New modification to the “two midnight” rule

Currently, you cannot admit a Medicare patient to an intensive care unit for desensitization to a chemotherapeutic agent or antibiotic because you need to certify the desensitization will take longer than 48 hours. Desensitization to chemotherapeutic agents or antibiotics, we believe, can be completed in approximately 24 hours.  We know of no protocol which suggests a period longer than 48 hours is the norm. 

Several years ago the Advocacy Council, formerly the JCAAI, brought this problem to Medicare (CMS). In response to pleas like ours, CMS has just issued a proposed modification to this “two midnight” rule. CMS has indicated payment for inpatient admissions will be allowed, on a case-by-case basis, for certain admissions that do not meet the two midnight benchmark. According to a health lawyers association publication, “If a physician determines a patient requires inpatient hospital care, despite an expected length of stay under two midnights, Part A payment may be appropriate if medical record documentation supports the physician’s decision.”

CMS identified several factors that would be relevant to deciding whether Part A payment is appropriate. These factors seem to focus on the strength of your progress notes describing:

  • The severity of the signs and symptoms exhibited when the patient had the reaction.
  • The medical predictability of something adverse happening upon re-exposure.

Your progress note is the key. It needs to be carefully written to show the patient could have a severe or life-threatening reaction and the likelihood that it would occur on re-exposure. CMS has stated that stays under 24 hours would rarely qualify for an exception. If you decide to go this route, you should document that the patient has been informed of all of these possibilities and understands they may be denied coverage by CMS. Most patients can’t afford this out-of-pocket expense.

Advocacy Issue: 
Billing, Coding & Payments