CMS Releases Final Rule for New Survey and Sanction Options for Home Health Agencies

On November 8, 2012, the Centers for Medicare and Medicaid Services (CMS) released its final rule updating the home health prospective payment system for calendar year 2013. In particular, the final rule provides CMS with new options for surveying and sanctioning home health agencies (HHAs). According to the final rule, HHAs will be subject to a standard survey at least once every 36 months, which will be unannounced and performed by the state agency or an accrediting organization. The standard survey’s objective is to review the HHA’s compliance with a select number of conditions of participation (CoP). In addition to the standard survey, HHAs will be subject to a variety of other surveys, which include:

• Abbreviated standard survey: similar to the standard survey, but concentrates on a smaller number of CoPs determined to be an area of concern; conducted within two months of a specific concern, receipt of complaints, or change in ownership.
• Extended survey: used to ensure compliance with additional CoPs that were not surveyed in the standard survey, or to review certain policies and procedures in which the surveyors determined the HHA provided substandard care.
• Partially extended survey: conducted to determine deficiencies and/or deficient practices exist that were not fully examined during the standard survey.
• Complaint survey: conducted when a complaint against the HHA is received

The final rule also provides that an HHA can be cited for two different levels of deficiency: standard-level and condition-level. An HHA will be cited with a standard-level deficiency when the requirements of CoP have not been met. A condition-level deficiency will be cited when a survey reveals one or more deficiencies that result in actual or potential harm to the patient.

The finding of a condition-level deficiency may lead to the implementation of the alternative sanction options presented in the final rule. Moreover, the final rule states that even though standard-level deficiencies do not typically give rise to alternative sanctions, such sanction may still be imposed if the deficiency is so serious as to constitute a condition-level deficiency. If found to be in noncompliance with the CoP, the following sanctions may be imposed: (1) appointment of a temporary manager; (2) directed-plans of correction; (3) directed in-service training; (4) civil money penalties; or (5) termination from participation.

HHAs should be aware of the new survey and sanction options provided in the final rule. After a deficiency is cited, but before any sanction is imposed, HHAs will have to submit a plan of correction (POC) detailing the ways in which the HHA will correct each deficiency and the methods used to ensure the deficiency does not take place in the future. Therefore, it is important that HHAs develop an effective compliance program that provides proactive measures to identify potential deficiencies, as well as reactive measures for when a deficiency is identified. If you need assistance in creating a comprehensive compliance plan, or producing and/or implementing a plan of correction, please contact and experienced health care attorney at Wachler & Associates at (248) 544-0888.