For other information, follow one of
the links below or scroll down the page.
General Guidelines and
The following information for Medicare beneficiaries and their
advocates is useful in challenging a discharge or reduction in
services in hospital, skilled nursing, home health, and hospice care
- Carefully read all documents that purport to explain
Medicare rights. If unable to do so, have family members,
friends, or other representatives read such document(s).
physicians, nurses, social workers, home health care providers,
and other care providers about necessary services as the
beneficiary’s condition either improves, remains the same, or
requires more services. If the beneficiary has opinions and
concerns about care, voice them and participate fully in all
with Medicare guidelines about eligibility for hospital and home
and community based care, including nursing facility services
and home health services available under the Medicare and
Medicaid programs. It is also important to explore other options
for services that may be available through other state-based
sources of coverage for home and community-based services (HCBS).
Identify and become
familiar with available health care services such as visiting
nursing services, home health agencies, nursing homes, respite
care, friendly visiting services, and religious and civic groups
that provide services. An important source of information
about services is the Elder Care Locator 1-800-677-1116. In
addition, contact the Medicare program’s information line B
1-800-MEDICARE (1-800-633-4227) (TTY: 1-877-486-2048 for the
with discharge planning and its interplay with "transitions," an
activity that includes the preparing for and moving from one
care setting to another. See "Breathing
Life Into Discharge Planning" by Alfred J. Chiplin, Jr.
Use physicians and
suppliers who are Medicare-participating providers and, as such,
have agreed to accept the Medicare reasonable charge amount,
less the 20% beneficiary co-payment, as payment in full for
Medicare-covered physician and supplier services (See, 42 U.S.C
§§1395u(b)(3);1395n; 42 C.F.R.§§ 410.152(amounts of payment);
424.55(b)(payment to suppliers); 414.48 (limiting charge for
non-participating suppliers); see also, 400.402(definitions
specific to Medicare, including payment on an assignment related
Beware of using
physicians who have opted out of Medicare and the impact of
using such physicians and consequent impact on access to
Medicare coverage for the services. See, 42 C.F.R. §§405.400 et
Pay attention to
access to coverage concerns that may arise from recently
instituted Medicare rules that exclude and limit payment for
hospital acquired conditions (HACs) and things that should never
happen in hospitals (never events).
Contact your local
Medicare office or the Social Security office for a list of
Medicare participating providers and suppliers in your area.
Obtaining Necessary Assistance
- Medicare beneficiaries and their advocates who question the
appropriateness of a proposed discharge from a Medicare
hospital, whether the discharge is too soon or whether necessary
post-hospital services have been arranged, should contact the
local Quality Improvement Organization (QIO) and file a
complaint. The beneficiary’s hospital discharge notice should
provide the name, address, and phone number of the QIO serving
your hospital, along with instructions on how to file a
complaint (See 42 C.F.R. §§412.42-412.48).
If a beneficiary
needs help in filing a complaint with the QIO, contact the Elder
Care Locator for information about community-based Medicare
assistance, including legal assistance providers funded under
the Older Americans Act, the Legal Services Corporation, or
private attorney services, or through your network of Health
Insurance Counseling Program (HICAP)[sometimes called State
Health Insurance Counseling Programs (SHIPs) or Insurance
Counseling Assistance (ICAs).]. (Use the eldercare locator
number listed above for information about the location of HICAPs/SHIPs/ICAs
in your area.). Moreover, QIOs have an obligation to assist
Medicare beneficiaries in completing and filing a written
Before leaving the
hospital, make sure that the hospital has discussed
post-hospital care needs and that a post-hospital plan of care
and services has been developed prior to discharge.
Make sure that
one’s discharge plan identifies necessary services, including
how those services will be provided, and requesting assistance
in putting services in place.
Hospital Discharge Planning Services
- Identifying, at an early stage of hospitalization, those
patients who are likely to suffer adverse health consequences
upon discharge in the absence of discharge planning services.
