News to Note – April 2026

  • The Centers for Medicare and Medicaid Services (CMS) recently announced their Comprehensive Regulations to Uncover Suspicious Healthcare (CRUSH) initiative.  It involves us providing suggestions on how to reduce fraud against the Medicare system. 
    • However,announcements of indictments from the Department of Justice (DOJ) just don’t make it seem like identifying fraud (or ways to reduce it) should be that hard.  One orthopedic surgeon from Texas was indicted for prescribing $145 million worth of prescription creams. The DOJ noted that payors were charged $16,000 per tube.  No one noticed that?  Each payorjust paid the bill?  
    • If CMS and payors want to stop fraud, perhaps they should modernize the payment system to detect aberrant claim patterns.  Waiting until claims from a single provider hit $145 million before stepping in makes no sense. 
  • Another recent CMS announcement involves a moratorium on issuing new licenses for durable medical equipment (DME) suppliers.  This doesn’t seem particularly problematic since there are plenty of DME providers.  Has anyone heard of a patient having trouble accessing necessary DME?  
  • The Office of the Inspector General (OIG) released its first audit of a hospital in over three years. Sarasota Memorial Hospital was the lucky facility.  
    • The audit involved claims from 2020 and 2021, two perfectly ordinary years in health care.  
    • Sarasota was cited for nine of 65 inpatient hospitalizations not meeting the Medicare Two-Midnight Rule.  
    • The response letter from the hospital included casting doubt on whether the CMS auditor really understood the Two-Midnight Rule.  It’s anticipated that Sarasota will formally appeal all the denials since the OIG is extrapolating the findings and claiming the facility must pay back $12 million.
    • CMS also asked the auditor to apply InterQual criteria and report those findings, noting that it was done for informational purposes only.  However, it’s not clear how any hospital would find that information useful.
  • There’s been increased discussion about widening the use of designating patients as discharging against medical advice (AMA) when they don’t agree to the recommended treatment plan—for example, when they insist on going home to an unsafe environment or when the payor won’t approve the post-acute care destination that the medical team considers appropriate.  
    • Dr. Hirsch wrote in a recent blog for the Case Management Society of America (CMSA) how he feels this pathway is perfectly compliant with existing regulations.  Additionally, he states it’s a fitting tactic for hospitals to take to fight against the many games payors play to avoid paying for patient care.
    • A large, west coast healthcare system has adopted this tactic, and the vice president of care management recently wrote to Dr. Hirsch, “this initiative has received strong backing from our legal, risk, and medical/legal ethics teams, as well as overwhelming support from our physicians. Many physicians expressed frustration at feeling compelled to order discharges they believed were unsafe, worrying that doing so implied their agreement with those decisions.” 
    • This individual also asked about patients who agree to the recommended discharge plan but then do not follow through.  Can those discharges also be coded “against medical advice?”  For example, what if a patient is discharged home with home care services but then they refuse to allow the home care nurse into the home?  What about a patient who is discharged to a skilled nursing facility (SNF), but, when they get there, are disappointed with the facility and call their family to pick them up and take them home?  Can the claim for these patients’ hospital care be amended to discharge against medical advice since the patient ultimately did not follow the medical team’s advice at discharge? 
    • If a patient was discharged with home care and then turned the nurse away at the first visit, the claim should be amended to show the patient’s discharge destination was simply home to avoid invoking potential transfer DRG adjustment.  So, why not change the claim to a discharge against medical advice, as well?  CMS has yet to answer this question, so it’s currently up to each facility to decide what to do.
  • Elevance Health, previously known as Anthem, was temporarily blocked from enrolling any new Medicare Advantage members by CMS.  
    • They are accused of submitting risk adjustment diagnoses they knew were invalid, dating back to 2015.  
    • Additionally, they submitted information to CMS on encrypted USB flash drives which is strictly prohibited by CMS. 
    • Elevance Health had until March 30th to respond, but there is no indication that they will be required to repay the potentially millions of dollars they received in connection with those invalid codes.  One would hope that CMS extrapolates this payor’s audit findings, just as they do when hospitals are audited. 
  • If you haven’t heard, CMS finally released a new version of the Advance Beneficiary Notice of Non-Coverage (ABN).  
    • The new form is basically the same as the old one, but it nowhas check circles instead of check boxes for patients to choose their options.  However, CMS didn’t adjust the instructions, so they still indicate that the patient or representative must check one of the boxes.  CMS has stated that they will consider modifying the instructions in three years when the form next needs approval. 
    • While there are no substantive changes to the form regarding content, you must still transition to the new form by May 12th.
    • Remember that an ABN can be given to Medicare patients in the Emergency Department when they have had their medical screening examination, were found to not require hospital care, but they or their family insist on hospitalization. 
  • CMS also released the new Important Message from Medicare (IM).  
    • The IM has some format changes and a new font.  
    • They also added a bullet that states, “After you leave the hospital, you can still appeal.”  But how does one appeal their discharge from the hospital if they have already been discharged?  If they appeal and win, does the hospital have to re-hospitalize them and reopen the previous encounter?  Does the patient have to be forced to come back?  We’re not yet sure.
    • The IM also states the QIO will render an opinion in two days, whereas the old IM said one day.  This is not the most favorable change for hospitals or patients because,now, patients who don’t need hospital care can remain hospitalized for an additional day while patients in Emergency Department hallways are unable to receive the appropriate care they need. 
