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When you look at the entire landscape of Medicare regulations, a cloud parts and regulators' ultimate goal appears. CMS is trying to push the entire Post-Acute Care sector toward patient-centered care, patient engagement, patient outcomes. According to home health attorney Elizabeth Zink Pearson, Esq., the array of regulations leading to this conclusion include new Home Health Conditions of Participation, the IMPACT Act, new data-based foundations for evidence-based medicine, new data-based targets for treatment plans, and stepped up audits to force clinical compliance.

"Each one of these regs is part of the plan to put the patient at the center of the care experience," Pearson told assembled agency owners and clinical managers at this week's "Compliance Cruise" somewhere in the Caribbean. "Especially keep an eye on the auditors. They are more aggressive than ever. I have already had a client pushed to the brink of being forced out of business over failure to comply with emergency preparedness requirement."

While waiting for final Interpretive Guidelines -- with release date still unknown -- all we have, Pearson said, is the vague admonishment that CMS expects the "highest level of care." "There is no guidance about how they are going to judge that," she quipped. "The good news, if there is any, is that they said they will not sanction, only administer deficiency citations, while they 'expect compliance.'"

Surveyor priority #1: patient rights, 484.50
A new protocol sent to state surveyors on January 12, with an effective date Saturday, January 13, places the Patient Rights condition of participation as the top surveyor priority, followed closely by the need to scrutinize your comprehensive patient assessment. Priority three of the top eight is care planning, service coordination, and quality of care, treated as a single survey category. The remaining five, in order, are:

  1. Skilled Professional Services
  2. HH Aide Services
  3. Compliance with Federal, State, and Local Laws and Regulations
  4. Organization and Administration of Services
  5. Clinical Records

Time burden, using CMS math
CMS estimates that the newly required patient rights conversation should add no more than five minutes to your assessment visit. "I'm looking at 15 minutes at least," Pearson declared, offering a spider's web of interconnected reasons. "Prior to, or at the beginning of, your first visit, you must inform Medicare beneficiaries that you are going to explain their rights to them. Then you explain those rights, to the patient AND to his or her caregiver or legal representative, or patient advocate. This means you have to know before you begin the legal status of that son or daughter or neighbor or spouse in the room. If you hand them a printed sheet explaining their rights, you still have to do it verbally.

"Be aware though, the representative who gets to hear about the rights is is not necessarily the same person as the patient's designated HIPAA-authorized patient representative. In some cases, you may be required to explain rights without disclosing PHI. You may need to ask one representative to leave the room and another to come into the room after you explain patient rights and before you begin OASIS questions.

"That's just the beginning." In cases where language is a barrier, not just English proficiency but also low healthcare literacy, you may have a third entity entering the equation, the interpreter. Is the interpreter a family member? Does he or she have HIPAA authorization? Is he or she also a legal representative? The patient has the right to choose his or her own interpreter but also has the right to have one provided, by you, at no charge. Online services are acceptable for this service."

The regulations also specify clinicians use "plain English" and avoid technical medical terminology. (You will know when you have crossed that line when the daughter/interpreter/legal representative says "Hunh? I can't translate that.") This means every staff member who might ever be in the position of explaining patient rights must be put through communication training. Some professionals simply get so accustomed to their industry's jargon and acronyms they do not even realize when they are using it.

In order to document that patient rights training has taken place prior to care and prior to assessment, it will be necessary for your EHR point-of-care software to affix a date and time stamp, two of them actually. One as the patient rights conversation commences and a second one as the usual visit activities start.

"There is a circumstance where it is permissible to do the rights teaching during the second visit," Pearson added. "In a case where the assessing clinician discovers a communication barrier for the first time when she arrives for the first visit, she may complete the OASIS assessment and initial treatment. However, efforts must be made by the intake, supervisory, and scheduling staff to avoid this. This pre-visit preparation helps to satisfy two regulatory requirements. You are more likely to have the right interpreter available at visit number one, plus you will know which printed materials your assessing clinician must bring. You see, another requirement is that you must have your patient rights documents printed in every language you are likely to encounter in your service area."

She added that you should document the steps you took to achieve compliance with this requirement. Have patients sign that they received the explanation of rights. Have their personal representatives and HIPAA-authorized representatives sign too. You will need to get those signatures before you begin providing care.

Your Notice of Privacy Practices needs to be on paper and on your web site in the 13 most common languages in your area. It is a good idea to do this soon because surveyors are likely to check your web site for compliance with this requirement. It is also recommended to have Low English Proficiency forms available. Even your marketing materials must be printed in the three most common languages in your area. And they must be aimed at an 8th to 10th grade reading level.

Other rights
Your patients need to be informed that they have a right to complain about your services, provided or missed, or lack of respect shown them. You have to tell them how their complaint will be handled. If their care changes or if they are going to be discharged, they have a right to participate in and consent to your decision "in advance of and during treatments."

Ask your EHR vendor. Can my software help customize my visit notes to the new requirements?

In general, your new task is to engage patients as much as possible on every step of the way. Your plan for these changes, including your compliance objectives, must be in process now but are not due until July 13. Focus on your high-risk areas such as IV therapy or problem-prone patients. Lastly, be sure your governing board is involved. They are ultimately responsible for your compliance efforts and success. You have to make sure they understand their responsibility in this regard.

©2017 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Tim Rowan's Home Care Technology Report. One copy may be printed for personal use; further reproduction by permission only.