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Home Health & Hospice Week

Patient Rights:

NEW ABN INSTRUCTIONS THROW OUT DOC ORDER CRITERIA

Published on Tue Apr 12, 2005

Prediction: You'll issue a lot more ABNs under the new policy.

Get ready to hand out home health advance beneficiary notices every single time you must reduce or terminate home care - even if a physician agrees with the change.

The Centers for Medicare & Medicaid Services issued its new ABNs and accompanying instructions in conjunction with a May 6 Federal Register notice, and the new procedure eliminates physician order criteria from the process of deciding when to issue an ABN.

Currently, HHAs have to issue an ABN to patients only when a physician disagrees with a change in care - a very rare occurrence, notes Burtonsville, MD-based attorney Elizabeth Hogue. But under the new instructions, agencies have to issue an ABN regardless of the physician's orders.

The federal appeals court decision on the issue of ABNs, Lutwin v. Thompson, requires HHAs to provide notice to Medicare beneficiaries whenever the HHA reduces or terminates services - "regardless of whether the reason for the change is a Medicare coverage determination, lack of physician's certification, a HHA's unwillingness to provide services for business reasons unrelated to coverage, or sheer caprice," CMS notes in a supporting statement for the new ABN.

"The form will now apply to the administration of services with or without a physician's order," CMS explains in the statement.

That means agencies will be issuing ABNs much more often when the new ABN takes effect, expects Andrew Koski with the Home Care Association of New York State. HHAs will issue the new ABNs at three trigger points, CMS says:

1) When initiating services that aren't covered by Medicare, including statutory exclusions;

2) When reducing services for any reason;

3) When terminating all services "due to financial and/or other non-medical reasons." The "financial reasons" language indicates agencies will have to issue ABNs for the first time in situations such as staff shortages, Koski says.

New variables: Agencies will have two options when issuing an ABN, CMS explains in the instructions. They can include language giving beneficiaries three options: rejecting services Medicare won't pay for, privately paying for services, or billing other insurers. Or agencies can include language saying they won't furnish services in any case, but the patient can try to get services from another HHA.

CMS does lay out some exceptions to issuing ABNs, Hogue points out. Agencies don't have to issue an ABN when the beneficiary rejects services, when the agency makes "de minimis" changes such as switching personnel or visit times, and when service changes are included in the original plan of care, CMS says. But the de minimis exception is fairly useless to agencies, because CMS fails to spell out what changes would qualify, Hogue insists.

Confusion over exactly when to issue ABNs versus the new termination notices is bound to lead to compliance problems. "The instructions leave many issues unanswered," says William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law. "Since there is no definition given to a reduction or termination of items and services, you can expect uneven implementation."

HHAs will do their best to comply with ABN rules, believes Bob Wardwell with the Visiting Nurse Associations of America. But the complexity of the new rules will make it difficult "to achieve the level of compliance we would prefer," he says.

"CMS really believes it is hemmed in by the law and litigation on this issue," notes Wardwell, a former top CMS official. As a result, the agency "continues to march forward without complete regard for the pragmatic problems involved," he says.

CMS should issue new, clarifying instructions that encompass both the new termination notices and the ABN, urges Chicago-based consultant Rebecca Friedman Zuber. "CMS needs to put out some instructions that clarify when you use what notice," or hundreds of HHAs will be out of compliance, she says.

CMS also needs to spell out when the new ABN takes effect and the old ABN is no longer valid, Zuber adds. Currently CMS is seeking Office of Management and Budget approval of the new forms.

Editor's Note: The new ABN and related documents, including instructions, are at www.cms.hhs.gov/regulations/pra/ - the notice (CMSR-296) is under the May 3 entry. The Federal Register notice, including instructions on submitting comments within 30 days of the notice, is at www.access.gpo.gov/su_docs/fedreg/a050506c.html.

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