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 CMSs 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 dont remember, Lutwin is the case that has caused this entire mess) is based upon one courts 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 Courts opinion, no matter how burdensome (or wrong) that courts 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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