An Important Update on the 2-Midnight Rule
CMS continues to provide frequent updates on its “2-midnight rule,” which establishes a benchmark and a presumption that an inpatient admission is generally appropriate and payable under Medicare Part A if the admitting physician expects a Medicare beneficiary to require a stay that crosses at least 2 midnights, and the physician admits the beneficiary based upon that reasonable expectation. Enforcement of the 2-midnight rule, originally published in the Federal Register on August 19, 2013 as part of the FY 2014 hospital IPPS and LTCH PPS final rule, has been partially delayed several times and will be fully implemented on October 1, 2014. This means that the 2-midnight rule is currently in effect, and providers are expected to make admission decisions based on the requirements of the 2-midnight rule even though CMS continues to provide “Probe and Educate” feedback to providers and continues to issue clarifications on how providers may best comply with the 2-midnight rule.
Here’s the latest: On February 24, 2014, CMS announced that it instructed Medicare Administrative Contractors (“MACs”) to re-review all claim denials under the “Probe and Educate” process to ensure that those denials are consistent with CMS’s most recent clarifications.1 This means the MAC, on re-review, may reverse any previous denial decision and pay a claim outside of the normal appeals process if the MAC determines that its earlier decision is inconsistent with CMS’s most recent guidance. CMS is encouraging providers to work with their MACs to determine if a denied claim has been re-reviewed prior to submitting an appeal request for that denied claim. To ensure that this new re-review process does not negatively affect the ability of a provider to file a timely appeal of a denied claim, CMS will waive the 120-day deadline for filing a request for redetermination (the first step in the claims appeal process) if such requests are received before September 30, 2014 and they pertain to claim denials under the “Probe and Educate” process that occurred on or before January 30, 2014.
Claim denials in the above timeframe that already have been appealed will still be subject to re-review. If upon re-review the original claim is determined to be payable, such claim will be adjusted. However, if the original claim denial is affirmed, CMS will automatically transfer the denied claim to appeals. In other words, the process of re-review will not remove a claim already on appeal from the appeals queue.
Providers wishing to review the January 30, 2014 guidance on requirements for hospital inpatient admission orders and certifications can find this here.
CMS Issues Rule Requiring Insurers Offering QHPs in the Marketplace to Accept Ryan White Program Premium Payments
On Friday, March 14, 2014 at 4:15 PM, CMS issued an interim final rule, which states that issuers of qualified health plans (“QHPs”) and stand-alone dental plans (“SADPs”) must accept premiums and cost-sharing payments from the Ryan White HIV/AIDS Program; Indian tribes, tribal organizations or urban Indian organizations; and State and Federal government programs (“Rule”).
However, in the commentary to the rule, CMS reiterated its position on hospital payment of premiums, stating that it “remain[s] concerned that third party payments of premium and cost sharing provided by hospitals, other healthcare providers and other commercial entities could skew the insurance risk pool and create an unlevel competitive field in the insurance market. We continue to discourage such third party payments of premiums and cost sharing, and we encourage QHPs to reject these payments.” CMS specifically states that the Rule does not preclude QHPs and SADPs from contractually opting out of accepting payments of premiums and cost sharing from third-party payers other than the organizations mentioned in the Rule.
CMS made no mention in either the Rule or the commentary regarding whether hospitals and other health care providers could provide premium and cost-sharing payments by and through not-for-profit foundations. This is noteworthy because CMS’s February 7, 2014 FAQ said that its concerns regarding third-party payments do not extend to payments by private, not-for-profit foundations so long as the payment support is provided pursuant to defined criteria that are based on financial status and do not consider enrollees’ health status. CMS also stated in that FAQ that it would expect any third-party premium assistance program to cover an entire policy year.
Although CMS encourages insurers to not accept premiums from third parties such as providers and commercial entities, it does not prohibit providers such as hospitals from offering premium support programs; indeed, CMS’s authority to prohibit providers from offering such programs remains questionable.
The Rule is effective immediately.
The public has 60 days to offer comments on the Rule. Comments should be made pursuant to instructions provided in the Rule. Of interest, CMS waived the usual public notice period when issuing this Rule because it was concerned that a delay in coverage could result in worsening medical conditions for people who rely on one of the third parties identified in the Rule to pay their premiums.
Please stay tuned for a forthcoming in-depth article on this topic.
If you have any questions or would like additional information on these topics, please contact Adele Merenstein at 317-752-4427 or amerenst@hallrender.com or your regular Hall Render attorney.
Please visit the Hall Render Blog at http://blogs.hallrender.com/ for more information on topics related to health care law.
1 See here.
