News to Note – August 2023

• Many of you have seen articles talking about the epidemic of medical errors and the many patients who suffer harm while hospitalized. These claims, of course, are wrong. These fear mongers take small studies and extrapolate them to every patient in every hospital in the US. It’s terribly inappropriate statistical manipulation but it sells books and inflates the egos of these so-called experts. Last month the Office of the Inspector General (OIG) jumped on the bandwagon by publishing their toolkit for identifying patient harm and it’s…not great. Some examples: If a hospitalized patient becomes constipated or develops diarrhea, it may be considered patient harm. If a patient receives chemotherapy and requires IV fluids or anti-nausea medication, it may be considered patient harm. Should we not treat the cancer since they might get nauseous? We absolutely must do our best to take excellent care of patients and of course be forthcoming when errors occur but this effort by the OIG is going to do more to lead to harm by taking caregivers away from the bedside to fill out more forms and collect more data that will be misused to everyone’s detriment.
• The Food and Drug Administration (FDA) gave full approval to a new medication for Alzheimer’s disease, Leqembi, and as a result Medicare will cover it. But, there are important caveats. First, this medication can cause brain bleeds and that’s never a good thing. The incidence of this is higher in patients with a specific gene mutation. However, Medicare may not cover the test to identify that mutation. Will patients be willing to pay out of pocket? Will doctors be willing to order the medication if the patient doesn’t get the genetic test done first? If the test is not done and the patient has an adverse event, will the OIG consider this preventable patient harm? So many questions still to be answered.
• An updated version of the Medicare Outpatient Observation Notice (MOON) was released by the Centers for Medicare and Medicaid Services (CMS) last month. A few things to remember about the MOON:
• It is for use with Medicare and Medicare Advantage patients, only. If your state has its own rules about notifying observation patients then be sure to check that your use of the MOON fulfills all the requirements.
• It is only for patients who are receiving observation services and should not be given to patients where observation is not ordered. For instance, outpatient surgery patients who will be spending a night in routine recovery should not get a MOON since that is not observation care.
• It is only required for patients who receive at least 24 hours of Observation but it can be given prior to hour 24. Many find it most convenient to give it when observation is first ordered. That order can trigger a task for registration to complete the MOON and present it to the patient.
• It must be completed to indicate the patient-specific reason why observation is ordered. CMS tells us it must be related to their presentation, such as chest pain or shortness of breath.
• It must also be explained to the patient verbally. If you are struggling with that, ACPA Update Editor and Advisory Board member Dr. Ronald Hirsch has an animated video on his website – www.ronaldhirsch.com – that can be shown to the patient to meet the requirement.
• What do you do if you missed delivering a MOON? Delivery of patient notices is a condition of participation for Medicare, but it is not a condition of payment. If you miss one or two, figure out why, fix it, but then go ahead and bill for the stay.
• What about using the MOON for Condition Code 44s? CMS rule requires you to notify the patient in writing that their status has changed from inpatient to outpatient. Can you use the MOON? It’s rare for such a patient to spend 24 hours in the hospital after the status change so the MOON usually will not be required. Also, the MOON does not state the status has changed so that would have to be added to the form. As such, why use such a form that requires completion, signature, and copying when a generic notice would suffice?
• Back in 2017 there was an OIG audit of malnutrition coding by a health system which was at the time called Vidant Health but now is called ECU Health. The audit found that Vidant Health was overpaid $1.4 million for inappropriate malnutrition claims. However, many felt the audit was erroneous as the auditors did not use any criteria to define malnutrition and they claimed some malnourished patients were not treated enough to have the diagnosis coded. As such, Vidant did not accept the finding. They wrote a response to the OIG and they proceeded to appeal almost every one of the denied cases. Last month, Nina Youngstrom reported in Report on Medicare Compliance that ECU Health finally made it to the Administrative Law Judge (ALJ) and they won every single case. She also reported that the judge was not kind to the OIG auditor, stating in the decision, “I further agree with the appellant that the contractors applied unpromulgated rules requiring that weight loss and/or muscle wasting over a defined period of time must always be present in order to diagnose severe muscle wasting and by prohibiting severe malnutrition from being coded where it is a manifestation of another condition.” Everyone involved in Clinical Documentation Integrity (CDI) should ask their compliance officer to read Ms. Youngstrom’s report. We also want to thank Dr. Vaughn Matacale from ECU Health for sharing the news of their success.
• Last month, the QIO, Livanta, released a newsletter entitled Short Stay Review – The Inpatient Admission Decision. In it, they called Observation a status, which we know is not accurate as there are only two statues – Inpatient and Outpatient. They also referred MCG guidelines as Milliman. But, the big issues were examples of one midnight inpatient admissions that were compliant per the Medicare Two-Midnight Rule. They stated that acute surgical conditions such as cholecystitis and appendicitis can always be inpatient, even if the expected discharge will be the next day. Really? The healthy Medicare beneficiary who arrives at 7 am, goes to the OR at 10 am and stays overnight can be inpatient? Then, they described two medical cases. A patient with angioedema who improved with Emergency Department (ED) treatment and was never in distress and a patient with a GI bleed and hemoglobin of 10.8 with stable vital signs, known diverticula that bled six weeks prior, and no active bleeding in the ED. In both cases, Livanta explained the concern for an adverse event warranted inpatient admission under the case-by-case exception. Will this truly be vetted by CMS? Time will tell.