These posts relate to CMS certification, state licensure and all of the other hoops you jump through.
Just in case you missed it, CMS has published a notice in the federal register announcing that the final Hopsice COPs will not be published until May 27, 2009. I understand that they may actually be published sooner, but for those of you out there trying to find them, they have not been published. You can let out a deep breath and go back to worrying about one of the one hundred other regulatory matters you have to deal with. Just to reassure you, I am attaching a copy of the notice to this post.
Attachments:
PublicationExtension.pdf
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Well, the Florida legislature just passed a major revision to the Florida home health licensure statutes. As many of you know, home health fraud has been rampant in Florida. The abuses in Miami have been widely reported and are probably well known to anyone reading this blog. A number of law enforcement agencies have been investigating these abuses. It seems that the Florida legislature has decided additional action is necessary. They have enacted a number of anti-fraud provisions into the Florida home health licensure statute. The statute gives the Florida Agency for Health Care Administration the authority to impose fines for certain violations. A number of new violations have been added that appear to mirror federal anti-kickback and/or stark laws. I recall that a few years ago the Florida Supreme Court struck down Florida’s fraud and abuse statutes as being preempted by Federal law. Having the fraud and abuse enforcement be a matter of administrative proceedings may avoid that issue, but it seems to create a whole other host of problems. For example, it would seem that the burden of proof is less than the beyond a reasonable doubt standard that would be necessary for an anti-kickback case. For a stark type violation, you would be able to appeal to an ALJ, but you would not have the right to a trial by jury, because this is an “administrative” matter. One of the new penalty provisions calls for fines if the agency identifies a “pattern” of falsifying training documents. Although a pattern is defined as three entries, no time frame is provided. Is this a three strikes and your out type rule, meaning three such entries over the life of your agency or is it three mistakes in a single survey (which would mean two mistakes per survey are “freebies”). I say mistakes, because if these “fraudulent entries” are identified by surveyors, a mistaken entry may be treated as a fraudulent entry. Other offenses involving patterns of conduct include a time frame and they range from three per quarter to three a year. Another provision allows for a $5,000 fine for failure to provide a service as outlined in the care plan or service agreement. If you have ever been cited for failure to follow a care plan, this should at least give you pause. None of the remuneration provisions provide a minimum value exception which the federal fraud and abuse laws do. Will it be a defense in Florida that you have complied with the minimal value exceptions in Stark and the CMP statute? I may seem a bit alarmist in my initial reaction to this change, but making fraud and abuse issues licensure matters handled by surveyors and ALJs severely erodes the procedural protections available to an agency in the midst of a fraud investigation. In this day and age, with the emphasis on fraud enforcement, removing protections from providers is likely to cause more harm than good. There may be other unforeseen consequences as well. Perhaps Florida felt they needed to do this because of the ruling a few years ago from the Florida supreme court, but wouldn’t it have made more sense, been simpler, and more cost effective to simply give the agency the authority to penalize the provider upon conviction of a violation of the applicable federal fraud and abuse laws? Or perhaps, given the federal emphasis on state enforcement, a new state level fraud and abuse code could have been enacted and survived a court challenge, because there is lots of evidence from the feds they want state level enforcement. Heck, the DRA called for state level false claims act statutes, even though there is a federal one as well.
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I was out in San Diego for the NPDA convention. One of the recurring themes of the convention was the attendees concern about where the regulation of the industry was heading. For those of you who don?t know, NPDA is the National Private Duty Association. Its members are the private duty home care providers, also known as the non-medical home care or personal care industry.
Private duty providers around the country are split. Some feel that licensure will improve the industry?s reputation and should be sought after. Others feel that licensure will lead to a heavier burden on providers and should be avoided.
Personally, as an attorney who spends a lot of time helping clients deal with regulators and regulations, I tend to agree with the providers who are opposed to regulating private duty. (although more regulation does tend to lead to more business for me.) Unfortunately, I do not think that is very likely to happen.
I think the regulation of the private duty industry is probably inevitable, because of a number of factors. First, the industry is growing rapidly. As more and more providers serve more and more clients, the industry will become more visible to state regulators. (State regulators are already aware of private duty, but as the industry grows the regulators will become more interested in regulating them.) As it becomes more visible, the likelihood of regulation increases.
Second, the industry serves populations traditionally considered ?vulnerable?- the elderly, children, and the disabled. Because of the patient population served by the industry, legislators will feel compelled to take action to regulate the industry as a means to protect this population. (This move will be more rapid if a member of a vulnerable population is harmed, neglected, or taken advantage of.)
Third, private duty ?looks like? home health care. State agencies look at private duty agencies and see an entity sending employees into a patient?s home to provide care. Because of this similarity to home health care, the reaction is that it needs to be regulated.
Although I think these factors make the eventual licensure of private duty inevitable (at least in any state the licenses home health), I am not suggesting that it ought to be regulated or that the industry should simply accept it. I think the private duty industry needs to be aware that this may be the future and act accordingly. To the extent you can prevent it, the industry will likely be better relying upon accreditation, industry standards, etc.
However, the industry needs to remain vigilant, because if licensure or other regulation looks to be heading your way, the providers and their trade associations need to educate lawmakers. Lawmakers need to see why private duty should not be regulated like home health. For example, doctor?s orders should not be necessary for most private duty care. Regulators need to know what care the industry provides, how they provide it, etc. They need to know that less regulation is appropriate.
