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Health Law Alert: Confusion Remains with New Guidance on Physician Certification

February 06, 2014

On January 30 and 31, respectively, CMS updated its guidance on physician certification under the two-midnight rule and, in recognition of the tremendous confusion surrounding this rule, extended the “educate and probe” period to September 30, 2014. During the “educate and probe” period, Medicare Administrative Contractors will continue to select a limited sample of claims (from 10-25, depending on hospital size) for compliance with the two-midnight rule. Hospitals will receive written findings letters from Novitas to explain the results. During the extension of the “educate and probe” period, claims will not be subject to RAC review for compliance with the two-midnight rule; however, these claims can still be requested by other contractors (such as the CERT) and by the RAC for compliance with other RAC-approved issues unrelated to patient status.

Although the January 30 guidance purports to be a clarification on physician certification, in several respects it contradicts earlier CMS guidance on this subject and raises even more questions about the practical impact of the two-midnight rule and certification requirement. During CMS’ open-door forum call this week, it was evident that CMS itself is not of one voice in its interpretation or understanding of these requirements. Callers questioned CMS’ position on when an admission begins and ends, the new requirements for verbal orders and particularly for bridge orders, the documentation requirements for certification, and how transfers affect the physician’s two-midnight expectation—among other significant issues. To these questions, CMS did not provide clear answers and instead noted that it will issue additional guidance. Specific guidance on transfers should be coming “shortly,” but no time certain was given for more specifics on these important open issues.

For additional information on the two-midnight rule or the physician certification requirement, please contact Larry McCarty (601-360-9725) or Genie Thomas (601-360-9706). Both Larry and Genie are in the Jackson office of Phelps Dunbar.