Home Health & Hospice Week

What recent federal guidance means for your agency.

A recent HHS Office of Inspector General Advisory Opinion on pre-op visits doesn't mean you have to stop furnishing them altogether, experts advise.

In a March 27 opinion, the OIG said the practice of furnishing free safety assessment visits to patients about to undergo orthopedic surgery is a no-no (see Eli's HCW, Vol. XV, No. 13). The free safety assessments could violate civil money penalty rules and the anti-kickback statute, the OIG decided.

National chain Gentiva Health Services Inc., which requested the opinion in 2003, heralds the opinion as creating "a fair, competitive environment." The opinion "provides direction and clarity for the industry," Gentiva chief compliance officer John Camperlengo says in a release.

Gentiva "curtailed" its own ortho in-home assessment program in 2003, the Melville, NY-based company says.

Free pre-op safety assessments for ortho patients now appear squarely off limits, legal experts agree. But check out the following ways home health agencies can continue to furnish pre-op visits and still stay in compliance. Charge for the Visits The OIG should have no problem with pre-op safety assessments if HHAs charge for them, observes Robert Markette Jr., attorney with Gilliland Markette & Milligan in Indianapolis. That can mean charging the patient or another insurer that will pick up the tab for the safety assessment.

Offering anything for free or even for a reduced amount is a big sore spot with the OIG, based on its history of advisory opinions, Markette notes. Charging "just like you do for everything else" bypasses that problem.

Caveat: But HHAs must be sure to charge fair market value for the service, Markette cautions. Otherwise, kickback charges can still haunt you.

To make a valid fair market value argument, Markette advises figuring your direct cost for the service--either an in-home visit or phone call--and adding a percentage for profit. Make Coordination, Not Assessment Visits The recent OIG opinion gives a thumbs down specifically to free pre-op safety assessments, but it doesn't address visits furnished to coordinate home care services, notes Burtonsville, MD-based health care attorney Elizabeth Hogue. "Agencies that base pre-op/pre-admission programs on activities of coordination of home health services may elect to continue such programs," Hogue maintains.

Instead of offering the safety-related services the OIG opinion rules on, agencies can evaluate the criteria qualifying a patient for home care services, Hogue tells Eli. Those criteria include having covered clinical needs, being able to care for oneself or having a caregiver between visits, and having a home environment that supports home care services.

"The evaluation of these criteria are not free services to patients but necessary prerequisites to the provision of appropriate home care services," Hogue argues.

When patients have unexpected medical emergencies, agencies may conduct these coordination activities while [...]