It will fall to the providers in each state to be aware of how its state regulators ?view? the industry and be ready to take action. They need to be part of the process of developing licensure statutes, licensure standards etc. Indiana?s providers were very successful in this effort and the state personal services licensure regime address private duty in a very different way and restricted the use of regulations by the licensing agency.
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Congratulations to my friends at the Indiana Association for Home and Hospice Care (?IAHHC?). After a great deal of effort, IAHHC has succeeded in getting legislation passed that temporarily suspends the national criminal background check for home health and personal service companies. As many of you know, I (and many others) felt the national criminal background check (?NCIC?) as conceived in the statute did not make a lot of sense, because the statute did not allow providers to receive a copy of the NCIC, but only allowed them to receive a determination from the Indiana state police.
This determination was to be a letter from the state police that was issued after the police compared the NCIC to the Indiana list of disqualifying convictions. The problem with that procedure was two fold, first the NCIC would not show any convictions that were not already on the individual?s limited criminal history. Second, home health and personal services agencies would routinely disqualify someone for having convictions for crimes other than those listed in the statute.
This second point is important, because the state of Indiana only disqualifies homecare workers for a few convictions. Home health and personal services agencies use a much broader list of convictions, because they are very concerned about patient safety. They realize the importance of their position in protecting their patients.
Requiring agencies to pay more and then not allowing them to see the report and make their own determination would actually allow more individuals with criminal histories to go into homes and provide home care. (Not a situation most home care providers looked forward to.) In addition, there were other technical problems that led to serious delays in getting the determination. During these delays, the employee was free to keep working, another potential problem.
Because the statute was not actually helpful (not surprising since neither IAHHC nor ISDH were contacted prior to its passage), IAHHC focused on getting the national criminal background check statute repealed. Ultimately, the legislature would only pass a one year ?partial roll back?. (And even that was only due to IAHHC?s extensive efforts this session, thank you Mary Ann Maroon) Indiana home health and personal services agencies have until July 1, 2009 to continue to perform limited criminal history checks. There is one exception: If you think an employee lived out of state in the previous two years, you will still have to do a national criminal check.
As things currently stand, the national criminal history statute goes back into effect on July 1, 2009. Hopefully, between now and then either CMS will take some action based upon its current background check pilot program or IAHHC will be able to get the legislature to fix the national criminal background check statute so that starting in July 2009, the agencies will have the opportunity to see the history information and make their own, more particular determinations about an employee?s suitability to work in their patients homes. There could be other solutions as well, but in my opinion simply allowing the original statute to go back into effect as is on July 1, 2009 will not be good for homecare providers or for patients. Before next year, a better solution needs to be found.
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I have been doing a series of seminars with the Indiana Association for Home and Hospice Care aimed at educating providers who are getting into personal services. (Personal Services is the Indiana statutory term for home care, what many of you call "private duty.") One thing that has really jumped out at me is the number of people who are coming into this market from other industries. Many entrepreneurs have identified the trend in home care and want to get into the market.
The seminar is aimed at individuals with no experience in the industry So I expect lots of surprised reactions from the first time business owners, but what is more interesting is the reactions of providers who are getting into this industry after working in another industry.
They are amazed at the regulatory burden. Many of them are aware of wage and hour and similar regulations, from previous employment. What they are surprised by is the unique wrinkles in homecare such as companionship services exemption, obtaining documentation from clients. They are even more surprised by things like fraud and abuse, waiver provider requirements, waiver billing and dealing with employees being harassed by clients.
The thing this reinforces is that when you become a homecare provider, you are getting into one of the most regulated industries in America. Individuals coming to this industry from other industries may not realize this. Individuals looking into becoming a private duty provider need to realize that although not as heavily regulated as other healthcare providers, private duty is still on the periphery of health care and regulated in the same fashion. Entrepreneurs looking at this industry need to realize they are not opening a housekeeping business, but a business designed to provide care to individuals. It is well worth your time to become aware of the relevant regulations including state licensure, provider regulations (If you are getting into any Medicaid Waiver programs), etc., before you get started.
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I have been a little inconsistent in posting to the blog the last few weeks and I apologize for that. I have had a couple of major deadlines at work and getting work done for the clients trumps posting to the blog. (I have intended to post at night, but my kids have had other ideas the last few weeks.)
Last weeks Home Health Line contained an interesting article about New York?s investigation into the certification of home health and personal care aides. It seems there has been a significant amount of fraud in New York recently in the aide training and certification industry. One aide training agency was simply issuing certificates upon payment of $300 - $400. (Given that companies do this for graduate degrees, it surprises me it has taken this long for this scam to trickle down to aide certification.)
Many agencies in New York are now having to respond to subpoenas requesting documentation for their aides. This is part of an investigation to determine whether any of their aides were fraudulently certified. Of course this places a huge burden on the home health providers to go back and check certificates for all of the aides they employ. It is unclear where this investigation is heading, but it would not surprise me to discover that one of the goals is to recoup funds for any services provided by an improperly certified aide.
