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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As the end of the year approaches, many unlicensed personal care providers need to start thinking about licensure. Yes, licensure. The Indiana legislature made licensure of personal care agencies a reality in March. ISDH has already put together a draft licensure regulation. ISDH has also begun taking requests for personal care agency licenses. For those of you in home care who provide non skilled services, if you haven’t started, it is now time to start preparing for licensure.
At this juncture, I do not know any official time frames, but ISDH has previously stated that it wants to have licensure regulations in place by February 2006. If so, you have roughly three months to prepare.
Luckily, the statue is not as burdensome as home health licensure, although the current draft of the proposed regulations adds to the requirements of the statute. For now, providers should be familiarizing themselves with the statute I.C. 12-27-4-1. Even without the regulations, there are many steps you can be taking to preprare. For example, you can begin performing criminal background checks on your employees and you can begin performing TB tests on your employees.
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Another item that I feel needs to be reiterated is the recent change in the legislative definition of home health services. During the spring session, the legislature changed the definition of home health services. The new definition defines home health services as services:
That are
(1) provided to a patient by:
(A) a home health agency; or
(B) another person under an arrangement with a home health agency; in the temporary or permanent residence of the patient; and
(2) either are required by law to be:
(A) ordered by a licensed physician, a licensed dentist, a licensed chiropractor, a licensed podiatrist, or a licensed optometrist for the service to be performed; or
(B) performed only by a health care professional.
I.C. 16-27-1-5(a)(2005)
As in previous definitions, subsection (b) continues to provide examples of home health services. The key in this new definition is that a service is only a home health service if it is required by law to be ordered by a physician, etc. or if the law says only a health care professional can perform the service.
If the service does not require a doctor’s order or if it does not have to be performed by a health care professional, it is not a home health service. It is, most likely, a personal care service.
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According to Indiana's Family and Socail Services Administration ("FSSA"), today is the day that Medicaid waiver provider audits will start anew. In a letter to providers, Medicaid essentially stated that they had reviewed their audit process and found they had been performing audits in an acceptable manner. According to the letter, EDS will again perform educational audits to assist providers with understanding the documentation requirements.
As for those providers who appealed previous audits, EDS will review the recoupment requests in those cases and determine whether or not the recoupment requests are appropriate.
The letter left me with the very clear impression that when the audits resume, they will be performed using the same inappropriate documentation standards and the same burdensome audit process. In other words, you will still have to differentiate payor sources on your clinical documentation, and the auditors will not look at billing records to substantiate that you billed correctly.
I will provide more on this topic as it develops.
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The Indiana State Department of Health ("ISDH") has begun the process of promulgating regulations for the licensure of Personal services agencies and promulgating revised home home agency licensure regulations. Drafts of each regulation were voted on by the Home health and hospice council last week. This is the first step in the formal rulemaking process.
Of note in the proposed regulations is the change to home health licensure surveys. ISDH is proposing to change the mandatory survey language to allow ISDH discretion in whether it performs licensure or complaint surveys. This is driven primarily by repeated reductions in funding from the federal government. As a result of these cutbacks, ISDH lacks the personnel to perform all of the surveys they are currently required to perform. The proposed regulations would allow a home health agency to submit a successful accreditation survey to ISDH. ISDH could then rely upon the accreditation survey to renew the agency’s license. The Indiana home health community has been waiting a long time for that option.
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