CMSA Today - Issue 3, 2011 - (Page 20)

Hot Legal Issues ‘Hot’ Legal Issues for Discharge Planners and Case Managers Case Managers and Discharge Planners Must Know the Law g g BY ELIZABETH E. HOGUE, ESQ. t’s part of the job: Case managers/discharge managers/dis planners encounter many difficulties complying with legal requirements. T The requirements are many, and they apply to many settings and circumstances – and they may change. Keeping these requirements straight, and straigh providers in compliance, takes knowled and knowledge diligence. This article is a small menu of regulations regula that affect case managers/discharge planners. pla “Hot” legal issues include: • Compliance with patients’ right to c choose providers freely. • Use of e-discharge systems. • Compliance with new requirements related to face-to-face encounters for fo home patients and documentation of o these encounters. Some key points of these issues of concern to case managers/discharge planners are highlighted below. I PATIENTS’ RIGHT TO CHOOSE PROVIDERS The Balanced Budget Act of o 1997 (BBA) and Conditions of Participation (CoPs) of the Medicare Program Pro Hosp for Hospitals requir require hos hosp hospitals to present to p to p at i e patients list s of sk lists of skilled i nu sin nursing nursing fa facilities facilities (SNFs), home ho health age agencies and, based on interpretative guidelines guide for surveys, hospices, so that p patients patients can choose provide providers. 20 CMSA TODAY ISSUE 3 • 2011 • DIGITAL Presentation of home health agency lists may be the most controversial, because the competition among home health agencies is fierce. Specifically, home health agencies must be included on lists presented to patients if the agencies meet the following criteria: • They are Medicare certified. • They provide services in geographic areas where discharged patients reside. • Their administrators have asked that the agencies be on the lists. Also, if hospitals include on the list agencies in which the hospitals have a “disclosable financial interest” or ownership interest, this interest must be stated on the list. The need for nonpreferential attitude toward facilities is also addressed in that discharge planners/case managers must make neutral presentations of the lists. When patients make choices, their decisions must be honored, and when patients cannot choose, case managers/discharge planners must assist them in choosing. Case managers who comply with the criteria above will likely avoid claims that they violated important rights of patients. USE OF EDISCHARGE SYSTEMS On May 20 this year, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), the primary enforcer of fraud and abuse prohibitions, posted Advisory Opinion 11-06 (http://oig. AdvOpn11-06.pdf). This opinion makes clear that post-acute providers that pay hospitals to participate in e-discharge planning systems likely violate the federal anti-kickback statute. Hospitals using such systems that require post-acute providers to “pay to play” also likely violate the federal anti-kickback statute.

Table of Contents for the Digital Edition of CMSA Today - Issue 3, 2011

President’s Letter
Insights to Effective Transition From Caregiver to Case Manager
Are You a Family Caregiver? Say, “Yes, I Am!”
‘Hot’ Legal Issues for Discharge Planners and Case Managers
Making Tough Conversations Easier
You Can Help Make Multistate Licensure a Reality
Association News
CMSA Corporate Partners
Index of Advertisers

CMSA Today - Issue 3, 2011