A Maine Law To Improve Patient Choice--Unlikely To Pass

NOW LIKELY TO PASS!! (As of 4/11/2013)

By: Jabbar Fazeli, MD

Last year, Medicare spent $63.5 billion on post acute care (on patients care after their discharge from hospitals). (http://www.medpac.gov/documents/Jun12DataBookEntireReport.pdf).

With that much money up for grabs, the hospitals in Maine, and elsewhere in the US, do all they can (within the very limits of the law) to refer their patients to service providers affiliated or owned by the hospital. The affiliations and common ownership span the entire healthcare system, from skilled facilities, home health and hospice organizations, to physician practices employed by hospitals and nursing home chains.

These referral pseudo-monopolies are made possible through limiting or discouraging patient choice at every step in the hospital discharge process. Patients leaving the hospitals to go to skilled nursing facilities are often steered to affiliated facilities. Those who go home with home health services also tend to be offered an affiliated provider. Patients arrive to skilled nursing home without knowing who their doctor will be because they were never offered a choice of physicians even when there is available choice.

In such a system, the independent and less connected providers (skilled facilities, home health, geriatric physicians, and hospices) are left at the mercy of unethical referral practices.

Some facilities in rural areas are in danger of being out out business and the communities losing their local nursing home beds.

The few physicians still willing to practice medicine in nursing homes can not expect their name to be given to patients as they are being discharge from the hospital to a nursing home. That lack of choice is especially troubling when patients are preferentially referred to a receiving physician who happens to be either employed by the hospital or the nursing home.

Given that the usurping of patient choice is at the core of this unethical practice in healthcare referrals, a bill (LD-447) was introduced in Maine calling for greater transparency and patient choice at every step of the hospital discharge process.

At the public hearing for LD-447 both the Hospital Association and the Maine Healthcare Organization testified in opposition, citing "administrative burden" associated with providing more transparency and more meaningful patient choice. It was also claimed that existing laws are sufficient, even though providers testified that the current laws are inadequate and hard to implement do to lack of standardization.

The only supporters for this bill came from small and independent healthcare businesses willing to stick their necks out and bite the hand that feeds them, the hospitals.

The Maine Medical Directors Association (MMDA) came in support of the bill as any referral monopolies can create a disincentive for attracting new geriatrician and nursing home doctors to the State of Maine. This bill also strengthens the role of local medical directors in corporate nursing homes.

A survey is now being conducted by the MMDA which shows that nursing home facilities don't necessarily agree with their organization, the MHCA, when it comes to the assertion that the provisions in the bill would create an "administrative burden". Very few think that hospitals "currently" provide patients with adequate choice.

Considering the powerful forces opposed to the bill, and the millions of dollars at stake, it is unlikely that this Maine bill will pass, but some of us will go though the motions and appear at the working session for this bill scheduled for 3/12/2013.

Wish me luck!

Update: 3/12/2013
Bill tabled until April 2, 2013. Stay gunned.

Update: 4/11/2013:
LD 447 passed the DHS committee unanimously today.. Yay!!!

Photo source: aafp.org

The problem with CMS regulation on hospice in nursing homes

CMS Hospice related rules and documentation requirements in nursing homes:

Hospice rules currently require that re-certification for hospice services be done ONLY by "hospice employed" providers, excluding the primary physicians from the decision making process. The same rules also stipulate that primary physicians can not discontinue hospice if they feel that it is no longer indicated. Both provisions are shocking but true.

To illustrate what this means in practice, we can look at a case example of Hospice referral in a nursing home below:
. I write a physician order to refer a patient to hospice (as the primary provider), based on a qualifying diagnosis and an estimated life expectancy of less than 6 months.
. The Hospice team would then come in to the nursing home and evaluate the case to determine if it meets criteria for hospice.
. Once qualified, the patient is certified as hospice appropriate, and hospice service is initiated, this is called "initial certification". Medicare part-A is then billed for the service based on a daily rate for 180 days until the next certification time.
. The hospice team is required to re-establish qualification for hospice after 180 days and then every 60 days, by having their own hospice employed physician or NP (physician extender) re-certify patients as hospice appropriate. This step was supposedly designed to limit hospice fraud and abuse; I'm not sure how!
The other twist here is that the primary physicians, who are also required by CMS to do regular visits on regular intervals on all nursing home patients (hospice or not), are now being bypassed, as they now have no say in this hospice re-certification process of their own patients. The primary attendings are also not allowed to discontinue hospice, even if their patients stabilize and no longer qualify for hospice; that privilege is reserved exclusively for, presumably unbiased, "hospice employed" physicians and NPs, unless the patients themselves decline the hospice benefit.
In cases were patients no longer meet criteria for hospice, Hospices often keep patients on the service until the next due date for re-certification, adding weeks and months of unnecessary hospice billing to medicare part-A, even if in the interim, the primary attending physician is documenting that the patient is no longer meeting hospice criteria; Astonishingly, they are not breaking any rules when they do do.

Suggestion to CMS on hospice rules:

-Remove the paperwork burden of additional hospice certifications by using the already mandated visits by patient's own providers for recertification of hospice in nursing homes and ask that the patients own providers document the continued need for hospice, or lack thereof. The hospice team could then match the doctors recommendations to existing hospice criteria to confirm continued eligibility.
This would decrease fraud and abuse by empowering the, more independent providers, to make the call on hospice, and reaffirms the role of primary attending in medical decision making.

Additional related suggestions to CMS related to better cost savings on hospice:

If CMS is interested in limiting cost related to hospice care they should consider the following (in addition to above):
- stop the direct referral by facilities to hospice without first consulting with providers. In this case providers rubber stamp the referrals after the fact. This is especially problematic when it comes to nursing home chains who also owns their own hospice service.
- stop the unnecessary transfers of hospice patients from skilled or NF to acute hospices, as hospice is supposed to be provided regardless of where the patient resides, and such transfers are often removing patients away from a stable environment that they call home, with significant added cost to the system. This is an emerging trend where hospitals, acute hospices, and nursing homes affiliate, directly or indirectly, and share medical directors that sign of on such transfers of patients to the higher cost entity.

- Improve patient choice of hospices in facilities where there is a financial disincentive, through co-ownership, to refer to their main competing hospices (currently the token choice provided often doesn't include the major competitors).