Take care to give patients a choice of needed post-discharge services

Final CMS rule sets penalties for noncompliance

Your hospital could lose its Medicare or Medicaid certification if you don’t take care to ensure that patients who need home health services or a referral to skilled nursing facilities are given a choice of providers and not just steered to those in which your facility has an interest.

The Centers for Medicare & Medicaid Services (CMS) issued additional conditions of participation in Medicare and Medicaid programs in August. This means violations of patients’ rights to freedom of choice could result in penalties for hospitals that don’t comply, according to Elizabeth Hogue, a Burtonsville, MD, attorney in private practice, specializing in health care. "If a hospital violates the conditions of participation, it faces the possibility of decertification from participating in the Medicare and Medicaid programs," she adds.

Provisions of the Balanced Budget Act of 1997 require hospitals to provide information to patients who need home health and to avoid steering patients toward their own post-discharge agencies.

The new conditions of participation, which went into effect Oct. 1, 2004, incorporate the requirements of the Balanced Budget Act and make them applicable to patients who are discharged to skilled nursing facilities as well.

Hospital case managers and discharge planners should ensure their hospital is more than just technically compliant with the rule, Hogue suggests. "What we really need is compliance with the spirit of the law. Hospital staff should be approaching patients in a manner that helps them make a choice but clearly leaves the choice to them," she says.

Some hospital discharge planners may face pressure from the hospital administration to make referrals to the hospital’s own agencies, Hogue notes.

Pressure from above is a tough issue for discharge planners, adds Hogue, who suggests going up the chain of command with information about the CMS rules and trying to make sure the hospital complies.

Most of the time, administrative pressure to steer patients to the hospital’s post-discharge services is because of a lack of understanding on the part of the administration, she explains. That’s why case managers should make sure everyone in the hospital understands the institution’s certification is at stake if the rule is violated, Hogue adds.

"If the hospital administration continues to insist that patients be referred to the hospital’s agencies in violation of the CMS rule, the discharge planner would be well advised to look for another job," she notes.

Individual case managers have a lot at stake as well if they are found to be in violation of the CMS rule, Hogue points out. The Case Management Society of America’s national standards of care call for case managers to advocate on behalf of their patients. Referring a patient to an agency because your boss says so is interfering with your ability to advocate, she explains.

If a patient files a complaint with your discipline’s governing body in your state, showing that you violated the regulation, you could face disciplinary measures, Hogue stresses.

Case managers who are certified face the possibility of losing certification if they violate the patient’s right to freedom of choice, she adds.

Hogue points out that hospitals are obligated by more than just the CMS rules to provide discharge options to patients. "Court decisions that patients have the right to choose the care provided to them have been around for a long time."

In addition, there are two federal statutes — one for Medicare and one for Medicaid — that guarantee beneficiaries the right to choose their providers, she adds.

In issuing the final rule, CMS continues to give hospitals flexibility to present lists of providers in the most efficient and least burdensome manner for their particular facility. The rule does specify that patients receive a list of skilled nursing facilities and home health providers who have asked to be included and that the list indicates which ones are affiliated with the hospital and which ones are Medicare-certified.

The fact that the patient was given a choice must be included in the medical record.

CMS strongly recommends that patients who need to be in a skilled nursing facility be placed close to the patient’s home and family, but it also mandates that the list of skilled nursing facilities include providers in the area where the services are likely to take place, even if it’s not near the family’s home.

"Patients may have to take what is available, especially if they are Medicaid patients," Hogue adds.

Many discharge planners ask patients to sign a document saying they have been given a choice, she says. "In terms of documentation, this may be helpful, but I know from experience that the patients may not remember that they were given a choice."

Hogue recommends that discharge planners create a standard list of all providers and use it for every patient. "From an administrative point of view, it would be impossible to have different lists for different providers, and that is not what is required," she says.

If a patient cannot choose or will not choose, the discharge planner may steer him or her toward one or more providers, she says.

If the patient asks for help in choosing a post-discharge provider, it’s permissible for discharge planners to take the opportunity to point out agencies affiliated with the hospital, she adds.

Discharge planners should not do as one individual Hogue observed and hand the patient the yellow pages.

"Discharge planners are professionals. Conditions of participation in Medicare and Medicaid require that they develop a discharge plan. They really do need to consult with the patients and assist them in choosing providers," she adds.

The list should include all providers who are Medicare- and Medicaid-certified that provide services in a geographic area where your patients reside and ask to be on the list, she adds.

Hogue recommends giving each patient the full list of providers, rather than trying to weed out those that don’t provide the services the patient needs. "It’s dangerous for case managers to try to eliminate agencies that can’t meet the patients’ needs. They often get it wrong."

For instance, a provider called one of Hogue’s clients complaining his mother wanted home health care from the agency he owned, but the case manager told her they didn’t provide the services.

"I recommend letting the patient choose and then contacting the facility to see if they can meet the patient’s need. The services that these agencies provide change all the time," she adds.

Problems arise when the patient lives in a sparsely populated area where there are no home health agencies or skilled nursing facilities, Hogue points out. For instance, there are rural areas in Idaho and New Mexico where no home health services are available.

"That presents a real problem for families and discharge planners," she says.