Knowledge Base Article

Even though Case Management Week is not for two weeks (October 13 – 19, 2019), the release of the Discharge Planning Conditions of Participation (CoP) Final Rule is a reason for an early celebration as evidenced by the following quote from CMS in the Final Rule.

“We believe that these final discharge planning requirements for hospitals, including LTCHs, IRFs, HHAs, and CAHs will improve transitions of care, increase a patient’s ability to access their health care information in a timely manner, and complement and align with efforts to improve interoperability across the care continuum. We also believe that these final requirements, which we discuss in further detail in subsequent sections of this final rule, are less burdensome than our initial proposed discharge planning requirements. In addition, we continue to believe in the importance of person-centered care during the discharge planning process.”

• Medicare and Medicaid Programs; Revisions to Requirements for Discharge Planning for Hospitals, Critical Access Hospitals, and Home Health Agencies, and Hospital and Critical Access Hospital Changes to Promote Innovation, Flexibility, and Improvement to Patient Care Final Rule
  

Regulatory Background

• December 13, 1994: Original publication date for the hospital discharge planning requirements at §482.43.
• Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act) mandated modifications to the discharge planning or discharge summary CoPs.
• May 17, 2013: CMS released updates to Appendix A of the State Operations Manual providing revised interpretive guidelines for the Discharge Planning CoPs. Notably, this revision included “blue boxes” that CMS indicated displayed “successful practices currently found throughout the industry in the area of care transitions.”
• October 29, 2015: CMS announced proposed revisions to the discharge planning requirements for hospitals, including long-term care hospitals (LTCHs), Inpatient Rehabilitation Facilities (IRFs), Critical Access Hospitals (CAHs), and Home Health (HH) agencies.
• November 2, 2018: CMS published an Extension of Timeline for Publication of Final Rule, citing “the complexity of the rule and scope of public comments” as warranting the extension. This extended publication of a final rule to November 3, 2019.
• Thursday September 26, 2019: CMS released the Final Rule which was published in the Federal Register September 30, 2019.

Key Highlights from the Final Rule

The Final Rule as published in the Federal Register is forty-nine pages long with the first twenty-eight pages detailing the final requirements for hospitals. For key stakeholders involved in discharge planning, it will be important to read the entire document. For everyone else, the rest of this article highlights hospital requirements in the form of questions and answers. Note, most answers in this article reflect CMS statements verbatim from the final rule with the exception of this first question regarding when the rule will be effective.

Question: When will the regulations in the final rule be effective?

Answer: The day after Thanksgiving on Black Friday November 29, 2019.

Question: How will beneficiaries benefit from this Final Rule?

Answer: CMS notes the following in the Final Rule Summary:

• This Rule empowers patients to be active participants in the discharge planning process, and
• Implements requirements giving patients and their families access to information that will help them to make informed decisions about their post-acute care, while addressing their goals of care and treatment preferences, which may ultimately reduce their change of being re-hospitalized.

Question: Who do the Final Hospital Discharge Planning Requirements apply to?

Answer: The final requirements apply to the following:

• Short-term acute care hospitals (including their IPPS-excluded rehabilitation or psychiatric units),
• Psychiatric Hospitals, Long Term Care Hospitals (LTCHs),
• Rehabilitation Hospitals,
• Children’s hospitals, and
• Cancer hospitals
• Distinct part psychiatric and rehabilitation units in Critical Access Hospitals (CAHs)

Question: Will the final requirements replace the current psychiatric hospital requirements?

Answer: Although these discharge planning requirements apply to psychiatric hospitals, there are several additional currently existing discharge planning requirements specific to psychiatric hospitals that are not affected by the discharge planning requirements discussed in this rule. Thus, psychiatric hospitals will still be required to meet the additional special provisions, special medical record requirements, and special staff requirements set out at §§ 482.60, 482.61, and 482.62.

Inpatient psychiatric units located in a hospital, (as opposed to psychiatric hospitals) are specialized units within a larger hospital or CAH. Inpatient psychiatric units must meet the hospital CoP requirements for the hospitals in which they are located. However, they are not required to meet the CoPs specific to psychiatric hospitals set out at §§ 482.60, 482.61, and 482.62. Therefore, these discharge planning requirements apply to inpatient psychiatric units located within a hospital or a CAH.

Question: Are hospitals required to include a patient’s DME needs in a patient’s discharge instructions?

