Home Health & Hospice Week

You may be dinged if you do and dinged if you don't on surveys.

A massive paperwork burden for home health agencies has been finalized regarding termination notices and their expedited review - and the requirements could run HHAs into the compliance danger zone.
 
After years of delays, the Centers for Medicare & Medicaid Services has issued the final rules for termination notices and expedited review of the terminations of Medicare services. CMS implemented similar rules for managed care organizations and their provider partners in April 2003, requiring agencies to give two-step notices (see Eli's HCW, Vol. XII, No. 20, p. 154).
 
Under the rules taking effect July 1, 2005, HHAs and hospices will have to provide patients with a first notice every single time they terminate Medicare services for the patient. The notice's only customized sections will include the patient's name and the date the services will end (see proposed form, at the end of this issue). The rest of the standardized notice will explain how to appeal determination decisions.
 
That means agencies will issue notices to every patient they discharge, notes William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law. That translates to 4.2 million notices agencies will issue per year, CMS says in its final rule published in the Nov. 26 Federal Register. This is a "dramatic change" to HHAs' and hospices' responsibilities, NAHC stresses.
 
The simple first-step notices will be a burden, notes consultant Linda Rutman with LarsonAllen Health Care Group. "Any additional paperwork requirements cost time and money, which appears as another unfunded mandate," Rutman says.
 
But HHAs should fairly easily be able to incorporate the notices into their existing discharge practices, predicts consultant Lynda Dilts-Benson with Reingruber & Co. in St. Petersburg, FL.
 
Agencies will have to take on the burden of training staff on the new notices and creating systems to monitor that the notices are issued, adds Bob Wardwell with the Visiting Nurse Associations of America. The new requirements "will require change, which is always some burden," Dombi points out.
 
CMS plans to alert surveyors and Quality Improvement Organizations of providers' responsibilities to provide the notices, the agency says in the rule.

Reps Seek Resolution of Catch-22

The problems start for HHAs and hospices when the expedited appeal process of the service termination kicks in (see "Examine Your New Duties Under Expedited Review", for appeals steps).
 
If beneficiaries don't agree their Medicare services should end, they can file a 72-hour appeal with a QIO, under which agencies have to furnish a second, more detailed notice explaining why they terminated services. And CMS directs providers to continue furnishing services during the three-day process.
 
But under the Medicare conditions of participation, HHAs can't furnish services that aren't ordered by a physician under a plan of care, Wardwell points out. And no state's nurse practice laws allow nurses to make unordered visits, Dombi adds.
 
Catch-22: Under CMS' new instructions, home care providers can rack up survey deficiencies for not following termination and appeals rules, or incur deficiencies for not following COP requirements.
 
"This is very frustrating," Dombi tells Eli. "We desperately hope to see this clarified."
 
NAHC and VNAA are seeking resolution of this problem with face-to-face meetings involving provider representatives and CMS, Dombi says. "This is the number one issue," he stresses.

Physician Certification Required

CMS expects 1 to 2 percent of the termination notices to result in expedited appeals, based on its managed care appeals experience. That translates to 84,000 appeals, it notes in the rule.
 
Under the rules for HHAs, physicians must certify that the termination will place the beneficiary's health at significant risk. Requiring such certification should keep expedited appeals numbers "extremely low," expects Burtonsville, MD-based attorney Elizabeth Hogue.
 
But some physicians who agree with service termination will turn around and furnish an appeals certification just to keep patients happy, Dilts-Benson warns. "The physician usually takes the path of least resistance," she notes.
 
And CMS doesn't require the risk certification for hospice expedited review, the rule points out.
 
Further, HHAs may see reviews in certain touchy situations, such as patients refusing to comply with care plans or patients losing caregivers, rendering them unable to comply, Hogue says.
 
"In these situations, agencies may be between the proverbial rock and hard place because patients really need the services," she observes. "Discontinuing services may put patients at risk, but they are also at risk if services are continued."
 
The notices and expedited review process were mandated in the Benefits Improvement and Protection Act of 2000, along with other appeals reforms. 
 
Editor's Note: The final rule is at www.access.gpo.gov/su_docs/fedreg/a041126c.html. Although it is a final rule, CMS will take comments on the regulation until Jan. 25, 2005.