It pays to get all your confirmations in writing

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

[Editor’s note: This is one of a continuing series about legal and ethical issues related to the implementation of the prospective payment system (PPS)]

The implementation of the Balanced Budget Act of 1997 (BBA) has understandably raised a number of issues for home health agencies for which there do not appear to be any clear regulatory direction. This means that providers are tempted to pick up the telephone and call representatives of the Centers for Medicare and Medicaid Services (CMS; formerly the Health Care Financing Administration) and/or their carriers in order to obtain clarification. Agency staff also may fear that if they fail to get clarification, they may inadvertently be engaging in fraud and abuse.

An example of a situation for which an agency would want clarification concerns adult diapers or the so-called blue pads. Some intermediaries have indicated that home health agencies must supply all diapers and blue pads to patients for the duration of care provided by agencies so long as these items are medically necessary (as opposed to being used as a convenience). On the other hand, CMS officials state that agencies are required to furnish only those items that were covered on a cost basis. Translation: Agencies must supply the diapers and pads they utilize while providing services to patients.

For example, when agency staff change a diaper during a visit, they are required to supply the diaper used to perform this care. What’s more, agencies are specifically not required to leave boxes of either diapers or blue pads in patients’ homes between visits for patients to use. In another example, some intermediaries also apparently have told agencies that patients may not use their own supplies so long as they are receiving services from a home health agency, even though agencies would otherwise be required to provide such supplies.

On the contrary, CMS officials state that agency staff must make it clear to patients that the agency is required to provide the supplies. If patients, nonetheless, decide to utilize supplies they already have (as opposed to those that agencies would supply), they may certainly do so. Agencies should, of course, document that they made it clear that they are required to provide the supplies and that patients declined to utilize such supplies.

When home medical equipment (HME) companies provide items that are not required to be provided by home health agencies or which patients elect, they may bill for them directly. But providers must exercise extreme caution when they raise issues and receive answers that are inconsistent with information they previously received. As an example of the lengths to which agency staff will go to document and protect themselves, some managers have, for example, written their question on a piece of paper. Then they telephone CMS or an intermediary and read the question to a member of the staff.

They wait for 30 minutes or so and then call CMS or the same intermediary again. They repeat the question they initially asked word-for-word to another staff member and get a completely different and inconsistent response. Same question, several very different answers. Then what is a home care professional supposed to do?

Relevant court decisions make it clear that providers should not rely on information they verbally receive from regulators and/or representatives of CMS and the carriers unless they confirm the information in writing. The best advice for agency staff, therefore, seems to be "Don’t call; don’t ask" unless you are prepared to confirm information you receive in writing.

Furthermore, providers should recognize that it is their responsibility to confirm information in writing. Staff should not ask regulators to reduce their verbal communications to writing. Specifically, staff should parrot to regulators what they were told verbally. Managers should be very careful not to put words in the mouths of regulators or modify what they were told in any way, even though the answer they received is not the one they hoped or expected to receive.

It is, however, wise to conclude confirmation letters with the following language: "If we have misunderstood our conversation in any way, please notify us immediately in writing." Regulators should certainly correct any misstatements in writing.

Confirmation letters should be faxed. It is not necessary to send them by certified or registered mail. In fact, use of certified or registered mail may slow down the process of confirming information at a time when clarity is crucial. Providers may, however, wish to send a copy of the letter through the regular mail in addition to faxing it. Proof of mailing may be obtained at any U.S. post office in the form of a certificate of mailing that costs approximately 60 cents per item.

Remember, when you have itchy fingers to pick up the telephone and seek clarification, make sure your fingers are itchy enough to follow up with a letter. Otherwise, your efforts have been wasted.