ACPA Update

October 2022

In this Update

Editor's Note

Status, Ethics, and Decision-Making Capacity – All in One Case 

Hand Me That (Occam’s) Razor, Would You? One Application of the Scientific Law of Parsimony Can Help Assure That Your Revenue Accounts for the Actual Health of Your Population

Follow Up from Advisory Board Town Hall: Responses to Frequently Asked Questions Concerning MAO Denials 

President's Corner

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Editor's Note


Member, ACPA Advisory Board

Member, ACPA Government Affairs Committee 

Editor, ACPA Update

I envy all of you. I really miss being out in the hospital, making rounds with my case managers, reviewing charts, talking to doctors (yes, even those hard conversations), and watching patients get well. I still try my best to keep up on medical advances by reading the stack of journals I get in the mail each week and following the medical posts on Twitter. 

And last week I was shocked to read that some surgeons are now performing short stay colon resections. What?? Colon resection was always my prototypical example of a patient who will be hospitalized for several days, awaiting the return of bowel function, and therefore always warranted inpatient. But now surgeons can send some patients home the same day? That’s amazing. I recall about 20 years ago reading in the Mayo Clinic Proceedings about ERAS (Enhanced Recovery after Surgery) and how that improved the post-op length of stay from 10 days down to 5. But to get it down to a same day surgery is amazing. Of course the utilization review side of me looks at this advance and wonders how long before the commercial insurers will insist on outpatient status for all elective colectomies even though the studies are only in a select group of patients?  

Hospital at Home, same day colon resections, same day joint or heart valve replacements- what’s next? It really gets me thinking that this whole concept of inpatient v outpatient is quickly becoming obsolete and the whole payment structure needs to be demolished and rebuilt. Of course that is easy to say but at least for Medicare, Medicare Advantage, and Medicaid, payment is based on laws and complex financial arrangements with the Medicare Trust Fund so a redesign will require a myriad of changes to federal law. Wonder if I will be around long enough to see a change. 

Some of you have responded to the Observation cases submitted by our hard working Observation Committee by completing the survey, but not enough. You really should. It’s anonymous you know? While we are waiting for more submissions from the September case to be submitted (here is the link in case you missed it-, I thought I would try a different format for input, allowing a long form answer. This case is not an official Observation Committee case but was submitted by Dr. Emkes to me as a “what would you do?” case. Now I want to know what you would do. So read the case in the newsletter and tell me your thoughts. I will pick two cases and send gift cards to the most profound responses. Please respond and do not let Drs. Kartchner and Baker win again. 

If Medicare Advantage continues to frustrate you, read the article from Jessica Gustafson following up on the ACPA Town Hall. She has summarized some responses for us. Also read the article by Dr. Schnitzer on the nuances of reporting diagnoses with diabetes and kidney disease. It is complicated but we have to get it right. And of course be sure to read all the way to the end to read what ACPA president Dr. Juliet Ugarte Hopkins has to share with us this month. I wish I could be with the many of you who will be attending the ACPA fundamentals conference in Chicago in October but the grandchildren in Oregon want to see grandpa and I am not saying no to them. 

And speaking of authors, wouldn’t you like to write an article for the ACPA newsletter? Email me at [email protected] for the submission guidelines. I accept articles of any length and on any topic. 

Status, Ethics, and Decision-Making Capacity – All in One Case 

Bernard Emkes, MD 

Member, ACPA Government Affairs Committee 

78 year old female resides in an Extended Care Facilitry Dementia Unit. She has good days and bad but is generally ambulatory while requiring assistance with ADL's.  One day she complains of being dizzy and light-headed. VS at the ECF show a lower than normal BP and a HR from 160-180. Her only relatives are distant cousins who do not want to make health care decisions for her. No POA exists.  


After ambulance transport to the local ER, she is found to have AF with RVR and started on a Cardizem drip (believing this to be an acute event). No Hx AF. She is admitted as an IP with a 2 MN expectation. She converts back to sinus rhythm after about 6 hours, and the docs try to transition her to oral Cardizem - she refuses any "new heart medicine" because "I have never had any heart problems". She remains in NSR with a rate of 80.  


Plans are to do an ECHO and Stress Test, but she also refuses that care. Being that the docs cannot offer anything else, she is transported back to the ECF Dementia Unit after 1 MN. 


Is she OBS or IP? 


  1. Does she even have the capacity to decline medical care? With the Dx of dementia - one wonders. Yet there is no surrogate. 
  2. Would this be considered a sign out as AMA, even though she also likely had no capacity to sign that AMA document? She was discharged after 1 MN after being admitted with a 2 MN expectation. Is the fact that she refused care and testing "deemed to be AMA"? 
  3. One could invoke the "better quicker than expected" and consider the pt as IP. But with all the "capacity" concerns, no surrogate, and refusal of all care, I thought there were some interesting discussion points.  


