Does your agency know how to serve notice in cases of noncoverage?
New rules from HCFA on notifying Medicare patients
With Transmittal A-99-52, the Health Care Financing Admini-stration (HCFA) took another step toward modifying the standards for providing Medicare beneficiaries with written notice when home health agency administrators suspect the beneficiary’s services would not be covered under Medicare.
This move comes on the heels of a failed attempt by HCFA last September to institute a mandatory form for the beneficiary notices. Because HCFA was not in compliance with the 1995 Paperwork Reduction Act, the proposal never became law. The new standards set out in Transmittal A-99-52 took effect Feb. 14 and include a combination of mandatory standards to accompany the submission of claims upon beneficiary demand and a model notice, the use of which is voluntary. Although HCFA is only recommending that the model notice be used, it is pursuing authorization to institute these notices as a mandatory form.
Q&A from NAHC addresses the issues
The National Association for Home Care (NAHC) in Washington, DC, has devised series of questions and answers that explores the issues surrounding the confusion caused by Transmittal A-99-52. (Those questions and answers are listed below and continue through p. 39.) Since the issuance of the transmittal in mid-December, NAHC has received numerous inquiries from agencies across the nation attempting to decipher these instructions and comply with responsibilities.
However, the content of the instructions and the nature of the process used by HCFA to institute modifications in the notice standards make it tough to fully comprehend HCFA’s intentions. HCFA has been either incapable or unwilling to work with the home care community in this matter, according to the NAHC.
Q. Were home health agencies obligated to utilize the model home health advance beneficiary notice beginning Feb. 14, 2000?
A. No. The use of the model notice is voluntary. However, it is recommended that the model notice be utilized because HCFA indicates that proper use of the model notice will create a "safe harbor" for home health agencies demonstrating compliance with notice responsibilities.
Q. If we choose to develop our own notice for patients, what must we include in that notice?
A. The first requirement for the production of a notice is to ensure the design and readability conform to HCFA standards. The transmittal requires that no body text or heading should use a font size less than 12 points. Italics or any typeface that is difficult to read should not be used. The beneficiary’s options, including the option to continue to receive care and to request that the agency submit a demand bill, should be clearly apparent. It must also be clear and obvious to the beneficiary that the agency, not the Medicare program, is issuing the notice. The notice must state the reason the agency considers the care to not be covered and the effective date of that decision. The notice should also state the consequences of the option exercised by the beneficiary and include some form of signed acknowledgment of receipt.
Q. Our agency has started to use HCFA’s model notice, and we have received complaints from patients that it is confusing. What should we do?
A. You may wish to consider providing patients an additional notice indicating that the HCFA model notice has not been created by your agency but rather the federal agency. That notice could include a reference to the intermediary, HCFA regional office, or HCFA central office as a place where patients could communicate their concerns.
Q. Do we have to provide the notice to patients every time care is to be terminated or reduced or when admission to care is denied?
A. No. The notice responsibilities set out in Transmittal A-99-52 only apply where the agency thinks that care ordered by the patient’s physician would not be covered under the Medicare home health benefit conditions for payment. There must be a physician’s order for care in spite of the agency’s opinion that the care would not meet Medicare coverage standards. In the absence of a physician’s order for care, the notice requirement would not apply.
There will be other circumstances where care is terminated or reduced or where an admission is rejected that do not relate to the patient’s eligibility for Medicare coverage. In such circumstances, the notice requirement does not apply and the model notices should not be provided in order to avoid patient confusion.
Q. Why does a home health agency have any responsibility for providing written notice to a patient regarding the individual’s eligibility for Medicare health care coverage of home health services?
A. There are two provisions of the law which form the basis for the notice responsibility. First, the patient’s bill of rights, which is part of the conditions for agency participation in Medicare, requires that agencies notify patients, orally and in writing, before care is initiated, of the extent to which Medicare payment may be expected and the charges for services that will not be covered by Medicare. Second, the limitation on liability provision, which is designed to protect patients and providers from retroactive Medicare coverage denials, shifts liability to the provider of services where the provider knew or should have reason to know that services would not be covered under Medicare. Home health agencies avoid the shift of liability for noncovered care only by providing patients with written notice, prior to the delivery of services, informing the patient that it is the agency’s opinion that care would not be covered. These responsibilities have existed for a number of years.
Q. Our agency regularly notified patients when we determined that care was not covered under Medicare. Why is HCFA making these adjustments at this time?
A. HCFA’s actions are primarily in response to a lawsuit pending in federal court. While the court has yet to decide the merits of the respective parties’ positions, it appears that HCFA has determined that the notice process can be improved and has taken the steps discussed here to accomplish such. At this point, the beneficiary plaintiffs in that lawsuit do not appear to be satisfied with the changes and are continuing litigation.
Q. What actions should we take if the patient is not capable of comprehending the notice?
A. It is acceptable to deliver a notice to an authorized representative of the beneficiary. However, if the ability to understand the notice relates to the ability of the person to read and comprehend the English language, or to a visual or hearing impairment, the agency should take steps to accommodate those individuals so that actual notice of the information is communicated to the individual.
Q. What kind of notice should we give to a patient when the patient is shifting from Medicare coverage of home health services to a Medicaid home care program?
A. In those circumstances, the Medicare denial notice should be delivered to the patient even though care is continuing and the only change is in the source of payment. Since the model notice fails to take account of situations where care continues and the third-party payment source changes, patients should be informed that there would not be a personal liability for the cost of the care.
Q. The transmittal states that a home health agency must submit a claim to Medicare where a beneficiary demands such submission after receiving the notice. Is this a change?
A. No. Medicare beneficiaries always have had the right to request or demand that an agency submit a claim to Medicare where that agency has notified the patient that it did not believe the services were covered by Medicare. The claim should be submitted as a condition code 20, and the intermediary must undertake a full review and adjudication of the claim. The changes set out in the transmittal relate more to the detail that is offered regarding this responsibility. In addition, the agency must "promptly" submit a demand bill, defined as in accordance with normal billing cycles.
If the intermediary decides the services are covered, the agency will be required to refund any payments which were collected from the beneficiary or other third-party payers. All demand bills will be subject to a full medical review by the intermediary. In the transmittal, it is Medicare’s position that an agency will be prohibited from charging the beneficiary or other third-party payer if the demand bill is not submitted promptly within the normal billing cycle.
Q. How does the home health advance beneficiary notice fit within the patient’s bill of rights, which requires that the patient be informed, in advance, about any changes in a care plan?
A. There is a separate provision within the bill of rights, which provides that a patient has the right to participate in planning care and treatment and has the right to be informed, in advance, about the care to be furnished, and of any changes in the care to be furnished. The home health advance beneficiary notice does not squarely fit within this requirement. Instead, this bill of rights requirement applies regardless of whether the care delivered to the patient is within Medicare coverage standards. Any change in a care plan triggers the home health agency’s responsibility to provide advance information to the patient. Home health agencies need to recognize this distinct and separate responsibility.
Q. Can we expect to see any more changes in the beneficiary notice requirements?
A. Yes. HCFA is currently attempting to secure authorization to make the model notices mandatory. Within that process, it is possible that the content and format of the notice will change. In addition, the class action lawsuit on behalf of Medicare beneficiaries may result in a court order to modify the notice. NAHC will keep the home health community informed of these changes as they develop.
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