Answer: In response to a comment CMS indicated that, we agree that considering a patient’s DME needs when planning for a patient’s post-hospital care is a best practice. While we are not mandating that providers include information on a patient’s DME needs in the patient’s discharge instructions at this time, we encourage providers to do so where appropriate.

Question: How will compliance with the Final Rule be monitored?

Answer: As with all CoPs, compliance with these requirements will be monitored by CMS, State Survey Agencies (SAs), and national accrediting organizations (AOs) through surveys.

Question: Does CMS plan to provide sub-regulatory guidance focused on how to implement the final rule?

Answer: CMS has indicated that they will provide sub-regulatory interpretive guidance after the publication of this final rule, which will provide further clarification for implementing the final discharge planning requirements.

Question: Will providers be required to give a copy of the discharge plan to caregivers?

Answer: While we are not requiring providers to give a copy of the discharge plan to caregivers, patients can request a copy of their medical record, including the discharge plan, from the hospital, in their requested form and format, as required by newly revised § 482.13(d)(2) (as discussed below), and the hospital must comply with the patient’s access request as required by the HIPAA Privacy Rule at 45 CFR 164.524. Similar requirements exist for HHAs and CAHs as well.

Question: Who are the specific “Practitioners” and/or “Qualified Personnel” that can provide a list of Post-Acute Care (PAC) Providers to a patient?

Answer: Our use of the broad term “practitioner” encompasses all practitioners, including non-physician practitioners, which may be operating within a hospital. Providers may utilize the appropriate practitioners that they believe will effectively conduct a patient’s discharge planning process. For those reasons, the discharge planning CoPs do not include requirements specific to individual practitioner categories.

The regulations text, as written, does not explicitly state who must provide the list of PAC providers to the patient or their representative. In addition, the regulation text does not prohibit hospitals from including any qualified personnel it chooses in this part of the discharge planning process. Typically, the list of PAC providers is given to patients or their representative by a social worker or registered nurse (who is a case manager). The hospital must identify in its discharge planning policy the qualified personnel who will be involved in the discharge planning process and must execute their discharge planning process in accordance with their policies.

Question: What Quality Measure Data should be provided to the patient?

Answer: We proposed and finalized without modification, to require that hospitals assist patients, their families, or their caregivers/support persons in selecting a PAC provider by using and sharing data that includes, but is not limited to HHA, SNF, IRF, or LTCH data on quality measures and data on resource use measures. Furthermore, the hospital would have to ensure that the PAC data on quality measures and data on resource use measures is relevant and applicable to the patient’s goals of care and treatment preferences. We would also expect the hospital to document in the medical record that the PAAC data on quality measures and resource use measures were shared with the patient and used to assist the patient during the discharge planning process.

Section 1899B(i) of the Act requires that PAC providers, hospitals and CAHs take into account quality, resource use, and other measures in the discharge planning process. We understand that commenters had concerns about using appropriate data that would be comparable to the data that would be gathered and provided in accordance with the requirements of the IMPACT Act…We therefore expect providers to make reasonable efforts to use the quality and resource use measure data that are currently available to them until all of the measures stipulated in the IMPACT Act are finalized and publicly reported. Additional explanations, resources, instructions, and help on how to use the IRF Compare, HH Compare, Nursing Home Compare, and Long-Term Care Hospital Compare websites are currently available on the following pertinent websites:

• https://www.medicare.gov/inpatientrehabilitationfacilitycompare/.
• https://www.medicare.gov/homehealthcompare/search.html.
• https://www.medicare.gov/nursinghomecompare/search.html.
• https://www.medicare.gov/longtermcarehospitalcompare/.

While the data from these sources are not available in “real time,” the data are posted as soon as feasible. Providers should use these data sources to assist patients as they choose a PAC provider that aligns with the patient’s goals of care and treatment preferences, and we would also expect providers to document all efforts regarding this requirement in the patient’s medical record.

Question: What is CMS’ expectation regarding interpreting and discussing quality data with the patient, family, or caregiver/support person?

