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Home Health & Hospice Week

Regulations:

GET SET TO TAKE ON HUGE NEW BURDEN IN TERMINATION NOTICES

Published on Tue Apr 12, 2005

Despite confusion, HHAs must comply with new notice requirement by July 1.

A massive new paperwork mandate requiring you to issue a notice to every single patient you discharge is ready to land in your lap this summer, and it's as confusing as ever.

The Centers for Medicare & Medicaid Services has submitted its new termination and expedited review forms to the Office of Management and Budget for approval, according to a CMS notice in the April 29 Federal Register.

The notices, which will tell beneficiaries their home health or hospice services are ending and make a new expedited review of the termination available to them, are virtually unchanged from the forms CMS issued in conjunction with its final rule on the matter last November (see Eli's HCW, Vol. XIII, No. 43).

CMS also issued new instructions for the home health advance beneficiary notice (HHABN), which requires HHAs to issue ABNs whether physicians agree with changes in care or not.

Warning: The new termination notices and the changes to the ABN will cause mass confusion, industry experts warn. "The double barrel of notices indicates that this will be a busy season for process changes," notes William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law.

Problems With New Notices Abound

HHAs are chagrined that CMS seems to have taken almost no notice of the grave concerns they raised in response to the final rule, which did allow comment submission. For example, health care attorney Elizabeth Hogue submitted a laundry list of serious problems with the new notices, "but apparently it's just been ignored," she fumes.

Here are top problems with the notices: 

  • Physician orders. During the new 72-hour expedited review that the notice can trigger, CMS instructs HHAs and hospices to continue services for the three-day period. But home care providers can't furnish services without a physician's order under the Medicare Conditions of Participation, protests consultant Lynn Yetman with Reingruber & Co. in St. Petersburg, FL.

    "CMS has failed to recognize that home care and hospice can not be delivered in the absence of appropriate orders," Yetman says. "CMS will have to address the problem."
     
  • Appropriate usage. The instructions for using the new termination notices and the ABNs are highly confusing, experts agree. CMS has not clarified whether patients will sometimes receive termination notices, ABNs or both at the end of their care - and why.

    The new ABN instructions "will only serve to confuse agencies even more about which form to use under what circumstances," charges consultant Judy Adams with LarsonAllen Health Care Group based in Charlotte, NC. "It destroys the differentiation be-tween the HHABN and the new non-coverage notice." CMS should consider eliminating one of the forms given that they "are duplicative of one another," she says.

    "I do not see how every patient does not get either the HHABN or the termination notice, and possibly both, in every spell of care," Dombi forecasts.
     
  • Timeline. Requiring HHAs to furnish the new termination notices at least two days prior to discharge will likely mean an extra visit for many beneficiaries, expects Hogue, based in Burtonsville, MD. That's a huge burden, especially for rural providers that travel long distances to reach patients.

    But the really ridiculous timeline is included in the expedited review requirements. The beneficiary has until noon of the day after you furnish the first-step notice to elect expedited review. If she does so, the Quality Improvement Organization calls you and you must furnish a detailed, second-step notice to the beneficiary and furnish all supporting medical records to the QIO that same day (see Eli's HCW, Vol. XIII, No. 43).

    That timeline, which could give HHAs just a few hours to furnish reams of documentation and elucidate Medicare coverage policy, is "preposterous," Hogue insists. HHAs with significant investments in computerized record systems will see a big benefit in this area, however, predicts Bob Wardwell with the Visiting Nurse Associations of America.

    Under the prospective payment system, many HHAs have cut back on quality improvement and staff development employees, Yetman notes. Under those limitations, "having the time to cite a description of any applicable Medicare coverage rules, instructions or policies, and instructions where the beneficiary can obtain copies of these materials will pose a severe burden, especially to smaller agencies," she warns.

    CMS fails to recognize that HHAs and hospices are not institutional providers, Hogue charges. "The records aren't just sitting at the nurses' station waiting to be copied," she says. And staff can't just walk down the hall to deliver the notices.
     
  • Forms. In addition to the problems with the processes surrounding the notices, experts have issues with the forms themselves. First off, calling the form a "Notice of Medicare Provider Non-Coverage" is confusing, NAHC criticizes. The name "implies that this notice form would be used to notify a patient of non-coverage only, rather than termination of services due to non-coverage," the association says. Instead, NAHC proposes calling it the "Notice of Medicare Provider Termination Due to Non-Coverage."

    Due to ABN confusion, "the names of these two forms need to be revised to help staff differentiate which form to use when," Adams suggests.

    The forms also fail to explain to beneficiaries that they must obtain a physician's certification that the termination will place the beneficiary's health at significant risk to initiate the expedited review process, Dombi points out. And the form fails to explain the consequences of the review. "The notice does not fairly inform the individual of the process," Dombi concludes.

    Expect Summer Deadline to Hold

    In its final rule in the Nov. 26, 2004 Federal Register, CMS set a July 1 implementation date for the new termination notices. HHAs and hospices can expect to see CMS hold to that deadline, experts say.

    Technically, providers have 30 days to submit comments based on the OMB notice in the Federal Register. But because CMS made practically no changes in response to industry comments on the final rule, Adams doesn't expect CMS to make any substantive changes based on these comments either, she says. Thus, CMS could secure OMB approval and implement the new form and process by the July 1 deadline.

    NAHC remains hopeful that CMS will take new comments into account, and thus warns that a pushback is possible. The association urges providers to submit comments on the forms.

    Editor's Note: The new forms and related documents, including instructions, are at     www.cms.hhs.gov/regulations/pra/ - the two termination notices (CMS-10123-10124) are under the April 29 entry. The Federal Register notice, including instructions on submitting comments within 30 days of the notice, is at www.access.gpo.gov/su_docs/fedreg/a050429c.html.

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