Submit your thoughts here: 

The ACPA Newsletter editor will pick the two most insightful responses to get a gift card. 

Dr. Emkes is the CEO of Emkes Consulting


Hand Me That (Occam’s) Razor, Would You? One Application of the Scientific Law of Parsimony Can Help Assure That Your Revenue Accounts for the Actual Health of Your Population

Mark S. Schnitzer, MD, CHCQM-PHYADV, FACHE   

Member, ACPA Clinical Documentation Integrity Committee

As a former medical director for CDI and physician advisor, I retain more than a fondness for the essential necessity of the skill set.  With that background, I share a possible opportunity for improvement. 


I recently had the opportunity to review some unpublished data shared with me by Bayer, consisting of IQVIA anonymized patient-level claims data for nearly 19 million unique patients with a diagnosis of type 2 diabetes (T2D) in 2021.  Of these, more than 3 million also had chronic kidney disease (CKD) as identified by ICD-10-CM diagnosis codes for T2D, CKD, and/or albuminuria/proteinuria on their claim forms. 


In the analysis of the national data, only 2.2 million of the 3+ million had a formal diagnosis of CKD, suggesting that about 800,000 people with T2D had undiagnosed CKD presumably evidenced by recognized albuminuria/proteinuria that was not memorialized as early-stage CKD.  Additionally, assuming CKD progresses over time through all stages, less than 14% of those were diagnosed with Stage 1 or Stage 2 CKD, while 58% were diagnosed with Stage 3 CKD.  In other words, provider organizations may have lost out on therapeutic opportunities as well as deserved revenue due to a population whose predicted future clinical needs and costs were underestimated...for a long time. 


In the inpatient setting, CKD stages 1-3 are not recognized as a complication or comorbidity (CC) so clinical documentation specialists may be overlooking this important risk adjusting condition. However, CKD stage 3 and above offer a risk adjustment factor (RAF) in the Hierarchical Condition Category model. This RAF is accrued in addition to the RAF from T2D with a chronic complication. It is possible that some of these T2D patients were noted to have some other chronic complication (e.g., diabetic gastroparesis, peripheral neuropathy, diabetic angiopathy, etc.), but many of them may have been documented and coded as being T2D without complication which has a smaller RAF than with T2D with a chronic (or acute) complication.  


The interested reader and their analytics team may want to explore the opportunity with their own organization’s data and weigh the political capital required to inspire providers to code early-stage CKD in diabetic patients vs. the otherwise lost risk adjustment factor (RAF) if uncomplicated diabetes (HCC 19, RAF 0.104) should have been diabetes with chronic complications (HCC 18, RAF 0.318). 


Given the number of diabetic patients and the frequency of claims for T2D plus albuminuria/proteinuria, Occam’s razor would have us shave these two diagnoses into one.  This occurs to me as low-hanging fruit. 


Mark S. Schnitzer, MD, CHCQM-PHYADV, FACHE is a physician advisor in Dallas, TX 

Follow Up from Advisory Board Town Hall: Responses to Frequently Asked Questions Concerning MAO Denials 

Jessica Gustafson, Esq.  

Chair, ACPA Advisory Board

Provider challenges with overly aggressive Medicare Advantage Organization (MAO) denials is not a recent phenomenon.  On September 25, 2018, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) published OEI-09-16-00410, on the topic of “Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns about Service and Payment Denials,” which found that when beneficiaries or providers appealed preauthorization and payment denials, the MAOs overturned 75 percent of their own denials (raising concerns that beneficiaries and providers had been initially denied services and payments improperly).  More recently, on April 27, 2022, the HHS OIG published OEI-09-18-00260, on the topic of “Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns about Beneficiary Access to Medically Necessary Care,” demonstrating that issues with improper denials persist.   


Within this backdrop, on Tuesday, August 16, 2022, the Advisory Board to the American College of Physician Advisors hosted its second Town Hall on the topic of MAO Denials.  The discussion was led by ACPA leaders and members Edward Hu, MD, Brian Moore, MD, Chris Shearer, MD, and Denise Wilson, RN and was moderated by Daniel Zirkman, MD.  The discussion centered on the implementation of best practices to combat aggressive MAO denials.  A recording of the Town Hall is available here.  As part of the discussion, there were certain questions that were raised frequently, and a couple questions were raised that the panelists had insufficient time to address during the Town Hall.  These questions, along with the panelists’ responses, are set forth below.  The responses are the opinions of the individual panelists and are not necessarily the opinions of ACPA.   


