Home Health & Hospice Week

Aide and HIPAA changes may bring new headaches, too.

At first glance, the proposed Conditions of Participation’s attention to patient discharges should please home health agencies, says Washington, D.C.- based health care attorney Elizabeth Hogue.

Under a new standard at §484.50(d), an HHA could only transfer, discharge, or terminate care when:

(1) the HHA could no longer meet the patient’s needs, based on the patient’s acuity;

(2) the patient or payer could no longer pay for the services provided by the HHA;

(3) the physician and HHA agreed that the patient no longer needed HHA services because the patient’s health and safety had improved or stabilized sufficiently;

(4) the patient refused HHA services or otherwise elected to be transferred or discharged (in-cluding if the patient elected the Medicare hospice benefit); 

(5) there was cause;

(6) a patient died; or

(7) the HHA ceased to operate.

But one of the provisions in the patient discharge changes may be a problem, Hogue expects. Under proposed §484.50(d)(1), “if the care needs of a patient exceeded the HHA’s ability to provide services, the HHA would be required to ensure that the patient received a safe and appropriate transfer to another care entity better suited to meeting the patient’s needs,” the proposed rule says.

“Our experience has been that this may be impossible for a number of reasons,” Hogue maintains. “Two key reasons include patients’ refusal to accept other services and patients’ reputation as abusive and/or non-compliant, which means that other providers are unwilling to provide services to them.”

Alternative: “I think that agencies can reasonably be required to offer other services but they can never ensure safe and appropriate transfer to other care services for patients who are discharged,” Hogue says.

Aide Supervision, Education And HIPAA Mention May Not Bode Well

The proposed rule contains other negative provisions as well:

• Aides. “Another potentially large problem is the expansion of the bases for suspending an agency’s ability to perform its own skills checks and education on home health aides,” cautions attorney Robert Markette Jr. with Hall Render in India-napolis. “Under the current standard, a condition-level survey finding will result in a suspension of an agency’s ability to perform these functions.”

The proposed reg expands the grounds to include “was subjected to an extended (or partially extended) survey as a result of having been found to have furnished substandard care (or for other reasons as determined by CMS or the State);” and “was assessed a civil monetary penalty of $5,000 or more as an intermediate sanction,” among other reasons, according to the rule.

Result: “For licensure states, this could result in in agencies being subjected to the two year suspension far more frequently,” Markette warns.

• HIPAA. The COPs mention HIPAA specifically for the first time. “It is not clear if that reference to HIPAA will change anything, but I would be concerned that some surveyors may cite HIPAA violations,” Markette says. Surveyors have cited HIPAA violations in the past, “but it may be even more likely now,” he predicts.