To IMM or Not to IMM That is the Question and Conundrum

I have seen a question pop up lately in a few forums asking when it is appropriate to provide a patient that is leaving an acute care facility with the CMS Important Message from Medicare (IMM). Before I endeavor to answer that question by presenting the regulatory evidence, I think we need to go back in time and review why we need to provide it at all. I will not start all the way back in the time machine but will go back to how we ended up with providing the IMM the majority of the time at least twice during a patient’s stay.

                A lawsuit was filed in 2003 called Weichardt v. Leavitt, C-03-5490 VRW in which the plaintiffs challenged the regulations establishing notice and appeal procedures upon discharge of Medicare patients from hospital on due process and Administrative Procedure Act grounds. [The Administrative Procedure Act (APA) is a federal law that governs the process by which federal administrative agencies create and implement regulations. It also establishes the procedures for judicial review of agency actions. When individuals or entities believe that a federal agency has taken an action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, they can bring claims under the APA to challenge those actions in federal court.]

The issue that caused the lawsuit was whether Centers for Medicare and Medicaid (CMS’) promulgation of final rules not requiring timely advance written notice to hospitalized Medicare beneficiaries who are being discharged violates the Administrative Procedure Act and the Due Process Clause.

The relief sought was a declaratory and injunctive relief against department of health and human services who oversees CMS prohibiting the continued implementation of the regulations at issue (42 C.F.R. §§ 422.620 and 489.27) and requiring that hospitalized Medicare beneficiaries be given timely advance written notice before they are discharged.

After 3 years and many negotiations the case was settled in 2006 with the final rules being published in the Federal Register on November 27, 2006 (Federal Register :: Medicare Program; Notification of Hospital Discharge Appeal Rights), with CMS agreeing to the following terms: along with the initial Notification which the hospital must provide the notice at or near admission, but no later than 2 calendar days following the beneficiary's admission to the hospital, the hospital must provide a Follow up notification. (1) The hospital must present a copy of the signed notice to the beneficiary (or beneficiary's representative) prior to discharge. The notice should be given as far in advance of discharge as possible, but not more than 2 calendar days before discharge. (405.1205 Notifying beneficiaries of hospital discharge appeal rights).

This change caused a lot of angst and fear when it first came out. I know I was afraid that it would lead to more appeals and delays in discharges and audits. At the time I was a director for a hospital in Syracuse with over 500 beds and a large Medicare population that I asked my leadership to allow me to hire a full-time case management assistant just to hand out the IMMs and to track compliance. We were so sure that if we did not it would lead to audits and issues with the QIO. Well that never happened and as far as an increase of appeals, that never happened either, we just incurred more cost for another employee but how were we to know, at least we had great data to report, and my case managers were happy that I did not add another task to their busy day. To tell you the truth I was shocked I was approved for the position, but I guess we all feared the wrath of CMS on this one.

Fast forwarding to today we are still trying to figure out when to give out the IMM. Even the QIOs do not get this right and why should they when the regulations are in a mixed bag of areas to find the answer. In the original rule they state that they clarified what the definition of a discharge is in two sections due to comments they received; Some commenters asked that we clarify the definition of discharge. Specifically, they asked that we clarify that a transfer to another hospital does not constitute a discharge. In response to these comments, we have revised the definition of discharge in both § 405.1205 and § 422.620 to state that a discharge is the formal release of a beneficiary or enrollee from an inpatient hospital, but when you read those sections they are moot on the subject and instead discuss the total time of handing out the forms – 3 minutes per form (Section 405.1205 (https://www.federalregister.gov/d/E6-20131/p-153)  

And section 422.620 – 11 min to discuss the form https://www.federalregister.gov/d/E6-20131/p-159

Nothing again on what constitutes a discharge. We must search elsewhere in the vast documentation of CMS’ vast manual to find our answers. Well here goes. You must look for when there is an exception to providing the IMM and not when it is appropriate to provide because why would CMS just state give it for these reasons.

In the Medicare Claims Processing Manual Chapter 30 – Financial Liability Protections (Rev 12-20-23) in the following section we find the following

200.2.1 - Exceptions

(Rev. 11210; Issued: 01-21-2022; Effective: 04-21-2022; Implementation: 04-21-

2022)

The following situations are not eligible for an expedited determination. Hospitals should not deliver an IM in these instances.

·         When a beneficiary transfers to another hospital at the same level of care (e.g., a beneficiary transfers from one hospital to another while remaining a hospital inpatient).

·         When beneficiaries exhaust their benefits (e.g., a beneficiary reaches the number of lifetime reserve days of the Medicare inpatient hospital benefit.)

·         When beneficiaries end care on their own initiative (e.g., a beneficiary elects the hospice benefit).

From MLN Matters Number: SE21001 published on February 22, 2021 that comes from the following which is an update to the section noted in the original final rules from 2006 we find what is the discharge definitions/hospital

SUBCHAPTER B—MEDICARE PROGRAM

§ 405.1205 Notifying beneficiaries of hospital discharge appeal rights. (a) Applicability and scope. (1) For purposes of §§405.1204, 405.1205, 405.1206, and 405.1208, the term ‘‘hospital’’ is defined as any facility providing care at the inpatient hospital level, whether that care is short term or long term, acute or non-acute, paid through a prospective payment system or other reimbursement basis, limited to specialty care or providing a broader spectrum of services. This definition includes critical access hospitals. (2) For purposes of §§405.1204, 405.1205, 405.1206, and 405.1208, a discharge is a formal release of a beneficiary from an inpatient hospital. (CFR-2023-title42-vol2-chapIV-subchapB.pdf (govinfo.gov) 

The MLN goes further to state

A discharge occurs when a Medicare patient:

·         Leaves a Medicare IPPS acute care hospital after receiving complete acute care treatment or

·         Dies in the hospital

An acute care transfer occurs when a Medicare patient in an IPPS hospital (with any MS- DRG) is:

•         Transferred to another acute care IPPS hospital or unit for related care (Patient Discharge Status Code 02 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 82)

•         Admitted to another PPS on the same day after leaving their designated IPPS hospital against medical advice (Patient Discharge Status Code 07)

•         Transferred to a hospital that would ordinarily be paid under the IPPS, but is excluded because of participation in a state or area wide cost control program (Patient Discharge Status Code 02 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 82)

•         Transferred to a hospital or hospital unit that hasn’t been officially determined as being excluded from IPPS such as:

•         An acute care hospital that would otherwise be eligible to be paid under the IPPS, but doesn’t have an agreement to participate in the Medicare Program (Patient Discharge Status Code 02 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 82)

•         A Critical Access Hospital (Patient Discharge Status Code 66 or Planned Acute Care

Hospital Inpatient Readmission Patient Status Code 94)

Other facilities that are also paid under an IPPS style system include the following thus fall under the exclusion of receiving an IMM

·         Inpatient rehabilitation facilities and units (Patient Discharge Status Code 62 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 90)

·         Long-term care hospitals (Patient Status Code 63 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 91)

·         Psychiatric hospitals and units (Patient Discharge Status Code 65 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 93)

·         Cancer hospitals (Patient Discharge Status Code 05 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 85)

·         Children’s hospitals (Patient Discharge Status Code 05 or Planned Acute Care Hospital Inpatient Readmission Patient Status Code 85)

            As stated above CMS does not point us to a clear definition of when to give or not give the IMM they provide us with answers in multiple resources and ask that you act in the manner of a detective to find the answers, no wonder we get confused along with the QIO.

I hope this article will help those that read to have some direction per the rules that govern the use of the Important Message from Medicare.