Answer: We believe that providers have the ability and knowledge to interpret and discuss the publicly available data on quality and resource use measures at the most basic levels. We note that we do not expect providers to give overly detailed and complex analyses of the quality and resource use data, which may only serve to confuse patients and/or their caregivers, nor do we expect providers to attempt to provide patients and their caregivers with data that do not exist regarding PAC facilities. We expect providers to put forth their best effort to answer patient questions regarding the data. We also encourage providers to refer to www.medicare.gov for additional resources and help. Further information regarding specific measures mandated by the IMPACT Act will be available in forthcoming regulations. Finally, we also encourage providers to consult the sub-regulatory interpretive guidance that will be available after publication of the final rule.

Question: Can a hospital use other sources of PAC provider quality data?

Answer: Providers can use additional available information to assist patients as they select a PAC provider, so long as the information presented aligns with the patient’s goals of care and treatment preferences. The IMPACT Act in no way limits providers’ ability to augment the information provided to patients. All attempts to assist patients should be documented in the medical record.

Furthermore, these discharge planning requirements do not prohibit providers from giving patients information regarding coverage of a selected PAC by the patient’s insurance or specifics on out of pocket costs for PAC providers. Providers may give this information to patients if they choose. However, we do not expect providers to have definitive knowledge of the terms of a patient’s insurance coverage or eligibility for postacute care, or for Medicaid coverage, but we encourage providers to be generally aware of the patient’s insurance status. We do not believe that it is appropriate to mandate such a requirement here, as these CoPs provide basic requirements for the discharge planning process.

Question: What is CMS guidance regarding “Patient Choice” and patient steering?

Answer: We understand the commenter’s concerns regarding patient steering. However, we believe compliance with the revised CoP and the fraud and abuse laws, including the physician self-referral law and Federal anti-kickback statute, is achievable.

We believe that hospitals, HHAs and CAHs will be in compliance with this requirement if they present objective data on quality and resource use measures specifically applicable to the patient’s goals of care and treatment preferences, taking care to include data on all available PAC providers, and allowing patients and/or their caregivers the freedom to select a PAC provider of their choice.

Providers will have to document all such interactions in the medical record. In addition, we expect hospitals to comply with the requirements in § 482.43(c) and inform the patient and/or the patient’s representative of their freedom to choose among participating Medicare providers and suppliers of post-discharge services, while not specifying or otherwise limiting the qualified providers or suppliers that are available to the patient.

Question: How does CMS plan to monitor for compliance with “Patient Choice”?

Answer: We remind providers that compliance with these requirements will be assessed through on-site surveys by CMS, SAs, and AOs and that purposeful patient steering (that is, directing patients and/or their caregivers to PAC providers that do not align with the patient’s goals of care and treatment preferences) could lead to a determination of provider noncompliance with the requirements in this rule. We also note that physician self-referral violations may result in imposition of penalties set out under section 1877(g) of the Act.

Question: Can hospitals tailor the data on quality measures and data on resource use measures to the individual patient?

Answer: Providers must use and share data on quality measures and data on resource use measures that are relevant and applicable to the patient’s goals of care and treatment preferences. While we believe that resource use data can be helpful to all patients, providers can tailor the specific data that are given to patients so that the data are applicable to the patient’s specific medical condition or circumstance. The provider should ensure that the data given to patients aligns with the patient’s ultimate goals of care and treatment preferences.

Question: Please clarify the protocols that providers would be expected to follow if a patient refused to agree to be discharged to a PAC facility chosen on the basis of the supplied quality data and/or family preferences, especially when no other safe options exist in the area.

Answer: We expect hospitals, HHAs, and CAHs to document the patient’s refusal in the medical records and continue to make reasonable efforts to work with the patient and/or the patient’s caregiver to find appropriate substitutions. However, we note that Medicare and Medicaid participating facilities are surveyed regularly to assure quality, and we believe that Medicare facilities in good standing can be trusted to provide services safely.

Question: How often should a hospital assess their discharge planning process?

Answer: While we are not establishing a specific timeframe requirement in order to preserve flexibility for hospitals and CAHs, we would recommend that a hospital or CAH to do its periodic review every 2 years at a minimum. In addition, hospitals and CAHs would still have the flexibility to perform this review more frequently than every 2 years if they wish to do so.

We therefore are finalizing a provision at § 482.43(a)(7) (as originally proposed at § 482.43(c)(10)) that would require a hospital (or a CAH) to assess its discharge planning process on a regular basis, which would include ongoing, periodic review of a representative sample of discharge plans, including those patients who were readmitted within 30 days of a previous admission, to ensure that the plans are responsive to patient post-discharge needs.

