Compliance with billing rules likely to come up in suits — Newly required documentation can help defense
New Centers for Medicare & Medicaid Services (CMS) rules for justifying assigning inpatient status to a patient are a hot topic in the reimbursement world, but these rules also will become an issue in malpractice litigation.
"Physicians needn't become Medicare experts, but they do need to understand how the new rule works. There is now even heavier emphasis on documentation," says Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based healthcare attorney and former practicing emergency physician.
The hospital has to be prepared to show why inpatient admission is necessary and that the patient's problems are sufficiently severe that a stay of two consecutive midnights or longer is reasonably anticipated. It will need to depend heavily on the documentation of the admitting physician to do so. (The 2014 Inpatient Prospective Payment System Final Rule is available at http://1.usa.gov/J386Do.)
"There will certainly be fights over whether the documentation was adequate in a given case," McMenamin says. "Since documentation is often the key in medical malpractice as well, admitting physicians now have even more compelling reasons to dot their I's and cross their T's."
Document reason for admission
Physicians need to be aware of complexities that could arise because of the differences between CMS' "two midnight" rule and state law, says Cori Casey Turner, JD, a partner at Husch Blackwell in Kansas City, MO.
For example, under the MO HealthNet rules, admission is appropriate if, based on the physician's initial intent, a patient is expected to require inpatient care for 24 hours or more.
"Differences in the CMS rule and each state's Medicaid rule add a layer of complexity, increasing the risk of billing and documentation errors as physicians attempt to comply with different rules related to inpatient admissions," says Turner. To minimize risk, physicians should remain vigilant about appropriately documenting the reason for admission orders regardless of the payer, she advises.
For shorter admissions, physicians might simply choose to bill for the care on an outpatient basis to avoid problems with CMS auditors, which results in less reimbursement. It's also possible that some physicians will avoid discharging patients before two consecutive midnights have passed to comply with the requirements for reimbursement at the inpatient level. (See related story, below, on legal risks of failing to admit patients.)
"If Medicare perceives that you are 'gaming the system' by keeping a patient in the hospital longer just to run out the clock, the auditors are going to come looking for you," warns McMenamin. "My guess is that if they think you are playing games, they are going to look at you pretty closely."
Use "first class" documentation
If the physician does pursue inpatient reimbursement for a shorter hospital stay, McMenamin says, "then you have to be prepared to defend yourself. Your documentation has to be first class."
In this scenario, physicians need to document why inpatient admission is needed and why they expect it to be longer than two midnights. "Physicians should write a very complete note — not just about the patient's immediate problem, but other medical problems as well," advises McMenamin.
For example, if a patient is being admitted for congestive heart failure, the physician also should document that patient's recent myocardial infarction, the renal failure complicating the cardiac problems, and the fact the patient has some hypoxia related to pulmonary edema. "If you document all of that for purposes of demonstrating to a Medicare auditor why it's not a garden variety case and you may have the patient in for a while, it can help you from a professional liability point of view as well," says McMenamin.
The requirements potentially could decrease malpractice exposure for physicians because documentation will be more thorough and complete.
If the patient has a bad outcome and sues, "you now have this chart that is chock-full of information about how sick the patient was," says McMenamin. "You are facing a lawsuit, but the chart makes it clear that you had a tough case on your hands."