Industry News

CMS Releases Additional 2-Midnight Rule Guidance.

Jennifer Kirchner | February 2014

The Centers for Medicare & Medicaid Services (CMS) recently released additional guidance for hospital inpatient admission orders and certification requirements under the 2-Midnight Rule, as well as probe and education review guidance and updates.  


The responsible physician, or a physician who has knowledge of the case and authorized by the responsible physician or by the hospital’s medical staff, must sign the certifications and recertifications.  CMS does not have specific procedures or forms for certification and recertification statements, and providers may use a method that allows verification.  Additionally, the updated guidance clarifies:

  • an emergency department physician or hospitalist may properly sign the certification if considered the admitting physician of record;
  • the certifying physician is not required to have inpatient admission privileges at the hospital.

CMS also stresses that certification begins with the inpatient admission order, which must be signed, dated, and documented in the medical record prior to discharge.  The updated guidance further defines time of discharge by clarifying that a beneficiary is considered a patient until the “effectuation of activities typically specified by the physician as having to occur prior to discharge,” such as “discharge after supper.” 

CMS also clarified that although certification or recertification of outlier cases may be delayed under extenuating circumstances, it may not extend past discharge.  

Inpatient Order

A qualified ordering practitioner may not delegate the inpatient admission order to an individual who is not authorized by the state to admit a patient, or has not been granted admitting privileges by the hospital’s medical staff.  However, an ordering practitioner may permit residents and certain non-physician practitioners to write inpatient admission orders on his or her behalf, if the ordering practitioner approves and accepts responsibility for the admission decision by counter-signing the order prior to discharge.  Additionally, verbal orders must identify the qualified admitting practitioner, and must be countersigned by the ordering practitioner promptly and prior to discharge. 

CMS notes that in extremely rare circumstances, when the order to admit is missing or defective, contractors may use discretion to determine if the medical record can clearly derive the physicians’ intent, decision, and recommendation to admit the beneficiary as an inpatient.  Additionally, there must be no reasonable possibility that the care could have been sufficiently provided in an outpatient setting.

Probe and Education Audits

CMS recently announced that Medicare Administrative Contractors (MACs) will continue to conduct probe and educate reviews through September 30, 2014. The probe and educate review process was designed by CMS to serve as a learning process for providers, where MACs will provide further instruction and guidance to providers regarding the 2-Midnight Rule for denied claims. In the new guidance, CMS announced it is requiring MACs to re-review all claims denied to date under the probe and educate process to ensure that the decisions and subsequent education given were consistent with the updated guidance released by CMS related to hospital inpatient order and certification requirements on January 30, 2014.  MACs were given the discretion to reverse their decision and issue payment outside of the appeals process if a claim is determined payable upon re-review.  Providers are encouraged to work with their MACs to determine if a claim has been re-reviewed prior to submitting an appeal request. 

Additionally, CMS provided initial data collected during the probe and educate reviews and examples of common denials made to date.  As of February 7, 2014, MACs have requested 29,158 medical records, received 18,110 medical records, and completed review of 6,012 medical records under the probe and educate audits.  Examples of common denials included instances where:

  • A beneficiary was admitted for an observation stay and the medical record did not support an expectation of a 2-midnight stay;
  • An inpatient order was written to admit a beneficiary for pre-operative care, but the beneficiary was discharged within one day and the medical record did not support an expectation of a 2-midnight stay; and 
  • A physician’s order contained a checkbox with pre-printed text stating “the beneficiary is expected to require 2 or more midnights of hospital care,” but the physician’s plan of care was to discharge the next morning after admission.

 The CMS guidance on the updated inpatient order and certification requirements is available at:

The CMS guidance related to the probe and education re-review process is available at:

 The update on the probe and educate review process is available at:

Centers for Medicare & Medicaid Services.  “Hospital Inpatient Admission Order and Certification.”  30 Jan. 2014.

“Inpatient Hospital Reviews.  Updates 2-24-14.” Feb. 24, 2014. Centers for Medicare & Medicaid Services. 26 Feb. 2014.


Centers for Medicare & Medicaid Services.  “Medicare Inpatient Hospital Probe and Educate Status Update.”  24 Feb. 2014. 

About the Author

Jennifer Kirchner is a licensed attorney in Illinois and Wisconsin. Ms. Kirchner has expertise in assessing provider compliance with the Anti-Kickback Statute, Stark Law, the False Claims Act, HIPAA Privacy and Security Rules and clinical research laws and regulations.