & Bird LLP
Georgia Hospital Association
July 15, 2010
“In all we do, we must remember that the best
health care decisions are made not by
government and insurance companies, but by
patients and their doctors.”
George W. Bush, State of the Union Address
Increased Payor Scrutiny
 “Hospitals, insurers battle over downcoding of
patient stays” (The Intelligencer, July 6, 2010)
– “Unashamedly, one of our efforts is to promote more
efficient care. No one is saying don’t be careful, don’t
take the appropriate precautions. It’s about how do you
appropriate pay for that resource, that amount of care
that is being rendered.” Don Liss – Independence Blue
Cross, Senior Medical Director.
Agenda
 Physician’s role in determining patient status
 Recent enforcement actions
 Clinical risk areas related to patient status
 Medicare rules and the use of Condition Code 44
 The Case Management Assignment Protocol
(CMAP) – History & current options
The Problem
 Correctly assigning patient status to avoid:
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Short Stay denials
False Claims allegations
Inappropriate use of “observation” services
Compromising SNF coverage
Condition Code 44 “Trap”
Medical Necessity: The Treating
Physician’s Primary Role
 The patient’s treating physician is responsible for
determining whether a Medicare beneficiary
needs to be admitted to a hospital.
 “The physician or other practitioner responsible
for a patient’s care at the hospital is also
responsible for deciding whether the patient
should be admitted as an inpatient.”
MBPM Ch. 1 § 10.
Only A Doctor Can Legally
Admit Patients to Hospitals
 Generally, under state law, only physicians can order the
inpatient admission of a patient. Nurses (including care
managers) are not legally qualified to make that decision,
which is outside their “scope of practice.” See, e.g.,
Georgia Medicaid Hosp. Manual § 901.1 (req. admissions
by “licensed doctors”); 42 CFR 482.12(c)(2) (“Patients are
admitted to the hospital only on a recommendation of a
licensed practitioner permitted by the State to admit
patients to a hospital.”)
 “In no case may a non-physician make a final
determination that a patient’s stay is not medically
necessary or appropriate.” See Page 217 of the Medicare
State Operations Manual, accessible at
http://www.cms.hhs.gov/manuals/Downloads/som107.ap_
a_hospitals.pdf.
Physician’s Judgment
 By Medicare policy, the physician should consider the
following factors in making a determination whether to
admit a patient:
– The severity of the signs and symptoms exhibited by the patient;
– The medical predictability of something adverse happening to the
patient;
– The need for diagnostic studies; and
– The availability of diagnostic procedures at the time.
Id.
“Complex Medical Judgment” Standard
 “The decision to admit a patient is a complex
medical judgment which can be made only after
the physician has considered a number of factors,
including the patient’s medical history and current
medical needs, the types of facilities available to
inpatients and to outpatients, the hospital’s bylaws
and admissions policies, and the relative
appropriateness of treatment in each setting.”
MBPM Ch. 1 § 10.
“Physician’s Expectation” Test
 A patient should be considered an inpatient if the patient
was admitted based on the physician’s expectation that an
inpatient stay is appropriate. LMRP for Acute Care:
Inpatient, Observation and Treatment Room Services
(L1281) at 4 (January 1, 2005)
 “Generally, a patient is considered an inpatient if formally
admitted [by a doctor] as an inpatient with the expectation
that he or she will remain at least overnight and occupy a
bed even though it later develops that the patient can be
discharged or transferred to another hospital and not
actually use a hospital bed overnight.” MBPM Ch. 1 § 10
24-hour Benchmark
 While Medicare guidance suggests physicians
use a 24-hour benchmark for acute hospital
services as a guide, “[a]dmissions of particular
patients are not covered or non-covered solely on
the basis of the length of time the patient actually
spends in the hospital.” MBPM Ch. 1. § 10.
 What happens after the decision to admit a patient
is made by the treating physician can only be
used to substantiate, not refute, the validity of the
physician’s decision-making. BCBS LMRP at 5.
Common Published Criteria, Like InterQual, Recognize That
A Physician’s Clinical Judgment Governs
 “The Criteria reflect clinical interpretations and
analyses and cannot alone either resolve medical
ambiguities of particular situations or provide the
sole basis for definitive decisions. The Criteria
are intended solely for use as screening
guidelines with respect to the medical
appropriateness of healthcare services and not for
final clinical or payment determinations
concerning the type or level of medical care
provided, or proposed to be provided, to a
patient.” InterQual, Acute Criteria Review
Process, RP-14 (2005).
