Home Health & Hospice Week

Court decision points to increased regulatory burden for HHAs. 

Are you ready to hand out advance beneficiary notices every single time home care is reduced or terminated, even if a physician agrees?

That's what's in store if a Feb. 26 federal appeals court decision stands, experts predict.

In the latest decision in the ongoing saga of Healey v. Thompson, the U.S. 2nd Circuit Court of Appeals rules that the Medicare program and home care providers should have to furnish a notice to beneficiaries every time care is terminated or reduced, under any circumstances, says plaintiffs' attorney Gill Deford with the Center for Medicare Advocacy in Willimantic, CT.

The lower court decision, upon which HHAs' current ABN rules are based, said notices should be required only when a Medicare coverage determination is involved, Deford tells Eli. Since Medicare doesn't cover services if a physician hasn't ordered them, current rules don't require an ABN unless the physician does not agree with the change.

The current ABN won't work under such circumstances, since it instructs beneficiaries to contact intermediaries for a decision on coverage, notes William Dombi, vice president for law with the National Association for Home Care and Hospice's Center for Health Care Law. A new notice might have to instruct beneficiaries to speak with their physicians about furnishing orders for home care, Dombi suggests.

"What's in the current notice isn't relevant unless it's a Medicare coverage decision," agrees Burtonsville, MD-based health care attorney Elizabeth Hogue.

The decision shows that neither the court nor the plaintiff have "stopped to think how Medicare home health works," Hogue criticizes. Requiring notices for other than coverage decisions seems unnecessary in most cases, since agencies generally are furnishing discharge information and planning anyway.

And in controversial cases, such as those where patients are non-compliant with care plans or threaten HHA workers, smart agencies furnish a written notice to protect themselves from liability already, Hogue notes.

While telling a patient their services will end is common sense, new ABN procedures that the court or CMS might dream up surrounding the concept could be overly burdensome, Hogue forecasts.

Pre-Deprivationi Reviews a No-Go 

The good news for home care providers is that they won't get dragged into a pre-deprivation review process when beneficiaries dispute the termination or reduction of home care services. The court agrees with the lower court's ruling that such a process, which would have Medicare continue paying for home care services until a coverage decision is issued, would be too burdensome on the government.

The legal wrangling in the case, which has gone on for years, isn't over yet. Both sides can ask for a rehearing from the appeals court in the next 45 days, or they have 90 days from this decision or a rehearing decision to appeal to the U.S. Supreme Court, Deford notes.

The plaintiffs still are deciding whether they want to appeal the pre-deprivation loss, he says.

If there is no further relief at the appeals level, the case will go back to the Connecticut district court to "work out the details" of how the change will be implemented by Medicare and HHAs, Deford says.