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Is the 2-midnight rule going away and when will short-stay audits resume?

Is the 2-midnight rule going away and when will short-stay audits resume?

Learning objective

At the completion of this educational activity, the learner will be able to:

  • Identify updates to CMS’ 2-midnight rule and best practices for compliance.


Every couple months, it seems questions arise about the 2-midnight rule and there are rumors that it may be going away. Below are some questions with answers from our expert Ronald Hirsch, MD, FACP, CHCQM, vice president of the Regulations and Education Group at Accretive Health in Chicago, to clarify where things stand today with regard to the 2-midnight rule.


Q: I heard the 2-midnight rule is now gone based on changes to Medicare payment rates under the 2017 inpatient prospective payment system (IPPS) final rule. Is this true, and if not, what changed?


A: No, this is not the case. The 2-midnight rule is still alive and kicking. What the FY 2017 IPPS final rule did is finalize two adjustments in addition to updating the annual rate for inpatient hospital payments.

"First, CMS is finalizing the last year of recoupment adjustments required by the American Taxpayer Relief Act of 2012 (ATRA). Section 631 of ATRA requires CMS to recover $ 11 billion by FY 2017 to fully recoup documentation and coding overpayments related to the transition to the MS-DRGs that began in FY 2008," states the CMS Fact Sheet. "For FYs 2014, 2015, and 2016, CMS implemented a series of cumulative -0.8 percent adjustments. For FY 2017, CMS calculates that $ 5.05 billion of the $ 11 billion requirement remains to be addressed. Therefore, CMS is finalizing a -1.5 percent adjustment to complete the statutorily specified recoupment."

And the second part of the change, which seems to be causing the confusion, is CMS took action on a -0.2 percent adjustment it implemented in the FY 2014 IPPS final rule.

This adjustment was initially made to account for an estimated increase in Medicare spending due to the 2-midnight policy. "Specifically, in the FY 2014 IPPS final rule, CMS estimated that this policy would increase expenditures and accordingly made an adjustment of -0.2% to the payment rates," states the fact sheet.

While CMS thought this adjustment was reasonable at the time, a recent review led CMS to permanently remove this adjustment, "and its effects for FYs 2014, 2015, and 2016 by adjusting the 2017 payment rates. This will increase FY 2017 payments by approximately 0.8%," stated CMS.

Hirsch says this move is "purely about money." "They are leaving the 2-midnight rule itself completely intact," he says.

The bottom line: Pay attention to 2-midnight compliance and ensure your organization has good systems in place to support it.


Q: When are Beneficiary and Family Centered Care Quality Improvement Organizations (BFCC-QIO) short-stay reviews going to resume?


A: Back in May, CMS put a hold on short-stay inpatient audits related to the 2-midnight rule. That hold was lifted effective September 12, 2016, according to a FAQ published by CMS (

According to the FAQ, CMS decided to lift this temporary suspension for five reasons, which are as follows:

  1. BFCC-QIOs were successfully retrained on 2-midnight rule
  2. BFCC-QIOs finished a re-review of claims that were formally denied
  3. CMS "examined and validated the BFCC-QIOs peer review activities related to short-stay reviews"
  4. BFCC-QIOs reached out to providers on claims that were affected by the temporary suspension
  5. BFCC-QIOs started provider outreach and education on the 2-midnight rule

It appears that based on the five points, the temporary audit suspension accomplished its goal of helping BFCC-QIOs sort out the challenges they faced during the initial round of audits.

Prior to the suspension, hospitals complained about inconsistencies in the review process, which triggered the suspension. The BFCC-QIO audits began in October 2015, and hospitals reported a number of surprises including:

  • Auditors requested records as far back as May 2015 when many believed the audits would only look at records from 2015 forward
  • BFCC-QIOs missed deadlines, and provided audit results late
  • Failure by BFCC-QIOs to schedule timely education for providers


These problems made it difficult for hospitals to hit filing deadlines, and they were consequently reporting problems because they missed the window to appeal denied claims. Hospitals also didn’t have a chance to get education to understand what they were doing wrong to fix the problem.

There were also rumored problems related to benchmark admissions. Hospitals reported that BFCC-QIOs were routinely and in some cases inappropriately denying inpatient admissions when the patient spent one night as an outpatient in the emergency department or in observation services before he or she was admitted?even when the patient spent a second night in the hospital as an inpatient.

To prevent future problems, CMS said in its FAQ that it will continue to provide oversight for BFCC-QIO efforts by:

  • Reviewing a sample of completed claim reviews each month
  • Monitoring provider education calls
  • Responding to individual provider inquiries and concern. Providers may send questions to the CMS Open Door Forum Mailbox at


CMS also said that BFCC-QIOs will continue tofollow the guidance called, "Reviewing Short-Stay Hospital Claims for Patient Status." To see a copy ofthe guidance, go to data-and-systems/monitoring-programs/medicare-ffs- compliance-programs/medical-review/inpatienthospitalreviews.html.   

The BFCC-QIOs will also be charged with providing provider education going forward. "The BFCC-QIOs were directed to use comprehensive outreach and communication approaches (i.e., website, newsletter, one-on-one training, and town hall type events) to continue to educate providers on when payment under Medicare Part A is appropriate under the 2-midnight policy," states the FAQ. "BFCC-QIOs are required to educate providers using quality improvement core principles that facilitate continuous learning and promote greater provider understanding of the appropriate application of the 2-midnight policy in accordance with the revisions in the CY 2016 OPPS Final Rule (CMS-1633-FC):"

Now that audits have resumed, organizations should maintain a focus on 2-midnight compliance. Below are some tips Hirsch has recommended in the past, including:

  • Reviewing every short-stay admission?those between zero and one day?prior to billing.
  • Ensuring that every patient’s status is appropriate up front. Reviewing the chart of every patient that goes upstairs.
  • Using the physician advisor to check compliance on cases that are murky to ensure that they meet one of the exceptions under the 2-midnight rule. Changing cases that don’t meet an exception using condition code 44. If the problem isn’t discovered until after discharge, self-deny and rebill the claim.
  • Ensuring that the case managers and the physicians are up to date about any potential changes to the 2-midnight rule and how to comply. – Case Management Monthly