Home Health & Hospice Week

Use the new requirement as a tool to make sure hospital referrals are on the up-and-up. 

Ensuring hospitals give patients a choice of home health agencies just got easier, thanks to a finalized hospital condition of participation on discharge planning.

The basics: Starting Oct. 1, a revised hospital COP specifically requires hospitals to give a list of Medicare-participating HHAs to patients discharged to home care, document giving the list, keep the list current, inform patients that they have a choice of post-acute providers and disclose any financial interest the hospital might have in HHAs on the list (see Eli's HCW, Vol. XIII, No. 21, p. 164).

Hospitals' failure to perform these tasks "brings them out of compliance with the conditions of participation," which puts their Medicare participation at risk, notes attorney Mark Langdon with Arent Fox in Washington, DC.

The requirement aims "to make sure that beneficiaries can make informed choices about what providers to use," Langdon notes. And it strives "to prevent inappropriate steering of patients to HHAs affiliated with hospitals."

Bob Wardwell with the Visiting Nurse Associations of America hopes "this rule will reduce genuine referral abuses that involve deceptive practices and misinformation, things that no hospital should be tolerating itself in the first place as a simple matter of ethics."

While HHAs are happy to see the Centers for Medicare & Medicaid Services making efforts to keep hospitals accountable to the Balanced Budget Act of 1997 listing requirement, they may not be thrilled with how CMS has gone about it. In the final rule on the inpatient hospital prospective payment system, which contains the revised COP, CMS gives hospitals quite a bit of latitude in how to put together and maintain the list.

For example, in the proposed rule CMS floated a requirement to update the list once a year. "We have decided to be less prescriptive and not require the hospital to update the list annually," CMS says in the final rule. Instead, CMS will expect hospitals to keep their HHA lists "current. This provides hospitals the flexibility to determine how often it is necessary to update their lists."

Burtonsville, MD-based health care attorney Elizabeth Hogue worries this flexibility will lead to widespread non-compliance. "The more specific regulators are about protecting patient choice, the better for all concerned," Hogue tells Eli. "The flexible approach doesn't seem to be working because we regularly encounter clear-cut violations of patients' legal and ethical right to freedom of choice."

It's probably easier for everyone, especially hospitals themselves, if CMS would just stake out some clear rules on the list, adds clinical consultant Pat Sevast with American Express Tax & Business Services in Timonium, MD.

"CMS could have been more prescriptive on the hospital listing process, in view of some of the abuses of the referral policy, without being overly burdensome," judges Wardwell, a former CMS official.

HHAs may find themselves excluded from the list for many months with no hospital penalty, the final rule indicates. CMS repeatedly urges hospitals to use the Home Health Compare Web site to quickly and easily generate a list of Medicare-certified agencies in a certain geographic location. One commenter noted that HHAs don't get put on the Web site until they have submitted at least six months of OASIS data, and therefore wouldn't be included on the hospital's list either.

That's tough luck for HHAs, CMS responds. "The regulation does not prescribe the timeframe in which a HHA can request inclusion on a hospital list. The hospital has the freedom to determine a timeframe," the final rule notes.

Another place CMS offers flexibility is in the list's formatting. Parties commenting on the reg wanted alphabetical listing or some other uniform standard and a list for HHAs only, with no other provider types listed.

CMS shoots down those requests. "Hospitals that choose to develop and maintain their own lists" as opposed to using Home Health Compare "have the flexibility to determine the format," the agency says. CMS also turns down a request that hospitals supply the list to all agencies on it.

The agency does specify that hospitals can't exclude non-accredited HHAs from the list, however.

Police Compliance Yourself

This COP isn't meant to interfere "with a hospital network's inherent advantage in referrals," Wardwell points out. There is "a legitimate tendency of patients to stay within provider networks even when fully informed of their choices to go out of network." 

But when hospitals inappropriately deny patients freedom of choice for providers and/or fail to keep the list as required, the requirement's COP status means HHAs can report violations to state or accrediting body surveyors, Langdon says.

Don't expect a big government crackdown in this area, Sevast warns. If you have problems with hospitals' referral practices, the burden will be on you to compile and submit complaints. "Don't just keep quiet and stew about it," she urges. "Nothing's going to happen if you don't do something about it."

But before making a complaint, be sure you have the whole story. For instance, perhaps the hospital didn't refer a patient to you because the physician prefers another agency, Sevast suggests. Get your facts straight before taking complaints to surveyors.

Whether CMS' flexible approach to the hospital listing requirement works may become clear when CMS finally implements the rule requiring hospital referral data to be made public, Wardwell notes. But those stats aren't likely to see the light of day until the end of next year, at the earliest (see Eli's HCW, Vol. XIII, No. 25, p. 194). 

Editor's Note: The rule is at www.cms.hhs.gov/providers/hipps/frnotices.asp (Part 3, pp. 366-391).