This is important for agencies outside of New York, because once New York has some success recouping funds this way, you can expect the practice to move across the country. Furthermore, the OIG has indicated its concern about certification of personal care and home health aides. If OIG is concerned, you should expect the states to be concerned. This will mean more investigations.
Agencies need to be certain their aides are properly certified, not on the OIG exclusion list, and in America legally. Checking certifications usually amounts to obtaining a copy of the aides certification (or checking with a previous employer) and performing a competency evaluation. Some states maintain a home health aide registry. In Indiana, for example, if an aide is on the list, he or she is eligible to be hired. Having a central list makes the burden on the verifying providers much simpler, because they can print the entry showing the aide is on the list and in good standing. (In Indiana, an agency is only required to check the list to ensure the aide is registered and in good standing. Of course in Indiana the vast majority of home health aide training is provided by home health providers.)
If you are in a state with a central registry, but you are still not certain, you can check with the agency that originally registered the applicant or issued the certification. If the aides training was provided by a training company, you should verify attendance, G.P.A. (if they kept track), graduation date and the curriculum.
If an entity is simply issuing fraudulent certifications, they may be prepared to issue fraudulent curricula and attendance records. Which makes you wonder what the State of New York thinks the providers should do. Frankly, if New York is going to allow home health aide training to be provided by third parties, should the training companies be investigated and certified, and prosecuted for issuing fraudulent certificates.
If you request this documentation, but do not receive it or have any question about its validity, you should discuss the validity of the aides certification with her. Things that might raise questions about an aides training include lack of understanding of home health aide tasks, etc. If there is any doubt that the aide received the 75 hours of training required, you should either provide the training yourself or not hire the aide.
Depending upon the size of your agency, it is probably not time to go through every aide file and verify certifications. However, going forward, it may be a good idea to check any certification issued by a training company or to verify an aide worked for an agency that is alleged to have provided the 75 hours of training, to ensure the aide received the training required by state and federal law. This verification should be maintained in the employees file, along with documentation of the aides continuing education.
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Let me start by apologizing for my infrequent posts the last few weeks. But with the holidays and work being exceptionally busy this time of year (and not a lot of new developments in the world of home health) I have had limited time and material. However, this week, I have noticed an upswing in questions relating to the HHABN. It seems that now that people have settled in with the HHABN, they are discovering unusual scenarios or reevaluating their use of the HHABN in an effort to lessen the number of HHABNs they are issuing.
Frankly, I am not surprised. In part, once the home health community implemented their HHABN ?system? and became comfortable with it, it was only a matter of time before they began to realize that in many cases, they may have erred on the side of caution. The other issue is that providers have had a few months to have unusual cases come up. If you have read the HHABN transmittal, you will notice that for all of CMS?s efforts, there are many situations for which the answer ?Do I need to issue an HHABN? is not obvious.
For example, a recent question I received from a seminar viewer involved the need to issue an HHABN after a one time ?unplanned? nursing visit. This could come up in a number of ways, but the main point is issue leading to an additional nursing visit during week that exceeds the POC frequency for the week. There is no change to the POC as a result and the next week the visits remain as in previous weeks. For example, HHA patient suffers from a slip and fall at home. Because it is apparently a minor slip, not requiring a 911 call, patient calls agency asking if she needs additional care. Agency sends nurse out to the home to check on the patient and make sure patient is ok. (Many of you are probably saying, we just tell them to call 911, this may be a good idea, but the point of this post is how would such a situation affect your need to issue an HHABN.) The patient?s POC calls for 2-3 vists per week and this visit happens to be number four for that week. As a result of the visit, there is no change to the POC or any other action taken.
Obviously, the additional visit does not require an HHABN, because it is an increase in care. Increases in care are one of the express exceptions to the HHABN requirement. However, the next week you effectively have a decrease from 4 visits to 3. Reductions in frequency are reductions in care that, in most cases, require an HHABN.
Most providers would react to this situation by issuing an HHABN, but lamenting the waste of time and paper. However, in this case, you do not need to issue an HHABN. The unplanned alteration in frequency is a minimal change. There is not alteration of the underlying plan of care and the visit itself was an unplanned visit. The Court in Lutwin specifically said that certain ?de minimus? or minimal alterations to a POC would not require an HHABN. (Of course, I will not touch on whether this is the appropriate way to respond to the slip and fall, as opposed to calling 911)
CMS has not adopted a specific minimal change exception, but instead adopted exceptions for the specific minimal examples provided by the Court ? sick employees, missed visits, etc. This one time visit is a similar example of a minimal change. It also happens to fit into the concept of an unplanned or emergency visit. However, it is the nature of the visit ? patient calling for the agency to check on them after an in home incident ? that makes this an unplanned visit. (Of course, you should consider advising the patient to call 911 if the patient thinks it is an emergency.)
If the visit resulted in an alteration of the POC that led to a reduction in care, an HHABN would be necessary. You should not understand the minimal change concept to be a broad exception, but to be a very narrow exception.
