HCFA gives home care industry latest news on terminating care
HCFA gives home care industry latest news on terminating care
The bottom line: Agencies still have no legal protection
Home care lawsuits, cropping up nationwide, are forcing home care agencies to look carefully at how they terminate patient care. A number of state home care associations and agencies have filed lawsuits about the Interim Payment System (IPS) and its negative effects on Medicare beneficiaries. And some home care agencies have been sued by Medicare beneficiaries whose care was terminated or reduced.
These cases illustrate how vulnerable home care agencies are to client lawsuits when agencies decide they can no longer afford to care for long-term, chronic patients. Some of these lawsuits are the result of home health agencies dumping high-volume patients in reaction to the Balanced Budget Act of 1997 and IPS' per-beneficiary annual limit, says Michael Walker, administrator of Continuing Care Home Health Services in Harrisonburg, VA. The full-service agency has four offices and serves 13 counties in northwestern Virginia.
"Those agencies really overreacted to the Balanced Budget Act," Walker says. "My feeling is you could find a balance within your system. It is still important to serve chronic patients, not only from a community standpoint, but from an ethical standpoint and financial standpoint."
Lawsuits attracting HCFA's attention
The Baltimore-based Health Care Financing Administration (HCFA) acknowledged at a recent national meeting that officials are concerned about the problem of terminating services to home care patients, says Elizabeth Hogue, a health law attorney from Burtonsville, MD.
Some legal experts say HCFA's chief motivation for conducting a meeting on the subject - the Department of Health and Human Services is the target of several national lawsuits. One lawsuit, in particular, has grabbed HCFA's attention - Healey v. Shalala, filed in the spring in the federal district court of Connecticut. The suit charges that Health and Human Services Secretary Donna Shalala failed to provide adequate protection to beneficiaries, who may have their coverage and services terminated or reduced under the home health benefit, says William Dombi, Esq., director of the Center for Health Care Law of the National Association of Home Care (NAHC) in Washington, DC.
"Most recently, HCFA is trying to develop some new notices to patients in response to Healey v. Shalala," Dombi says. "The purpose of the recent HCFA meeting was to discuss what kind of direction HCFA could take to solve the problem."
The Healey lawsuit definitely will affect home care agencies, Hogue says. "The danger is that here is a lawsuit with the plaintiffs [beneficiaries] as one party and the government as another party, and so where do home care providers' interests get represented?"
The plaintiffs would like the government to mandate that home care agencies provide services to patients while they are waiting for the payer to give them a determination of whether services will be covered, Hogue says. This would create a huge problem for some home care agencies because payers may take three to four months to answer the agency's request.
"By that time, the condition of the patient may have changed so dramatically that it's a meaningless determination," she says. "The intermediaries are under contract to HCFA, and HCFA could demand they respond to these in a shorter period of time." But HCFA has not done so, Hogue adds. At the meeting, when Hogue made this point, the HCFA officials acknowledged that it was a problem but did not suggest solutions, she says.
HCFA officials also discussed writing a standard notice that would be sent to Medicare patients when their home care services were terminated. The notice would be sent when a patient was no longer considered homebound or when the patient's services no longer were considered reasonable and necessary, Hogue says.
Such a notice would not address problems brought up by other lawsuits against HCFA. Only a court ruling or passage of one of the dozen-plus bills that might fix IPS could resolve those conflicts.
13 bills to fix IPS await Congressional action
In addition, lawsuits that challenge the constitutionality of IPS have been filed this year in states nationwide. These lawsuits, including one filed by NAHC, focus on the problems and unfairness of IPS. NAHC also has filed a lawsuit against HCFA that challenges its definition of homebound as it relates to highly disabled people who are technologically dependent, such as quadriplegics with wheelchairs, Dombi says.
So far Congress has 13 different bills addressing IPS, Dombi says. These range from minor tinkering with the IPS rate-setting formula to substantial changes.
Dombi says NAHC compares IPS to the Titanic. "Every time you talk about tinkering with IPS, you're rearranging deck chairs; you may be adding a few lifeboats to the Titanic instead of bringing it into port," he says.
The Texas Association for Home Care (TAHC) was the first to lose an IPS lawsuit. The Austin-based home care association lost its case, Greater Dallas Home Care et al v. U.S., filed March 31, 1998, when federal judge Barefoot Sanders issued a 30-page ruling in June that IPS was constitutional, says Sara Speights, director of government affairs for TAHC.
However, a second IPS lawsuit was filed in Texas in July, San Martin Home Health et al. v. U.S. Department of Health and Human Services, includes about 25 home health agencies and about 30 beneficiaries, says Mark E. Price, a Houston health care attorney who represents the plaintiffs. (For details on Texas and NAHC lawsuits, see story, p. 135.)
Precaution still the best protection
Hospital home health agencies may protect themselves against potential client lawsuits by taking a few sensible precautions, Hogue and other experts suggest. Those include:
r Keep an open line to an attorney who is knowledgeable about Medicare and Medicaid regulations, Walker says.
r Focus on teaching staff about how and when the agency should terminate services for a particular client.
Continuing Care Home Health Services hired Hogue to provide a recent educational seminar for 12 supervisory nurses. "We're making sure we don't get into problems with patients up front, rather than wait until there are problems that end up in court," Walker adds.
r Ask for changes in physician's orders before reducing a patient's services or providing alternative services.
But the agency must be prepared if the physician says no, Hogue says. For instance, the physician might say, "No, I don't believe this is within the applicable standards of care." Or the physician might say, "This family is screaming at me so I won't change the plan of care." If this happens, then the agency either has to carry out the plan of care as it exists, or discharge the patient, Hogue concludes.
r Establish a policy for dealing with noncompliant patients.
Noncompliant patients may include those who are not following their doctor's plan of care or their diets. Or a noncompliant patient may claim to be homebound but is able to attend church each week.
Agencies that serve these types of clients often must make difficult decisions, Walker says.
"The agency is left with the choice of trying to abide by Medicare's strict regulations, or meeting the client's needs," he says. "What we see happening more and more is that someone may be better served in an outpatient facility, or a patient may need to be seen by a doctor but stay at home and think home care will take care of him or her for as long as possible," he adds.
Continuing Care addresses this issue with a policy that includes notifying physicians when a noncompliance issue arises. Home care employees document all communication with the physician and with patients.
Then the agency contacts the patient and gives a reason and date when services will be terminated. This is followed up with a letter. The agency also may give the patient information about other home care agencies or community resources that could help the person.
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