Regulatory Bulletins

Bulletin 07 -CMS Waiver Does Not Change Beneficiary Rights And CC 44 Billing Requirements

Blanket Waiver of the Utilization Review Standards of the Condition of Participation Does NOT Waive Beneficiary Rights & Condition Code 44 Billing Requirements!


Last week, the Centers for Medicare and Medicaid Services (CMS) waived “the entire utilization review condition of participation Utilization Review (UR) at §482.30”.[1] Many hospitals asked us if the waiver meant that Condition Code 44 (CC44) was no longer required. CMS dispensed with the requirement for the UR committee to be involved when a case is identified as appropriate for a change from inpatient admission to outpatient status. The UR team can now ask a treating physician for an admission status order change without the involvement of the UR committee. However, there are beneficiary rights and billing requirements specific to CC44 that are not dismissed by the waiver.

Patient Rights Considerations

Medicare beneficiaries have a right of notice and a right to refuse or request treatment (42 CFR §482.13(a)(1) and 42 CFR §482.13(b)(2)) under the Conditions of Participation (CoPs). These beneficiary rights have not been waived. This is especially important for outpatient services since the beneficiary has the right to choose where or when to receive those services.

      • 42 CFR 482.13(a) Standard: “Notice of rights. (1) A hospital must inform each patient, or when appropriate, the patient’s representative (as allowed under State law), of the patient’s rights, in advance of furnishing or discontinuing patient care whenever possible.” [Bold added by author]
      • 42 CFR 482.13(b)(2): “The patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care. The patient’s rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate.” [Bold added by author]

Thus, the requirement that a beneficiary be notified of her/his admission status so that s/he can avail her/himself of the opportunity to file an appeal or grievance must be preserved, even with the waiver of the requirements that are specific to the UR process itself, because these beneficiary rights have not been waived.

A process to notify the beneficiary when a change from inpatient admission to outpatient status occurs is thus required in order to preserve beneficiary rights under the aforementioned sections of 482.13. The requirements for a compliant process are:

      • UR team case review to determine correct admission status based on the 2-Midnight Rule
      • UR team discussion of a case with a treating physician to ensure correct admission status documentation and order as appropriate
      • Beneficiary notification prior to discharge as per the requirements for Beneficiary Notice Delivery Guidance in light of COVID-19 as listed in the Thursday, March 26, 2020 edition of the Medicare Learning Network mlnconnects 2020-03-26-MLNC-SE.
      • Does NOT require the two physician UR committee formal process per your UR plan.

These recommendations allow the hospital UR process to run efficiently and are consistent with the goals of the waiver to “allow hospitals to focus more resources on providing direct patient care” while maintaining beneficiary rights.

Billing Considerations

In addition to the beneficiary rights considerations, any case with a change in admission status from inpatient admission to outpatient status made prior to discharge requires that the claim be submitted to Medicare for reimbursement using Condition Code 44. Remember: the Medicare billing process is separate from and not covered by the UR standards of the Conditions of Participation and has not been waived.

      • CC44 is a claim submission/billing code. It is not part of the UR process in and of itself and is not part of the UR standards under the CoPs at 42 CFR §482.30.
      • Sec 50.3.2 in Chapter 1 of the Medicare Claims Processing Manual describes the appropriate use of CC44 as follows:

In cases where a beneficiary’s status is changed from inpatient to outpatient subsequent to UR determination that the inpatient admission does not meet the hospital’s inpatient criteria, the hospital may submit an outpatient claim (Type of Bills 13x, 85x) to receive payment for medically necessary Medicare Part B services that were furnished to the beneficiary, provided all of the following conditions are met:

      • The change in patient status from inpatient to outpatient is made prior to discharge or release, while the beneficiary is still a patient of the hospital;
      • The hospital has not submitted a claim to Medicare for the inpatient admission;
      • A physician concurs with the utilization review committee’s decision; [this requirement has been waived] and
      • The physician’s concurrence is documented in the patient’s medical record. [this requirement has been waived]” [Bold added by author]

The billing process hospitals normally utilize to code a claim using CC44 should still be used – except that the UR committee concurrence and documentation of that concurrence is no longer required. That being said, CC44 must still be used when appropriate as per CMS guidance.

Given the nature of the pandemic, hospitals may also avail themselves of the Part B Correction process in any circumstance in which the hospital determines there to be an erroneous inpatient admission post-discharge upon hospital self-audit (which is still required under the waiver). This process allows hospitals additional time to review the appropriateness of inpatient admission status prior to billing and provide written notification to a beneficiary per MLN Matters SE1333 in the event that the inpatient admission is determined not to be medically necessary.


[1] Source: March 30, 2020, Summary of COVID-19 Emergency Declaration Waivers & Flexibilities for Health Care Providers,, retrieved from:


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