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 use to ?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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