Medicare Compliance & Reimbursement

Weigh the pros and cons before opting for third party accreditation.

Wouldn’t it be nice to be out of the reach of new alternative sanctions like civil money penalties and payment suspensions, which take effect next summer? You do have options for avoiding these consequences, but you’ll want to consider them carefully, according to a Centers for Medicare & Medicaid Services (CMS) official.

“You can breathe a sigh of relief” if you’re deemed, said CMS’s Pat Sevast at the National Association for Home Care & Hospice annual meeting in Washington, D.C. Alternative sanctions may only apply when a home health agency’s survey is conducted by a state surveyor — not by a third party like the Joint Commission or the Community Health Accreditation Program (CHAP).

“Won’t every agency want to get deemed?” asked a conference attendee in the question-and-answer portion of the Nov. 1 educational session, “Implementation of Sanctions in Home Health.”

“That’s your decision,” Sevast said. However, she pointed out that state surveys are free while surveys from accreditors require extra payment.

Pro: The extra payment for private accreditation may be far outweighed by avoiding sanctions like CMPs and payment suspensions.

Con: But alternative sanctions might be the thing that could keep your doors open when State Agencies (SAs) and the CMS Regional Office (RO) are considering terminating you.

Whether you think accreditation will be helpful will depend on how you believe surveyors will use sanctions. CMS says surveyors will use sanctions in cases where providers would otherwise have been quickly terminated — so you would want to have sanctions available to you. But industry experts predict that surveyors will impose sanctions for offenses that would not have earned an agency termination under the old sanctionless system — so you would want to be out of reach of sanctions.

Exception: Deemed agencies can get surveyed by the state for a complaint or validation survey, Sevast pointed out. If a condition-level deficiency is found then, the agency’s deemed status is removed until the agency is in substantial compliance with the COPs or is terminated.

Background: Alternative sanctions were required by OBRA in 1987 and CMS proposed a rule on them in 1991 that was never finalized, Sevast recounted in the session. Then the requirement was “resurrected” when the Government Accountability Office and HHS Office of Inspector General started criticizing the lack of sanctions implementation in reports. CMS attached the sanctions to the PPS payment rule for 2013 to increase the likelihood of finalization.

The lesser sanctions — temporary management, directed plans of correction, and directed in-service training — took effect in July. The most feared and costly sanctions — CMPs and payment suspensions — plus informal dispute resolution (IDR) take effect in July 2014.

It’s no coincidence that HHA sanctions look a lot like those for nursing homes. “We had 26 years of nursing home alternative sanctions information in the building,” Sevast noted. Home health sanctions are based on the nursing home set, but “not exactly.”

Watch For Sanctions Regs

Even though the first wave of sanctions is technically in effect, CMS has not yet issued the official regulations and surveyor protocols for sanctions, Sevast acknowledged. Those documents are in the final clearance process and should be out relatively soon. As soon as they are cleared by the HHS Office of the General Counsel, the agency will put them in a survey and certification letter which will be posted to the website and distributed, she said.

The regulations will include a new chapter for the Medicare State Operations Manual, Sevast explained. New chapter 9 will mirror chapter 7 for nursing homes, which is “Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities.” It will also include new Appendix B and interpretive guidance for surveyors.

It’s on you: One conference attendee complained of a surveyor coming in with Conditions of Participation containing a lot of “red ink” that he had never seen before. CMS issued an “advance copy” of the revised Appendix B — Guidance to Surveyors: Home Health Agencies in February 2011 via a so-called survey & cert letter (S&C 11-11-HHA), Sevast explained. The agency did not finalize the proposed changes because it knew that the alternative sanctions-related changes were coming down the pike shortly, she related. Thus the changes don’t yet show up on the regular SOM Appendix B.

However, “you should be responsible for keeping up with those changes,” Sevast told the attendee. That’s true even if they are in a survey & cert letter and not the main SOM yet.

Resource: You can find out more details about the survey protocol changes outlined in the 2011 survey & cert letter by going to www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/OASIS/Training.html — scroll down to “Downloads” and click on the ZIP file for “2011 HHA Survey Protocol Materials.” You can also scroll down to “Related Links” and click on the “Webinar” link to access Sevast’s webinar training for surveyors on the new protocol, which emphasizes staff and patient interviews over paper documentation.

Note: The survey & cert letter is at www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/SCLetter11_11.pdf.