ACPA Update
November 2021
In this Update
Editor's Note
Why Don’t Medicare Advantage Plans Follow the 2 MN Rule
ADCIS 2021 Overview 
Returning to In-Person Conferences 
Observation Committee November Cases 
President's Corner
Editor's Note
Ronald Hirsch, MD, FACP, CHCQM-PHYADV, CHRI
Member, ACPA Advisory Board 
Editor, ACPA Update
Wow, what a conference. Kudos to Drs. Carolyn Dutton and Julie Kolsinski for organizing a great NPAC. I really enjoyed the virtual format with the talks pre-recorded and then each played back followed by a live Q&A session with the speaker. The evening quiz session was fun but I am not happy that Dr Ben Kartchner beat me. And of course even though we were not in there is person, Carolyn and Julie had the foresight to schedule plenty of time for open discussions amongst attendees. The session recordings should be available soon in case you missed some and you can still buy access and watch the sessions if you didn’t register already.  

In this issue, we have an article from Dr Russ Firman about a topic that was discussed at length by several speakers at NPAC, the tactics of Medicare Advantage to deny inpatient admission. He eloquently lays out the argument about why, unfortunately, they are allowed to do what they are doing.  

And only a week after NPAC, ACDIS held their annual meeting in Dallas, in person. Dr. Tim Brundage gives us an overview of the conference and a discussion of one of the hot topics at the conference, the definition of myocardial injury.  I did see on social media a picture of ACPA president Dr Juliet Ugarte Hopkins meeting with the executive director of ACDIS, Brian Murphy, and both were smiling. I would have loved to be a fly on the wall listening to that conversation. 

Speaking of conferences, Dr. Erica Remer also gives us her view on in-person conferences. We all miss them. Do we learn better in person? Is it worth the time and money to travel to a meeting? It is worth the risk of contracting COVID-19, even if you are vaccinated? It’s a complex issue.  

And speaking of complex issues, it is also time for another set of cases from the Observation Committee. These cases are tough! It is often hard enough deciding about whether inpatient admission is warranted or not, but these cases add another element or uncertainty. I won’t say any more but hope you’ll not only read the cases but click on the link and tell us what you think.  

Finally, want to expand your curriculum vitae? Write an article for the newsletter. Email me at signaturedoc@gmail.com for the submission guidelines.   
Why Don’t Medicare Advantage Plans Follow the 2 MN Rule
Russ Firman   
Member, ACPA Observation Committee
Why can’t we use the Two Midnight Rule (2MN rule) to achieve Inpatient status determination for enrollees in Medicare Advantage (MA) plans? For Physician Advisors across the country this question is akin to the movie “Groundhog Day.” Hopefully this article gets you to February 3rd at your organization and gets our specialty on the same page. 

In response to the 2MN rule implementation in 2013, hospitals developed routine admission orders with embedded 2 MN copycat language regardless of insurance type. As a result, providers learned to do this with all admissions, never really understanding the rule at all or that it only applies to Medicare Part A. This has led to the widespread perception that the 2MN rule applies to any plan that has the word Medicare attached to it. We should not be surprised that so many people do not understand why the 2MN rule doesn’t apply to MA plans.  

Everyone knows that on October 1, 2013 the 2 MN rule was implemented. In August 2015 United Healthcare (UHC) declared it would no longer use the 2MN rule to determine Inpatient status for the MA plans it offered to enrollees. In 2017 UHC revised their inpatient policy from “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”,  to “physicians should use the expectation of the patient to require hospital care that spans at least two midnights period as a benchmark, i.e., they should order admission for patients who are expected to require a hospital stay that crosses two midnights and the medical record supports that reasonable expectation.” (1)  

Current UHC policy references the recent decision by CMS to remove procedures from the Inpatient Only List (IPOL) with the following statement: “Additionally, procedures removed from the IPOL may become subject to medical review activities related to the 2-midnight rule.” The policy continues to confuse the reader mischaracterizing inpatient as “services.” The policy even refers to a commercial policy URG - 19.01 entitled Elective Inpatient Services (note title of policy does not include Medicare Advantage). (2) This link is a “commercial utilization review guideline” effective 5/1/2021 without any reference to the 2 MN rule. It seems to me to coincide exactly with the InterQual (IQ) screening tool roll out date but veiled in an “elective” surgery inpatient criteria commercial policy buried on the bottom. Notice how UHC does not reference IQ in their MA plans directly but refer you to their commercial policies so they cannot be accused of using any utilization criteria alone in their Medicare population consistent with CMS guidance. UHC uses CMS policy and the 2MN rule in their MA policies to their benefit, leaving the reader confused about how to apply the IQ utilization tool and or 2MN rule. 