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I read a rather curious comment in a recent issue of Home Health Line recently. In an article on the new HHABN, there was a blurb titled "HHABNs are required for Hospices and Corfs." This statement is attributed to a CMS staffer and is based upon the June 30, 2006 notice published by CMS in this regard. I believe this staff person may have misspoken.For those of you who check in here regularly, you will recall I wrote a blurb about that notice last month. In that post, I stated that the notice did not change much and I have repeatedly indicated that hospices did not need to worry about the new HHABN. This is why the staffers comment stood out to me.There is nothing in the notice regarding the new HHABN. The notice is quite clear that hospices are required to use ABNs, but there is nothing in the notice that would lead me to conclude the hospice is using the HHABN. In fact, the notice specifically states that the hospices are to use ABN form CMS-R-131-G (?ABN?). This is the generic ABN notice, not the revised HHABN, which is from CMSR296 (?HHABN?). The notice also offers instructions on completing the two empty boxes on the ABN. An HHABN requires additional steps to complete.
I point this out, just to clarify that according to the notice, hospice DO NO have to use the new HHABN form.
The notice also makes it clear that hospices will issue ABNs in far fewer situations than other providers. The MedLearn Matters article that was published to educate providers in regards to the notice makes the differences between hospice ABN use and HHABN use quite clear. The article ends with a clearly marked notice that hospice providers do not have to issue an ABN when care is terminated for non-coverage related reasons, such as staff safety. In other words, if you are a hospice provider and you are terminating care because your staff is not safe in the patient?s home, you do not need to issue an HHABN.
For those hospice providers who read the article and panicked, you can take a deep breath, you do not need to worry about the revised HHABN and its rules. Which makes sense, because the HHABN change is based upon a lawsuit by home health beneficiaries under the home health conditions of participation. The court?s interpretation of the home health COPs has no bearing upon how hospices operate.
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I generally try to post two or three times a week, but last week I was 0 for the week. Last time I had an interruption in posting, I promised to blame any future interruptions on my children. However, I am blaming last week on my wife. Blame is not the right word, but unfortunately, my wife managed to contract the stomach flu and strep throat at the same time. Needless to say, my week was spent at home making sure the children stayed away from mommy. (We really did not want to have three kids sick as well.) I am happy to say that my wife is much better and life has returned to normal.
Today, I want to briefly mention the revision to the Medicare Claims Processing Manual regarding Hospice advanced beneficiary notices. I think the hospice providers have been feeling a little left out by all of the HHABN ?excitement? and CMS has responded to that. On June 30, 2006, CMS issue an update to the provider manual addressing the use of ABNs in the hospice setting.
Luckily for hospice providers, the changes are not nearly as sweeping as for the HHABN. The first thing to note from the revision is that the deadline to implement the Hospice changes is September 29, 2006.
The rest of the update clarifies when a Hospice must issue an ABN to its patients. The update makes it clear that in the Hospice setting, the ABN is still issued as a liability protection tool. The update adds a situation in which an ABN should be issued. A hospice provider should issue an ABN if ?specific items or services billed separately from the hospice benefit were not reasonable and necessary.?
The update provides some example language to use on your hospice ABN forms as well.
The update also includes a discussion on beneficiaries who receive inpatient care that has not been arranged by the provider. In other words, if your patient wishes to continue as an inpatient after you determine it is no longer necessary, you must provide the patient an ABN to inform them that they are responsible for the charges. You may arrange to have the facility provide the notice. If the patient revokes the hospice benefit while in the facility, the facility becomes responsible to provide the liability notice.
The revision also outlines when an ABN is not necessary. A hospice does not need to issue an ABN if the patient revokes the hospice benefit, if respite care exceeds the five day statutory limit (although CMS encourages you to issue a notice of exclusion from Medicare benefit), if the patient transfers to another hospice, or providing care to a patient who has not elected the hospice benefit.
Finally, the revisions reiterate that if you are terminating hospice care for reasons related to Medicare Coverage, you should issue an expedited determination notice. If you will continue to provide non-covered care, you should issue the expedited determination notice and an ABN. (This should sound familiar to those familiar with the HHABN.)
For those of you who provide both home health and hospice services, you will notice the drastic differences in ABN usage between home health and hospice. For example, as a home health provider, you now have to issue an HHABN to a patient if you discontinue services for reasons unrelated to Medicare coverage, such as employee safety. As the update points out, a hospice does not have to issue an ABN if services are being terminated for reasons unrelated to coverage, but CMS encourages hospice providers to issue an NEMB or other notice informing the patient of the change. Hospices will not issue nearly as many ABNs as home health agencies.
This comment from CMS also makes clear that for hospices, the ABN is not the only liability notification form that will be used, in contrast to HHA who now only use the HHABN form.
This could lead to confusion within a company that provides both home health and hospice care. Employees will need to be trained so that they understand these differences.
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In this weeks Home Health Line,there is yet another article on the forthcoming HHABN. The article sums up what we already knew, but adds a few interesting points. One is that the Lutwin plaintiffs and the government have agreed to delay any further action on the plaintiffs? motion to speed the issuance of the new HHABN until five days after August 4, 2006 or the date CMS publishes its new HHABN rules, whichever comes first.
This may mean that we can expect the new HHABN rules no later than early August. At least, it seems CMS has some motivation to get the rules out before the deadline. If for no other reason than to be able to demonstrate progress to the Court if the Court decides a hearing is necessary.
It seems from the article that providers are upset that the June 20 Q&A did not lessen the burden of the HHABNs. Especially given CMS?s new estimates for the number of HHABNs that will be issued annually ? 10.4 million. Of course, CMS is limited in what it can do, because the court of appeals stated notice was required in very broad circumstances. As CMS tries to resolve this case with the plaintiffs, it is at a disadvantage because of the language in the Lutwin case.