Question: Did CMS finalize the proposal to require the discharge planning process to certain categories of outpatients, including but not limited to patients receiving observation services?

Answer: No, CMS did not finalize this proposal and noted in the final rule that “we agree with commenters that the requirement needs to be scaled back in its scope and applicability to a more flexible requirement. We also agree that the proposed requirement could potentially have the unintended consequence of shifting hospital resources away from those patients most in need of a discharge plan.”

Question: What is the finalized discharge planning process for hospitals?

Answer: After consideration of the comments we received on the proposed rule, we are revising proposed § 482.43(b), to be finalized as § 482.43(a) introductory text and (a)(2), to require that the hospital’s discharge planning process identify, at an early stage of hospitalization, those patients who are likely to suffer adverse health consequences upon discharge in the absence of adequate discharge planning, and must provide a discharge planning evaluation for those patients so identified, as well as for other patients upon the request of the patient, patient’s representative, or patient’s physician. A discharge planning evaluation must include an evaluation of a patient’s likely need for appropriate post-hospital services, including, but not limited to, hospice care services, post-hospital extended care services, and home health services; such evaluation must also determine the availability of those services.

Question: Who is required to coordinate the discharge needs evaluation and development of a discharge plan for a patient?

Answer: Any discharge planning evaluation or discharge plan required under this paragraph must be developed by, or under the supervision of, a registered nurse, social worker, or other appropriately qualified personnel.

Question: It was proposed that hospitals must begin to identify anticipated discharge needs for each applicable patients within 24 hours after admission or registration, and the discharge planning process is completed prior to discharge home or transfer to another facility and without unduly delaying the patient’s discharge or transfer. If the patient’s stay was less than 24 hours, the discharge needs would be identified prior to the patient’s discharge home or transfer to another facility. Was this finalized?

Answer: The identification of needs within 24 hours Proposal was removed from the final rule. CMS did finalize modifying 482.43(a) to state that the hospital must identify at an early stage of hospitalization all patients who are likely to surer adverse health consequences upon discharge if there is no adequate discharge planning. The hospital must provide a discharge planning evaluation for those patients so identified as well as for other patients upon the request of the patient, the patient’s representative, or patient’s physician.

Question: How often must a hospital re-evaluate the discharge planning process?

Answer: CMS finalized that a hospital’s discharge planning process must require regular re-evaluation of the patient’s condition to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed, to reflect these changes.

Question: What must be included in a discharge planning evaluation?

Answer: A discharge planning evaluation must include an evaluation of a patient’s likely need for appropriate post-hospital services, including, but not limited to, hospice care services, post-hospital extended care services, and home health services, and non-health care services and community based care providers, and must also determine the availability of the appropriate services as well as of the patient’s access to those services.

Question: How should hospitals involve the patient and his or her care giver in the discharge planning process?

Answer: The discharge planning evaluation must be included in the patient’s medical record for use in establishing an appropriate discharge plan and the results of the evaluation must be discussed with the patient (or the patient’s representative).

Hospitals must have an effective discharge planning process that focuses on the patient’s goals and preferences and includes the patient and his or her caregivers/support person(s) as active partners in the discharge planning for post-discharge care. The discharge planning process and the discharge plan must be consistent with the patient’s goals for care and his or her treatment preferences, ensure an effective transition of the patient from hospital to post-discharge care, and reduce the factors leading to preventable hospital readmissions. These requirements are included in the introductory paragraph at § 482.43.

Similarly, we understand that situations may arise where patients may be uncooperative or may refuse to participate in the discharge planning process. We also expect hospitals and CAHs to document the patient’s refusal to participate in the discharge planning process, and that such attempts to incorporate the patient and/or the patient’s caregiver in the discharge planning process were made, in the medical record.

Question: CMS proposed an extensive list of minimum elements (i.e. demographics, advance directives, functional status assessment) that would need to be provided when a patient transfers to another health care facility. Was this proposal finalized?