Conducting, on a
timely basis, a discharge planning evaluation for all patients
identified by their physicians as needing discharge planning
services as well as any patient requesting a discharge planning
discharge planning evaluation in the patient’s medical record
for use in planning post-hospital services.
Discussing with the
patient (and representatives) the elements of the discharge plan
requested by a patient’s physician, for the development and the
initial implementation of a discharge plan for the patient.
discharge planning evaluations and discharge plans are developed
by, or under the supervision of, a registered professional
nurse, social worker, or other appropriately qualified personnel.
(42 U.S.C. §1395x(ee); 42 C.F.R. §482.43. Condition of
participation: Discharge planning).
When a Quality
Improvement (QIO) or hospital makes a determination whether an
inpatient hospital stay is medically necessary, it must make an
individualized assessment of the patient’s need for skilled
nursing facility care. If the patient requires skilled nursing
facility care, the QIO or hospital must determine whether there
is a bed available to the patient in a participating skilled
nursing facility in the community or local geographic area (42
C.F.R. §§424.13(b)(1), 412.42(c)(1)).
Discharge from the Hospital
- Effective July 1, 2007, Medicare participating hospitals
must deliver valid, written notice, using the "Important Message
from Medicare" (IM). This notice is to explain a patient’s
rights as a hospital patient including discharge appeal rights.
It is to be given at or near admission, but no longer than 2
calendar days following the beneficiary’s admission to the
hospital. 42 CFR 405.1205(Traditional Medicare) and 42 CFR
§422.620 (Medicare Advantage).
A follow-up copy of
the signed IM is given again as far as possible in advance of
discharge, but no more than 2 calendar days prior to discharge.
42 CFR §405.1205(c)(1); 42 CFR §422.620(c)(1). Follow-up notice
is not required if the provision of the admission IM falls
within 2 calendar days of discharge. 42 CFR
405.1205(c)(2)(Traditional Medicare) and 42 CFR 422.620(c)(2)
(Medicare Advantage). The exception to the two-notice
requirement is an individual who is in the hospital for just 3
days. One IM can be given on day 2, and suffice as both the
initial and discharge IM.
The patient becomes
financially responsible for the services provided beyond the
second day following the date of the notice. 42 C.F.,R.
§412.42(c)(3)(ii). See also 42 C.F.R. §§422.620, 489.27
(Beneficiary Notice of Discharge Rights – Medicare Advantage
For a hospital
stay, a beneficiary must request expedited review, orally or in
writing, by noon of the first working day after he or she
receives written notice that the hospital has determined that
the hospital stay is no longer necessary. 42 CFR
§405.1206(d)(1); 42 CFR §422.622(d)(1).
The beneficiary (or
his or her authorized representative), when requested by the QIO,
must be prepared to discuss the case with the QIO. 42 CFR
§405.1206(d)(2); 42 CFR §422.622(d).
On the date that
the QIO receives the beneficiary’s request, the QIO must notify
the hospital that the beneficiary has filed a request for
expedited review. 42 CFR §405.1206(e)(1)); 42 CFR
The hospital must
supply any information, including medical records, that the QIO
requires to conduct its review and must make it available, by
phone or in writing, by the close of business of the first full
working day after the day the beneficiary receives notice of the
planned discharge. 42 CFR §405.1206(e)(2); 42 CFR
beneficiary requests an expedited determination in accordance
with §405.1206(d)(1), the QIO must make a determination and
notify the beneficiary, the hospital, and physician of its
determination by close of business of the first working day
after it receives all requested pertinent information. 42 CFR
§405.1206(e)(5); 42 CFR§422.622(e)(5).
