Physicians and Patients’ Right to Freedom of Choice

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Providers are increasingly concerned that physicians may violate patients' right to freedom of choice of providers.
First, it is important to note that longterm care, home health, including some services provided by private duty agencies, home medical equipment (HME) and hospice services are provided under the supervision of physicians based upon specific orders from them. Because physicians supervise these types of services, they are at risk for legal liability, along with providers and staff members, if providers supervised by physicians do no meet applicable standards.
Consequently, physicians have a clear interest in assuring the quality of care rendered by other providers to their patients. Physicians may, therefore, choose to designate in their orders which providers will render services to their patients in order to help assure quality of care and manage their risks of liability.

Advance Practice Reform

I was recently asked, why allowing advance practice providers to order and supervise patients under homecare services was needed. Here was my response:

First everyone needs to be clear what the Federal Register states:

§ 484.18 Condition of participation: Acceptance of patients, plan of care, and medical supervision states, “Care follows a written plan of care established and periodically reviewed by a doctor of medicine, osteopathy, or podiatric medicine.”

This federal regulation supersedes any state nurse practice acts that would allow nurse practitioners to provide this oversight. There are multiple reasons why H.R. 4993 bill or S. 2814 needs to be passed. Senator Collins (D-Maine) did a wonderful job outlining some of these reasons in her statement in November of 2009. Her statement can be found in one of my previous blogs.

I see this legislation being a critical first step in reforming home health care and positioning the industry to be a critical player in overall healthcare reform. There are several possible changes that will occur over the next few years as a result of healthcare reform. These changes include value-based purchasing (A.K.A. pay for performance) and post-acute bundling. I envision nurse practitioners as key solutions for these challenges.

I predict that nurse practitioners will be on staff in many home health agencies during the next decade. They will be in charge of disease management programs, case managing complex patients, and providing direct care to patients. The direct care will consist of caring for those patients exhibiting acute exacerbations of their disease. Instead of going to the ER or delaying treatment while waiting for a physician appointment, the NP would see those patients at home and order the appropriate treatment. This would decrease healthcare costs while accelerating patient outcomes and increasing patients’ overall satisfaction.

An example would be a Chronic Congestive Heart Failure patient beginning to experience an acute exacerbation. Currently, most agencies would notify the physician who then would instruct the patient to go to the ER. The ER physician, not knowing this patient feels this patient need to be hospitalized to be diuresed. After the expensive ER visit and several days in the hospital, the patient is diuresed.

Instead say that nurse notified the NP on staff. They see the patient in home and complete an assessment. Complete any necessary lab work then orders diuretics for the patient while at home. The agency increased the visits over the next few days until the patient stabilizes. This would cost a fraction of the ER/hospitalization bill.

In order to achieve this first step towards higher quality patient care, H.R. 4993 needs to be passed now. As health care reform becomes clearer, many groups will be aiming to be on top of the heap. If these bills are not passed now, I worry that physician lobbyist groups will fight much more fiercely in the future to not allow advance practice providers to practice in the homecare setting as is the case now. The home health industry is in a terrific position to become a major player in health reform. In order to situate ourselves to be a major stakeholder with Healthcare Reform, we must pass H.R. 4993.

Bills Would Allow NPs, PAs, and Other Professionals to Sign Home Health Plans of Care

Rep. Allyson Schwartz (D-PA) has jumped into the fight to pass overdue commonsense legislation (H.R 4993) which would allow for NPs, PAs and other professionals to sign home care Plans of Care. Senators Susan Collins (R-ME) and Ken Conrad (D-ND) had previously reintroduced a Senate Bill (S. 2814) that would also allow for this. That Senate Bill is currently at the Senate Finance Committee for review. No additional Senators have signed up to be cosponsor since it was introduced November 20, 2009.

The House version has had 37 cosponsors of the bill. Rep. Schwartz has been circulating a "dear colleague" letter describing the bill and asking for additional cosigners.

Here is a list of those who have signed on to these bills:

