Hospitalizations with observation services and the Medicare Part A complex appeals process at three academic medical centers
Hospitalists and other providers must classify hospitalized patients as inpatient or outpatient, the latter of which includes all observation stays. These orders direct hospital billing and payment, as well as patient out-of-pocket expenses. The Centers for Medicare & Medicaid Services (CMS) audits hospital billing for Medicare beneficiaries, historically through the Recovery Audit program. A recent U.S. Government Accountability Office (GAO) report identified problems in the hospital appeals process of Recovery Audit program audits to which CMS proposed reforms. In the context of the GAO report and CMS’s proposed improvements, we conducted a study to describe the time course and process of complex Medicare Part A audits and appeals reaching Level 3 of the 5-level appeals process as of May 1, 2016 at 3 academic medical centers. Of 219 appeals reaching Level 3, 135 had a decision—96 (71.1%) successful for the hospitals. Mean total time since date of service was 1663.3 days, which includes mean days between date of service and audit (560.4) and total days in appeals (891.3). Government contractors were responsible for 70.7% of total appeals time. Overall, government contractors and judges met legislative timeliness deadlines less than half the time (47.7%), with declining compliance at successive levels (discussion, 92.5%; Level 1, 85.4%; Level 2, 38.8%; Level 3, 0%). Most Level 1 and Level 2 decision letters (95.2%) cited time-based (24-hour) criteria for determining inpatient status, despite 70.3% of denied appeals meeting the 24-hour benchmark. These findings suggest that the Medicare appeals system merits process improvement beyond current proposed reforms. Journal of Hospital Medicine 2017;12:251-255. © 2017 Society of Hospital Medicine
© 2017 Society of Hospital Medicine
METHODS
The JHH, UWHC, and UU Institutional Review Boards did not require a review. The study included all complex Part A appeals involving DOS before October 1, 2013 and reaching Level 3 (ALJ) as of May 1, 2016.
Our general methods were described previously.2 Briefly, the 3 academic medical centers are geographically diverse. JHH is in region A, UWHC in region B, and UU in region D (3 of the 4 RA regions are represented). The hospitals had different Medicare administrative contractors but the same qualified independent contractor until March 1, 2015 (Appendix 2).
For this paper, time spent in the discussion period, if applicable, is included in appeals time, except as specified (Table 1). The term partially favorable is used for UU cases only, based on the O’Connor Hospital decision13 (Table 1). Reflecting ambiguity in the MBPM, for time-based encounter length of stay (LOS) statements, JHH and UU used time between admission order and discharge order, whereas UWHC used time between decision to admit (for emergency department patients) or time care began (direct admissions) and time patient stopped receiving care (Table 2). Although CMS now defines when a hospital encounter begins under the 2-midnight rule,14 there was no standard definition when the cases in this study were audited.
We reviewed de-identified standardized text in Level 1 and Level 2 decision letters. Each hospital designated an analyst to search letters for Medicare Benefit Policy Manual chapter 1, which references the 24-hour benchmark, or the MBPM statement regarding use of the 24-hour period as a benchmark to guide inpatient admission orders.6 Associated paragraphs that included these terms were coded and reviewed by Drs. Sheehy, Engel, and Locke to confirm that the 24-hour time-based benchmark was mentioned, as per the MBPM statement (Table 2, Appendix 3).
Descriptive statistics are used to describe the data, and representative de-identified standardized text is included.
RESULTS
Of 219 Level 3 cases, 135 (61.6%) concluded at Level 3. Of these 135 cases, 96 (71.1%) were decided in favor of the hospital, 11 (8.1%) were settled in the CMS $0.68 settlement offer, and 28 (20.7%) were unfavorable to the hospital (Table 1).
Mean total days since DOS was 1,663.3 (536.8) (mean [SD]), with median 1708 days. This included 560.4 (351.6) days between DOS and audit (median 556 days) and 891.3 (320.3) days in appeal (median 979 days). The hospitals were responsible for 29.3% of that time (260.7 [68.2] days) while government contractors were responsible for 70.7% (630.6 [277.2] days). Government contractors and ALJs met deadlines 47.7% of the time, meeting appeals deadlines 92.5% of the time for Discussion, 85.4% for Level 1, 38.8% for Level 2, and 0% for Level 3 (Table 1).
