News to Note – August 2022

• We have heard a lot about the crisis in rural health care access. The Centers for Medicare and Medicaid Services (CMS) has recently proposed developing a new hospital type called a Rural Emergency Hospital.
• This type of hospital would be required to provide 24-hour emergency care and offer outpatient surgery services and observation services. CMS is asking for comments on these facilities being able to offer low risk labor and delivery services, as well.
• These facilities would be paid at 5% over the outpatient rate and there would be a special monthly payment of unknown size to every facility. On a CMS call at the end of July it was explained that these hospitals would get a monthly payment from CMS in addition to getting their Outpatient Prospective Payment System (OPPS) payments increased by 5%. This means in 2023, the per hospital monthly payment would be $286,294. That seems to be a lot of money but will it be enough to persuade rural hospitals that are on the brink of failing to convert to a rural emergency hospital? 
• Another interesting comment on the call about these proposed facilities is that CMS proposes to limit the annual patient encounter to under 24 hours but they don’t know which patients should go into that calculation so they are asking for suggestions. If they limit it to only observation patients, that is going to be a problem. It’s pretty rare in “normal” hospitals – much less a Rural Emergency Hospital – to have an average observation time of 24 hours. We will see what CMS decides. 
• The Department of Health and Human Services (HHS) extended the Public Health Emergency, giving us the waivers at least through the middle of October. And, given the uncertainty of the new COVID-19 variant with some areas reporting increasing hospitalization rates, it is nice to have the extension. But, there are many who are not happy with HHS for waiting until the last minute to make the extension official. Unfortunately, it was totally unnecessary and created a lot of anxiety. 
• There are lots of Medicare regulations that are confusing but when the case-by-case exception can and can’t be used is definitely in the top five. If you read the 2016 OPPS Final Rule, CMS makes it clear it is not a rare an unusual exception. Remember that CMS included a discussion of the use of the case-by-case exception in the 2018 OPPS Final Rule when they removed total knee arthroplasty from the inpatient only list. Every single patient undergoing knee arthroplasty is clinically stable and yet CMS allows the exception to be used there. Of course, the trick is getting the provider documentation to support the use of the exception. 
• There are going to be major changes to the physician documentation rules for hospital visits but throughout the new coding explanations there are references to patients as either in “inpatient status” or in “observation status.” Yep, they call Observation a status. Now, of course many refer to Observation as a “status,” but the problem is that there are many patients in the hospital who are neither Inpatient nor Observation such as outpatient surgery patients in routine recovery overnight. The new coding rules make absolutely no mention of how those visits are to be coded. Hopefully the CPT authors and CMS make clarifications before January. 
• CMS released the 2023 OPPS Proposed Rule and the good news is that nothing is changing with the Two-Midnight Rule.
• There are 10 surgeries proposed to be removed from the inpatient only list with none of them of any major consequence and one surgery is proposed to be added to the Ambulatory Surgery Center (ASC) list. 
• They are also proposing the addition of 10 facet joint interventions, including injections, to the hospital outpatient prior authorization program as of March 2023.
• There is discussion about creating a new payment category, paying for software as a service. In short, this is when a test result of some type – be it radiology images or lab results – are input into a computer program that then produces a result that provides new, additional information used to care for the patient. For example, HeartFlowFFR uses CT scan images to characterize blood flow in the coronary arteries and LiverMultiScan uses MRI images to characterize the cause of liver disease. The interesting part of this discussion is that CMS specifically notes that they are concerned about the potential for such products to have unintentional bias in their software algorithms and they want to ensure they are paying for a product that is equally accurate for all patient populations without bias. Stay tuned to see if any of these proposals end up in the Final Rule. 
• Last month, the Office of the Inspector General (OIG) released an interesting audit. They audited billing of critical care visits by physicians who are employed by Lahey Clinic in Massachusetts. They planned to audit 100 admissions but then, as they describe, because of the resource-intensive effort required to perform a medical review, they lowered that down to just 10 admissions, although those 10 admissions included 92 critical care visits. This was actually a good thing for Lahey Clinic because since the OIG did not use their original sample size, they decided not to extrapolate their findings. Overall, the OIG found that 61% of the critical care claims were improper. Reviewing the examples the OIG provided, our own ACPA Update Editor and member of the ACPA Advisory Board, Dr. Ronald Hirsch, actually agrees with the OIG’s findings. According to Dr. Hirsch, “the physicians clearly provided regular hospital visits that were not even close to critical care. The message here is that if your organization is in charge of billing for the physicians, consider doing some audits of the critical care visits to ensure the patients were truly critically ill.”