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Home Health & Hospice Week

Regulations:

NEW FORM ADDS TO ABN BURDEN

Published on Thu Jul 08, 2004

Get ready to personally deliver notices every single time services are reduced or end.

Home health agencies dodged a bullet when the ABN workload turned out lighter than they feared. But now that bullet may hit the industry squarely between the eyes with the notice of exclusions from Medicare benefits (NEMB).

In the June 16 Federal Register, the Centers forMedicare & Medicaid Services proposes the new form and seeks Office of Management and Budget approval of the NEMB. "Whenever a Home Health Agency reduces or terminates home health services in situations ... for which a Home Health Advance Beneficiary Notice is not appropriate; the home health agency must give the beneficiary notice," CMS says in its OMB submission, posted June 29.

The new form arose out of litigation accusing HHAs of abandoning patients under the interim payment system, Healey v. Thompson, notes the National Association forHome Care & Hospice. As part of the settlement of that case, CMS is crafting this notice that HHAs must issue every time Medicare services are reduced or terminated and an ABN doesn't apply.

A chief difference between the ABN and NEMB is that agencies must issue the NEMB even when a physician orders the reduction or termination. "Agencies must prepare and deliver to the beneficiary, or authorized representative, an NEMB-HHA whenever they reduce or terminate home health services, regardless of whether the reason for that change is a Medicare coverage determination, lack of physician certification, or the HHA's unwillingness to provide services for business reasons unrelated to coverage," CMS says in instructions on how to fill out the proposed form.

HHAs must personally deliver the notice to beneficiaries, CMS adds. (See the proposed form.)

If the proposed form becomes final, "this would cause additional paperwork," worries nurse Kathleen Saucier with Vital Link in Mandeville, LA. It's just "another form to be completed and another form to be tracked," Saucier tells Eli.

Most HHAs would agree with the underlying principle beneath the form -- that beneficiaries should be informed about their Medicare services, says Bob Wardwell with the Visiting Nurse Associations of America. But the bureaucratic way in which CMS wants to implement the notice is confusing and burdensome, charges Wardwell, a former CMS official.

Some of that is no doubt due to the legal proceedings driving the requirement, Wardwell acknowledges. HHAs are stuck in the middle of CMS and the beneficiary plaintiffs. CMS isn't exactly highly motivated to avoid extra work, since it will fall squarely on HHAs' shoulders. "I'm much more willing to compromise away something you have to do than something I have to do," Wardwell notes.

NAHC says it "has serious concerns about the form and the instructions for its use as proposed by CMS." Here are some of the main concerns experts share:

  • Personal delivery. CMS doesn't seem to understand the difference between hospitals and nursing homes -- where notices can be conveniently delivered all in one place -- and home health where notice delivery could mean an extra visit, Wardwell laments.

    While sometimes a notice can be delivered in the course of a normal visit, often "it may require that staff to travel to patients'homes to accomplish delivery," warns Burtonsville, MD-based attorney Elizabeth Hogue. And costs for those extra visits quickly will rack up.

    Extra documentation efforts, including a witness signature in addition to the visiting clinician's, also are required if the beneficiary refuses to sign the notice.

  • Time. According to CMS, it will take a mere six minutes for HHAs to complete the form, "including the time to review instructions, search existing data resources, and gather the data needed, and complete and review the information collection." With an estimated 534,000 annual responses, that adds up to more than 53,400 annual hours of work.

    But that time estimate is drastically short, Wardwell argues. CMS "is adding more and more levels of burden without adding resources," or even an acknowledgement of the extra work required by paperwork such as the ABN, OASIS and the new NEMB, he says.

  • Confusion. The proposed form gives HHAs a list of 13 checkboxes to mark for the reason Medicare will no longer cover services, plus an "Other" box. But most beneficiaries won't be able to grasp the statutory and regulatory implications of those reasons, Wardwell expects.

    And it will become especially confusing when physicians no longer order services. The form tells beneficiaries they can continue to receive services if they want to pay out of pocket for them, but HHAs won't want to continue medical services after the physician has stopped ordering them, Wardwell predicts.

    All of this confusion will lead to HHAs spending even more time explaining the forms to beneficiaries, he forecasts. And the headache could discourage agencies from providing services at all in certain situations, Hogue cautions.

    Implementation a Year Away

    The form also requires agencies to estimate the costs of the reduced or terminated services and to submit a demand bill if the beneficiary requests it.

    It's likely that HHAs won't have to deal with this new burdensome requirement for another year or so, NAHC projects.

    After CMS obtains OMB approval, which could take three months or more, it must go through the process of issuing the form and requirement in a regulation or notice and gathering comments on it, before implementing it.

    But if agencies fail to take notice and submit their comments now, they could face an unpleasant and costly burden down the road, Wardwell says.

    Editor's Note: The proposed form (CMS-10111) and supporting paperwork are at www.cms.hhs.gov/regulations/pra/. Instructions on submitting comments are at www.access.gpo.gov/su_docs/fedreg/a04 0616c.html.

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