The confusion resurfaced in February 2019 when David M. Glaser Esq. wrote in RAC Monitor why MA plans need to follow the 2 MN rule. “42 CFR 422.101 requires MA plans to comply with the Centers for Medicare & Medicaid Services (CMS) national coverage determinations and general coverage guidelines included in original Medicare manuals and instructions, unless superseded by regulations in this part or related instructions. The two-midnight rule is included in the Medicare manuals and is not superseded by regulation, so Medicare Advantage plans must follow it.” (3,4) In 2020, the American College of Physician Advisors TLC educational resource for Physician Advisors entitled “Improving Hospital Performance – A Counterintelligence Approach” suggested Inpatient Status for MA enrollees meeting the 2 MN rule. At the ACPA Observation Committee town hall in June 2021 audience members continued to need clarification on the topic.   

Let me outline why the 2MN rule does not apply to MA plans. If a healthcare organization opts to enter into a contract that surrenders rights to which it would be entitled, this is between the organization and the plan and CMS won’t get involved. A post was found on the RAC Relief Google group with the following response on the topic from a CMS administrator to a group member: 

“Our thinking has evolved a bit. We do not require MA plans to follow the two-midnight rule since they are at risk for services (capitated). If an MA plan (physician) decides that the best course is to admit a person to a hospital they can do so without regard to the 2 MN rule. When paying claims on a non-contract basis, if an MA plan determines that a hospitalization or observation stay was not medically necessary the plan can deny payment and of course the appeal process becomes available.” 

According to Ed Norwood, CMS Account Management Standard Operating Procedure 5.3.2, in part states: “As such, it is CMS policy that execution of a contract between an account and a provider is between those parties, and CMS will not intervene unless it can be proven that beneficiary access is being impacted as a result.” It all comes down to whatever is agreed upon in the MA contract with the hospital, as long as access to benefits is not restricted to enrollees. 

Section 1852 of the Social Security Act says Medicare Advantage plans must offer all the “benefits” that the original Medicare program offers.  The Medicare Managed Care manual (Chapter 4, 10.2)  treats these plans as commercial plans but maintains that they are statutorily required to provide benefits that are as generous as original Medicare  that they would have received with original Medicare for all Part A and Part B services. (12) 

“Benefits mean health care services that are intended to maintain or improve the health status of enrollees, for which the MA organization incurs a cost or liability under an MA plan (not solely an administrative processing cost). Benefits are submitted and approved through the annual bidding process.” (8)  

Therefore, the language of the MA plan contract with the hospital, or any commercial payer for that matter, dictate the extent of UR processes that lead to payment for the services and benefits delivered to the enrollee. When MA firms negotiate contracts with individual hospitals and healthcare organizations, CMS has been clear that such contracts are not required to include the Two-Midnight Rule when it comes to making hospitalization status decisions. (6) Instead, in these instances, MA plans often use proprietary decision tools containing clinical criteria, such as MCG or IQ, and/or their own plans internal criteria as part of the decision making process to grant inpatient or outpatient  (observation) status.(6) 

The status of a patient is either Outpatient or Inpatient, neither of which is a benefit or service or item to which the patient is entitled.  In the case Alexander vs. Azar, the court (Michael P. Shea, U.S.D.J.) made the following statement. “For the reasons that follow, I find that….there is a property interest in Part A coverage, but no property interest in inpatient admission. Neither the language of the 2MN rule, nor CMS sub regulatory guidance, nor CMS’s enforcement practices establish a property interest in formal inpatient admissions, because CMS doesn’t not require treating physicians to order inpatient admission when a patient satisfies CMS criteria.” (9)   I interpret this in the following way - that Observation is a service, so it is therefore a benefit, while Inpatient status and the 2MN rule is not a benefit! 

If the beneficiary receives these services no less than original Medicare offers, CMS has remained reluctant time and time again to intervene in this payment dispute. Therefore, Outpatient and Inpatient status designation is a payment mechanism only. 

An interesting example of where a benefit must be offered by the MA plan because it is part of an NCD would be UHC’s policy on Mitra Clip. The MA plan has to offer the benefit since it is offered to all other original Medicare enrollees. UNH does not offer the service to any of its commercial non - Medicare enrollees because they consider the procedure to not be medically necessary. In the absence of a Medicare National Coverage Determination (NCD), Local Coverage Determination (LCD), or other Medicare coverage guidance, CMS allows a Medicare Advantage Organization (MAO) to create its own coverage determinations, using objective evidence-based rationale relying on authoritative evidence (Medicare IOM Pub. No. 100-16, Ch. 4, §90.5). 

