Swing Beds: Notice of Discharge or Transfer?

We spend a lot of time here talking about forms. The Centers for Medicare & Medicaid Services (CMS) just loves to mandate forms. Many forms are necessary because of the complexity of coverage for medical care under Medicare and the need to protect patient rights. And surveyors just love to survey about proper completion and delivery of those same forms.

But CMS is remarkably inconsistent about creating those forms. For some processes such as admitting a patient as inpatient, CMS has developed and mandated the use of the Important Message from Medicare form with modifications strictly prohibited. And we all know and have grown to dread the MOON, with its ambiguities, for Observation services. And I won’t even talk about the confusing Medicare Change of Status Notice.

On the other hand, CMS mandates patients whose status has changed from inpatient to outpatient via the condition code 44 process receive written notification, but they have not developed a form for that, leaving hospitals free to create their own and cross their fingers that it meets the unspecified requirements. The same for inpatient admission self-denials.

And recently thanks to Jodi in New Hampshire, I became aware of a similar issue at critical access hospitals. When a patient is in a skilled nursing facility or swing bed under Part A, the facility is required to deliver the NOMNC, the Notice of Medicare Non-Coverage, to patients at least two days before their covered stay will end. Similar to the IMM, there is a CMS-designed form that must be used and similarly, this form notifies the patient of their right to appeal the termination of their covered care to the BFCC-QIO.

As an aside, one of the QIOs reported that when patients appeal the termination of their skilled stay, they are successful 40% of the time. That’s actually notable because when hospital inpatients appeal, the QIO sides with the patient only about 15% of the time.

Most Part A skilled stays occur in skilled nursing facilities. But here is the form issue- if that patient is in a Part A SNF stay in a swing bed in a critical access hospital but not in a rural hospital, the facility is also required to deliver a form called the “Notice of Transfer or Discharge.”

Now unlike the NOMNC, there is no mandated form from CMS so one has to be developed that meets the CMS requirements. And unlike the NOMNC, when a patient is unhappy with their impending discharge, they appeal not to the QIO but to the Long Term Care Ombudsman.

That’s right, per the regulations, a patient who is \ receiving Part A skilled nursing care in a critical access hospital swing bed has two options to appeal- the QIO or the Long Term Care Ombudsman.

Now just by the wording you can tell that this makes no sense. The patient’s care is not long term. Everything you read about this ombudsman process indicates that it is intended for people who are living in a long term care facility like a nursing home or assisted living facility, where they consider that their home, and not patients who are receiving skilled nursing and therapy care on a short-term basis. In fact, the first requirement of this form is that it be delivered at least 60 days prior to discharge or transfer. Imagine having to give a 60 days’ notice to discharge a patient under Part A.

In fact, one hospital told me that when they notify the ombudsman of swing bed discharges, the ombudsman “outright said they don’t do anything with it but did recognize that it is a requirement.”

So why this form for swing beds? Swing beds are in acute care hospitals. I know of no critical access hospital or rural hospital that provides long term care. Why just in critical access hospitals and not swing beds in rural hospitals?

So here is what I think. When swing bed regulations at 42 CFR § 482.58 were developed, they made a mistake including reference to the Notice of Transfer or Discharge as specified in 42 CFR § 483.15(c). It is intended for long term care residents in nursing homes or assisted care facilities who are being evicted or transferred and not for patients under Part A in any facility. It was just an honest mistake that has taken on a life of its own.

But we all know what it takes to change a regulation.

Yet that won’t stop me from trying. So, CMS, please eliminate the reference to 42 CFR § 483.15(c) from 42 CFR § 482.58. It should not be there, and it creates confusion and unnecessary work without providing any benefit to Medicare beneficiaries.

It really is acceptable to admit an error.