Justifying Medicare Inpatient Admissions RAC Response and Appeals Tactics Gregory Palega, MD JD MedManagement LLC Medical Director of Regulatory Affairs gpalega@medmanagementllc.com
Objectives Learn the Correct Medicare Level of Care (LOC) Rules. Identify Common Errors in Recovery Auditor (RAC) denial of payment rationales Understand the Appeal Process Understand the Approach to an Effective Level of Care Appeal
This is How it Goes Down!
The Facts Are Not in Dispute Connolly admitted these facts were documented: 71 year old Man Creatinine up to 2.8 Potassium 7.2 Complained of hurting all over and decreased urination. History of CAD and diabetes
Seriously? Acute Renal Failure Signs and symptoms not severe? Not threatened by less intensive care? Observation was warranted? Patient did not require inpatient level services and was discharged after a short stay.
Snap Back to Reality For practicing doctors and nurses, letters like this can induce an emotional response. Channel it into an effective appeal
Clarity of Medicare LOC Regulations
Black Belt Medicare LOC Rule Review
Legal Chain of Command US Constitution Federal Law/Social Security Act Court Decisions HHS/CMS Regulations and Rulings NCDs LCDs, Medicare Manuals and other published guidance
Defining Medicare Inpatient LOC Title XVIII of the Social Security Act, Section 1862(a)(1)(A) states that no Medicare payment shall be made for items or services which are not reasonable and necessary for the diagnosis or treatment of illness or injury Only one LCD in effect- Highmark DE, DC, MD, NJ, PA recently acquired OK+? L32222 WPS effective 3/2012 IA,KS,MO,NE Private Insurers and Medicaid have different definitions and rules. Beware!
REGULATIONS-CMS Inpatient Details Generally, a patient is considered an inpatient if formally admitted as 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. Defined as 24hours Source: Medicare Benefit Policy Manual, Chapter 1
Expected to Need Inpatient Care for 24h Physicians should use a 24-hour period as a benchmark, i.e., they should order admission for patients who are expected to need hospital care for 24 hours or more, and treat other patients on an outpatient basis. Ch 1, Section 10, MBPMs Subjectively and Objectively. Must be reasonable. Does not say inpatient level defined on later slides
Current CMS Factors to Consider 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 type of facilities available to inpatients and outpatients, the hospital s by-laws and admissions policies, and the relative appropriateness of treatment in each setting. Source: Medicare Benefit Policy Manual, Chapter 1 Can they reliably treat this out of the hospital in this town?
Must Balance Facts Impacting CMS Factors
More CMS Factors Bearing on LOC Factors to be considered when making the decision to admit include such things as: 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 that appropriately are outpatient (i.e., their performance does not ordinarily require the patient to remain at the hospital for 24 hours or more) to assist in assessing whether the patient should be admitted; and The availability of diagnostic procedures at the time when and at the location where the patient presents. Can the threat be eliminated in less than 24 hours? Source: Medicare Benefit Policy Manual, Chapter 1
Need Inpatient Care Means Inpatient care rather than outpatient care is required only if the beneficiary's medical condition, safety, or health would be significantly and directly threatened if care was provided in a less intensive setting. did not use level of care implies hospital location needed The reviewer shall consider, in his/her review of the medical record, any pre-existing medical problems or extenuating circumstances that make admission of the beneficiary medically necessary. Medicare Program Integrity Manual, Chapter 6 - Intermediary MR Guidelines for Specific Services 6.5.2 - Medical Review of Acute Inpatient Prospective Payment System (IPPS) Hospital or Longterm Care Hospital (LTCH) Claims, A. Determining Medical Necessity and Appropriateness of Admission
