LegalEase: Gaming and appropriate behavior have their place
LegalEase
Gaming and appropriate behavior have their place
By Elizabeth E. Hogue, Esq.
Elizabeth Hogue, Chartered
Burtonsville, MD
[Editor’s note: This is part of an ongoing series on legal and ethical issues related to implementation of the prospective payment system (PPS) for home health agencies.]
The implementation of PPS has some home health agency staff concerned. One reason is they worry that other agencies will refuse to provide care to patients whose cost of care exceeds a 60-day episodic payment. These refusals are known within the industry as gaming the system, and as you might expect, they are characterized as both illegal and unethical.
Gaming the PPS reimbursement system surely goes against the rules. Examples include supplying information that results in placement of patients in home health resource groups (HHRGs) or payment categories that pay a higher rate than the HHRG for which the patient is appropriately qualified. When taken in this context, gaming may also be characterized as fraudulent.
Although it might seem similar, managing an agency’s mix of patients under PPS is not illegal or unethical. In fact, the Health Care Financing Administration (HCFA) has built incentives into reimbursement systems, including PPS, that are intended to modify the behavior of providers. In other words, HCFA wants agencies to develop new skills under PPS, if they did not already develop them under the interim payment system (IPS). Specifically, PPS is designed to force agencies to learn to manage their patient mix.
The goal is to achieve a balance between patients whose cost of care is less than the 60-day episodic payment agencies receive with those whose cost of care exceeds amounts received for a 60-day episode of care. In order to achieve this balance, agencies may have to refuse to admit and/or discontinue services to some patients. This particular incentive of PPS may reflect statements by HCFA officials in which they have repeatedly indicated that the Medicare home health benefit is not intended to care for patients who need chronic care.
Although it may presently be unclear where on the continuum of care HCFA believes such patients should receive care or even whether chronic care should be covered under the Medicare program at all, it is neither illegal nor unethical for agencies to modify their behavior in appropriate response to the incentives of a new reimbursement system.
A note of caution is needed at this point. When IPS was implemented, there was a general hue and cry from some providers that IPS meant that they would be unable to care for chronically ill patients. Some agencies discharged these patients and/or discontinued services to others consistent with appropriate regulatory requirements. At the end of their first year under IPS, however, some agencies, at least anecdotally, were under their aggregate per beneficiary limits but well over their cost caps.
Dispensing justice to patients
The lack of sufficient volume of visits was, at least in part, responsible for these results. So IPS, and now PPS, is all about achieving a balance in the mix of patients served. It may be that nonadmissions and/or discontinuation of services may not be as essential under PPS as some agencies fear.
With regard to the ethics of managing patient mix under PPS, the ethical principle of justice seems to be applicable. This principle requires providers to give each patient his or her due. Among other things, it also requires that patients receive appropriate care, including home health services.
Everyone is entitled to appropriate care
But this principle also requires providers to address issues of distributive justice. This means that everyone in the community is also entitled to his or her due, including appropriate care. Some home care providers have legitimate concerns about access to care under IPS and now PPS. It is, therefore, appropriate for providers to be concerned about violation of this ethical imperative if failure to manage patient mix impairs the ability of agencies to make services available to the community. Some agencies may, of course, choose to ignore patient mix and continue to care for all patients at an expense that is greater than the reimbursement they receive.
Agencies affiliated with hospitals that have a mission and vision to assist the poor and sick may elect to care for patients regardless of changes in reimbursement. Agencies that make this choice should be respected and even applauded. By the same token, however, it is not appropriate to vilify agency managers who are unable and/or unwilling to make the same choice. The bottom line is that there are several responses that are appropriate, both legally and ethically, to PPS. When agencies make different choices and square off against each other, patients are likely to be hurt, a result that is simply unacceptable.
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