If the QIO sustains
the decision to terminate services or discharge the beneficiary,
the beneficiary may request expedited reconsideration, orally or
in writing, by noon of the calendar day following initial
notification. The reconsideration will be conducted by the QIC,
which must issue a decision within 72 hours of the request. If
the QIC does not comply with the time frame, the beneficiary may
escalate the case to the administrative law judge level. See 42
retain the right to utilize the standard appeals (42 U.S.C
§1320c-3(a)(14); 42 C.F.R. 466.70 et seq.) process rather than
the expedited process in all situations. A QIO may review an
appeal from a beneficiary’s request that is not timely filed,
but the QIO does not have to adhere to the time frame for
issuing a decision, and the limitation on liability does not
It is the hospital
and not the health plan that provides the notice for
beneficiaries in hospitals that are part of a Medicare Advantage
(MA) Organization. 42 C.F.R. §422.620(c).
A person in a
Medicare Advantage Organization hospital who misses the PRO
appeal deadlines can use the Medicare Advantage expedited
appeals process. 42 C.F.R. §422.584.
Discharge Decision Concerns
- Four Hour Notice Requirement
Notification of the beneficiary’s discharge and appeal rights
should not be hindered when the hospital cannot anticipate the date
of discharge. According to CMS, if hospitals cannot anticipate the
discharge date, the follow-up IM notice may be given on the day of
discharge, at least four hours in advance of the actual discharge.
- Problems With Four Hour/Same Day Notice
Beyond requiring that the follow-up IM be given at a minimum of
four hours in advance of discharge, CMS does not require the
hospital to again obtain the patient’s signature when this follow-up
IM is given. The hospital may simply distribute a copy of the signed
and dated IM that was given at admission. However, hospitals are not
precluded from obtaining a new IM and verifying signature from the
beneficiary. By allowing this practice, CMS has made it possible for
hospitals to eliminate the need for a follow-up copy of the IM
during inpatient stays of up to 5 days. This lack of timely notice
may hinder the ability of Medicare patients to be fully aware of and
exercise their appeal rights.
Appeals of Hospital Discharge
When a hospital (with physician concurrence) determines that
inpatient care is no longer necessary, the Medicare beneficiary has
the right to request an expedited QIO review. The CMS guidelines
provide that the appeal for expedited review must be made before the
beneficiary leaves the hospital.
In order for the review request to be considered "timely,"
beneficiaries must submit their requests in writing or by telephone
no later than midnight of the day of discharge and before they leave
the hospital. The beneficiary, therefore, should not be discharged
upon requesting the QIO review, so long as the request is made on
the same day.
The beneficiary or qualified representative should be
contacted by the QIO to discuss the case with the QIO and provide
any necessary information that may be required. The hospital is
required to submit all pertinent information to the QIO. The patient
or his or her representative also has the ability to obtain the same
information from the hospital and/or QIO. In addition, the QIO
should obtain medical records from the hospital, including speaking
to the patient’s physician(s). A timely request will trigger the QIO
to render a decision within 1 calendar day after receiving all of
the necessary information.
- Detailed Notice of Discharge
The Detailed Notice of discharge must be delivered "as soon
as possible" after the beneficiary has requested a QIO review, but
no later than noon of the day after the QIO notifies the hospital of
the beneficiary’s request for the review. Under the CMS guidelines,
hospitals are only required to deliver the Detailed Notice after the
beneficiary has contacted the QIO for expedited review or when the
beneficiary requests more detailed information from the medical care
provider prior to requesting a QIO review. The Detailed Notice is
not an official Medicare decision. It is designed to give the
patient further explanation about why the hospital and/or physician
believe that the medical services are no longer necessary.
Beneficiaries are not financially liable for hospital costs
incurred during a timely QIO review; they are responsible only for
coinsurance and deductibles. Further, the burden of proof lies with
the hospital to demonstrate that the discharge is the correct
decision based on either medical necessity or other Medicare
coverage policies. If the QIO decision is in agreement with the
hospital (unfavorable to the patient), the beneficiary becomes
liable for the medical expenses beginning at noon on the day after
notification of the decision is given.
Information on the Required Notices
What Information Must the Important
Message from Medicare ("IM") Contain?
The name(s) of the
patient’s physician(s) and the patient’s ID number.