H.R. 4993
Rep. Allyson Schwartz (D-PA, sponsor) Rep. Tammy Baldwin (D-WI) Rep. Leonard Boswell (D-IA) Rep. Bruce Braley (D-IA) Rep. Dennis Cardoza (D-CA) Rep. Kathy Castor (D-FL Rep. Gerry Connolly (D-VA) Rep. Kathleeen Dahlkemper (D-PA) Rep. Rosa DeLauro (D-CT) Rep. Chaka Fattah (D-PA) Rep. Raul Grijalva (D-AZ) Rep. Jane Harman (D-CA Rep. Paul Hodes (D-NH Rep. Barbara Lee (D-CA) Rep. Patrick Murphy (D-PA) Rep. Ed Perlmutter (D-CO) Rep. Lucille Roybal-Allard (D-CA) Rep. Kurt Schrader (D-OR) Rep. Carol Shea-Porter (D-NH)
Rep. Peter Welch (D-VT) Rep. Earl Blumenauer (D-OR) Rep. Robert Brady (D-PA) Rep. Lois Capps (D-CA) Rep. Christopher Carney (D-PA) Rep. Mike Coffman (R-CO) Rep. Joe Courtney (D-CT) Rep. Peter DeFazio (D-OR) Rep. Sam Farr (D-CA) Rep. John Garamendi (D-CA) Rep. Deborah Halvorson (D-IL) Rep. Alcee Hastings (D-FL) Rep. Walter Jones (R-NC) Rep. Carolyn McCarthy (D-NY) Rep. John Olver (D-MA) Rep. Chellie Pingree (D-ME) Rep. Janice Schakowsky (D-IL) Rep. Jose Serrano (D-NY) Rep. Diane Watson (D-CA)

S. 2814
Sen. Susan Collins (R-ME, sponsor) Sen. Kent Conrad (D-ND, original cosponsor)

You can help by notifying your representatives of you support and encourage them to support these important bills.

FDA Asks Your Input on Negative Pressure Wound Therapy

The Food and Drug Administration's (FDA) Center for Devices and Radiological Health (CDRH) has requested valuable input from users of Negative Pressure Wound Therapy (NPWT) systems in the home environment.

FDA has received reports of adverse events associated with NPWT systems, especially those used at home and at extended care facilities. Since wound care can take place in the home and can be self-initiated, managed, or used with the help of a trained caregiver (often a family member), FDA wants to hear about your experiences with these systems.

If you use NPWT in the home environment and are willing to participate in an important FDA survey related to this treatment, please click on the link below and you'll be directed to a brief survey questionnaire. FDA notes that your information will be used strictly for this purpose and responses to the questionnaire will remain confidential, and thanks all those who participate. To take the survey, please go to https://vovici.com/wsb.dll/s/2ff9g430f1.

Should HIPAA Business Associate Agreements be Modified to Comply with HITECH?

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Many providers have asked whether they should modify their business associate agreements to comply with the HITECH Act. There is, in fact, ongoing discussion and debate in the legal community about this issue. It seems fair to say that business associate agreements should be modified to comply with requirements of the HITECH Act regarding notification of breaches, since final regulations have been published implementing these requirements.

On August 19, 2009, the Department of Health and Human Services (HHS) issued an interim final rule entitled “Breach Notification for Unsecured Protected Health Information.” This rule describes how healthcare providers must notify patients when the security of their protected health information has been breached. Providers were required to comply with these new requirements beginning on September 23, 2009. Providers are also required to revise their internal policies to include these requirements.

Decision Health Home Health Coding Summit 2010 Sponsor

Daymarck is proud to be the title sponsor of the 2010 Decision Health Home Care Coding Summit, August 8-12 in Philadelphia. We hope to see you there as we share our learnings from the past year, collaborate with other home care leaders, and demonstrate how we can make your home care coding as pain free as possible.

Philadelphia is a fantastic city and we look forward to seeing you there.

Guest Post: Patients’ Right to Freedom of Choice of Hospices in Hospitals

Patients’ Right to Freedom of Choice of Hospices in Hospitals

Elizabeth E. Hogue, Esq.

Office:  877-871-4062

Fax:  877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

 All providers are required to abide by patients' right to freedom of choice.  There are a number of sources of this right as follows:

1)   All patients have a common law right, based upon court decisions, to control the care provided to them, including who renders it.  Thus, when patients voluntarily express preferences for providers, their choices must be honored, regardless of payor source, level of care, or type of treatment. 

2)   Federal statutes of the Medicare and Medicaid Programs guarantee Medicare beneficiaries and Medicaid recipients the right to freedom of choice of providers.  When Medicare and Medicaid patients voluntarily express preferences for post-acute providers of all types, these choices must be honored.

3)   The Balanced Budget Act of 1997 (BBA) requires hospitals to develop a list of home health agencies and SNF’s, not hospices.  The list of home health providers must include agencies that:

a.       Are Medicare certified;

b.      Provide services in the geographic areas where patients reside; and

c.       Ask to be on the list.

In addition, if hospitals place the names of agencies in which they have a discloseable financial interest on the list, the relationship between the hospital and the agency must be disclosed on the list.

This list must be presented to all patients who may benefit from home health services so that they can choose agencies they wish to provide services to them.

4)   Hospital Conditions of Participation (COP's) include the basic requirements of the BBA described above.