Need Inpatient Care Means Without accompanying medical conditions, factors that would only cause the beneficiary inconvenience in terms of time and money needed to care for the beneficiary at home or for travel to a physician's office, or that may cause the beneficiary to worry, do not justify a continued hospital stay. The fact that the patient or family was uncomfortable doing this at home means outpatient care was offered and thought reasonable and necessary by the offering MD. Identify your wants versus needs Medicare Program Integrity Manual, Chapter 6 - Intermediary MR Guidelines for Specific Services 6.5.2 - Medical Review of Acute Inpatient Prospective Payment System (IPPS) Hospital or Longterm Care Hospital (LTCH) Claims, A. Determining Medical Necessity and Appropriateness of Admission
What is the Requisite Intensity? Auditors love attacking hospitals with the PIM intensity stick. must receive services of such intensity that they can be furnished safely and effectively only on an inpatient basis. No mention of IV fluid rate, hospital ward v ICU, oxygen minimums etc previously defined as a 24 or more hour physical hospital setting Medicare Program Integrity Manual Chapter 6 - Intermediary MR Guidelines for Specific Services 6.5.2 - Medical Review of Acute Inpatient Prospective Payment System (IPPS) Hospital or Longterm Care Hospital (LTCH) Claims (Rev. 264; Issued: 08-07-08; Effective Date: 08-01-08; Implementation Date: 08-15-08)
Safely and Effectively
Surgery NOT on Inpatient-Only List Minor Surgery or Other Treatment When patients with known diagnoses enter a hospital for a specific minor surgical procedure or other treatment that is expected to keep them in the hospital for only a few hours (less than 24), they are considered outpatients for coverage purposes regardless of the hour they came to the hospital, whether they used a bed, and whether they remained in the hospital past midnight. Chapter 1, section 10 of the Medicare Benefit Policy Manual.
Exclusions Trump Card Custodial care is excluded from coverage. Custodial care serves to assist an individual in the activities of daily living, such as assistance in walking, getting in and out of bed, bathing, dressing, feeding, and using the toilet, preparation of special diets, and supervision of medication that usually can be selfadministered. Custodial care essentially is personal care that does not require the continuing attention of trained medical or paramedical personnel. In determining whether a person is receiving custodial care, the intermediary or carrier considers the level of care and medical supervision required and furnished. It does not base the decision on diagnosis, type of condition, degree of functional limitation, or rehabilitation potential. Medicare Benefit Policy Manual Chapter 16 110 - Custodial Care (Rev. 1, 10-01-03) A3-3159, HO-260.10, HO-261, B3-2326
Medicare Claims Processing Manual Chapter 4 - Part B Hospital 290.1 - Observation Services Overview (Rev. 1760, Issued: 06-23-09; Effective Date: 07-01-09; Implementation Date: 07-06-09) Observation services must also be reasonable and necessary to be covered by Medicare. In only rare and exceptional cases do reasonable and necessary outpatient observation services span more than 48 hours. In the majority of cases, the decision whether to discharge a patient from the hospital following resolution of the reason for the observation care or to admit the patient as an inpatient can be made in less than 48 hours, usually in less than 24 hours. Observation Is Not Always an Option Observation care is a well-defined set of specific, clinically appropriate services, which include ongoing short term treatment, assessment, and reassessment, that are furnished while a decision is being made regarding whether patients will require further treatment as hospital inpatients or if they are able to be discharged from the hospital. Observation services are commonly ordered for patients who present to the emergency department and who then require a significant period of treatment or monitoring in order to make a decision concerning their admission or discharge. Observation services are covered only when provided by the order of a physician or another individual authorized by State licensure law and hospital staff bylaws to admit patients to the hospital or to order outpatient services.
