Home Health & Hospice Week

Informal dispute resolution will give agencies a chance to point out surveyor mistakes.

Medicare's newly proposed alternative sanctions for home health agencies aren't all bad.

Use of alternative sanctions will get some HHAs off the termination track, experts note. "The availability of multiple new alternatives and the codification of existing alternatives will be a welcome relief to those agencies that previously faced termination as the only sanction," says attorney Marie Berliner with Joy & Young in Austin, Texas. "It should also help to reduce some of the tensions between surveyors and agency staff that arise when a survey is underway."

"Having sanctions other than terminations might save some agencies," agrees attorney Robert Markette Jr. with Benesch Friedlander Coplan & Aronoff in Indianapolis. "Rather than moving to terminate, you will probably see lesser sanctions invoked with some frequency."

It isn't unusual for attorney Jim Pyles with Pyles Powers Sutter & Verville in Washington, D.C. to get a Friday afternoon call from a panicked provider who just found out his agency is going to be closed on Monday thanks to a survey-based termination. Hopefully the availability of alternative sanctions will eliminate many of those situations.

"The limited range of sanctions has always been a problem," Pyles tells Eli. Having more flexibility via alternative sanctions could be a good thing.

Under the proposed sanctions, "ideally, dealing with non-compliance should become more of a collaborative process, rather than an 'us-against-them' exercise," Berliner says.

The following specific provisions in the sanctions proposal may prove particularly advantageous for HHAs:

Informal Dispute Resolution (IDR)

When agencies receive condition-level or repeated deficiencies subject to sanctions, they would be eligible for IDR, which "would provide HHAs an informal opportunity to resolve disputes in the survey findings," CMS explains in the rule. "We want to provide every opportunity to settle disagreements at the earliest stage, prior to a formal hearing, conserving time and money potentially spent by the HHA, the State agency, and CMS."

How it would work: Along with its statement of deficiencies, an agency would receive a notice of the opportunity to use IDR, CMS says. The agency would then have 10 calendar days to request an IDR hearing. If CMS removes or revises the survey findings based on IDR, "any enforcement actions imposed solely as a result of those revised or removed deficiencies are adjusted accordingly," the agency explains.

"That's a great idea," Pyles cheers. "Hope-fully it can be done in a low-cost way without hordes of lawyers."

IDR has been "highly effective" for skilled nursing facilities that use the process, says Washington, D.C.-based health care attorney Eliza-beth Hogue. A few states already offer the process to HHAs, but now under the proposed rule it would be available nationwide, Hogue adds.

Example: IDR is particularly helpful when surveyors overlook key documentation, which is easy to do in this era of electronic health records, Hogue says.

Directed Plan Of Correction

Hogue also likes the idea of a directed POC.

Old way: Sometimes, agencies end up playing a guessing game, trying to figure out what surveyors want to see in their plan of correction, Hogue relates. Surveyors may reject POCs, but say they can't tell agencies what to put in them to obtain acceptance.

New way: Under the proposal, surveyors simply could tell agencies what to do to come back into compliance with the Medicare condition of participation at issue.

Drawback: Of course, HHAs may not always agree with what the surveyor wants them to include, Hogue allows.