All “redetermination” (level 1 appeals letters) received at UU and UWHC, and all “reconsideration” (level 2 appeals letters) received by UU, UWHC, and JHH contained standardized time-based 24–hour benchmark text directly or referencing the MBPM containing such text, to describe criteria for inpatient status (Table 2 and Appendix 3).6 In total, 417 of 438 (95.2%) of Level 1 and Level 2 appeals results letters contained time-based 24-hour benchmark criteria for inpatient status despite 154 of 219 (70.3%) of denied cases exceeding a 24-hour LOS.
DISCUSSION
This study demonstrated process and timeliness concerns in the Medicare RA program for Level 3 cases at 3 academic medical centers. Although hospitals forfeit any appeal for which they miss a filing deadline, government contractors and ALJs met their deadlines less than half the time without default or penalty. Average time from the rendering of services to the conclusion of the audit-and-appeals process exceeded 4.5 years, which included an average 560 days between hospital stay and initial RA audit, and almost 900 days in appeals, with more than 70% of that time attributable to government contractors and ALJs.
Objective time-based 24-hour inpatient status criteria were referenced in 95% of decision letters, even though LOS exceeded 24 hours in more than 70% of these cases, suggesting that objective LOS data played only a small role in contractor decisions, or that contractors did not actually audit for LOS when reviewing cases. Unclear criteria likely contributed to payment denials and improper payments, despite admitting providers’ best efforts to comply with Medicare rules when writing visit-status orders. There was also a significant cost to hospitals; our prior study found that navigating the appeals process required 5 full-time equivalents per institution.2
At the 2 study hospitals with Level 3 decisions, more than two thirds of the decisions favored the hospital, suggesting the hospitals were justified in appealing RA Level 1 and Level 2 determinations. This proportion is consistent with the 43% ALJ overturn rate (including RA- and non-RA-derived appeals) cited in the recent U.S. Court of Appeals for the DC Circuit decision.9
This study potentially was limited by contractor and hospital use of the nonstandardized LOS calculation during the study period. That the majority of JHH and UU cases cited the 24-hour benchmark in their letters but nevertheless exceeded 24-hour LOS (using the most conservative definition of LOS) suggests contractors did not audit for or consider LOS in their decisions.
Our results support recent steps taken by CMS to reform the appeals process, including shortening the RA “look-back period” from 3 years to 6 months,10 which will markedly shorten the 560-day lag between DOS and audit found in this study. In addition, CMS has replaced RAs with beneficiary and family-centered care quality improvement organizations (BFCC-QIOs)1,8 for initial status determination audits. Although it is too soon to tell, the hope is that BFCC-QIOs will decrease the volume of audits and denials that have overwhelmed the system and most probably contributed to process delays and the appeals backlog.
However, our data demonstrate several areas of concern not addressed in the recent GAO report11 or in the rule proposed by CMS.12 Most important, CMS could consider an appeals deadline missed by a government contractor as a decision for the hospital, in the same way a hospital’s missed deadline defaults its appeal. Such equity would ensure due process and prevent another appeals backlog. In addition, the large number of Level 3 decisions favoring hospitals suggests a need for process improvement at the Medicare administrative contractor and qualified independent contractor Level of appeals—such as mandatory review of Level 1 and Level 2 decision letters for appeals overturned at Level 3, accountability for Level 1 and Level 2 contractors with high rates of Level 3 overturn, and clarification of criteria used to judge determinations.
Medicare fraud cannot be tolerated, and a robust auditing process is essential to the integrity of the Medicare program. CMS’s current and proposed reforms may not be enough to eliminate the appeals backlog and restore a timely and fair appeals process. As CMS explores bundled payments and other reimbursement reforms, perhaps the need to distinguish observation hospital care will be eliminated. Short of that, additional actions must be taken so that a just and efficient Medicare appeals system can be realized for observation hospitalizations.