Of course, the Lutwin opinion (for those of you who don?t remember, Lutwin is the case that has caused this entire mess) is based upon one court?s interpretation of the Medicare statute that requires written notice to home health beneficiaries. 42 U.S.C. 1395bbb(a). Congress could always change that statute, but barring that, CMS is limited in its responses by the Court?s opinion, no matter how burdensome (or wrong) that court?s interpretation may be.
Another point that comes out in the article is that the use of ranges in a plan of care to avoid the need for HHABNs is still under review. As I have commented in the past, the answer to that question varies depending upon the intermediary. CMS is considering how to respond to this, but still has not decided.
For now, it appears that the September 1, 2006 deadline will remain. However, early August will very likely see more activity as the deadline for action by CMS passes. Hopefully, a few more questions will be clarified and actual rules will be issued before HHAs have to comply, not after. (Of course, some of you may think I am being recklessly optimistic.)
For those of you still holding out hope that the new HHABN burden will go away or be reduced in some fashion, it seem that will not be the case. Of course, like every other new paperwork burden, HIPAA for example, over the next year providers will become familiar with its requirements and the fear of not giving a notice when necessary or giving the wrong notice will pass. The costs associated with the new HHABN are likely here to stay.
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You may recall that the entire HHABN mess was the result of a lawsuit filed by home health beneficiaries against CMS. The plaintiffs? attorneys are rather upset by CMS? delay in implementing the news HHABN and have filed a motion with the federal court asking the court to order CMS to implement the new HHABN by July 1. (I have wondered my self why the Plaintiff?s attorneys did not object to the length of time this was taking.) Once again, the lawyers are mucking up the system.
Given the period of time that has passed since the court?s original ruling in this matter, the court is likely to be annoyed by the delay as well. As a result, the court could rule that CMS must comply with the original court order more quickly. This would mean the promised delay of until at least September 1 would disappear.
It is hard to predict what a court will do, but hopefully the Court will recognize that implementing a major change to one of the conditions of participation, especially one that will dramatically increase the burden on Home health agencies should not be done in a haphazard of cavalier fashion.
The issue that concerned the Court was that home health beneficiaries receive proper notice of changes in their care. Implementing a poorly conceived HHABN system is not likely to address the court?s concern and, as many have noted, may only increase the beneficiaries? confusion.
If the Court rules in the Plaintiff?s favor, expect CMS to require a rapid implementation of some form of the HHABN. Even with the confusion that could result, I would anticipate a Court ruling favorable to the plaintiffs would result in the new HHABNs becoming required under the guidance of an additional frequently asked questions document at a date much earlier than September 1. CMS would most likely implement a revision later. (Of course, there are other ways to do it, but the forms are already available a are the instructions and guidance and that would be the fastest way to respond.)
I say this to put you on notice that the new HHABN may become a requirement sooner than you think and you should be aware of the possibility.
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With the announcement last week of the delay in implementing the new HHABN form, I have seen a number of discussions regarding whether you can use the new form or not. Everyone is in agreement that yes, you are free to use the new form now, if you so choose. Of course, my question is why would you? (I think most of you have already put your new HHABNs on the back burner, but if not, here is why you might want to do so for now.)
The entire purpose of the delay form CMS is to ?fine tune? the new HHABN form and process. CMS?s announcement last month made it clear that there will be changes. In fact, if you go back to the April Q&A, there had already been significant changes. It strikes me that there are a few reasons to simply stay with the old HHABN, unless you have already reached the point of no return.
The first, and most obvious, is that most providers were, understandably, not clear on the exact rules of its use. The original instructions were, at best, unclear. The April Q&A cleared a number of issues up, but still left many questions unanswered. The form itself has a few problems that providers have notice, including the option box one v. option box two issue.
Of course, if you are going to use the new HHABN, you will be training all of your employees on its use. The training will include everything from when to issue one to which option box to use. However, it is likely that those rules will change when the new instructions and revised forms are issued. This means that your employees will be trained on one form, use it for a few months and then have to be retrained all over again. This creates a rather large opportunity for confusion.
It would seem there is also a possibility for patient confusion, they keep receiving new and different notices, because CMS keeps changing what it wants you to do. Your patients may become confused as to why they keep getting new and different notices about their health care. I understand that notice is exactly what the second circuit is requiring, but if the notice becomes a point of confusion for your patients, what benefit is that to them.
The final reason to continue using the old HHABN is that the new HHABN and it s distribution requirements are rather burdensome. If you continue to useto ?old? HHABN form, you can continue to follow your old policies and procedures for its use which will reduce the number of HHABNs you distribute over the next few months.
For these reasons, I would recommend putting your new HHABN rollout on hold until CMS finalizes what you need to do with them. (Of course, I am guessing most of you have done just that.)
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A reader e-mailed me with a question yesterday. (yes, not only are people reading the home care law blog, but some are actually taking time out of their busy day to ask questions.) Ok, really it has only been the one reader, but because she was diligent enough to ask, I will attempt to answer her question. I say attempt, because I am trying to determine CMS?s intent from a couple of Q&A entries and statements made at meetings.
