Home Health & Hospice Week

CMS pulls about-face in prohibiting common HHA practice.

If you're one of the many home health agencies routinely issuing the new expedited review notices to patients upon admission, you may want to rethink that practice.

"Providers may not routinely give the generic notice to all beneficiaries upon admission," the Centers for Medicare & Medicaid Services says in one of the 40 new questions-and-answers it recently posted about the notices. "Routinely delivering the notice far in advance of discharge decreases the likelihood that the beneficiary will understand and retain the information about these important [expedited review] rights, as some covered stays/periods can last months."

This prohibition contradicts statements from CMS in a June 20 special Open Door Forum on the topic, experts agree. Tony Culotta, director of CMS' Medicare Enrollment and Appeals, noted in the forum that nothing in the regulation precluded giving either the first or second-step expedited review notices to patients at admission.

CMS' Q&A statement is "another contradiction among many," one state association executive director tells Eli.

In the lawsuit that sparked the expedited review notices, "the court only directed a written notice be given," insists Gene Tischer with trade group Associated Home Health Industries of Florida. "The court did not prohibit the delivery at admission." CMS must go through the formal rule-making process if it wants to prohibit this practice, Tischer argues.

"I am not going to go back and tell my members to change their procedures, even if they are now delivering the notices at admission," Tischer maintains. "I don't think [CMS] could successfully enforce this prohibition."

But there are good reasons not to give the notices at admission, points out Regina McNamara with LW Consulting Home Health and Hospice Division in Harrisburg, PA. If HHAs give patients this form at the outset, "clearly it will escape them that they actually have a right to appeal" by the end of the episode, McNamara contends. "Patients are overwhelmed with paperwork on admission."

And while the new Q&A goes against the earlier Open Door Forum comments, "that happens with such a new process," observes Casey Blumenthal with the Montana Hospital Association: An Association of Montana Health Care Providers. "It's very difficult to anticipate all the 'what-ifs' and the various scenarios."

The new Q&A doesn't contradict the guidance CMS has published in writing on the matter, either, a CMS Region VII official tells the Kansas Home Care Association in an email.

When Do You Give The Notice?

Now agencies face the dilemma of when exactly to give the notice to patients. Regulations require HHAs to give the notice no later than two days before discharge, but it's a highly challenging task to hit that date on the mark in home care.

Home care experts have advised giving the notice as early as practical (see Eli's HCW, Vol. XIV, No. 30). But how early is too early?

Don't look to CMS for any hard and fast rules. "Because there can be so much individual variability ... CMS does not believe it is in the public interest to set any strict deadline," the agency says in another new Q&A. "However, if the duration of covered care is anticipated to be relatively brief and the beneficiary comprehends that the point of discharge is already imminent, notice can be given at any time after the precise discharge date can be established."

This presents a quandary for home care providers since often, a home care patient's discharge date can be precisely established at admission.

When to give the notice is just one part of the overall confusion about this new requirement, experts say. Quality Improvement Organizations are finding that a significant number of HHAs are not complying with the mandate, reports Joe Hafkenschiel with the California Association for Health Services at Home.

"I am still running into agencies who have not even heard of [the requirement]," one consultant says.

New form required: Even more HHAs may be out of compliance come Oct. 1. That's when CMS phases out the proposed expedited review notice forms that many providers still are using and requires the forms approved by the Office of Management and Budget, the Q&A notes. You can download the OMB-approved forms at www.cms.hhs.gov/medicare/bni/.

Note: The 40 new Q&A have been added to the existing 45 Q&A at www.cms.hhs.gov/medicare/bni/EDqsandas.pdf.