News to Note – November 2025

• During the current government shutdown, telehealth waivers were allowed to expire.  In a Centers for Medicare and Medicaid Services (CMS) MLN Connects newsletter from October 15, they suggested that providers could offer Advance Beneficiary Notices (ABNs) to patients who are willing to potentially pay out of pocket to proceed with their telehealth visit.  It was explained in the bulletin that providers could get the patient’s verbal agreement, email, or mail the ABN to the patient for them to sign and send back.  Then, the provider could hold the claim until the new budget passes and hope that telehealth coverage is retroactive to October 1^st.  If so, the provider could then submit the claim and get paid by Medicare.  If the coverage is not extended, they could then bill the patient.  But there is a problem.  The Medicare Manual has two requirements that may be hard to meet. 
• First, the ABN must be, “provided far enough in advance of delivering potentially non-covered items or services to allow sufficient time for the beneficiary to consider all available options.”
• Second, the ABN must be, “explained in its entirety, and all of the beneficiary’s related questions are answered timely, accurately, and completely to the best of the notifier’s ability.”

It likely would not be enough to tell a patient on the phone or via other technology that the telehealth visit may not be covered and then ask if they want to proceed with the visit and pay for it themselves, followed by sending the ABN.  When the patient gets the bill from the doctor for the telehealth visit, they could claim they did not have adequate time to consider the financial responsibility.  Also, that they agreed to proceed without having time to review the ABN.  Both of these arguments could be enough for a patient’s appeal to be successful and free the patient of liability.  

• Back in September, the Office of the Inspector General (OIG) released a report on billing of trauma activation by hospitals.  It’s interesting that this issue was added to the OIG’s Work Plan in November 2022 but the charts that were audited were from January 2020 to June 2022.  Additionally, the OIG paid an outside auditor to analyze the cases and there was no report released until this September! Three years to audit 125 claims – who else wants to sign up to be an OIG auditor?
• The report included a very high error rate, finding that 77% of claims were improper.  They estimated that during those two-and-a-half years in 2020 – 2022, CMS overpaid $2.4 billion in unallowed charges.  If we extrapolate that number, since June of 2022, another $3.3 billion in improper payments have been paid out while the OIG took its time producing the report. 
• The response from CMS totally discounted the OIG’s findings, noting that the OIG didn’t use the right criteria to determine if trauma activation was billed correctly.  However, CMS didn’t take the time to note which criteria the OIG used which were wrong, or what criteria CMS feels they should have used. 
• The OIG also pointed out that CMS’ most recent education on this topic was from 2007 and recommended CMS provide more frequent education.  CMS responded they will assess the need for additional education.  It seems pretty plausible that something in billing associated with trauma activation has changed in the last 18 years, doesn’t it?
• The takeaway: If you are working in a trauma center, review your coding of trauma activation and be sure it follows the rules, whatever they may be.
• Mark Sanchez, a former NFL quarterback who is now a football commentator, recently got into a fight with a truck driver and was stabbed.  Per the report, Sanchez actually started the fight and initially assaulted the truck driver.  When police arrived, they took Sanchez into custody but then released him upon arrival at the hospital for treatment of his injury.  Why?  So the police department would not be liable for the costs of his care while he was in custody.
• Perhaps the police knew that as a public figure, he was not a flight risk or a danger to the public.  As such, maybe they knew they would be able to find him again after being treated at the hospital to hold him accountable for his alleged crimes.  But one has to wonder if the financial aspects were more important to the police officers than the safety aspects. 
• Remember, if the police do not maintain custody of a patient at the hospital, hospital staff are not permitted to call them when the care is complete so they can come back and arrest the patient. That person is free to walk out of the hospital like anyone else.
• Everyone is talking about Aetna’s new policy for approving all Inpatient hospitalizations but only paying some of them at the Inpatient rate.  Someone who works at a large academic medical center recently pointed out that under this policy, the hospital gets to keep their Indirect Medicare Education money from CMS for all of these Inpatient hospitalizations instead of having to refund it if the hospitalization is denied and then only approved as Outpatient.  What a way to be positive about a frustrating situation!
• The Lown Institute is a non-partisan organization that looks at ensuring patients get the right care every time and advocating for social responsibility.  They recently released a report on back surgery and it’s not pretty.  Their data suggests thousands of unnecessary back surgeries are performed every year.  Looking at the US News Honor Roll hospitals, they found many had very high rates of back surgery overuse.  Is this data perfect?  Absolutely not.  But CMS is also looking at back surgery overuse with their new TEAM bundled payment program, their WISeR prior authorization program, and the new prior authorization program for surgery centers.  You have to wonder—maybe we really do perform too many back surgeries in this country.
• CMS sent a giant wave of panic through the industry, recently, when they announced the Medicare Administrative Contractors (MACs) have been instructed to hold payment on almost all claims because of the government shutdown.  But the next day, they clarified their statement to mean the MACs were instructed to hold all claims for services that were no longer approved because of a lapse in legislation, such as telehealth and Hospital at Home.  It’s strange because everyone already knew that telehealth claims were not going to be paid and Hospital at Home was not permitted but perhaps since the MACs are required to pay clean claims within 14 days, CMS felt they needed to issue a notice on day 15 of the shutdown. 
• Cotiviti, everyone’s favorite Recovery Audit Contractor (RAC), recently announced it was going to start their audits of durable medical equipment (DME) claims across the nation.  It’s doubtful any DME suppliers are reading, but many of you probably help physicians with ordering DME and you’ll want to ensure the documentation to support medical necessity is complete to help the DME supplier avoid a denial.  The three items that are pertinent to you are: 1) Home oxygen, 2) CPAP for sleep apnea, and 3) Home ventilators.
• Home oxygen for a hospital patient is indicated if the pulse oximeter reading within two days of discharge is at or below 88% or 89% if the patient has heart failure, pulmonary hypertension, or a hematocrit level over 56.  
• CPAP requirements are too long to review here but you can read them in NCD 240.4. 
• Home ventilator indications are described in NCD 240.9 where there are 11 specific criteria that must be met.  But for patients being discharged from the hospital with a home ventilator, it’s covered when the patient has acute on chronic respiratory failure due to COPD if the patient’s needs exceeded the capabilities of a non-invasive method of ventilation like CPAP, the patient required usage of a ventilator within the 24-hour period prior to hospital discharge, and the treating clinician determines that the patient is at risk of rapid symptom exacerbation or rise in PaCO2 after discharge.   