A statement of the
right to file an appeal or raise questions with a QIO about
quality of care, including hospital discharge.
The name and
telephone number of the QIO that serves the area in which the
hospital in question is located.
A space for the
beneficiary or representative to sign and date the document.
The steps necessary
to appeal a hospital discharge decision or to file a complaint
about the quality of care.
What Information Must
the Detailed Notice Contain?
The name(s) of the
patient’s physician(s) and the patient’s ID number.
The date the Notice was issued.
The date the inpatient hospital services are to end.
A statement that the Detailed Notice is not an official Medicare decision.
Specific information about the patient’s current medical condition.
The hospital and/or Medicare plan telephone number for requesting copies
of documents to be sent to the QIO.
When Must the "IM" be
The patient must receive the original IM within two days of
admittance to the hospital. The hospital must obtain the signature
of the beneficiary or of his or her representative and provide a
copy to that person at that time. If the patient or representative
refuses to sign the IM, then the hospital is required to make a note
to that effect; for purposes of requesting an appeal, the date of
the refusal to sign is considered the date of notification. A
follow-up copy of the signed IM should again be given "as far in
advance of the discharge as possible, but not more than 2 calendar
days before discharge." If discharge occurs within 2 days of the
date the IM was given, no follow-up copy is required.
A beneficiary may be considered discharged when Medicare
decides it will no longer pay for the medical services or when the
physician and hospital believe that medical services are no longer
required. The Medicare Claims Manual provides that a patient may be
considered to have been discharged when s/he is either physically
required to leave the hospital (not merely transferred to another
inpatient setting) or when s/he remains in the hospital but at a
lower level of care.
Additional background on the new IM
The new notice, An Important Message from Medicare about
Your Rights (IM), can be found on the CMS website at
(site visited October 3, 2008). The requirements for the new notice
are discussed in Guidelines which were released by the Centers for
Medicare & Medicaid Services (CMS) on May 25, 2007. In the Guidance,
CMS explains when and how Medicare patients must be given
information about their discharge and appeal rights. See,
Upon receipt of a hospital’s discharge decision,
beneficiaries may appeal the decision by requesting a timely review
by the appropriate Quality Improvement Organization (QIO). When QIO
review is requested, an additional notice called the Detailed Notice
of Discharge (Detailed Notice) is to be given. CMS has issued a
Question & Answer document elaborating on the use of IM and the
Detailed Notice. See,
Weichardt v. Thompson, Civil Action No. C 03 5490 (N.C.Cal.
2003), was filed in federal district court in San Francisco on
behalf of three Medicare beneficiaries who were forced to leave
their hospitals before they were medically ready. Each plaintiff (or
a family representative) objected to being discharged, but received
no written notice of the appeal process for challenging the
discharge decision. Neither was told that if they stayed on in the
hospital, they would be personally liable for the cost of care. The
plaintiffs sought a requirement that Medicare beneficiaries are
given timely written notice of the reasons for their discharge and
of the procedures for appealing a discharge decision.
As a result of settlement discussions, proposed regulations
were published on April 5, 2006, at 71 Fed. Reg. 17052. See,
The proposed regulations required that a Generic Notice of Hospital
Non-coverage be given to all Medicare hospital patients at least one
day before a planned discharge. This generic notice would specify
the date of discharge and explain the procedure for the patient to
obtain an expedited review of the medical necessity for continued
inpatient care. If the patient indicates that she wishes to appeal,
the proposed regulations require that a detailed follow-up notice
with specifics about the medical reasons for individual’s discharge
be given to her by noon of the next day.
Discharge Planning in the Nursing Facility Setting
When nursing facility care needs arise, it is important to
contact the local Medicare office or the Social Security office for
a list of Medicare participating providers and suppliers, or check
Facilities are to develop a comprehensive care plan for
each resident that includes measurable objectives and timetables to
meet a resident’s medical, nursing, and mental and psycho-social
needs that are identified in the comprehensive assessment (42 C.F.R.