The question is this, for providers who provide telehealth services to their beneficiaries, does an HHABN have to be issued. If so when does the HHABN have to be issued.
Telehealth, as a noncovered service, would appear to be subject to the revised rule requiring home health agencies to issue an HHABN upon initiation of the non-covered care, but not upon reduction or termination. However, the recent FAQ addressed this issue in a somewhat confusing fashion.
Telehealth was addressed in the most recent FAQ in the context of ?telemonitoring.? An agency provides its Medicare patients with telemonitoring services free of charge, because of the improvement to the quality of care that results. The telemonitoring services are included on the plan of care after consulting with the physician. The agency asked CMS if an HHABN was needed for this service.
CMS responded that even though the telemonitoring is a non-covered service, when it is integrated with Medicare covered services or when it is being provided to a Medicare beneficiary receiving non-covered services with no other insurance coverage, an HHABN should be issued. CMS added that written notice is required upon reduction or termination as well.
Of course, this answer appears to conflict with the answers provided elsewhere in the FAQ. Specifically, elsewhere CMS makes it clear that when reducing or terminating non-covered care (unless the patient has no insurance at all) an HHABN is unnecessary.
In my opinion, when you are providing non-covered telemonitoring to a patient who is not receiving other covered care, except for beneficiaries who have no other insurance, you will only need to issue the HHABN upon initiation of the telemonitoring service. You will not need to issue an HHABN a reduction or termination of the non-covered telemonitoring services. (If the Medicare beneficiary is receiving non-covered care, but has no other insurance, you would issue an HHABN for initiation, reductions or terminations see the most recent FAQ for more on that.)
However, when the services are integrated into a POC with covered services, the rule is slightly different. In this case, the telemonitoring is provided because of the covered services. Even though the telemonitoring is not covered, the beneficiary is receiving covered care and the telemonitoring is listed on the POC with the rest of the covered care. In this case, the beneficiary would not receive an HHABN upon initiation, but would receive one upon reduction or termination of the telemonitoring.
Practically, it seems that the agencies offering telemonitoring for free would only reduce or terminate the telemonitoring if the covered care was reduced. In which case, an HHABN or ED is being issued regardless, because you are reducing or terminating covered care.
When issuing an HHABN for non-covered telemonitoring care, if you are not charging the patient, you would list the cost as $0 in Option Box 1. If you are charging the patient, you would, of course, list the costs and fees associated with the telemonitoring service. As I understand it, this will usually be an installation fee and a subscription or monitoring fee. Of course, if you are terminating because it is no longer financially feasible, you should use option box 2.
Of course, I am sure that this answer will change in the coming weeks as CMS continues to reconsider how the HHABN should be used.
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Today I want to pass along a thought on complaint resolution and complaint logs. All of you who are certified for Medicare and most of you who are subject to state licensure are required to have a means for resolving client complaints. I have had numerous agencies run into difficulty with this standard and it is almost always for one of two or three reasons.
The first is failure to follow up. You policies and procedures likely include a policy and procedures on receiving a complaint and following up on the complaint. If a complaint is logged, you had better have documentation following up on the complaint. Sometimes, this does not happen. This can be for any number of reasons up to and including the complainant has also called the state department of health, adult protective services, or law enforcement. In those cases, the law enforcement personnel may enter you agency to investigate the complaint before you finish your investigation. This does not eliminate your need to follow your procedures.
It may mean your follow up notes the APS or police investigation and, while that investigation is ongoing, the employee(s) involved may need to be suspended (consult your personnel policies.)
Regardless of what the follow up entails, you need to follow up and to document that follow up. In fact, the failure to clearly document your follow up is another common basis for citations for agencies. You need to have clear documentation that you investigated the complaint and how it was resolved. If it has not been resolved when you are surveyed, you should still be able to show which steps of your procedure have been completed. The record should also reflect that you are responding promptly. If the log shows a complaint, but your records do not show that you followed up for more than a month, you are most likely going to be cited in a survey.
Keep in mind, that the survey may not be your only problem. If you have an employee who is abusing a patient and you receive a complaint, but fail to properly follow up on the complaint, you may be open to charges for failing to report the abuse to the proper authorities as wall as being liable in a civil action for failing to fulfill you duty to your patients.
If after you perform your investigation, you determine the complaint is baseless, make a record of that. If you feel the complaint is unresolved, because you are unable to make the patient or the patient’s family happy, remember that resolution of the complaint does not hinge upon the complainant’s feelings. You may note that you have resolved the complaint, because you investigated it and took action that you deemed appropriate to prevent the issue in the future. The complaint log should note that the complaint has been resolved as well.
One final point, like everything else in home care, clear, concise documentation is a key to complaint resolution. Thesurveyor should be able to look at the record and see that the complaint was received, that there was prompt follow up, and that there was resolution to the complaint. The surveyor should not see a complaint, with little or no additional documentation.
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Indiana, like many states, requires home health providers to check employees’ criminal backgrounds before hiring them or, within a very brief time frame after hiring. If an individual has one of the convictions listed in the statute, the agency cannot hire him. However, this is not a blanket rule against hiring for any position. In Indiana, the statute only prohibits hiring for what I will call “direct care positions”. If you wanted to hire an individual with a theft conviction to be on your sales staff, the statute would not prohibit you from doing that.
