Home Health & Hospice Week

Beneficiary advocates go to court to secure quicker implementation of new notices.

The break you thought you were getting on home health advance beneficiary notices may be short-lived.

The beneficiary advocates who filed the lawsuit that sparked the ABNs, the Center for Medicare Advocacy, have filed a motion asking Connecticut federal court to force the Centers for Medicare & Medicaid Services to implement the new ABNs by July 1.

In the motion filed May 31 in Lutwin v. Leavitt, the plaintiffs blast CMS for its long series of "extraordinary delays" implementing the HHABNs. The agency's "last-minute and unilateral" delay of the June 1 ABN deadline shows that relying on the government to carry out its ABN duties is "hopeless and unwarranted," the filing charges.

The Center was as surprised as everyone else when CMS announced the eleventh-hour ABN delay May 24, CMA attorney Gill Deford tells Eli. "We were given no warning or explanation, formally or informally," of the delay, Deford says.

The plaintiffs ask the court to require implementation of the new ABNs by July 1. "The HHABNs are prepared and ready to be used," the motion insists. "There is no reason for further delay."

Accusations fly: Besides pointing a finger at CMS' foot-dragging, the Center also accuses the home care industry of contributing to the pushback. "The unstated, but probable, reason for [the delay] ... is the same one that has driven [CMS] from the very first: pressure from the home health industry," the filing says.

The irony is that the Center seems to think CMS bows to pressure from the industry, while home health agencies "think they're getting beat up on this whole thing," observes William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law.

Confusion Will Reign With Unchanged Forms

The home care industry isn't taking the action lying down. NAHC has waded into the legal fray with its own motion to intervene, which it filed June 8 after court approval.

A main argument against the quicker deadline is that it violates HHAs' rights under the Paperwork Reduction Act to comment meaningfully on new regulations, the trade group argues. The comment period on the newly revised ABNs didn't close until May 23 and CMS needs time to process the hundreds of comments it received.

HHA feedback needed: "They can't ignore us," Dombi tells Eli. "We're the ones handing out the notices to people they'll never talk to." Meaningful input from frontline providers is essential to crafting notices that meet their goals.

Another problem with July 1 implementation is that it would put a fatally flawed notice into place. "It appears Plaintiffs would prefer a bad notice be provided to beneficiaries rather than work in the paperwork clearance process to devise a sensible and effective notice," NAHC argues.

Particularly troubling are the problems when care is reduced or terminated in accordance with a physician's order, NAHC notes. The forms imply patients can continue services by going to another agency or paying out of pocket, when agencies in fact are prohibited by Medicare conditions of participation and many state licensing laws from furnishing services without doctors' orders.

Handing out the ABNs as-is will lead to mass confusion among frail, elderly beneficiaries, NAHC's Mary St. Pierre warns in the filing. "It is prudent for CMS to postpone implementation of the HHABN under its currently proposed forms and instructions until the expected improvements are in place," she says.