Since the subject of this article is why don’t MA plans have to follow the 2 MN rule, the same answer applies as to why MA plans don’t have to follow the 3 MN rule for SNF coverage.  

Other items that are not benefits under original Medicare that are contractual: 

  1. Readmissions – zero payment different from traditional Medicare process
  2. Code 44 process
  3. Inpatient Only List
  4. Inpatient denial with inability to obtain reimbursement for observation alternatively
  5. Exceptions to the 2MN rule
  6. Physician economic herding by payer (7)
  7. Tiered payment for certain items and services (7) 

I hope this clarifies why we cannot use the 2MN rule for MA plans no matter how much we try. Instead, maybe we can get our contracting folks to negotiate this into the contract with the MA plan. If not, lets agree to stop trying to force a square peg into a circle. Good luck. 

References:
  1. United Healthcare Medicare Advantage Coverage Summary, Hospital Services (Inpatient and Outpatient); https://www.uhcprovider.com/content/dam/provider/docs/public/policies/medadv-coverage-sum/hospital-services-inpatient-outpatient.pdf 
  2. https://www.uhcprovider.com/content/dam/provider/docs/public/policies/comm-medical-drug/elective-inpatient-services.pdf 
  3. https://racmonitor.com/medicare-advantage-plans-are-supposed-to-follow-the-two-midnight-rule/ 
  4. https://racmonitor.com/medicare-advantage-plans-and-the-two-midnight-rule/ 
  5. https://www.journalofhospitalmedicine.com/jhospmed/article/214485/hospital-medicine/policy-clinical-practice-medicare-advantage-and 
  6. Locke C, Hu E. Medicare’s two-midnight rule: what hospitalists must know. Available at https://www.the-hospitalist.org/hospitalist/article/194971/medicares-two-midnight-rule 
  7. Announcement of calendar year (CY) 2019 Medicare Advantage capitation rates and Medicare Advantage and part D payment policies and final call letter (accessed November 18, 2019); Page 206. Available at: https://www.cms.gov/Medicare/Health-Plans/MedicareAdvtgSpecRateStats/Downloads/Announcement2019.pdf 
  8. Law.Cornell.edu  42 CFR § 422.2 
  9. https://casetext.com/case/alexander-v-azar-2 
  10. Medicare Benefit Policy Manual. Chapter 1 - Inpatient Hospital Services Covered Under Part A. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c01.pdf. 
  11. Code of Federal Regulations. https://www.ecfr.gov/cgi-bin/text-idx?SID=958ee67a826285698204a34e1e5d6406&node=42:2.0.1.2.12.1.47.3&rgn=div8. 
  12. https://www.ssa.gov/OP_Home/ssact/title18/1852.htm 


Dr. Firman is board certified Emergency Medicine and practices clinically for US Acute Care Solutions, and is currently full time as a Physician Advisor with Saint Joseph’s Health/Trinity in Syracuse, New York. Dr. Firman is CHCQM Board Certified in Health Care Quality Management by the ABQAURP. 
ADCIS 2021 Overview 
Timothy Brundage, MD, CCDS   
Co-Chair, ACPA CDI Committee 
President’s Note: I was fortunate to have the opportunity to attend this event and represent ACPA. I want to add my acknowledgement of Drs. Sam Antonios, Timothy Brundage, Trey La Charité, Erica Remer, Deepa Velayadikot, and Beth Wolf, all whom presented at the conference and made huge impacts on the attendees! Dr. Antonios’ pre-conference presentation not only outlined operational metrics and useful analytical tools, but how to use critical thinking and examine them, as well. Dr. Erica Remer’s outline of clinical and coding scenarios related to COVID-19 was not only timely, but extremely actionable. Finally, Dr. Beth Wolf’s review of atypical presentations of acute heart failure which should not be missed to support clinical validation and quality metrics, and defend code assignment is one I am sure the audience brought immediately back to their teams when they returned home. My thanks to all for their continued hard work and dedication to education! 
-Juliet B. Ugarte Hopkins, MD, CHCQM-PHYADV

The ACDIS conference was the last week of October in Dallas, Texas.  ACPA members were prevalent and notable leaders.  The physician pre-conference had two tracks; one for those physicians who desired the 101 track and one for more seasoned physician advisors.  ACPA members, Dr. Trey La Charité, Dr. Deepa Velayadikot, and Dr. Sam Antonios provided super high-quality material on what it means to be a physician advisor.    
 
This year, Dr. Deepa Velaydikot shared her experience as a physician advisor with utilization management perspective at Cooper University Hospital in New Jersey.  The education was well received and well delivered.  Bravo! 