There is another interesting angle to the statute. Although theft is a disqualifying conviction, fraud and forgery are not disqualifying convictions. This means you could hire someone with a fraud or forgery conviction for a direct care position without fear of being cited by ISDH.
You should keep in mind that your clinical staff completes the paperwork you submit in order to receive reimbursement from each of your payor sources. It might cause you some restless nights to think that this paperwork is being completed by an individual with a fraud or forgery conviction.
This is why the OIG compliance plan, for home health agencies, suggests that HHAs should strictly scrutinize whether it should employ individuals who have been convicted of crimes of neglect, violence or financial misconduct. I would broaden that even more to include crimes of financial misconduct or dishonesty. This would include everything from embezzlement to fraud and forgery. My reasoning is pretty straightforward.
If an employee falsifies documentation for a visit, the agency will, at a minimum, have to pay back the money. Not to mention the harm to the agency’s reputation for not performing visits for clients. By screening employees for convictions involving not just theft, but deceit and/or financial misconduct, the agency is at least making an effort to not put individuals into a position that requires trust and honesty. This at least lowers the risk of false Medicare or Medicaid claims.
As with theft, a conviction of this nature may not need to be an absolute bar. If the conviction for financial conduct or deceit was very old, and the record has been clean since then, the individual may not pose as substantial a risk. The key consideration is that you realize all of the potential risks that a criminal background check shows you.
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I was on a panel Tuesday at a meeting regarding the provision of hospice services in a nursing facility. One of the issues that were of concern to the providers was who bathes a nursing facility resident who is receiving hospice services.
I have always felt this was a question of whether the bath is related to the terminal illness, as that is the primary consideration in provision of hospice services. The speakers for the state seemed to say it was their position that if the hospice was not providing the baths, it was a condition level deficiency.
My understanding was that this was based upon the notion that Home Health Services are core services for hospice and, therefore, not delegable to the nursing facility.
I have had a chance to consider this further and to discuss the issue with other individuals and have come to the following conclusion. CMS does NOT think the hospice should always provide the bath, but should only provide the bath if it is related to the terminal illness. As a practical matter, the surveyors will most likely presume that bathing is related to the terminal illness and expect the agency to provide it.
However, if bathing is not related to the terminal illness, the hospice provider should not be providing the bath. The IDG needs to assess the patient and determine whether bathing is a necessary part of hospice care. If it is not, the hospice and the nursing facility need to document it and the nursing facility needs to provide the care.
For hospice providers that are concerned that they are passing on 100% reimbursement and then providing services the nursing facility should provide, perhaps negotiating less than 100% reimbursement as a reflection of the hospice taking on bathing or reflecting in the contract that bathing is performed by the nursing facility, unless related to the terminal illness would ways to address this issue.
Neither the hospice nor the nursing facility should ever simply say – the hospice bathes the patients or the nursing home bathes the patients. Doing so runs the risk of a recoupment, or worse.
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Over the last few years, I have had a recurring conversation with a number of my clients. Generally, this conversation occurs during or immediately after a survey. Most providers dread surveys. In most cases, this is a result of previous survey experiences. There is nothing like having the state agency come into your offices, review your files, accuse you of not doing something the way you are supposed to be, demanding you fix it and giving you little or no recourse to challenge the findings. There is one particular facet of the survey process that many providers find more irritating being cited for doing something a surveyor told them to do in the past. Let me explain. During a survey, the surveyor will point out an area in which she feels the provider is deficient. Occasionally, the surveyor will then offer her “advice” (by advice I mean that the surveyor will tell the agency “this is how you ought to do it”) on what the agency should do to correct this problem. The agency, in turn, makes the changes as recommended by the surveyor. Having done what the surveyor told them to do, the agency is quite surprised when, during the next survey, they are cited for doing what the surveyor told them to do in the first place. This is not as uncommon as you might think and illustrates a few key points. First, the survey process is rather subjective. The same agency can be surveyed by two different surveyors and obtain wildly varying results. This can be the result of a number of things. The surveyors may have focused on different areas; the surveyors may have different understandings of the rules; or the surveyors may simply have different understandings of the what they are looking at when they review the agency’s files. More importantly, you cannot rely on the advice of surveyors. Yes, the surveyor should have a solid understanding of the regulatory requirements, but they do not have any authority to speak on behalf of the state agency or CMS. A surveyor may be offering you advice based upon what she has done when working in home care or hospice, she may be offering you advice based upon what she has seen in previous surveys, or she may simply be offering you her opinion on how this particular area ought to be handled. Regardless, if the surveyor is wrong, you cannot later say, well the surveyor told us to do it this way. I have seen clients change a form or procedure to please a surveyor only to cited for the same issue during the next survey. I have also had clients cited by a surveyor for doing something the surveyor told them to do. Neither the state agency nor CMS cared that a surveyor had told them to do what they were cited for doing. In fact, the usually response is that surveyors are not supposed to be giving advice. Another issue is communication. You may think you understand what the surveyor wants you to do, but either you or the surveyor may be misunderstanding each other. This can lead you to implement a process that was not actually what the surveyor recommended. (That is why CMS and states with licensure publish regulations and policy documents.) Finally, you may implement exactly what the surveyor wanted, but your next surveyor may feel there is a more appropriate way to implement the standard. In other words, the next surveyor may have different preferences. I always tell clients to take what the surveyor says with a grain of salt. Wait until you receive the survey report and then decide what action needs to be taken, without relying upon what the surveyor said during the survey. (This is also good advice, because what they surveyor mentions during the survey and what you are actually cited for are not always the same.) Ah, the survey process. Lots of subjectivity, no right to appeal. But I am not even going to start talking about that today.
