Expedited review notices: Key issues

By Elizabeth E. Hogue, Esq., Burtonsville, MD

There is still confusion in the home health and hospice industries regarding the use of expedited review notices. Although key issues remain unresolved, the following may be helpful to providers with their compliance efforts:

  • Providers should never delay discontinuation of services in order to issue expedited review notices.
  • Providers should never make additional visits in order to issue expedited review notices.
  • Providers may not be required to provide additional services to patients who no longer meet the eligibility criteria of the Medicare program.

Delays in discontinuation of services

The initial or generic expedited review notice must usually be provided to patients at least two days in advance of the date on which services will be discontinued. However, if staff members learn of circumstances requiring the immediate or abrupt discontinuation of services, they should give the notice immediately and discontinue services immediately. Home health agencies and hospices are not required to wait for two additional days before discontinuing services. Examples of such circumstances include notification from physicians that home health or hospice services are no longer needed, or information that patients are no longer homebound.

It appears that some agencies and hospices are providing two days' notice before discharging patients with the understanding that no additional services will be provided during this two-day period. This is a potentially risky practice and is not required in order to achieve compliance. When agencies follow this practice, they continue to assume responsibility for patients. If patients need additional services during this time period and agencies and hospices do not provide them, they may incur liability.

Consequently, based on requirements of the expedited review notice process and sound risk management, agencies and hospices should discontinue services to patients and discharge them when they receive information that such actions are warranted.

Making additional visits

Agencies are not required to make additional visits to patients for the sole purpose of delivering expedited review notices. So, if providers learn that expedited review notices must be issued, but will not be making visits to patients for other purposes when notices are supposed to be delivered, they are permitted to deliver the notice to patients via telephone. They must then mail a copy of the notices to patients.

The Centers for Medicare and Medicaid Services (CMS) indicates that agencies and hospices must make efforts to retrieve signed copies of notices that are mailed to patients.

Practically speaking, this responsibility should be delegated to support staff members; professional staff members should not be utilized for this purpose. Support staff can send follow-up letters or make telephone calls to remind patients to return the signed notices. Their efforts should be documented with copies of letters sent and dates and times of telephone calls. Although CMS has not indicated how many times staff must follow up to attempt to obtain signed notices that were mailed to patients, three well-documented attempts are likely to be sufficient.

Additional services

It appears, at least at this time, that agencies and hospices are not required to provide additional services to patients who appeal to the quality improvement organizations (QIOs). Agencies and hospices may choose whether or not they wish to provide additional services, if they conclude that patients no longer meet the eligibility criteria of the Medicare program.

When QIOs conclude that patients still meet the eligibility criteria of the Medicare program based on patients' appeals, patients may seek additional services from other Medicare-certified home health agencies or hospices. Practically speaking, it may be appropriate for home health agencies to decline to provide additional services to patients as soon as they conclude that patients no longer meet the eligibility criteria of the Medicare program.

This aspect of the expedited review process, however, is clearly more confusing because CMS does not require patients to adhere to applicable time frames. That is, the process originally required patients to submit their appeals along with a certification from physicians that they would experience significant harm if services were discontinued within the two-day time period between when providers issued notices and discontinuation of services. Now CMS has stated that QIOs must accept appeals from patients whenever they are filed and that patients have up to 60 days after filing an appeal to submit certifications from physicians. Consequently, agencies that elect to provide additional services while appeals are pending may do so for very long periods of time only to learn that they cannot turn to patients for payment because QIOs agree that patients no longer meet the eligibility criteria of the Medicare program.

Additional clarification is still needed with regard to the expedited review process as indicated above. Agencies and hospices look forward to "fine tuning" the process in order to eliminate confusion for both staff and patients and in order to use increasingly limited resources of agencies and hospices as wisely as possible.