Multiple Choice: Reimbursement Issue That Has Been
Around For More Than A Decade Means:
 A. The rules aren’t very clear
 B. There are a lot of judgment calls where reasonable
minds can differ
 C. The “decider” and the “biller” aren’t the same
 D. The problem often happens late at night, on
weekends, holidays or in an “emergency”
 E. All of the above
Multiple Choice: Reimbursement Issue That Has Been
Around For More Than A Decade Means:
 A. The rules aren’t very clear
 B. There are a lot of judgment calls where reasonable
minds can differ
 C. The “decider” and the “biller” aren’t the same
 D. The problem often happens late at night, on
weekends, holidays or in an “emergency”
 E. All of the above
A Short History Of “Short-stay” Enforcement
 Issue in OIG Work Plans for at least 10 years
 Saint Barnabas Case (2005): False Claims Act utilized in patient
status case
 Saint Joseph’s Health System (2007): Qui Tam action brought by a
former case manager
– Areas of Focus
• 1-day stays
• “zero-day” stays
• 3-day inpatient stay with discharge to SNF
• 2 and 3-day inpatient stay where reimbursement > billed
charges
• ESRD cases where patient missed dialysis due to blocked
access sites
Government Enforcement and Short-Stay
Admissions: US ex rel. Ramsey v. Saint Joseph’s
 Qui Tam action brought by former case manager
who was employed only for a few months
 Relator’s complaint based largely on anecdotal
case stories
 Case ultimately based upon large statistical
analyses
 Case evidences areas of particular risk
Other Enforcement Cases
 Khyphoplasty Cases: Medtronic Spine (2008),
HealthEast Care System (2009)
 Yale-New Haven: procedure-related admissions (2009)
 Wheaton Community Hospital (2010): medically
unnecessary admissions
 RAC Program
 QIO Initiatives
Areas of Risk
 Chest Pain and Cardiac DRGs
 Payments Exceeding Charges
 SNF Discharges
 ER Point of Entry Cases
 Cases related to patients presenting after
outpatient tests or procedures
 Dialysis
The False Claims Act and Short-Stay Admissions
 “Knowledge” Factors
– Hospital Audits (or lack thereof) and Work
Plan/Corrective Action
– Education of Medical Staff and Case Management Staff
– PEPPER Reports
– Administration Response to Feedback from Case
Management
– Administrative Reports and Internal Data (Average
Length of Stay, for example)
Auditing Patient Status Issues
Inpatient Admission Coverage Criteria
Observation Services Coverage Criteria
Condition Code 44
Hospital UR Condition of Participation
Causes of Patient Status Errors
Differences of opinion (medical necessity)
Medical record documentation issues
– Unclear orders
– Unclear supporting documentation
– Timing of orders/authentication/
implementation
Medicare Rules (very simplified)
Admission Following Observation
– Effective at time of the admitting order
After Inpatient Admission
– Unless Condition Code 44
• No APC billing, even if Admission is denied
– “Part B only” services
CMS Physician Order Interpretations
“Admit” = Inpatient
“Admit as inpatient” = Inpatient
“Admit for observation” = Inpatient
“Admit to observation” = Outpatient
“Place in observation” = Outpatient
“Admit to Case Management Protocol” = None
“Condition Code 44” Criteria
 Admission does not meet inpatient criteria
 By 1 UR Committee member and the
attending physician
 Decision documented in medical record
 Changed before discharge and any billing
Condition Code 44 – CMS Views
No substitute for utilization management staffing
or continued medical staff education
“[T]he need for hospitals to correct inappropriate
admissions and to report condition code 44
should become increasingly rare.”
42 C.F.R. § 482.30/Utilization Review Committee
 Defines the process for hospital determination that
an “admission . . . is not medically necessary.”
