Administrative Memos

200707

FROM: Theodore O. Will, Chief Executive Officer
DATE: Sep 19, 2007
SUBJECT: Clarification In Regard To Authorized Representative
IPRO CONTACTS:

Alice Vallar, Senior Director, Medicare/Federal Health Care Assessment, extension 423; Fran Gordon, Assistant Director, Medicare/Federal Health Care Assessment, extension 423

Medicare Fee-For-Service (FFS) Beneficiary & Medicare Advantage (MA) Plan Enrollee Appeals In The Hospital/SNF/CORF/HHA/ Hospice Setting - Clarification In Regard To Authorized Representative

IPRO has been working with the New York State Department of Health (NYSDOH) to clarify who, in New York State, can act on behalf of an incompetent patient or patient lacking capacity for purposes of receiving a discharge notice and requesting an appeal. Accordingly, the NYSDOH has shared its interpretation based on the NYSDOH Memorandum "Health Facilities Series: 87-96" dated December 17, 1987. The Memorandum states:

" ...the hospital should follow accepted next-of-kin procedures or seek legal designation for the discharge notice and review. Next of kin procedures require that if a person is unable to make the designation, the hospital contacts (hierarchy):

the spouse
a son or daughter eighteen years of age or older
a parent
a friend who has demonstrated by frequent visits to the patient a close personal relationship and who can reasonably be expected to act in the patient's interest".

Similar information is also included on the NYSDOH website in regard to the issue of who can decide about a patient's "Do Not Resuscitate" (DNR) status when the patient lacks capacity and has not appointed a representative. This DNR guidance is applicable to all health care settings.

Therefore, in the absence of a "proof of authorized representative" document (e.g., Health Care Proxy, Power of Attorney, CMS form 1696), IPRO will follow the NYSDOH's suggested "next-of-kin hierarchy" using the information provided by the Hospital/HHA/CORF/SNF/Hospice/MA Plan and the documentation in the patient's medical record to identify the incapacitated patient's representative for purposes of conducting appeals of HINN/Hospital/SNF/CORF/HHA/Hospice discharge. Absent the availability of one of the above, providers should follow their internal procedures, consistent with New York State requirements, regarding the appointment of a legal guardian.

Should you have any questions, do not hesitate to contact Alice Vallar, Senior Director, Medicare/Federal Health Care Assessment at 516-209-5423.