Home Health & Hospice Week

The HHS Office of Inspector General is now on your side when it comes to heading off hospitals steering patients to their own home health agencies.

But agencies shouldn't expect regulators to automatically come to their rescue. "The OIG isn't making a big point of this" in its guidance, points out attorney John Gilliland with Gilliland & Caudill in Indianapolis. In fact, the discharge guidance is included only in a footnote.

HHAs will have to take the initiative to tackle any patient steering problems they encounter themselves. And none of these steps is an "easy remedy," Gilliland admits.

If friendly communication with a hospital doesn't clear up referral problems, providers can take these steps to nip patient steering in the bud:

1. Collect evidence. The first step is to "be patient and slowly build your evidence," Gilliland advises. Securing signed statements in which patients describe violations is essential, counsels Burtonsville, MD-based health care attorney Elizabeth Hogue.

Presenting such statements "elevates any controversy out of the realm of 'he said, she said' and squabbling competitors," Hogue explains. That's "very important in order for violations to be treated seriously."

2. Make your complaint. Once you've amassed convincing evidence, you can take your complaint to the state licensure agency or to the Centers for Medicare & Medicaid Services, Gilliland says. "Some states are telling hospitals to clean up their acts," he notes.

One example is Indiana, which in 2003 cited Rochester-based Woodlawn Hospital for home health referral violations (see Eli's HCW, Vol. XII, No. 16). Woodlawn had to submit a plan of correction for its referral problems. Providers can also complain to the Joint Commission on Accreditation of Healthcare Organizations if the hospital is JCAHO-accredited.

3. File suit. In some instances, hospitals may be violating anti-trust laws by referring only to themselves, Gilliland points out. These monopolies tend to occur in places where the hospital is the only one in town, he notes.

One successful example of this strategy is the settlement Woodinville, WA-based Assured Home Health & Hospice secured in an anti-trust lawsuit it filed against Providence Health System (see Eli's HCW, Vol. XIII, No. 41). But the cost of an anti-trust suit can be sky-high, Gilliland warns. For most agencies, the litigation expense isn't worth the outcome.

4. Appeal for help. Providers' main complaint: Authorities don't enforce the rules on the books, Gilliland notes. He advises writing to the U.S. Small Business Administration to try to secure enforcement of the existing law and regulations. The SBA should care because the problem affects mainly small businesses, Gilliland says.