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HHAS HAVE NEW WEAPONS AGAINST PATIENT-STEERING HOSPITALS

Published on Thu Jun 10, 2004

New OIG compliance guidance, Medicare COPs head off shady referrals.

If hospitals fail to give patients discharged to home care a list of home health agencies, they'll risk incurring the wrath of the HHS Office of Inspector General and their surveyors.

In new draft supplemental compliance guidance to hospitals, the OIG spells out that hospitals must "as part of the discharge planning process:

(i) share with each beneficiary a list of Medicare-certified home health agencies that serve the beneficiary's geographic area and that request to be listed and
(ii) identify any home health agency in which the hospital has a disclosable financial interest or that has a financial interest in the hospital."

When finalized, the draft guidance "will supplement the OIG's prior compliance program guidance for hospitals issued in 1998," the OIG explains in a June 8 Federal Register notice. The OIG will take comments on the guidance through July 23.

It is "significant that the OIG chose to include language in the supplemental guidance that mirrors the language of the Balanced Budget Act of 1997," remarks Burtonsville, MD-based health care attorney Elizabeth Hogue. Any doubts about hospitals'legal obligation to present a list of HHAs "has now certainly been put to rest," Hogue says.

The OIG's emphasis on the requirement should motivate hospitals to get in line with the law, if they haven't already, expects attorney Mark Langdon with Arent Fox in Washington, DC.

"The government clearly has another tool to use to help ensure patients'right to freedom of choice of providers," Hogue cheers.

COPs Detail Hospitals'HHADuties

Another potential tool to help HHAs fight hospital patient steering is the Centers for Medicare & Medicaid Services' proposed changes to the hospital conditions of participation.

The BBA provision was intended "to address concerns that some hospitals were referring patients only to HHAs in which they had a financial interest, and that shared financial relationships were influencing referrals to other entities," CMS says in a May 18 Federal Register notice containing a host of changes for hospitals, including changes to the discharge planning COPs. "Hospitals essentially have a captive patient population and, through the discharge planning process, can influence a patient's choice regarding who provides posthospitalization services," CMS warns.

Under the proposed COPs, hospitals would be required to:

  • give a list of Medicare-participating HHAs that request to be listed to patients discharged to home care;
  • document in the patient's medical record that the list was given to the patient;
  • update the list annually and ensure its legibility;
  • inform patients that they have a choice of post-acute providers; and
  • disclose financial interest in HHAs on the list.

    Hospitals could simply print up a list of HHAs from Medicare's Home Health Compare Web site, or they could maintain their own lists, the proposal says. But if hospitals make their own list, it "should be utilized neither as a recommendation nor endorsement by the hospital of the quality of care of any particular HHA," CMS warns.

    Take action: CMS promises that once the new COPs are finalized, hospitals'survey results and certification status could ride on whether they comply with the HHA listing requirement. "Anyone aware of instances in which patients are inappropriately influenced or steered toward a particular HHAor SNF in a way that violated the regulation would have the opportunity to file a complaint with the State survey agency," CMS says. Surveyors will investigate, and "noncompliance with the hospital COPs may result in a hospital losing its ability to participate in the Medicare program."

    Hospitals Receive Mixed Messages

    While many hospitals and hospital-based HHAs are following the letter and intent of the law, there still tends to be confusion over exactly what is required of hospitals, experts note.

    For example, the Stark II anti-kickback regulations issued in March told hospitals it was OK to require employee physicians to refer patients to the hospital's own HHA, if other Stark II requirements were met (see Eli's HCW, Vol. XIII, No. 13).

    But one of those other requirements is that the patient's choice of HHAtrumps the physician's choice, Langdon tells Eli. "If a physician employed by a hospital is required (under his employment contract with the hospital) to refer to the hospital-affiliated HHA, he will not be allowed to do so with respect to those patients who, after being provided with a list of local providers, choose a different HHA," Langdon explains.

    Whether hospitals will grasp that nuance is unclear, experts worry.

    Attorney Kathy Tayon with McDermott Will & Emery in Miami would advise hospitals to comply with the BBA97 provision first and foremost, she tells Eli. The Stark II regs don't take that law into consideration, and complying with Stark II doesn't mean hospitals are complying with BBA, she cautions.

    And when in doubt, providers should comply with the highest authority. In this case, BBAis a federal statute, trumping the Stark II federal regulation, Tayon notes.

    Another means HHAs hoped to use to deter patient steering -- hospitals' statistics on how many patients they refer to agencies in which they have a financial interest -- seems to be languishing, notes William Dombi, vice president for law with the National Association for Home Care & Hospice's CenterforHealth Care Law.

    CMS originally proposed the stats requirement in November 2002 (see Eli's HCW, Vol. XI, No. 43). At that time, public dissemination of the self-referral numbers was expected in January 2004.

    But with so many duties on its plate, CMS doesn't expect to finalize that requirement any time soon, Dombi laments.

    Editor's Note: The hospital compliance guidance is at www.access.gpo.gov/su_docs/fedreg/a040608c.html. The proposed COPs are at www.access.gpo.gov/su_docs/fedreg/a040518c.html.

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