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An issue that has come up repeatedly in the last few months is when does medication assistance become medication administration. This question is important to home care providers, because administering medication is not something a personal care attendant or a home health aide should be doing. Many a home care agency has strayed into home health, by having a nurse set up a medication planner for a patient. The agency in this case assumes that filling the medication planner is just another form of assistance. In fact, filling the medication planner, while not administering the medication in the sense of placing the pills in the patients mouth or injecting the patient with a syringe, often falls outside of the scope of medication assistance. Most jurisdictions, especially those that offer a personal care agency or home care (non-skilled) agency license, define the term medication assistance. Each state provides a slightly different definition. For example, in Utah, a CNA can actually check the dosage the patient is about to self-administer against the medication label. In Indiana, home health aides and attendants are allowed to remind a patient that it is time to take their medications, open the preset medication container for the patient, and assisting the patient with handling or ingesting non-controlled substance medications. The state of Washington allows attendants and aides to provide a level of assistance similar to that of Aides in Indiana. They important thing to know is what your state defines as medication assistance. Your aides should be made aware of the specific parameters of medication assistance. Most home health agencies include this as part of their annual home health aide training. For home care agencies, it is every bit as important that you attendants/companions/personal care aides are always aware that it is not appropriate to administer medication to a patient. They might not see how placing the pills in the patients mouth is different from administering medication to their own children or even different from handing the pills to the patient, but it is and the consequences of administering medications can be rather severe for the caregiver and the agency.
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I heard an interesting story yesterday. A home health agency has a client that is a quadripelegic. This client has decided to live by herself. The agency, as any good provider would, has taken steps to ensure that the patient has means to call for help in an emergency. Neverheless, one of the agencies that regulates home health told the provider that if the patient were to be injured or die in a fire or as the result of some other mishap, the agency would be responsible. For most people, this story elicits the following response, “What, why does the agency have any liability, if she want to live alon, that is her choice.” This response is not completely unfounded. Of course, in today’s litigious environment, that would not guarantee the agency did not get sued if something happened. This means that the agency should take some steps to shield itself. This situtation can be compared to a discharge against doctor’s orders in a hospital setting. If the patient wants to leave and is capable of leaving, the hospital cannot force them to stay. Similarly, if a quadripelegic patient wishes to live alone, the agency cannot force them to have a roommate. The agency should clearly advise the patients of the risks living alone pose to an individual with the patient’s needs. The patient should sign the form acknowledging that she has been advised of these risks and the agency should keep a copy in the file. I am suggesting this, as a way to prove later that the agency at least informed the patient of the risks. Of course, the patient will be very aware of the risks, as it is his life. I am also no suggesting you have a duty to legal obligation to provide this notice, I am however, suggesting that it would be a helpful piece of documentation to have if you were involved in litigation later. You can then say, “We advised the patient of the risks and he knowingly and voluntarily chose to live alone.”
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On November 1, 2005 FSSA published a proposed rule in the Indiana Regsiter. This proposed rule amends 405 I.A.C. 5-22-8. The purpose of the amendments is to clarify that Medicaid will reimburse for services provided by Physical Therapy Assistants. As many home care providers in Indiana are aware, last summer the Office of Medicaid Policy and Planning made it clear that it did not believe the Mediciad regulations allowed providers to use PTA’s to provide services. Of course, this did not make a great deal of sense either practically or fiscally. Under the PT practice act, PTA’s are clearly allowed to administer therapies as long as they are directly supervised by a PT. FSSA had taken this concept a step farther and required direct “on-site” supervision. Of course, on-site supervision mean that home health agencies had to use PTs for all services. Allowing a PTA to provide the care after the licensed PT developed the care plan is not only completely acceptable under the PT regulations, but is very similar to the normal medical care model where the physician creates the plan of care and the nurses and other professionals and para-professionals implement the plan. Furthermore, for a cash strapped state like Indiana, it makes a lot of sense to allow the provider to use an assistant such as a PTA and then reimburse at a lower rate. In this way, the patient receives the care needed, but the state uses a lower cost caregiver. It appears that FSSA has recognized this and is now changing the Medicaid regulations to reflect this reality. The proposed revision to 405 I.A.C. 5-22-8 would strike the “on-site” language and add language that specifically approves the use of certified physical therapy assistants. The proposed rule would also adopt a specific reimbursement for services provided by certified PTAs. The reimbursement would be set at 75% of the physician’s or LLP’s rate. FSSA bases this rate upon the general rule that mid-level practicioners are reimbursed at 75% of the rate physician’s receive. The public hearing on this rule was held on November 22, 2005. One issue that FSSA has not addressed in this proposed rule is the use of OT assistants. FSSA takes a similar position on the use of OT assistants in Medicaid. Hopefully, Indiana will be rectifying this problem in the near future.
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