Home Health & Hospice Week

Long delay to hospital referral reg gets even longer.

Don't expect to see your local hospitals'home care referral statistics until the end of next year, at the very earliest.

The Centers forMedicare & Medicaid Services has pushed back the "final action" on the "nondiscrimination in post-hospital referral to home health agencies and other entities" rule to November 2005, CMS says in its Semiannual Regulatory Agenda in the June 28 Federal Register.

In the rule, CMS proposes to "collect, maintain, and make available to the public information about hospital referrals of Medicare patients to HHAs" that have financial relationships with the hospital.

Publishing this information would "serve as a bright light on instances where virtually all of a hospital's post-hospital admissions were going to one or a few HHAs," noted Birmingham, AL-based Alacare Home Health and Hospice in comments recently submitted to CMS. "This reporting is essentially the only effective way to determine if patient freedom of choice is being protected by the listing regulations," Alacare stressed.

CMS first proposed the rule in November 2002, with release of the stats expected in January of this year. But the requirement actually is included in the Balanced Budget Act of 1997, notes William Dombi, vice president for law with the National Association forHome Care's CenterforHealth Care Law.

The seven-year delay should be an embarrassment to CMS, Dombi charges. But the agency continues to be in no hurry to put out the long-awaited reg, judging from the latest schedule change. "That's worse than a low priority -- that's a no priority," Dombi tells Eli.

The delay "will disappoint many VNAs that were looking for relief," says Bob Wardwell with the Visiting Nurse Associations of America. But Ward-well isn't surprised at the postponement, since CMS has a myriad of competing priorities from the Medicare Modernization Act passed last December.

Many HHAs have one chief suspect behind the delay -- hospitals. "I think the hospitals have some pretty strong lobbyists," says Linda Brown with Providence Home Health & Hospice Care in Tinley Park, IL. Local hospitals have steered patients to their own HHAs, Brown claims. For example, one hospital allegedly told a patient it couldn't refer to Providence because the HHA wasn't answering its phone, Brown tells Eli.

While there is no evidence that the strong hospital lobby is holding back this regulation, it does "get very curious as time goes on," Dombi observes.

But most hospital-based HHAs operate in accordance with the rules and are eager to see the stats come out so they can prove it, Dombi maintains. "Hospital-based HHAs aren't opposing this at all," he says. "They're not afraid of the information coming out."

Some hospital-based agencies are looking forward to the data because they "feel their freestanding competitors overrate the percentage of referrals they get from their hospital," agrees Gene Tischer with the trade association Associated Home Health Industries of Florida.

Wardwell guesses it is system requirements to collect the information that might be causing the postponement. "The resources needed to build any CMS system are subject to a prioritization process that defies description," says Wardwell, a former CMS official.

Collecting this data shouldn't require a "large effort" though, Alacare contends in its comments. CMS obviously already has hospital data, because it is using it to check answers to M0175 (whether patients had a prior hospital stay).

"If CMS and its contractors can identify whether HHAs have correctly coded M0175 ... then CMS can today produce a comprehensive report each quarter that shows for each HHA how many post-hospital admissions it received from each hospital and what percentage of the specific hospital's post-discharge home care referral this constituted," Alacare insists.

Marketing Tip: In addition to directing suspicion to hospitals that reap most of their own referrals, agencies will be able to use the referral stats for other purposes. Alacare will use the data "for community education in conjunction with the now existing CMS Home Health Compare data," Alacare President John Beard tells Eli.

The referral regulation lacks any enforcement mechanism, Dombi points out. That means many HHAs dealing with hospitals that aren't playing by the rules will find themselves in the same boat after the stats finally are issued.

Agencies may have more luck turning to other avenues to solve their referral problems. CMS is including a discharge-planning patient choice requirement in the hospital conditions of participation, and the HHS Office of Inspector General is incorporating patient choice provisions in its hospital compliance guidance (see Eli's HCW, Vol. XIII, No. 21).

And state surveyors recently have been more willing to cite hospitals for violating BBA patient choice provisions, Dombi adds.

Editor's Note: The agenda is at www.access.gpo.gov/su_docs/fedreg/a040628c.html under Health and Human Services Department.