Home Health & Hospice Week

Make sure you know what's required - and what's not - under the  mandate. 

Relationships between Medicare+Choice Organizations and home health agencies are getting a lot less friendly - and they weren't that friendly to begin with - thanks to new fast-track appeals requirements.

As required by a settlement in the Grijalva lawsuit, the Centers for Medicare & Medicaid Services began requiring new notices of termination of coverage for M+CO enrollees Jan. 1 to facilitate speedy appeals decisions (see Eli's HCW, Vol. XII, No. 20, pp. 154-157). And the requirements for the fast-track appeals process are translating into extra costs and headaches for HHAs that contract with the Medicare managed care plans.

New York HHAs feel "beaten down" by the new regulation, said Patrick Canole of the Home Care Association of New York State in the Jan. 22 CMS Open Door Forum reviewing the Grijalva requirements. While skilled nursing facilities and comprehensive outpatient rehabilitation facilities have patients in-house or coming to them for visits, HHAs "have to go out and actually visit the patients" to deliver the first of the two termination of coverage notices required in the new process, Canole protested.

The new reg has translated into adjustments to the visit schedule - often meaning an additional visit by someone who can explain the notice, Canole said in the forum.

"I don't think that the process really takes into account how home care works, as usual," criticizes Burtonsville, MD-based home care attorney Elizabeth Hogue. "The process may be burdensome to agencies in a variety of ways, including requiring them to make extra, costly visits to patients."

HHAs are also struggling under the requirement to furnish documentation supporting the termination decision to the independent review entity (IRE) - generally a Quality Improvement Organization (QIO) - in time for the decision deadline of four days from the initial notice, Canole reported. Because the appeals process deadline continues over the weekend, agencies have to either hire a clinical or medical records staffer to work over the weekend, or arrange for current workers to be on call when they normally wouldn't be, he complained.

"It's another unfunded mandate," Canole told the CMS staffers in the forum.

The Grijalva requirements caught many HHAs unaware, says William Dombi, vice president for law with the National Association for Home Care and Hospice's Center for Health Care Law. And it was far from a pleasant surprise.

Even CMS has acknowledged that HHAs have gotten the short end of the stick from the regulation. "The home health situation definitely poses the most difficult challenges I think in this process," one CMS staffer said in the forum.

Managed care plans are running into just as many problems figuring out the home health notice process as HHAs. "We are full steam ahead on SNFs but stuck on the home health side," says Linda Cioffi, vice president of care management for Touchstone Health Partnership Inc., a medical management company based in New York City.

Touchstone isn't sure how to require agencies to obtain patient signatures on the first-step, generic notices. And they don't know how to get the notices to the nurses, many of whom come into the home care office only once a week or less.

"We can't finalize our policies because we don't know the answers" to a whole slew of problematic HHA questions, Cioffi tells Eli. "It's much easier on the SNF end."

An even trickier issue involves incentives for HHAs to deliver the notice on time, Cioffi points out. If agencies fail to deliver the notice at least two days before discharge, the M+CO is on the hook for coverage of the services until the notice is delivered and the fast-track appeals process timeline starts.

"We are concerned that there is a built-in incentive for SNFs, HHAs and CORFs to delay issuance of the [initial notice] in order to maximize payment from the M+C organization," a managed care plan says in a set of frequently asked questions posted on CMS' appeals Web site.

Agencies tempted to use this method to secure extra visits for the patient and extra payment for themselves should resist the temptation. M+COs are free to penalize providers however they see fit. When HHAs fail to deliver notices, "if an M+C organization wants to take corrective action against a provider, the M+C organization is free to do so," CMS says in the FAQs.

In fact, CMS repeatedly has told plans and providers that it won't referee between them on the details of the notice-delivery system. Plans and providers must work out those details themselves in their contracting agreements.

"Although CMS has not required M+C organizations to amend their contracts with providers for purposes of the fast-track appeals process, we believe this to be an advisable approach," the FAQs say. In other words, CMS tells plans to work penalties into their HHA contracts for late notices or late documentation.

"Neither the statute nor the regulations really provide for any kind of appeal process between the providers and the M+C organizations," a CMS staffer stressed in the forum. "Accomplishing proper advance notice of termination by the provider is going to require coordination and information-sharing between those entities to make sure that enrollees get the right information at the right time."

CMS figured that wasn't the answer M+COs or providers were hoping for. "That's just the way things are in the real world," the CMS official continued. "You're going to have to deal with each other and the more communication there is the better."

But CMS does reiterate in the FAQs that HHAs, SNFs and CORFs are required by the Medicare conditions of participation to deliver the notices. If plans report offending providers to their regional offices, "CMS will deal with providers that are in violation of their obligation to deliver the [notices] on a case-by-case basis."

It is likely to take HHAs and M+COs months to work out the details of their relationships and responsibilities under the Grijalva requirements. There were almost 50 callers waiting to ask questions in the forum when time ran out, and 760 callers phoned in to the ODF.

CMS and the regulation "are not clear at all on the details," Cioffi lamented. "A lot more than communication" between plans and providers will be needed to nail down the details, she insists.