Send a letter to the doctor about referrals
Send a letter to the doctor about referrals
Educate your docs about the law
If you are still finding that physicians are hesitant to refer qualified patients to home care, it’s probably due to a simple misunderstanding of the Health Insurance Portability and Accountability Act of 1996.
As home care professionals, it’s up to you to make sure that the physicians you work with have a clear understanding of what the law means and says and how it affects them.
The reality is that it’s more likely they will find themselves in hot water for failing to refer a qualified patient to home care than if they wrongly make that recommendation. To help clear the air, the National Association for Home Care (NAHC) in Washington, DC, has composed the following memo, which can be sent to the physicians in your area:
Memorandum
From: William A. Dombi, Esq.
National Association for Home Care
Vice President for Law
RE: Medicare Home Health Services: Physician Certification Legal Considerations
Significant confusion has developed among physicians regarding their risks of liability in certifying a Medicare home health care patient plan of care. This confusion is the result of a new law passed as part of the Health Insurance Portability and Accountability Act of 1996, which subjects physicians to a civil monetary penalty where the physician certifies a patient as meeting Medicare coverage qualifications when that physician knows that the patient does not meet those qualifications.
Specifically, the law which took effect for certifications made on or after Aug. 21, 1996, provides that:
"Any physician who executes a document described in subparagraph (B) with respect to an individual knowing that all the requirements referred to in such subparagraph are not met with respect to the individual shall be subject to a civil monetary penalty of not more than the greater of $5,000 or three times the amount of payments under Title XVII for home health services which are made pursuant to such a certification."
A document described in this subparagraph is any document that certifies, for purposes of Title XVII, that "an individual meets the requirements of section 1814 (a)(2)(C) or 1835 (a)(2)(A) in the case of home health services furnished to the individual" 42 USC 1320a-7a(b)(3).
The certification referenced in the law is contained on the patient’s plan of care. Through the certification, the physician states that the patient is in need of skilled home health services while confined to the home.
Reports have surfaced from across the country that physicians have avoided certifying patients whose plans of care meet Medicare coverage criteria as the result of the threatened sanction from the new law. However, this fear is unfounded unless the physician knows that the patient does not meet Medicare benefit qualifications, yet certifies that those qualifications are met. The standard of "knowing that all the requirements . . . are not met" would apply in only extremely limited circumstances such as where the physician intentionally conspires with a home care agency to obtain Medicare reimbursement on behalf of a patient knowing that the patient does not meet Medicare coverage criteria. An unintentional error in the physician certification or a matter where there is a possibility of professional disagreement does not constitute a circumstance, which meets the test of "knowing." The Medicare program would be required to establish that not only does the patient fail to meet Medicare coverage qualifications, but also that the physician knew that the patient’s needs did not meet those qualifications and still certified the care as necessary for a patient confined to the home.
Physicians must also be aware of the consequences of failing to facilitate the treatment of a patient in the home setting as a result of unfounded apprehension of a sanction related to the Medicare physician certification requirements. Where a patient has unmet needs, there is a basis for claiming that the physician has failed to fulfill his or her duty to treat the patient. Accordingly, if the physician obstructs access to necessary home health services and the patient suffers an injury as a result, the physician is exposed to liability.
In summary, a physician is not subject to sanction if, in good faith, the physician certifies a Medicare patient is in need of home health services and that the patient is confined to the home. Only in circumstances where it can be established that the physician knows that the patient does not meet Medicare coverage criteria is a sanction set forth in the 1996 amendments applicable.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.