Care Transition Agreements
Anecdotally, there is increasing recognition that transitions in care are the most dangerous times for patients. These transitions range from shift changes in institutions, such as hospitals and SNFs, to changes from one level of care to other levels of care. In addition, hospitals are especially concerned about transitions after discharge since, if they do not go well, patients may be readmitted to hospitals that may result in financial penalties for hospitals.
Consequently, there is greater interest in Care Transition Services Agreements, especially between hospitals and all types of homecare providers, including Medicare certified home health agencies, private duty agencies, hospices and home medical equipment (HME) companies. Such Agreements present a number of legal issues, however, that must be taken into consideration in their development and implementation.
A key area that must be addressed is compliance with the federal anti-kickback statute. This statute generally prohibits anyone from either offering to give or actually giving anything to anyone in order to induce referrals. Inducements may include free services provided to referral sources, such as hospitals, in exchange for referrals.
Specifically, providers who render care transition services must be certain that they are not providing any free discharge planning services. The Office of Inspector General (OIG) has clearly stated that free discharge planning services in exchange for referrals may be impermissible kickbacks.
It is certainly acceptable, however, for post-acute providers to coordinate care transition services after receipt of referrals. How should providers draw distinctions between free discharge planning services and coordination of care transition, and other post-acute services to patients?
Medicare Conditions of Participation (CoPs) for hospitals (42 CFR Section 482.43) and Interpretive Guidelines for the CoPs published in 2013 address this question. The CoPs say that discharge planners/case managers must: (1) perform discharge planning evaluations; (2) develop discharge plans; (3) arrange for the initial implementation of discharge plans and (4) reassess and modify discharge plans as needed.
Areas in which discharge planners/case managers may seek assistance from post-acute providers that amount to free discharge planning services may include development of discharge plans and arranging for the initial implementation of discharge plans.
With regard to this issue, the Interpretive Guidelines referenced above state:
Hospitals are expected to have knowledge of the capabilities and capacities of not only long term care facilities, but also of the various types of service providers in the area where most of the patients it serves receive post-hospital care, in order to develop a discharge plan that not only meets the patient’s needs in theory, but also can be implemented. This includes knowledge of community services, as well as familiarity with available Medicaid home and community-based services (HCBS), since the State’s Medicaid program plays a major role in supporting post-hospital care for many patients.
The Interpretive Guidelines go on to say that hospitals are expected to be aware of Medicare coverage requirements for home health care and other post-acute services. According to the Interpretive Guidelines, hospitals are also required to arrange for the initial implementation of patients’ discharge plans, including arranging for referrals to all types of post-acute providers.
So, while it is desirable for post-acute providers to enter into Care Transitions Agreements, it is also important to be sure that services provided under such Agreements do not cross the line from coordination of services to free discharge planning services to referral sources in exchange for referrals.
Elizabeth E. Hogue, Esq.