Facilities are to assess the resident’s discharge
potential, an assessment of the facility’s expectation of
discharging the resident from the facility within the next 3 months
(42 C.F.R. §483.20(b)((xvi)).
A SNF must provide notice when it believes Medicare will
not pay for an item, service, or purchase. A SNF must also provide
proper notice explaining appeal rights and the recommendations for
non-coverage. CMS has developed a model notice, the SNFABN, which
facilities may use (Form no: CMS-10055; MCM, Pub. 100-04, Ch. 30,
A facility must provide sufficient preparation and
orientation to residents to ensure safe and orderly transfer or
discharge from the facility (42 C.F.R. §483.12(a)(7)).
Resident records should contain a final resident discharge
summary which addresses the resident’s post-discharge needs (42 C.F.R. §483.20(l)).
Facilities are to develop a post-discharge plan of care,
developed with the participation of the resident and his or her
family, which will assist the resident to adjust to his or her new
living environment. This applies to discharges to a private
residence, to another nursing facility, or to another type of
residential facility such as board and care or nursing facilities
(42 C.F.R. §483.20(l)).
Post-discharge plan of care means the discharge planning
process, which includes assessing continuing care needs and
developing a plan designed to ensure the individual’s needs will be
met after discharge from the facility into the community (42 C.F.R.
Factors to explore in accessing whether a facility has
provided appropriate post-discharge planning include:
Does the discharge summary have information pertinent to
continuing care for the resident?
Is there evidence of discharge planning in the records of
discharged residents who had an anticipated discharge or those
residents to be discharged shortly (e.g., the next 7-14 days)?
Do discharge plans address necessary post-discharge care?
Has the facility aided the resident and his/her family in
locating and coordinating post-discharge services?
What types of pre-discharge preparation and education has
the facility provided the resident and his/her family?
(See, Long-Term Care and Resident Assessment Surveys. State
Operations Manual Transmittal No. 8, May 1, 1999, Medicare and
Medicaid: SNF Surveys, F283, F284; CMS Pub. 100-07, Appendix PP,
Guidance to Surveyors for Long-Term Care Facilities).
Skilled nursing services include observation and assessment
of a patient’s medical condition. A frail or chronically ill person
need not show deterioration or medical setback in order to justify
skilled nursing observation and assessment, including the
observation and assessment of acute psychological problems in
addition to physical problems (42 C.F.R. §§409.31(b)(1)-(5); 409.32;
The Medicare program recognizes maintenance therapy as a
legitimate aspect of skilled care services provided in a SNF; that
coverage cannot be denied merely because a beneficiary has no
restoration potential or has achieved insufficient progress toward
Medical improvement has been achieved restoration (42 C.F.R.
The Nursing Home Reform Law does not require that a
facility provide a beneficiary a notice of denial of admission.
The Nursing Home Reform Law prohibits certain
discriminatory admissions practices (e.g., waiving rights to
Medicare, requiring written or oral assurance that the individual is
not eligible for and will not apply for Medicare or Medicaid,
requiring third-party guarantee of payment) and requires that
facilities display prominently in the facility information about how
to apply for and use Medicare benefits. (42 U.S.C.
'1395i-3(c)(5)(A); 42 C.F.R. 483. 12(d)(1), (2)).
As a practical matter, with respect to admissions, some
nursing facilities in response to Medicare’s Prospective Payment
System (PPS) for Nursing Facilities, (Resource Utilization Groups
(RUG-III) criteria) are evaluating potential patients before formal
hospital discharge and making admission decisions based on the
beneficiary’s likely RUG-III categorization. Patients in these
circumstances do not get a notice of a denial of admission and in
fact may not even know that they have been evaluated for purposes of
a skilled nursing facility admission.