 Consultation with treating physician or opportunity
for treating physician to be heard is required
 Physician members of UR Committee have power
to change status
 3 Notifications Required when patient status
changes
 Condition Code 44 distinguished
Case Management Assignment Protocols
“Florida Protocol”
Case Management Assignment Protocol (CMAP)
– Standardized decision making process
– Individual or standing orders to UR personnel
– Assign status using recognized criteria
Case Management Assignment Protocol
Physician determines need for hospital care
– Orders: “Admit to CMAP”
– “Hold” status (e.g., 2, 6, 12 hours)
– Default to Outpatient (Observation)
• If assigned Observation, physician re-evaluates
within 24-48 hours for inpatient admission or
discharge
Simplified CMAP Flow Diagram
Physician Orders “Admit to
Case Management
Protocol”
Admitting Status Hold
Outpatient /Observation Service
Physician
Re-evaluates
Case
Management
Assigns Status
Inpatient Service
Discharge
Summary of CMAP Demonstration Project
 Involved 16 hospitals in six western states
 Only 35% of the records reviewed at the end of
the project had evidence of use of the CMAP –
but still showed measurable results overall
 Variability in implementation of the protocol
 Percentage of unnecessary short stays
admissions decreased from 26.4% to 12.4%
 Overall, the rate of short stays remained the same
or increased for most hospitals
Lessons Learned from the CMAP Demonstration
Project
 Use of CMAP resulted in reduction in denial rates but NOT
in short stays.
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Shift from longer IP admission to observation status + short stay.
More accurate
Less expensive for CMS
Focus on decrease in denial rates not decrease in short stays
 Possible nurse staffing issues with observation units
 Training in use of protocol
 Need to identify missed billing opportunities, particularly in
the ED (may require additional training)
 Need for a physician champion
Lessons Learned, cont’d.
 Mandatory versus optional
 Case management staffing issues
– Improved accuracy on front-end may reduce costs involved in
appealing denials
 Indirect benefits from use (or even attempted use) of
protocol
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Increased communication
Increased feedback
Increased sensitivity to patient status issues
Opportunities for education related to status issues
After initial resistance, physicians relieved to have case managers
with expertise available
– Suggests opportunities for improvement exist, even without full
implementation of CMAP
Apparent CMS Concerns about CMAP
 “Removes physician from the process”
– The physician . . . responsible for a patient's care at the
hospital is also responsible for deciding whether the
patient should be admitted as an inpatient
– But does it really?
• Patient’s physician determined need for hospital
• Medical staff physicians selected criteria
Apparent CMS Concerns about CMAP
 “Defaulting to observation” (i.e., outpatient)
– “General standing orders for observation services
following all outpatient surgery are not recognized.”
 Long-standing distrust of “standing orders”
– But see Memo to State Survey Agency Directors re:
“Standing Orders” in Hospitals (Oct. 24, 2008)
Why Isn’t Everyone Using CMAP?
NOT yet CMS approved
CMS position re “Admit to CMAP” orders
– Standing or patient-specific
– Supports neither Inpatient Admission nor Outpatient
Observation
MACs cannot approve proposed CMAPs
Modified Case Management Approach
 No standing orders
 No default to Outpatient/Observation
 Case management reviews/recommends
 Provides recommendation to physician
 Requires separate order accepting the recommendation
after it is made
– Written signoff or properly noted telephone order should
be sufficient
Problems With Modified Approach
 Additional Expense
 Physician hassle factor
– Having to sign twice
 Delay –
– Time before the second order does not count
• 8 hour minimum for Observation
• 3 day Inpatient stay for SNF coverage
Current CMAP Conclusions
 Sooner or later RACs will audit
 CMAP actually works
 Nevertheless, not CMS approved
 Reliance on CMAP could lead to 100% denials
– No orders for services
 Modified CMAP approach may help
Saint Joseph’s Response: Systems Improvement
 Proactive Response to Strengthen Case Management
– Training
– Mandatory Credentialing
– Independent Review of Performance
 Addition of Physician Advisor
 Strengthening of UR Committee Function and
Performance
 Administration Support
 Compliance Program Involvement
Saint Joseph’s Response: A Unique CIA
 HHS-OIG approves use of “Admit to Case
Management Protocol” as part of CIA
 First case authorizing protocol by CIA
 Outside of 6-state pilot
 Allows Case Management Involvement with
Physician at Front End of Process
 Physician must still order status
 Status held until consultation
Questions
RAC Risk Areas:
Hospital Patient Status
Robert D. Stone, Esq.
Alston & Bird LLP
Georgia Hospital Association
July 15, 2010