Avoid Observation Definition Traps Observation care is a well-defined set of specific, clinically appropriate services, which include ongoing short term treatment, assessment, and reassessment, that are furnished while a decision is being made regarding whether patients will require further treatment as hospital inpatients or if they are able to be discharged from the hospital. Observation services are commonly ordered for patients who present to the emergency department and who then require a significant period of treatment or monitoring in order to make a decision concerning their admission or discharge. Observation services are covered only when provided by the order of a physician or another individual authorized by State licensure law and hospital staff bylaws to admit patients to the hospital or to order outpatient services. don t use these words in inpatient rationales Medicare Claims Processing Manual Chapter 4 - Part B Hospital 290.1 - Observation Services Overview (Rev. 1760, Issued: 06-23-09; Effective Date: 07-01-09; Implementation Date: 07-06-09) Observation services must also be reasonable and necessary to be covered by Medicare. In only rare and exceptional cases do reasonable and necessary outpatient observation services span more than 48 hours. In the majority of cases, the decision whether to discharge a patient from the hospital following resolution of the reason for the observation care or to admit the patient as an inpatient can be made in less than 48 hours, usually in less than 24 hours.
Synthesis of Self-Contradictory Rules Highmark s PA, Delaware, LCD Essentially controls the LOC determination at Summit and is very persuasive in other jurisdictions LCD ID Number L27548 LCD Title Acute Care: Inpatient, OBSERVATION and Treatment Room Services The determination of an inpatient or outpatient status for any given patient is specifically reserved to the admitting physician. The decision must be based on the physician's expectation of the care that the patient will require. The general rule is that the physician should order an inpatient admission for patients who are expected to need hospital care for 24 hours or longer and treat other patients on an outpatient basis. An inpatient admission is not covered when the care can be provided in a less intensive setting without significantly and indirectly threatening the patient's safety or health. Although in many institutions there is no difference between the actual medical services provided in inpatient and outpatient observation settings, in such cases the designation still serves to assign patients to an appropriate billing category.
Rules of Evidence
Events and Facts After the Admission Inpatient vs. Observation determination Evidentiary Rules QIOs (and RACs)* consider only the medical evidence which was available to the physician at the time an admission decision had to be made. They do not take into account other information (e.g., test results) which became available only after admission, except in cases where considering the post-admission information would support a finding that an admission was medically necessary. Medicare Benefit Policy Manual,Chapter 1,Page 8, 10 * Sacred Heart v. First Coast, Medicare Appeals Council, Nov. 10, 2009
Rules of Evidence Sacred Heart Case- November 10, 2009 Medicare Appeals Counsel- binding 4 th level appeal no presumptive weight should be assigned to the treating physician s medical opinion in determining the medical necessity of inpatient hospital or SNF services under section 1862(a)(1)of the Act. A physician s opinion will be evaluated in the context of the evidence in the complete administrative record Thus, the Council notes that there is no presumption that a treating physician s judgment establishes Medicare coverage We have to deal with both facts and stated MD opinions /plans when determining if an inpatient LOC is supported by the record.
RACS and All Others Must Follow the PIM Affiliated contractors (ACs) shall follow all sections of the PIM unless otherwise indicated. Medicare administrative contractors (MACs), comprehensive error rate testing (CERT) contractors, recovery audit contractors (RACs), program safeguard contractor (PSCs) and zone program integrity contractors (ZPICs) shall follow the PIM as required by their applicable Statement of Work (SOW). Medicare Program Integrity Manual Chapter 1 - Medicare Improper Payments: Measuring, Correcting, and Preventing Overpayments and Underpayments 1.1- Overview of Program Integrity and Provider Compliance (Rev. 313; Issued: 11-20-09; Effective/Implementation Date: 12-21-09)
The PIM yields to MBPM for details Section 6.5.2 of the PIM A. Determining Medical Necessity and Appropriateness of Admission See Pub. 100-02, chapter 1, 10 for further detail on what constitutes an appropriate inpatient admission. - aka the Medicare Benefit Policy Manual Chapter 6 - Intermediary MR Guidelines for Specific Services 6.5.2 - Medical Review of Acute Inpatient Prospective Payment System (IPPS) Hospital or Long-term Care Hospital (LTCH) Claims
Nuts and Bolts Medicare Level of Care Medical Necessity Appeals
Level 1 Appeal / Redetermination by MAC Level 2 Appeal / Reconsideration by Qualified Independent Contractor Level 3 Appeal / Hearing by Administrative Law Judge Level 4 Appeal / Appeals Council Level 5 Appeal / US District Court
Part A QIC Jurisdictions 2 nd Level Appeals
The First Three Denials
Don t Confuse Discussions with Appeals If during the discussion period the recovery auditor is notified by the contractor that the provider initiated the appeals process, the recovery auditor shall immediately discontinue the discussion period Discussion does not toll the appeal or recoup blocking deadlines. -RAC SOW Section 14. Allowance of a Discussion Period
Evidentiary Change? In the absence of CMS policy Review Guidelines shall be developed using evidence-based medical literature to assist reviewers in making a determination. RAC screen tools shall not make policy. Section E, 4, page 20 of 2011 SOW
2. Minor Omissions not fatal? Consistent with Section 937 of the MMA, the Recovery Auditor shall not make denials on minor omissions such as missing dates or signatures if the medical documentation indicates that other coverage/medical necessity criteria are met. RA SOW Section E 2. The Claims Review Process.
