Home Health & Hospice Week

Paramedic utilization problematic, legal experts say.

A stamp of approval from a federal watchdog agency on furnishing free care at home to prevent hospital readmissions should be a positive for home care providers — but in this case, it’s probably not.

The opinion: The HHS Office of Inspector General issued an advisory opinion on March 6 addressing a nonprofit medical center’s use of free home care services to prevent readmissions for patients discharged from the facility. Under the program, which the medical center and a related clinic currently run for congestive heart failure patients, a “clinical nurse leader” assesses a CHF patient for high risk of readmission or emergency room visits using a standardized risk assessment tool. The medical center hopes to expand the program to chronic obstructive pulmonary disease in the future.

Under the program, patients who meet all eligibility criteria and who choose to participate receive two visits from a community paramedic each week for about 30 days. The paramedic performs activities such as reviewing medications, assessing the home environment for safety, checking for discharge plan compliance, and performing physical assessments. They also refer the patients for more care when needed.

The medical center directly employs the paramedics. The services aren’t covered by Medicare or other federal health care programs. And the requestor offers the program to patients who have already chosen it for followup care.

The program could violate the Anti-Kickback Statute on multiple fronts, the OIG acknowledges in the opinion. The free home care visits could be an inducement to beneficiaries to choose the medical center for care. And the program fails to qualify for the “Promotes Access To Care” exception in the law.

However: “In an exercise of our discretion we will not impose sanctions under the Beneficiary Inducement CMP [civil monetary penalty],” the OIG says in its opinion letter.

Why? “The Arrangements’ benefits outweigh any risk of inappropriate patient steering that the statute was designed to prevent,” the OIG judges. Also, the programs “are unlikely to lead to increased costs to federal health care programs or patients through overutilization or inappropriate utilization,” it concludes. In fact, they are likely to save money by preventing rehospitalizations.

The programs are also unlikely to skew clinical decision-making, in part because the requestor “does not … compensate any employee or contractor based on the number of patients who enroll.” And refraining from marketing the programs lowers the risk that patients will choose the medical center or its related clinic.

The program’s benefits — which largely dovetail with those of the Medicare home care benefit — of increasing care plan compliance, improving patient health, preventing hospital­izations, and improving quality of care, justify the program, the OIG adds.

Bottom line: Although the programs “could potentially generate prohibited remuneration under the anti-kickback statute if the requisite intent to induce or reward referrals of Federal health care program business were present, the OIG will not, and would not, respectively, impose administrative sanctions,” the watchdog agency pronounces.

Contract With HHAs For Home Visits

Many home care providers might find the opinion a positive sign, encouraging hospitals and related physician clinics to partner with home health agencies on furnishing home care to high-risk patients to prevent hospitalizations.

However, the opinion presents many problems that prevent that interpretation, experts say.

For one: The opinion doesn’t say that such programs are in the clear legally. It merely says it won’t impose sanctions on the programs.

“While this application of discretion may indicate a generally favorable attitude toward programs that — like the proposed program — contribute to better patient outcomes and coordination of care, such a discretionary approach may make it difficult for providers to reliably predict the risk associated with programs they are considering,” criticize attorneys Erica Kraus, Michael Paddock, and Theresa Thompson with law firm Sheppard Mullin Richter & Hampton in analysis published in The National Law Review.

The OIG’s refusal to say the program qualifies for the “Promotes Access To Care” exception narrowly defines that exception, the Sheppard Mullin attorneys add. That “leaves the status of post-discharge support programs unnecessarily uncertain. Given the long-recognized import of such support programs in improving health outcomes, the introduction of this type of uncertainty is unfortunate and may be counterproductive,” they say.

Another major problem is presented by the program’s use of paramedics, and related problems that go unaddressed by the OIG, points out Washington, D.C.-based healthcare attorney Elizabeth Hogue.

For example: The decision “does not take into account Medicare Conditions of Participation (CoPs) for home health agencies or state licensure requirements,” Hogue tells Eli. “It’s likely that the provision of services by paramedics in patients’ homes violates the CoPs and many, if not all, state licensure statutes.”

The opinion doesn’t address whether the patients eligible for the program are eligible for the home care benefit and/or currently served by a home health agency or hospice, Hogue highlights.

That’s an important distinction, says National Association for Home Care & Hospice President William Dombi in analysis of the opinion. “It is possible, that by using paramedic services rather than home health services for post-discharge in-home follow-up, the health system has disadvantaged the patient who may then lose the more extended services that are available under the home health benefit, including nursing, therapy, medical social work, and home health aide services,” the attorney offers in the trade group’s member newsletter.

“The actual project may exclude homebound patients, but the advisory opinion is not clear on that front,” Dombi says. “Instead, it indicates that the services provided by the paramedics is not covered when provided by paramedics under a federal health care program. However, those services may be covered under home health benefits.”

There’s a clear solution to this issue, Hogue maintains. “Hospitals that want to provide follow-up services to patients in their homes following discharge at hospitals’ expense should contract with home health agencies, not hire paramedics,” she argues. “The services described in the opinion are squarely within the scope of practice of registered nurses and most are routinely performed by home health nurses.”

Bonus: “Doing so has the added benefit of helping to ensure that patients who qualify for Medicare certified home health or hospice services receive them,” Hogue says.

Note: The opinion is at https://oig.hhs.gov/fraud/docs/advisoryopinions/2019/AdvOpn19-03.pdf.