Note: The PPS RUG-III system
does not change Medicare skilled nursing facility (SNF) criteria for
admission or services. In addition, the failure to be placed in a
high RUGs category does not automatically mean that the beneficiary
would be denied SNF coverage under Medicare. (See Pub. L. No. 105-33
(Aug. 5, 1997) §4432(a), amending §1888 of the Social Security Act,
by adding subsection (e), 42 U.S.C. §1395yy, effective on or after
July 1, 1998. See also, 42 C.F.R.'413.330 et seq.).
If the nursing facilities determines that a patient no
longer qualifies for Medicare covered skilled nursing services and
wishes to transfer the patient to a non-Medicare certified bed, it
must give the beneficiary a transfer notice, explaining appeal
rights and the steps to take to exercise the right of appeal (42 C.F.R. §483.12(a)).
A Medicare beneficiary has the right to refuse a transfer
from a portion of the facility that is a skilled nursing facility to
a portion that is not a skilled nursing facility (42 U.S.C.
§1395i-3(c)(1)(A)(x); 42 C.F.R. §483.10(o)).
The Medicare law does not provide for holding beds as does
Medicaid. Under Medicaid, however, when a nursing facility transfers
a resident to a hospital or allows a resident to go on therapeutic
leave, the nursing facility must provide written information to the
resident and a family member or legal representative that specifies
the facility’s bed-hold policies. The policies must be consistent
with the provisions of the state Medicaid plan regarding bed-hold
(42 U.S.C. §1396r(c)(2)(D); (42 C.F.R. §483.12(b)). The Medicare law
does not guarantee readmission rights for a Medicare beneficiary who
is hospitalized. There is, however, a right of readmission under
Medicaid law for Medicaid beneficiaries who’s hospitalization or
therapeutic leave exceeds the period paid by the state for bed-hold
if the Medicaid beneficiary requires the facility’s services. The
right of readmission is an immediate right to the first available
bed in a semi-private room (42 U.S.C. §1396r(c)(2)(D)).
If a SNF decides that Medicare will no longer cover an
item, service, or procedure and the facility wishes to bill the
beneficiary, it must give the beneficiary written notice of
non-coverage, including information about the right to request an
appeal of the facility’s non-coverage decision and the steps to take
to exercise that right (42 U.S.C. §1395pp (waiver of liability
provisions); 42 C.F.R. §411.100 et seq.; Sarrassat v. Sullivan,
Medicare and Medicaid Guide (CCH), ¶38,504 (N.D. Cal. 1989), HCFA
Ruling 95-1 (Dec. 22, 1995); HCFA SNF Manual, Chapter 3, §357A
(establishing when the beneficiary is on notice of non-coverage);
§352.1 (determining beneficiary liability)).
If the beneficiary does not agree with the facility’s
non-coverage decision, he or she may request that the SNF submit the
bill to Medicare even when the facility believes that services will
not be covered by Medicare. This submission is called a "demand
bill" or a "no-payment bill." Demand bills are required to be
submitted at the request of the beneficiary. The facility cannot
bill the beneficiary for the disputed charges until the Medicare
fiscal intermediary issues a formal claim determination (Medicare
Intermediary Manual §3630; Sarrassat v. Sullivan, Medicare and
Medicaid Guide (CCH), ¶38,504 (N.D. Cal. 1989)).
Discharge Planning in the Home Health Care Setting
Discharge planning rights in the home health care arena are
not as well developed as in the hospital and nursing facility
context. The appropriate focus of advocacy is on keeping services in place. Central
to doing so is obtaining notice from the home health provider agency
about contemplated denials, reductions, or the termination of
Home health agencies (HHAs) are required to give written or oral notice
concerning when Medicare will pay for services and when there is a
change. This notice is called a home health advanced beneficiary
notice (HHABN). 42 CFR §484.10(a)(1), (2).
Effective September 1, 2006, home health agencies are to use CMS’s revised HHABN. Instructions for its use are included in CMS Transmittal 1025
(August 11, 2006), Pub 100-04 Medicare Claims Processing, Chapter
30, Section 60.
