Care Transition Agreements: Key Issues

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Elizabeth E. Hogue, Esq.

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Care Transition Agreements: Key Issues

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

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.

C2017 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the
advance written permission of the author.
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