Answer: While we are not requiring an extensive list of items as originally proposed, we still expect facilities to send certain necessary medical information that is critical to the care of the patient and pertinent to the patient’s specific medical status at the time of discharge. We also believe facilities should have discretion to send the most relevant information within the required necessary medical information, consistent with “clinical relevance” as defined in the Medicare and Medicaid Electronic Health Record Incentive Program final rule (80 FR 62761, October 16, 2015) (“2015 Meaningful Use Rule”). Other important and pertinent information that should be conveyed at discharge or transfer would be current diagnoses (including any behavioral health issues of mental health and substance abuse), laboratory results (including Clostridium difficile and multi-drug resistant organism status, as well as any antibiotic susceptibility testing, as applicable), and patient functional status, to name just a few broad areas of medical information that we believe are critical to patient care.

Question: What did CMS propose regarding the Requirements for Post-Acute Care Services and was it finalized?

Answer: We proposed to further clarify that the PAC providers mentioned in the IMPACT Act, specifically LTCHs and IRFs (rehabilitation hospitals and rehabilitation units of hospitals and CAHs), would also be subject to the proposed revision to the hospital CoPs in order to provide consistency with the IMPACT Act. We proposed that for patients who are enrolled in Managed Care Organizations (MCOs), the hospital must make the patient aware that the patient or caregiver needs to verify the participation of HHAs or SNFs in their network. If the hospital has information regarding which providers participate in the managed care organization’s network, it must share this information with the patient and must document in the patient’s medical record that the list was presented to the patient. The patient or their caregiver/support persons must be informed of the patient’s freedom to choose among providers and to have their expressed wishes respected, whenever possible. The final component of the retained provision would be the hospital’s disclosure of any financial interest in the referred HHA or SNF. However, this section would be revised to include IRFs and LTCHs.

After consideration of the comments, CMS finalized this proposal without modification.

Question: What is CMS’ expectation regarding providing PAC lists?

Answer: We would allow a hospital the flexibility to implement the requirement to present its list of HHAs, SNFs, IRFs, or LTCHs in a manner that is most efficient and least burdensome in its particular setting. For HHA, SNF, and dialysis services, a hospital can access a list from the CMS Web site, at http://www.medicare.gov, or develop and maintain its own list of HHAs and SNFs. We expect that providers have the most current list of providers that is available to them at the time. When the patient requires home health services, the CMS Web site list can be accessed based on the geographic area in which the patient resides. When the patient requires post hospital extended care services, the CMS Web site list would be accessed based on the geographic area requested by the patient. Or, in the rare instance when a hospital does not have Internet access, the hospital can call 1–800–MEDICARE (1–800–633–4227) to request a printout of a list of HHAs or SNFs in the desired geographic area… We expect discharge planning to facilitate patient choice in any post hospital extended care services, even though the statute does not require a specific list beyond HHAs, SNFs, IRFs, and LTCHs. The proposed requirement at § 482.43(f)(2) is also important because it requires the hospital, as part of the discharge planning process, to inform the patient or the patient’s representative of their freedom to choose among participating Medicare providers and suppliers of post discharge services and must, when possible, respect the patient’s or the patient’s representative’s goals of care and treatment preferences, as well as other preferences they express. The hospital must not specify or otherwise limit the qualified providers or suppliers that are available to the patient. We do encourage hospitals to provide any information regarding PAC providers that provide services that meet the needs of the patient. Hospitals must not develop preferred lists of providers. If the hospital has information regarding a PAC provider’s specialized services, we encourage that this information be provided to the patient as well as any culturally specific needs that the PAC providers are able to address (for example, the patient’s foreign language needs, and their cultural dietary needs or restrictions).

Question: Should a hospital be required to document the actual list of post-acute care referrals presented to the patient as a means for surveyors to determine the adequacy of the post-discharge options presented to the patient?

Answer: We agree with the need to ensure that surveyors appropriately determine that hospitals are providing patients referred to HHAs, SNFs, IRFs, or LTCHs a list of providers that contains appropriate and sufficient options in accordance with this requirement. We think it is important to allow hospitals the flexibility to determine the manner in which they document in the patient’s medical record that the list of PAC providers was presented to the patient or to the patient’s representative. We expect that surveyors will ask to see this documentation as part of the survey process.

Question: What do hospitals need to do to prepare for implementation of the final rule?

Answer: Hospitals will need to review their current policies and procedures and update them so that they comply with the modified requirements, which will be a one-time burden on each hospital.

Note, this article is limited to requirements for hospitals as defined earlier in the article. It does not cover the Home Health Agency or Critical Access Hospital portions of the final rule.

MMP will be watching and alert our readers when CMS publishes sub-regulatory guidance.