In our fourth Conditions of Participation (CoPs) presentation, Sharon Harder and Jill Dyer, BSN, RN, HCS-D, HCS-O discussed the nuances in patient communications and patient rights. In the frequently asked questions section below, our presenters tackle some of your toughest questions from webinar.
Sharon and Jill also highlighted some important breaking news that all home health professionals need know about. A draft version of the new CoPs interpretive guidelines (IGs) is now available. The Centers for Medicare and Medicaid Services (CMS) released a draft of their interpretive guidelines to the National Association of Home Care and Hospice (NAHC), and CMS is now accepting comments on the IGs that must be submitted through NAHC (more details below). This means that a delay in CoPs implementation is unlikely and home health providers can expect CoPs to take effect January 13, 2018 as scheduled.
With so many changes ahead, it’s important to reflect on how much we’ve learned so far. Remember, you can always review on-demand videos online, 24/7. To watch Webinars 1, 2, 3, 4, and 5, visit kinnser.com/cops.
Highlights from Webinar 4:
Breaking News — Draft Interpretive Guidelines are Out:
- Draft interpretive guidelines were issued on October 27
- You can read the draft interpretive guidelines here.
- CMS will not entertain individual comments, but will accept comments from NAHC
- Comments for NAHC’s consideration should be submitted to Mary Carr firstname.lastname@example.org no later than close of business November 15, 2017
Key Definition — Patient Representative:
- Patient’s legal representative or a patient-selected representative who participates in care decisions
- Can be a family member or other patient advocate
- The patient determines the representative’s sole to the extent possible
- Representative’s role based on the patient’s stated preference should be documented in the record
Interpretive Guidance — Patient Notices:
- Expected that an agency’s patients will be able to confirm during a survey patient visit or other interview that:
- That their right and responsibilities and,
- The transfer and discharge policies of the agency were provided,
- In a language that the patient understood and,
- In a manner that accommodated any disability the patient might have
- Should be a hard copy unless the patient requests an electronic notice
- If the patient’s understanding of English is limited, the information must be provided in a language or format familiar to the patient or his/her representative
- Use of bilingual staff, interpreters, formal arrangements with local organizations that provide translation services of telephonic interpretation for language assistance
- Agency staff should be trained to identify patients with language barriers and staff who have ongoing contact with patients should be trained in effective communication techniques including the use of an interpreter
Rights of the patient, as listed in § 454.50(c) of the CoPs:
- To have his/her property treated with respect
- To be free from verbal, mental, sexual, and physical abuse, including injuries of unknown source, neglect, and misappropriation of property
- To make complaints to the agency regarding treatment or care
- To participate in and be informed about and consent or refuse care in advance of treatment
- To receive services outlined in the plan of care
- To have a confidential clinical record and access to that record
- To be advised of the extent to which payment may be expected from Medicare, Medicaid, or any other federally funded program
- To receive proper written notice, in advance of a change or discontinuation of service
- To be advised of the state toll free home health hotline and contact information
- To be advised of the contact information for federal and state entities that serve the patient’s area
- To be free from discrimination or reprisal for exercising his/her right to voice grievances
- To be informed of the right to access auxiliary aids and language services
Frequently Asked Questions, Answered by Sharon Harder and Jill Dyer:
Question: Can we list the clinical manager, chief nursing officer (CNO), or director of nursing (DON) and the agency administrator as contacts for patient complaints?
Answer: The essential requirement is for the administrator to receive complaints. The comments in the Conditions of Participation (CoPs) say the following, “The requirement that the administrator receive complaints remains in the regulation because we believe this is an essential leadership function.”
Question: If the notice of rights is signed by the patient, and the patient has a legal representative, is the legal representative required to sign as well?
Answer: The guidance for section 484.50(a)(2) states “Obtain the patient’s OR legal representative’s signature confirming that he or she has received a copy of the notice of rights and responsibilities.”
Question: How do the new CoPs define patient representatives?
Answer: The CoPs define the patient representative in the following way: “Representative means the patient’s legal representative, such as a guardian, who makes healthcare decisions on the patient’s behalf, or a patient-selected representative who participates in making decisions related to the patient’s care or well-being, including but not limited to, a family member or an advocate for the patient. The patient determines the role of the representative, to the extent possible.”
Question: Can the interpreter to the patient’s language be a family member or neighbor? Or must it be a professional service?
Answer: The comments in the CoPs state very clearly that the most reliable way to communicate in the patient’s own language is by using the services of a professional interpreter who has “appropriate training and certifications to perform his or her job duties as an interpreter.” However, if the patient requests someone other than a professional interpreter or if the patient’s language is so rare that a professional interpreter cannot be found, a patient-selected interpreter (such as the patient representative) may be used. An important consideration it is the agency who is responsible for verifying that communication to the representative/patient-selected interpreter is effective and accurate. The agency should also view and critically evaluate the communication between the patient-selected interpreter and the patient. The CoPs state, “If the competency or accuracy of the patient-selected interpreter is in serious question, for example, the clinician speaks a paragraph of specific instructions and the interpreter ‘interprets’ in a single sentence, the expectation would be to then bring in the services of a professional interpreter.” Comments in the CoPs also explicitly state that using minors to serve as interpreters should be “a last resort and only used in emergency circumstances.”
Question: What should the agency do if the nurse who is visiting the patient for the first time is not sure that the patient and/or the caregiver understand their rights, even when they say that they do?
Answer: This is a valid concern. If you suspect that a patient or patient representative has not understood their rights, CMS advices the agency to arrange formalized interpretation of the patient’s rights.
Question: Is there a specific time frame for advance notification to the patient or the representative of potential discharge? Does the notice to the patient need to be written?
Answer: The notice should be written and should be provided within the time frame of two days (as is established by the federal regulations) or the state regulatory time frame, which may be longer. The more stringent notification rule will apply.
Question: If a patient’s insurance carrier refuses to provide additional authorization to continue care of the patient, are we allowed to proceed with a discharge?
Answer: This would be considered a discharge for lack of available reimbursement. You would notify the patient in a timely way of the non-coverage decision made by the payer that is prompting the discharge planning. Provide the patient with an opportunity to be financially liable for the services on his/her own when insurance reimbursement is no longer available. If the patient refuses, proceed with the discharge after the timely notice has been given.
Question: How do we handle a discharge due to a change in payer source from Medicare to a Medicare health maintenance organization (HMO)?
Answer: Guidance for pay source changes are provided in the Medicare Billing Manual, Chapter 10, Home Health Billing at section 80 which covers special billing situations including those that arise from pay source changes.