Home Health & Hospice Week

Be prepared to do lots of explaining to beneficiaries when the new notice rules hit.

Home health agencies' hands are tied when it comes to furnishing services without physician orders, but the new home health advance beneficiary notice required next month doesn't reflect that fact.

And the Centers for Medicare & Medicaid Services' suggestion on how to remedy the problem is sorely lacking, experts complain. CMS addresses the issue in a set of 25 new questions and answers on ABNs.

CMS directs agencies to use Option 1 language in the ABN when patients' Medicare coverage ends in accordance with physician orders. But that option tells patients they can continue receiving the services if they pay for it themselves.

The question: "Because the agency has no orders, it cannot provide the services, even if the patient wants to pay for them. What do we do?" one HHA asks in Q&A #13.

The response: "We recommend noting in the area of the HHABN where you give the reasons for noncoverage when you issue the notice that you cannot provide additional medical home care without physician orders," CMS says.

"The potential problem is that the beneficiary wants more services," explains consultant Judy Adams with Charlotte, NC-based LarsonAllen. "But without the physician orders, the HHA can't provide the service even if it wanted to."

Directing agencies to include the contradictory statements on the ABN will be a breeding ground for patient confusion, experts anticipate. "It places the burden on the agencies to explain that while the patient may wish to continue services and choose Option 1, the agency cannot do so unless the physician orders the services," worries consultant Laura Gramenelles with Simione Consultants in Westborough, MA.

"This process will not facilitate communication between providers, patients and physicians," protests Chicago-based regulatory consultant Rebecca Friedman Zuber. "The more Q&As they write, the worse it gets."

The National Association for Home Care & Hospice has urged CMS to keep the rules of the old ABNs, where notices are required only when physicians' orders don't agree with the reduction or termination of services. CMS so far has proven steadfast in its denial of that request.

Failing that option, NAHC wants CMS to let agencies use Option 2 language when physicians' orders don't agree. "'Option 2' provides a vehicle for home health agencies to explain in the 'Because' section of the HHABN that the agency does not have physician orders and, therefore, is prohibited from providing services," NAHC says.

Don't hold your breath: Even though Option 2 makes more sense for the physician orders issue, attorney Robert Markette Jr. with Gilliland Markette & Milligan in Indianapolis doesn't expect to see CMS change the instruction any time soon. "CMS is predictable," Markette says. It will say "if it's a coverage [...]