The revised notice, also referred to as R1025CP, encompasses broader
notice requirements, codified in the Medicare Conditions of
Participation (COP). See,
HHABNs are required more frequently for reductions and terminations as a
result of the court’s decision in Lutwin v. Thompson, 361 F.3d 146
(2d Cir. 2004), for example, changes in non-covered home care.
HHABNs are required in some situations where qualifying requirements for
Medicare benefits are not being met, such as when there is a lack of
physician orders for me care; and
HHABNs are required in many of circumstances where covered care is reduced
Medicare provides for a two-day, expedited notice procedure to be used
when services are terminated because they are no longer reasonable
and necessary (see discussion below).
Notice should provide an opportunity for discussion and negotiation with
the HHA, necessary appeals, and collaboration with the beneficiary’s
Beneficiaries should also explore other sources of coverage when Medicare
home health coverage is in question. Private health care coverage,
services under the Older Americans Act, Medicaid, and other home and
community-based health care may be useful options.
Advocates and beneficiaries should contact the Eldercare Locator
(identified at the beginning of this writing) for an exploration of
We are experiencing an up-tick in termination of services of severely ill
patients who need chronic, on-going care. Often, these patients are
expensive to treat. HHAs express concern about the cost of these
cases and about their patient mix. Many are terminating services for
"business reasons." This will be an on-going area of advocacy.
Payment and Access
The Medicare program uses a Prospective Payment System (PPS) as its
methodology in paying for home health care. Under this system, HHAs are paid on the basis of a 60-day episode of care in accordance
with standard payment amounts (42 U.S.C. §1395fff; 42 C.F.R.
§484.200 et seq.).
The PPS for home health relies on a patient assessment instrument, the
Outcome and Assessment Information Set (OASIS), as part of the
process of determining the PPS amount the home health agency will be
paid for each patient (42 C.F.R. §§484.210, 484.220).
When an HHA accepts a patient, it must perform an OASIS assessment of the
patient (42 C.F.R. §484.250).
Each patient is assigned to a home health resource group (HHRG) based on
the combination of his or her severity levels on the three OASIS
data point elements: clinical severity, functional severity, and
Requirements to Inform
The Medicare program requires each participating HHA to provide its
Medicare home health patients with:
Information in advance about the care and treatment to be provided by the
Full information in advance of any changes in the care or treatment to be
provided by the agency that may affect the individual’s well-being;
The right to participate in planning care and treatment or changes in care
The right to be fully informed orally and in writing (in
advance of coming under the care of the agency) of any changes in
the charges for items or services to be provided, as well as to be
fully informed of the beneficiary’s rights and entitlements under
Medicare. 42 U.S.C. §1395bbb (a)(1)(A), 42 C.F.R. §484.10(c)(1) and (2).
Loss of Home
The Secretary of Health and Human Services is obligated to enforce notice
and appeal rights of home health beneficiaries through several
means, including intermediate sanctions and terminating the HHA as a
Medicare-certified agency (42 U.S.C. §1395bbb(e)(2)).
Medicare beneficiaries are entitled to an explanation of the circumstances
in which a beneficiary has the right to have a "demand bill"
submitted. (CMS online manual system, Pub. 100-4, Medicare Claims
Chapter 30, §50).
An expedited review process is available for a beneficiary when the
provider plans to terminate services or to discharge the
The provider must give notice 2 days before loss of services occur.
The beneficiary must file for expedited appeal with a QIO by noon of the
day of receipt of notice from the provider.
The QIO must inform the provider of the appeal, and the
provider must supply the beneficiary with a more detailed notice.
The QIO has 72 hours to make a determination.
Under Prospective Payment System
Under PPS, beneficiaries and their advocates should remain vigilant.
Changes in health status or other patient circumstances occurring
within a 60-day episode of care should trigger notice to the
CMS responded in its pleadings in Healey v. Shalala that notice and appeal
rights are not affected by PPS; that the same notice and appeal
processes currently in place apply, including the demand bill
process. 186 F. Supp.2d 105 (D. Conn. 2001).
