Home Health & Hospice Week

What should you cover in the verbal review?

You have six additional months to get into compliance with the new Conditions of Participation, but you’ll need every second for the tricky new notice requirements in the Patient Rights CoP.

The Centers for Medicare & Medicaid Services gave home health agencies a much-needed breather with a six-month delay proposal in the April 3 Federal Register (see Eli’s HCW, Vol. XXVI, No. 14).

The new CoP on Patient Rights gives HHAs a laundry list of notice requirements for patients and their representatives (see full regulatory language, p. 115). Under the new CoP, agencies must issue notices about:

• patients’ rights and responsibilities;
• agency transfer and discharge policies;
• contact info for the HHA administrator;
• OASIS privacy;
• potentially non-covered care;
• state hotline contact info;
• federal and state agencies such as the Agency on Aging; and
• accessing auxiliary aids and language services.

“The patient Bill of Rights notices are the most crucial areas to focus on,” says William Dombi, VP for law with the National Association for Home Care & Hospice.

“This is one of the largest change areas in the CoPs and will require close review and modifications to incorporate all of the needed changes,” adds Judy Adams with Adams Home Care Consulting in Durham, N.C.

Mind The Timeframes

One of the hardest areas for compliance are the two tight deadlines set out for furnishing notices:

1. Providing the patient and the patient’s legal representative (if any), information on patients’ rights and responsibilities, agency and transfer discharge policies, HHA administrator contact information, and an OASIS privacy notice “during the initial evaluation visit, in advance of furnishing care to the patient;” and

2. providing the same patients’ rights and transfer/discharge info to “a patient-selected representative within 4 business days of the initial evaluation visit.”

“Providers are not accustomed to having to deal with patient reps to this degree,” warns consultant Pam Warmack with Clinic Connections in Ruston, La. “Trying to accomplish these things in such a limited amount of time will prove difficult,” Warmack stresses.

Distinction: The rights requirements are made even more confusing by the reg’s use of two different kinds of patient reps, notes attorney Robert Markette, Jr. with Hall Render in Indianapolis — the legal representative versus the patient-selected representative. Agencies must notify legal reps on the same timeline as patients, while they have a few extra days to notify patient-selected reps.

For the patient-selected reps, “compliance within 4 business days is going to be a challenge, especially for patients in assisted living facilities who have family living out-of-town,” cautions legal nurse consultant Carolyn Williams with law firm Brooks Acevedo in Houston.

At least it appears CMS will let you email the notice to the rep. “This information can be provided by mail or electronic means,” the agency specifies in the final rule.

Don’t skip it: It’s important to make sure you furnish the notices to both the patient and the reps, CMS stresses in the CoPs final rule. “We … are finalizing a requirement that the notice of Patient Rights must be provided to both the patient and his or her representative. This is particularly necessary in situations where the representative legally possesses health care decision making authority.”

But don’t give yourself unnecessary work regarding reps either. “In situations where the representative is patient-selected and does not possess legal health care decision making authority, a patient may choose to decline the provision of the notice of rights to the patient-selected representative because the definition of the term ‘representative’ explicitly states that the patient determines the role of the representative, to the extent possible,” CMS explains in the rule. “The patient may choose to involve or not  involve the patient-selected representative regardingevery interaction with the HHA.”

But you’ll need to take some extra steps. “We would expect an HHA to document in the patient’s record that a patient declined to have a copy of the notice of rights provided to the representative,” CMS says. “We believe that explicitly allowing patients to choose whether or not the information is provided to the patient-selected representative will give patients greater control over their care.”

Written Plus Verbal

The new CoP requires agencies to furnish written notice during the initial eval visit before furnishing care, and to “obtain the patient’s or legal representative’s signature confirming that he or she has received a copy of the notice of rights and responsibilities.” But that’s not all. Staff must also give a verbal overview of the patients’ rights and responsibilities as well.

Getting both the written and verbal notices “to the patient and the patient’s legal or patient selected rep” in the required timeframes will be a major challenge, expects Sharon Litwin with 5 Star Consultants in Camdenton, Mo.

At least CMS has eased up on the verbal notice deadline. “A large number” of commenters on the CoPs proposed rule “expressed concern about providing a large amount of information (both in paper form and in oral explanation) at a single visit, and all prior to initiating care,” CMS acknowledges in the final rule. “Commenters stated that this can be overwhelming for patients, and can result in patients not retaining important information.”

Commenters suggested a multi-visit approach to providing information, and CMS took heed. “We agree that providing both written and oral notice in advance of providing care may not be in the best interest of all HHA patients,” the agency admits in the final rule. “Therefore, we are revising the requirements at § 484.50(a) to require written notice in advance of providing care and oral notice by the end of the second skilled visit.”

HHAs can conduct a “thorough conversation with the patient and representative regarding the content and meaning of the notice of Patient Rights over the first two visits by a skilled professional (nurse, therapist, and medical social worker),” CMS says. “We believe that extending the time frame for the oral explanation of the notice of Patient Rights and responsibilities will foster greater patient understanding of those rights, as well as assure that the conversation does not inappropriately impede the delivery of patient care.”

Document this: While a signature is necessary to confirm receipt of the written notice, it’s not for the verbal notice. “Documenting oral notice may be done by obtaining the patient’s or representative’s signature, or by a clinical note,” CMS offers.

Tip: “The verbal review does not have to be word-for-word, but needs to review what is in the rights and be sure the patient (and representative) understand their rights,” Adams advises.