My lecture addressed the quality implications tracked on the type of myocardial infarction.  The CMS 30-day all-cause mortality inclusion cohort contains STEMI and NSTEMI but type 2 MI is notably absent.  Thus, diagnostic specificity and consistency are paramount! 

After the conference, the Godfather of CDI, Dr. Bill Haik, asked me a question on myocardial injury that I thought I would share with the ACPA newsletter. He questioned the 20% rise/fall of troponin as a requirement to define “acute”.  We reviewed, discussed, and collaborated as colleagues do. That makes conferences valuable! 

In short, the 4th Universal Definition of AMI published in 2018 shared in figure 6 a 20% rise or fall requirement to define acute myocardial injury which is required to define acute myocardial infarction. Check out Figure 6 in the guideline paper found here. 

Dr. Trey La Charité and I discussed auditors may deny "acute" and claim that the myocardial injury is only "stable" or "chronic" and thus deny the AMI diagnosis. Beware!  

See the excerpt below taken from the guideline paper:
This figure supports that a 20% rise or fall in troponin is required to define acute myocardial injury and, therefore, acute myocardial infarction.  

Overall, the conference was a success and the education valuable. It was very refreshing to be back in person at a live event.  I think we’re all excited for the 2022 conference schedule.  
 
Dr. Brundage is CEO and Medical Director of the Brundage Group. 
Returning to In-Person Conferences 
Erica E. Remer, MD, FACEP, CCDS  
Member, ACPA Board of Directors
Co-Chair, ACPA Clinical Documentation Integrity Committee
When SARS-CoV-2 shut down the world in March of 2020, we were just coming into speaking and attending society conferences season. Many organizations pivoted to on-demand or virtual activities. NPAC21 was inspired and extraordinary; if you didn’t get to participate in real-time, you should experience it on-demand. 

Despite Delta’s best efforts, many societies have gingerly circled back to in-person meetings. I have attended two myself in the past few weeks. I am conflicted but cautiously optimistic.

It will take some time, if ever, for in-person meetings to reach the glory of their heyday. After pulling back funding of travel, many organizations have recognized that education can be obtained in significantly less costly ways. They like that concept very much. Some of us still believe there is a pandemic going on. Eventually, it will attain endemic status. The medically vulnerable and most apprehensive of us may never feel completely safe again at large indoor gatherings of unknown attendees. 

On October 8, I traveled to Columbus, OH to do a talk on COVID-19 for the Ohio Health Information Management Association. Imagine the irony if I had to cancel because I had contracted COVID-19 from my 90-year-old father after he came down with a breakthrough infection on October 1. I even had to perform an antigen test because my annual ragweed allergy was acting up. 

The Association of Clinical Documentation Integrity Specialists (ACDIS) had moved its annual meeting to the end of October as well. In Texas. I was in constant contact with the director, Brian Murphy in advance, hoping they would reconsider. ACDIS is based in Massachusetts where vaccination rates are pretty robust; I wasn’t sure they understood that Texas isn’t quite as enlightened. 

He assured me that masking would be mandatory and since attendance was going to be significantly lower than in past years, there would be ample social distancing. Many, if not most, of the attendees were likely to be fully vaccinated. 

His staff contacted me prior to the event to see if I would be willing to reprise my talk towards the end of the conference. I was flattered, but my plan was to speak and leave. On the scale of terrified recluse to throw-caution-to-the-wind, I am moderately left of midline. Although I planned to honor my commitment to speak, I did not feel comfortable spending three days in an indoor venue with so many people. I had COVID-19 in March 2020. It was the worst illness I have experienced, and, in spite of being fully vaccinated in February 2021, I never want to have it again. 

But eventually we are all going to have to creep out of our shells and be with people again. Here are my thoughts on the subject. 

If healthcare industry societies do not feel comfortable mandating vaccination for conference attendees, they should at least strongly encourage it. I think they should consider continuing to provide the option for virtual or on-demand attendance for the foreseeable future, despite the added cost.  

The venues should be large enough to accommodate the number of attendees with appropriate spacing, and there should be ample ventilation. The hotel or conference hall staff optimally should be vaccinated, and they should be following the masking and distancing rules of the society. 

Masking should be mandatory. I’d even like signs demonstrating that the nose holes need to be covered, although it is unfathomable to me that there are still people who don’t understand this concept. I’d like it to be a safe space where we are allowed to request a neighbor raise their mask over their nose if it has slipped. In fact, put a box of surgical masks and a roll of adhesive tape at the readily-accessible hand sanitizer stations so people can secure their masks if they don’t fit. 

