Freedom of Choice is HCFA’s new pet paper tiger
Don’t count on increased hospital referrals
Freedom of choice sure has a nice ring to it, but for home infusion companies, the recent Freedom of Choice provision in the fraud and abuse section of the Balanced Budget Act of 1997 is a case of bad news and worse news. The law requires hospitals, upon discharging a patient, to provide patients with a list of all Medicare-certified home health providers who request to be listed.
Elizabeth Hogue, JD, a health care attorney in Burtonsville, MD, says there is plenty of uncertainty surrounding the law, one which many hoped would level the playing field regarding where hospitals with in-house home care providers would send referrals. Unfortunately, it doesn’t appear that the areas the Health Care Financing Administration (HCFA) has clarified will help home infusion companies at all. And even if you offer more than home infusion, the law still may not help.
First the bad news. A HCFA analyst recently told Home Infusion Therapy Management that the law’s hospital requirements are very specific.
"The law as it reads says that the hospital has to inform the beneficiary of the availability of home health services through individuals and entities that participate in the [Medicare] program," says the HCFA source. "When we tried to figure out what Congress meant and there wasn’t a whole lot of explanation we looked up the term home health services’ in the Social Security Act, which defines home health as services furnished by a home health provider, and that is how we are interpreting the law."
The analyst further clarifies that "if all they provide are home infusion services, they would not be considered a home health agency."
In that respect, hospitals are only required to list home health companies that request to be listed. The law is effective for discharges occurring on or after Nov. 3, 1997.
Here’s where the news gets worse. Even if you are a home health provider that provides infusion services, don’t anticipate a jump in the referrals coming from the hospital. HCFA says the law does not address referrals.
"The law does not require hospitals to send patients to other home health agencies," according to HCFA. "All the law requires the hospital to do is provide a list to patients. The expectations around this law are for giving patients information so they can make choices. Its focus is on informing beneficiaries of their choices, and that’s it."
But Hogue feels such a strict interpretation isn’t the true meaning of the law.
"Some people say that in some sense this will be a wonderful marketing mechanism for hospitals because when a patient says, I don’t know, what do you recommend?’ it will be easy for discharge planners to say, If you’re happy with the care you’ve got here, maybe you want to think about this agency,’" says Hogue. "While that would comply with the technicalities of the law, it is contrary to the spirit of the law. If providers are not getting referrals, it may very well be because there has been technical compliance but not the broader compliance that we would recommend to our hospital clients."
What if a patient claims they were not given a choice of home care providers? Still, the news doesn’t get any better. Because there are no penalties discussed in the law, there’s little anyone can do.
"If a patient feels they were not informed of their choices after Nov. 1, they should call the state agency and lodge a complaint, and that will be investigated," says a HCFA official.
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