  • Finally, CMS also released the new Detailed Notice of Discharge (DND). 
    • While the content hasn’t changed, the format certainly has. The old DND was one page.  The new DND, as posted on the CMS site, is three pages (with the third page left completely blank).  Manuals clearly state that, “Unapproved modifications cannot be made to the OMB-approved, standardized DND.”  So, does the patient need to get that third blank page?  CMS later changed the Word version to two pages but refrained from changing the pdf.  It’s unclear how to address this going forward.
    • The second page simply contains a paragraph about the form meeting the requirements of the Paperwork Reduction Act.  This is the ultimate irony given that the whole second page, which is literally increasing paperwork, is needed to accommodate the paragraph about reducing paperwork. 
  • A utilization review leader recently asked about rebilling an inpatient claim which was denied by a Medicare Advantage (MA) plan. 
    • The physician advisor reviewed the case and, although the patient was hospitalized for two midnights, the documentation and medical necessity for the second midnight was weak and the facility chose to accept the denial.  The MA plan informed the hospital that they could submit an observation claim. 
    • When the billing and coding staff were asked to reprocess the claim with observation hours, they said they would not do it without the attending physician adding an observation order into the chart.  
    • This is not an unheard-of standpoint from billing and/or coding teams, and it’s understandable that there’s reluctance to add a service on a claim for which there is no order.  However, it’s also not appropriate to ask a doctor for a service order after the patient has been discharged without ever having received the service. 
    • It’s important to note that the payor isn’t asking for a physician order.  They are acknowledging that the patient received inpatient care but are only willing to pay that time as issuance of observation services.  As such, they are instructing the hospital how to prepare the claim to get paid that revenue vs. simply billing outpatient.
    • Contrary to many policies from MA plans, this direction has CMS’ support.  Chapter Four of The Managed Medicare Manual states, “MA plans need not follow original Medicare claims processing procedures. MA plans may create their own billing and payment procedures…” 
    • We all know that manuals are not binding, but if the MA plan wants to give you money, take it.  Yes, that means having different procedures for different payors, but until we have single payor health care, we must find ways to accept payments when offered.
  • Every time the OIG audits an MA plan, they find diagnoses submitted as hierarchical condition categories (HCCs) which aren’t substantiated by the medical record.  A recent OIG audit included previous diagnoses patients had such as cancer, myocardial infarction, and stroke. 
    • The MA plan objected to the OIG’s use of extrapolation and lack of review for diagnoses that were missed but could have increased their payment. The OIG brushed them off, though.
    • There was one denial of a lung cancer HCC which the MA plan could not defend because the medical records could not be obtained.  Why?  The provider was incarcerated and the medical records had been seized by law enforcement.  In the end, the OIG agreed to remove the case from the audit. 
  • It seems like a week can’t go by without a payor developing a new way to avoid paying appropriately for the care provided to their enrollees.  Many have talked endlessly about Aetna’s development of their imaginary severity index, enabling them to approve inpatient hospitalization while paying the hospital significantly less for the hospital stay.  Then, Elevance Health developed a scheme where they pay hospitals 10% less if any physician providing services to the patient is out of network.
    • Not to be outdone, UnitedHealthcare (UHC) has started to deny inpatient hospitalizations when the hospital does not submit clinical notes within two hours of submitting a notice of admission.  
    • To make it worse, they blame CMS for this change in policy.  In the notices they send to hospitals, UHC claims, “due to a change in CMS guidelines, clinicals must now be received within 2 hours, rather than 24 hours."  
    • Since when does CMS release new guidelines in March?  And why is no other MA plan sending out the same notification?  Even ACPA Past President, Dr. Edward Hu, the true master of CMS regulations, cannot find a single CMS policy or statement that justifies this. 
    • If you get one of these notices, push back on UHC.  Make them cite the actual CMS guideline. Be sure your contracting team is aware of this change and understands that more denials will be forthcoming, increasing costs and need for resources.  Rest assured that many have already informed CMS that UHC is inappropriately blaming them. 
  • The Surviving Sepsis Campaign released new guidelines on the treatment of sepsis after reviewing recent literature. They made some significant changes. 
    • First, to support what ACPA Past Clinical Documentation Integrity (CDI) Committee Chair, Dr. Erica Remer, has been saying for years, patients with sepsis are sick.  They are not simply febrile with an elevated heart rate.  The first sentence of the 74-page document defines sepsis as life-threatening organ dysfunction due to infection. 
    • What do they say about SIRS?  They recommend it as one of four screening tools that can be used—not a tool for diagnosis, but for screening.  This means that SIRS plus infection does not equal sepsis, regardless of what New York law may state.
    • What about the use of the SOFA score, the favorite tool of payors to deny the diagnosis in clinical validation audits?  The authors state, “sepsis is a clinical diagnosis and should not be ruled in or ruled out using a single biomarker or diagnostic test.”  
    • The authors specifically recommended against using Vitamin C or Vitamin D as treatment for sepsis.  
    • Also, there are several recommendations pertinent to case managers and social workers.  These include the recommendation that patients with sepsis should have their goals of care addressed within 72-hours; they should be screened for economic and social support needs including housing, nutritional, financial, and spiritual support. Patients who survive sepsis should have an opportunity to execute an advance directive prior to discharge.