Elizabeth Hogue on Intermediate Sanctions Proposed for Home Health Agencies

The Centers for Medicare and Medicaid Services published proposed regulations establishing intermediate sanctions that will be imposed on Medicare-certified home health agencies to help ensure prompt compliance with Program requirements. These proposed regulations appeared in the Federal Register on July 13, 2012.  Specifically, if finalized, sanctions may be imposed when deficiencies are issued during surveys.

Here are key provisions of the proposed rules:

1. CMS may impose more than one sanction at a time.

2. Non-compliant HHAs will still be required to submit plans of correction for approval by CMS.

3. CMS will provide written notice to HHAs of its intent to impose sanctions, which will be effective the day after notice is received.

4. In addition to termination of the provider agreement, CMS may impose the following alternative sanctions:

  • Civil money penalties
  • Suspension of payment for all new admissions and new payment episodes
  • Temporary management of agencies
  • Directed plans of correction
  • Directed inservice training

5. CMS may impose civil money penalties for either the number of days the HHA is not in compliance with one or more conditions of participation, or for each instance that an HHA is not in compliance, regardless of whether the deficiencies pose immediate jeopardy.

6. Among other factors, the amount of civil money penalties will depend on the following:

  • The size of an agency and its resources
  • Availability of other HHAs within a region
  • Evidence that HHAs have built-in, self-regulating, sustainable quality assessment and performance improvement systems that demonstrate the ability to meet conditions of participation and to ensure patient health and safety

7. Civil penalties may be increased or decreased after they are imposed.

8. Penalties may be imposed in the following amounts:

  • Condition-level deficiencies that involve immediate jeopardy to patients: $8,500-$10,000 per day
  • Repeat and/or condition-level deficiencies that do not constitute immediate jeopardy, but are directly related to poor quality patient care outcomes: $3,500-$8,500 per day
  • Repeat deficiencies: $8,500 per day
  • Other deficiencies: $2,500-$5,000 per day

9. With regard to directed plan of correction, CMS may require HHAs to take corrective action to achieve specific outcomes within specific time periods.

10. CMS may also require staff of HHAs to attend in-service training programs.

11. Independent dispute resolution (IDR) will be available to HHAs to assist them with the resolution of deficiencies and sanctions without the necessity to appeal.

Comments on these proposed regulations will be considered, if received prior to 5:00 p.m. on September 4, 2012.

If they are finalized, the provisions of these proposed regulations will clearly have significant implications for HHAs, including the potential to compromise the financial viability of agencies.  Providers should surely be heard regarding these sanctions.

Contact Elizabeth E. Hogue, Esq. at (877) 871-4062 or via email by clicking here. Click here to follow Elizabeth Hogue on Twitter!

© 2012 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without the advance written permission of the author.

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