Reminders for Discharge
Planning Advocates in the
Advocates should work with physicians and advocacy groups to assure that
detailed orders for home health care services are prepared; that
physicians fully understand that physician-ordered services are not
to be terminated by home health agencies without the consent of the
Advocates should demand that home health agencies provide the HHABNs and
should report agencies to the Regional Home Health Intermediary when
they do not.
To the extent possible, advocates should provide physicians and home
health agencies with information about Medicare coverage that
support coverage when coverage issues may be questioned and before a
notice of non-coverage is submitted.
Advocates should encourage patients to use the demand bill process where
feasible. They should keep in mind that the issue of paying for
services pending an appeal will be difficult for many beneficiaries.
When appeals are necessary, advocates should assist beneficiaries in
filing an appeal of home health care coverage denials and enlist
physician support in the form of detailed statements about the need
Discharge planning in the Hospice Setting
Medicare regulations require that hospice programs perform
The hospice must have in place a discharge planning process
that takes into account the prospect that a patient’s condition
might stabilize or otherwise change such that the patient cannot
continue to be certified as terminally ill.
The discharge planning process must include planning for any necessary
family counseling, patient education, or other services before the
patient is discharged because he or she is no longer terminally ill.
42 C.F.R. §418.26(d).
Appeal Rights in
Hospice Discharge Situations
Section 332 of the Benefits Improvement and Protection of
Act of 2000 (BIPA), Pub. L. No. 106-554 (Dec. 21, 2000), amends
§1814(a) of the Social Security Act, 42 U.S.C. §1395f(a) to provide
special appeal rights for beneficiaries who are at risk of discharge
or termination of services from a skilled nursing facility, home
health agency, or hospice. 42 C.F.R. §405.1200 et seq. The
regulations require that for any termination of service, the
provider of the service must deliver valid written notice to the
beneficiary of the provider’s decision to terminate services. In the
case of hospice patients, this notice triggers the Medicare
beneficiary’s right to request an expedited determination. 42 C.F.R.
The regulations permit hospice programs to discharge
patients under only three circumstances:
The patient moves out of the hospice’s service area or transfers to
The hospice determines that the patient is no longer terminally ill; or
The hospice determines, under a policy set by the hospice for the purpose
of addressing discharge for cause…that the patient’s (or other
persons in the patient’s home) behavior is disruptive, abusive, or
uncooperative to the extent that delivery of care to the patient or
the ability of the hospice to operate effectively is seriously
impaired. 42 C.F.R. §418.26(a).
There are no specific appeal rights when a discharge is for
cause, although the beneficiary must be notified by the hospice when
discharge for cause is being considered." 42 C.F.R.
§418.26(a). The hospice is, however, to:
Advise the patient that a discharge for cause is
Make a serious effort to resolve the problem(s) presented by the patient’s behavior or situation;
Ascertain that the patient’s proposed discharge is not due to the
patient’s use of necessary hospice services; and
Document the problem(s) and efforts made to resolve the problem(s) and
enter this documentation into its medical record.
42 C.F.R. §418.26(a).
Hospice Discharge Planning
Medicare-participating hospice programs must provide discharge
planning, including having a:
Discharge planning process that takes into account the prospect that a
patient’s condition might stabilize or otherwise change such that
the patient cannot continue to be certifies as terminally ill.
Discharge planning process must include planning for any necessary family
counseling, patient education, or other services before the patient
is discharge because he or she is no longer terminally ill. 42 C.F.R.
informational tools for caregivers
developed the following tools that beneficiaries and their
caregivers may find useful as they prepare to care for family
members or friends at home:
www.medicare.gov/caregivers (general information for
caregivers looking for information and assistance in caring for
another at home) and
short videos – one describing CMS’
discharge planning brochure and the other exploring
the need to think through transitions from a hospital or
nursing facility to home).
discharge planning fact sheets for beneficiaries and advocates
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