  • How do you handle retrospective denials by a plan’s auditor based on medical necessity after the admission was approved by the plan during the admission UM process?   

Response [From Denise Wilson, RN]:  There is a singular statement in the short Medical Necessity paragraph from the Medicare Managed Care Manual - Chapter 4 – 10.16 Medical Necessity, Benefits and Beneficiary Protections, “if the plan approved the furnishing of a service through an advance determination of coverage, it may not deny coverage later on the basis of a lack of medical necessity”. There has been some success in gaining agreement with CMS regional offices that this statement precludes MAOs from auditing and denying services that have been approved through the prior authorization process. But keep in mind the Medicare Managed Care Manual applies primarily to non-contracted providers and plans. If you are contracted, what does your contract say? 


Also, keep in mind that there may be instances where prior authorization was granted for a service or care that ultimately differs significantly from what was authorized. In those instances, it is understandable that the coverage might be denied on retrospective audit. However, if services provided were in complete or significantly comparable agreement with the pre-authorized services, retrospective denial should not be allowed. 


  • Medical directors from most payors recently stopped approving inpatient admissions of less than 48 hours, even if “criteria” is met, because that is the directive given by their employers. How should this be addressed?  


Response [From Chris Shearer, MD]:  During the peer-to-peer discussion, use the criteria the payor uses (i.e., either MCG or InterQual) and point out the severity and the risks.  You can collegially say, “this is how it is supposed to be,” especially if you have had a good, collegial relationship with the Medical Director.  However, if the payor is firm on its approach, the denial will probably end up in the appeals process.   


  • Are Medicare Advantage Organization plans required to follow the two-midnight (2 MN) rule?   


Response [From Chris Shearer, MD]:  MA plans do not have to follow the 2 MN rule.  2 MN is a reasonable benchmark, though I feel it was picked (as opposed to 48 hours) since days/MNs is the more common measure of length of stay.  We at Sound say that a “reasonable period of observation” for non-Medicare FFS cases is ~48.  Practically, the more important issue when reviewing such cases is to not wait for 48 hours and then pull the trigger, but to anticipate “this case is going to reasonably cross the 48-hour threshold and recommend inpatient.”  The later change can be a red flag for a denial from a MA plan. 


  • Please advise whether Medicare Advantage Organization plans are required to follow the CMS flow chart for appeal determinations (i.e., 60 days for adjudication).   


Response [From Denise Wilson, RN]:  When a provider is not contracted with the payer, the appeals process follows the CMS flowchart for Medicare Advantage appeals.  The provider has 60 days to file an appeal to the plan and the plan has 60 days to render their decision, unless you are appealing a pre-service determination. If the plan upholds their decision to deny, the plan is responsible for automatically forwarding the appeal to the independent review entity (IRE). If the provider is not contracted, and the plan is taking longer than 60 days to render a decision on your first level appeal, you should file a complaint with your CMS regional office.  


If the provider is contracted with the plan, the appeal process is whatever is outlined in the plan’s provider manual or in your contract.  

The Advisory Board appreciates all who participated in the Town Hall.  The next ACPA Town Hall will be co-hosted by the ACPA CDI Committee and the Observation Committee and will take place this November.  Additional details and a link to registration will be available soon.   

Jessica L. Gustafson is a founding shareholder of The Health Law Partners, P.C., in Farmington Hills, MI

American College of Physician Advisors

President's Corner

October 2022

At the time I’m writing this, Hurricane Ian just cut across Florida and now it’s preparing to re-visit land on the EAST side of the country, this time hitting South Carolina.  My thoughts and hopeful wishes are going out to all of our friends living and working in the affected areas.  I can’t help but wonder what kinds of lessons have been learned as a result of this kind of disaster and what processes have been devised to prepare head of time. 


Clearly, there have been major hurricanes in the past in addition to disasters like wildfires in the West, tornados in the Midwest, and even extreme weather involving massive amounts of snow and ice in the North.  Two years ago we created a whole page on our website devoted to updates and resources associated with the COVID-19 pandemic and it occurs to me that it likely would be quite helpful to have something similar for weather-related disasters. 


So, here is your call to action!  If you have lessons learned, pearls, process improvements, or planning outlines/checklists to share with this community, please write them up and send to [email protected] over the course of this year.  Reflections about specific events and ideas on what might be tried in the future are also welcome.  Thanks in advance for helping us provide the most comprehensive resources, advise, and expertise to our physician advisor community! 

Juliet B. Ugarte Hopkins, MD, CHCQM-PHYADV

(Pronouns: She/Her)

President, ACPA

Dr. Juliet B. Ugarte Hopkins is Physician Advisor for Case Management, Utilization, and Clinical Documentation for ProHealth Care, Inc. in Waukesha, WI

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