Hospice ABNs
Posted by: Robert Markette
July 19, 2006

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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More news on HHABNs
Posted by: Robert Markette
July 07, 2006

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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