I reluctantly attended the welcome reception in the vendor exhibition hall at ACDIS, wearing my N95 mask. It boggles my mind that people just throw caution to the wind and lower their masks to eat and drink. SARS-CoV-2 doesn’t take a break when you need sustenance and say, “I’ll resume infecting when you are done.” I would recommend that meetings do not mix alcohol and information. Alcohol tends to reduce inhibitions and muddle common sense.  

Something that they did at ACDIS was clever. They distributed three color-coded lanyards with nametags. Green meant, “I am comfortable with networking.” Yellow meant, “I am receptive to networking, but please respect social distance.” And red meant, “Back off, buster, I ain’t there yet.” I actually read the instructions because I was going to select the saucy red one to go with my outfit, but I opted for the yellow one for the messaging, instead. 

Finally, I strongly recommend that you get your booster shot in the airport like I did, if you don’t work in a hospital and haven’t already had the opportunity to get it. It made the whole throwing-caution-to-the-wind-and-being-around-other-human-beings-again experience worth it! 

Dr. Remer is the Founder and President of Erica Remer, MD, Inc., icd10md.com  
Observation Committee November Cases 
Provided by the members of the ACPA Observation Committee
Case 1: 

A 78yom with HTN, DM, CKD3 presented with syncope. Hospitalized overnight for observation; serial troponins negative, telemetry uneventful, TTE not consistent with CAD sequelae or concerning structural abnormalities. Discharge was planned. While undergoing an ambulatory oximetry study, the patient had cardiac arrest. Resuscitation was unsuccessful. Prior to claim submission, a member of the UM team suggests that an inpatient claim is appropriate, as unexpected death is an allowable exception to the 2-midnight policy and a defective IP order should not be sole grounds for a denial. What do you think? 
 
Case 2: 

An 89yo nursing home resident with severe dementia was found unresponsive in bed and taken to a local ED, where she was found to be in shock from a ruptured AAA. Air transfer to a tertiary center was arranged; the patient coded in the local ED with subsequent ROSC, and coded again just before landing. The patient was taken to the OR while CPR was in progress; after assessment the accepting vascular surgeon discontinued resuscitation efforts. There was no admission order and documentation was limited. 

Case 3: 

An elderly person with many comorbidities presented shortly after midnight with acute stroke symptoms; evaluation confirmed a large CVA. Immediate aggressive treatment was initiated in the ED, along with Neurology and Neurosurgery consultation. The patient required sedation, intubation, and ventilation. After several hours of aggressive care, the patient’s surrogates opted for a comfort-based approach. The patient was subsequently admitted to inpatient status and placed in the neuro ICU for end-of-life cares including terminal extubation, with death expected shortly after extubation. The patient died on hospital hour 17. Prior to an initial claim, you are asked to consider a self-denial/Part A to B rebill because, while the patient was emergently intubated and died, the stay was zero midnights and “only comfort cares were provided.” 

Submit your answers at: https://www.surveymonkey.com/r/X96RW22  
American College of Physician Advisors
President's Corner
November 2021
It’s hard to believe the 2021 National Physician Advisor Conference (NPAC) was almost a month ago and even harder to believe we are in the process of accepting applications to speak at NPAC 2022! Taking place in person – that’s right, IN PERSON! – in Austin, Texas next April 11–13, there are many aspects of this upcoming event to be excited about. 

Physician advisors are called upon or expected to solve complex problems that cross several department lines in their various roles.  The focus of NPAC 2022 is to explore the spectrum of these assignments, recognize and acknowledge how diverse they are, describe (and when necessary, postulate) strategies to address these challenges, and emphasize the collaborative nature of these strategies. 

As the physician advisor role evolves, it’s fitting that this is a conference for professional engagement, discourse, and shared experiences. Regardless of the amount of time you have worked as a physician advisor or the size of the hospital or health system you work for, your contribution could be invaluable to our membership and conference attendees.  We have compiled a list of scenarios, projects, and experiences physician advisors frequently encounter which can be found at: https://www.acpadvisors.org/content.aspx?page_id=22&club_id=90610&module_id=493631 

If you identify with any of them, consider sharing your experience with your peers! Full information about the application process can also be found at the link above. But hurry! You only have until Sunday, November 28th to apply! 
Juliet B. Ugarte Hopkins, MD, CHCQM-PHYADV
(Pronouns: She/Her)
President, ACPA

Dr. Juliet B. Ugarte Hopkins is Physician Advisor for Case Management, Utilization, and Clinical Documentation for ProHealth Care, Inc. in Waukesha, WI.
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