Not meeting F2F requirements should be ‘exceptionally rare,’ CMS says in CoPs final rule.
The hot-button issue of terminating a patient’s care has plagued home health agencies under the prospective payment system, and even before. The updated Conditions of Participation effective July 13 aim to address the area of controversy. Specifically, the Centers for Medicare & Medicaid Services sets out a new Transfer and Discharge standard in the Patient Rights CoP (see language for §484.50(d), p. 27).
Commenters on the CoP proposed rule had “stated that HHAs should be explicitly permitted to discharge a patient for cause if the safety of the HHA’s staff is threatened,” CMS notes in the final rule. “In such situations, commenters suggested that reporting the danger to the proper authorities, such as law enforcement, protective services, etc., should suffice for documentation of the significant safety hazard that warranted a discharge.”
“Other commenters suggested a broader list of reasons related to staff well-being that ... would warrant discharging a patient from services, such as sexual harassment or verbal abuse,” CMS continues. “A commenter also suggested that, if a patient is discharged for reasons related to HHA staff safety and wellbeing, the HHA should be permitted to conduct the discharge process via alternative means, such as by phone, mail or electronic communication.”
The language CMS already proposed on discharging for “disruptive, abusive, or uncooperative” behavior should cover all those situations, the agency responds. “The proposed requirement for documenting the problem and efforts made to resolve the problem will be sufficient for documentation purposes.”
CMS does explicitly say that agencies may conduct the discharge remotely if safety dictates it, however. “If HHA staff felt that re-entry to the patient’s residence was unsafe for them, the discharge process could be handled by way of an alternative method (for example, phone or electronic mail),” the rule specifies.
“It is helpful for CMS to finally address the issue of termination of services to patients, especially when patients or others in patients’ homes engage in disruptive, abusive, or uncooperative behaviors,” praises Washington, D.C.-based healthcare attorney Elizabeth Hogue.
However: “I remain concerned … about the requirement to provide patients and their representatives with contact information for other agencies or providers who may be able to provide care for them after agencies discontinue services,” Hogue tells Eli.
The Transfer and Discharge standard specifies that agencies must provide a patient discharged for cause and her representative (if any) “with contact information for other agencies or providers who may be able to provide care.”
This is a problem, Hogue maintains. “There are numerous circumstances under which it would be inappropriate to simply refer patients to other home health agencies such as violence or threatened violence,” she says. “In the past regulators have not demonstrated much understanding of this issue. I would have preferred to see more discretion about referring patients to other agencies/providers.”
One alternative: “Agencies can certainly refer patients to mental health and substance abuse providers,” Hogue suggests.
CMS Dismisses F2F Discharge Concerns
HHAs submitting comments on the CoPs proposed rule asked CMS for some other provisions, such as permission to discharge patients when coverage requirements such as the face-to-face physician documentation aren’t met.
“We do not agree that it is necessary to add a reason for discharge specifically related to coverage requirements. In the event that coverage requirements are not met, an HHA would be permitted to discharge a patient because the patient or payer will no longer pay for the care,” CMS says in the final rule.
Oh, really? “Situations where an HHA patient does not meet Medicare coverage requirements due to a failure to complete the face-to-face encounter requirements should be exceptionally rare, as we have made considerable efforts to streamline the requirements related to the face-toface encounter coverage requirement and there is ample time (a 120 day period) to complete this coverage requirement,” CMS says in the rule.
“This is one of the most blatantly false statements I have ever heard,” exclaims consultant Pam Warmack with Clinic Connections in Ruston, La. The rule fails to note the intensely short deadline for F2F documentation under the Pre-Claim Review demonstration. And it doesn’t mention the 60 percent denial rate HHA claims saw under Round 1 of the Probe & Educate campaign focused on F2F (see Eli’s HCW, Vol. XXVI, No. 3).
“There continues to be a tremendous number of denials of episodes simply on the F2F regulation,” Warmack tells Eli. “Physicians simply do not know how to document medical necessity and homebound no matter how much we try to educate them.”
Big problem: “Review bodies are reluctant to honor the 2015 provision that allows the home health provider to supplement the physician’s documentation with their assessment findings and incorporate it into the physician’s documentation. Some do and some don’t,” Warmack relates. “It is apparent that even the various review bodies don’t have a solid grasp on what is and what is not required.”
“We expect HHAs to facilitate and coordinate efforts of the patient and physician to ensure that the face-to-face encounter occurs timely,” CMS continues. “In the case where the face-to-face encounter requirement is not met, an HHA cannot hold a patient financially liable for services provided. Failure to meet a condition for payment is not one of the criteria where an HHA can hold a patient financially liable. Once a patient is admitted, an HHA cannot abruptly discharge a patient unless the patient is properly notified and there is a valid reason for discharge. Ideally, a face-to-face encounter, as part of the certification process, would occur before the patient received services.”
The F2F encounter probably does mostly happen before care in accordance with CMS’s wishes, Warmack notes — and reduces access to home care. That’s because patients without an F2F don’t make it in the door, and thus don’t trigger a discharge later. “Ninety-nine percent of my clients will not accept a referral for a patient who has not already had a F2F encounter,” Warmack reports.
Bottom line: “In my nearly 31 years working in the field of home health, the F2F regulation is the most egregious piece of legislation that has ever occurred,” Warmack laments. HHAs are hoping for relief from the requirement under the incoming Trump administration and/or through an Affordable Care Act repeal.
Staffing Problems Are Yours, Not Your Patients’
Commenters also requested permission to discharge patients when they experience unexpected staffing shortages.
Nope, CMS likewise responds. “We do not agree that staffing changes would be an appropriate reason for patient discharge. HHAs are responsible for assuring adequate staffing at all times to consistently meet the needs of all patients under their care,” the rule says.