DME suppliers would be thrilled if you help them out by ensuing the necessary documentation is in the hospital medical record to help them avoid having to fight Cotiviti for their payment.  

• Hospitals should code discharges as against medical advice (AMA) more frequently to avoid the penalties and lack of payment for readmissions that may occur after the discharge.  Some no longer use the term AMA but instead call it a “patient-directed discharge” to avoid any negative connotation.  Perhaps use of the term “insurance-directed discharge” when the medical team determines discharge to an inpatient rehabilitation facility (IRF) is appropriate but the payer will only approve a skilled nursing facility (SNF), is appropriate?  Be sure your billing staff knows to look for those terms and then codes the discharge as 07- against medical advice.  
• An article was recently published in the journal of the American Cancer Society.  The featured study surveyed patients with advanced cancer about their goals of care compared to the actual care they were receiving.  
• A significant proportion of patients who requested comfort-focused care were receiving life-extending care.  Interestingly, when the patients who received comfort care were compared to similar patients receiving life-extending care, there was no statistically significant difference in two-year mortality. 
• Remember that one of the key requirements of Medicare Discharge Planning Conditions of Participation (CoP) is to determine a patient’s goals of care and treatment preferences.  In fact, in the 2019 update to the CoP, CMS used the terms, “goals of care” and “treatment preferences” 53 times!  That means you should not only be asking about your patient’s treatment preferences, goals of care, and documenting those discussions, but also ensuring those preferences are known by all members of the treatment team and are honored. 
• We are getting closer to the start of two new CMS demonstration projects involving prior authorization – the WISeR program which will use contractors running artificial intelligence to review requests, and the Ambulatory Surgery Center prior authorization program.  Both will be running in a limited number of states, so some of you will be spared the pain.
• CMS has released a guide for providers for the WISeR program that finally provides the applicable CPT codes for each category.  One of the listed categories is “diagnosis and treatment of impotence” which is about as ambiguous a category as there could be.  But it turns out that one does not need prior authorization to diagnose any patient with impotence – only if the patient is going to have a penile implant placed.  Why focus on penile implants?  It certainly does not seem like a surgery that is subject to overuse but apparently usage is growing, pun intended.  One surgeon has been quoted on the internet as saying, “I present it to patients as a 30-minute outpatient procedure that restores your ability to have an on-demand erection that is as hard as you want it to be and lasts for as long as you want it.”  
• Another thing noted in the provider guide is that WISeR will also require ambulatory surgery centers (ASCs) and physician offices to get prior authorization for the designated procedures. For surgery centers in Ohio, Texas, and Arizona, they will be part of both WISeR and the ASC prior authorization demonstration project so they will be really challenged by the additional workload. 
• While physicians are not yet doing spine surgery in their offices, there certainly are doctors who perform vein procedures and treat skin ulcers with skin substitutes in the office who will now have to obtain prior authorization.
• The big unknown with these programs is the effect of the government shutdown.  While likely every provider would love to see them delayed, and we still do not know who CMS selected to be the contractors for WISeR, the release of the provider guide during the shutdown suggests we are still on track to proceed.