How to Write an Effective Appeal
The MedManagement Format Severity of the signs/symptoms exhibited by the patient: Insert a brief summary of presenting signs, symptoms, and test results. Cite/add the actual key quotes from the HPI or key lab data supporting your determination. Pre-existing Medical Problems or Extenuating Circumstances: List only significant history that impacts the patients risk and complexity (Generally not every surgery, fibromyalia, nor G3P1 ) Medical predictability of something adverse happening to the patient: State the risk (high or low) and the applicable threat. If you recommend admission based on risk, use high risk here. Explain why the risk is high despite some unimpressive numbers. Then, describe why one would predict the need for 24 hours of care that can only be given in the hospital.
Why? Because? 1- The risks of severe health threats are higher than the initial data show because... 2- The only safe way to manage the risk is inpatient care because 3- More likely than not, necessary care will take > 24 hours because... 4- The expected inpatient level services (or actual services received)are the type that can only safely be done in an inpatient setting.
Back to this Nonsense (Non Sequitur)
Example Appeal Severity of Signs and Symptoms: The patient was a 71 year old man who presented to the emergency room with hypotension (94/61). Moreover, objective testing revealed acute renal failure, with a creatinine already up to 2.8 (baseline of 1.3 or less) and severe hyperkalemia (potassium of 7.2). As a result, the responsible physician formally admitted the patient to the inpatient setting.
This is Your Argument Complicating Pre-existing Medical Problems: Likely coronary artery disease (CAD) based on age, diabetes, and hypertension. No need to repeat facts already in the record. The record will accompany your appeal. This is your chance to explain and educate. Note my liberties above
Explain Why the Risk was So High The medical predictability of having an adverse health outcome was moderate to high risk for CHF/pulmonary edema and deadly high potassium (K) arrhythmias from renal failure because of his likely cardiac disease and severely elevated K. Plus, the serum creatinine does not reflect the severity of the renal failure until the renal function is in equilibrium; which takes several days after a renal insult. Meanwhile, the creatinine would only rise a point or so per day, even if both kidneys completely failed before the patient arrived.***
Explain Why 24 Hours Needed Likewise, the creatinine will take days to improve even if initial therapy is successful. However, at any time the potassium can shoot up to life threatening levels in hours. Therefore, the admitting doctor needs to expect to frequently and serially measure blood electrolytes and kidney function over 24-48 hours while frequently measuring and correcting vital electrolytes lest the patient suffer fatal cardiac arrhythmia. Acute IV therapies, IV fluids, and dialysis need be immediately available during this time
Define Inpatient Intensity Properly Actual inpatient intensity services received: More than 24 hours of IV fluids, continuous cardiac rhythm management, and serial testing and exams in a setting where IV electrolyte management, defibrillation, and IV antiarrhythmics were immediately available. This care can only be rendered in a hospital setting.
Questions?