More Grumblings from Dr. Hirsch – On Congress, WISeR, and HHS OIG

Late last week a new bill was proposed in Congress, titled the “Stop Corporate Takeovers of Physicians Act.” While the main intent of the bill is to limit the ability of private equity and healthcare systems to own and control medical practices, there are two parts that are baffling.

First, the bill states that corporate owners could not “interfere with, control, or otherwise direct the professional judgment or clinical decisions of a physician, including determining whether the patient should be admitted to inpatient status or kept in observation status.” It also states that physicians have final decision-making authority over diagnoses recorded in the medical record.

Of course, this flies in the face of the Conditions of Participation at 42 CFR § 482.30 that require hospitals to have a utilization review plan to ensure that the admission status of patients is correct.

And I am sure clinical documentation experts like Dr. James Kennedy are cringing at the prospect of being required to report “acute kidney injury” when the patient’s creatinine went up by two-tenths of a point simply because the doctor documented “AKI” in the chart.

Now, this bill is unlikely to get anywhere, with all sponsors being Democrats, but it certainly bears watching.

Moving on, I have written a lot about the Wasteful and Inappropriate Service Reduction (WISeR) program here. Well, an organization called the Electronic Frontier Foundation heard reports of patients having care delayed due to issues with the artificial intelligence (AI) companies tasked with performing these authorizations. So, they were able to get a treasure trove of documents from the Centers for Medicare & Medicaid Services (CMS) using the Freedom of Information Act (FOIA).

While the data on performance is limited, it does appear that for a few of the contractors, their ability to hit the required turnaround times for requests is less than optimal. At one point, Genzeon had more than 123 requests that were past the 72-hour limit, and there was one that was still not reviewed after 83 days! Compare that to Humata, another AI company in WISeR, that had only four requests past the 72-hour limit.  

Interestingly, the documents also indicate that CMS’ Innovation Center is already thinking about expansion of the program to more procedures, including MRIs, PET scans, air ambulance, cardiac catheterizations, chemotherapy, and pacemaker and defibrillator placements, including when these procedures are needed emergently. This bears watching closely.

Last week also saw the release of U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) audits of two hospitals. I can’t say there was anything groundbreaking in the audits, but I must commend both McLeod Regional Medical Center in Florence, South Carolina, and Methodist Hospital in San Antonio, Texas for calling out the OIG for the many errors made by their contractor.

Once again, it appears their auditor cannot properly interpret the Two-Midnight Rule. And once again, their auditor cannot properly determine when a patient qualifies for Inpatient Rehabilitation Facility (IRF) care.

Let me give you an example. A patient described as very elderly fell and fractured her hip. She underwent pinning. Her hospital stay was complicated by acute kidney injury and blood-loss anemia. She also has chronic heart failure, oxygen-dependent COPD, and depression. Prior to her fall, she lived in an assisted living facility and used a walker. The OIG reviewer determined that her conditions were not complex enough to require a rehabilitation physician overseeing her care.

The reviewer even had the nerve to say that the patient “did not require complex wound management, tube feeding, management of neurogenic bowel or bladder, or tracheostomy management,” as if those are required conditions to warrant rehabilitation physician oversight. To be honest, this reviewer sounds more like a medical director at a Medicare Advantage (MA) plan who moonlights doing audits for the OIG contractor.

This OIG contractor is clearly underperforming, and it is past time that the OIG does something about it.