Home Health & Hospice Week

Final IGs won't differ much from draft anyway, CMS source maintains.

If you thought you'd get another break on the Home Health Conditions of Participation start date because Medicare has failed to issue the final Interpretive Guidelines for the new regs, think again.

Home health agencies already had received a six-month delay on the CoPs, moving the implementation deadline from July 2017 to Jan. 13, 2018. At press time, another delay appeared to be off the table.

"Although the IGs will not be issued in final before the January 13, 2018 effective date for the new CoPs, our surveyors will use the draft IGs to start surveys under the new HHA CoPs," a Centers for Medicare & Medicaid Services staffer wrote in an email message to the National Association for Home Care & Hospice. "This is not unusual and has been done on numerous occasions. The reason we can do this is that the IGs simply assist the surveyor to understand the intent of the regulation," the CMS official said.

"No further delay seems to be in play," observes NAHC President William Dombi. HHAs have criticized CMS for failing to get the IGs out significantly earlier. "It's a shame" that agencies have to figure out compliance without the guidance, says Washington, D.C.-based healthcare attorney Elizabeth Hogue.

But CMS maintains it's not a problem. The IGs "do not drive the citation of non-compliance. That can only be done based upon the regulation itself," the CMS source said. "That determination is made by the survey process which includes observations, interviews and record reviews. No deficiency is ever written on Interpretive Guidance alone."

Medicare officials also already gave HHAs a break in suspending possibly deadly Civil Money Penalties for the first year of the new CoP implementation. "CMS did agree, in an abundance of caution, to defer the imposition of CMPs for one year from January 13, 2018 to January 13, 2019," the email points out. "This would not apply in immediate jeopardy situations and all other HHA alternative sanctions will continue to be imposed," the staffer adds.

Prepare For Disappointment

But many agencies are frustrated that CMS doesn't have the final IGs out to help them get into compliance with confusing parts of the new regs.

For example: The "latest problematic issue is the draft IGs do not specifically permit the use of pseudo-patients in the competency testing of home health aides, in contrast to the current IGs," Dombi says. Finding real patients willing to let aides test skills such as tub bathing is difficult, providers say.

In fact, many parts of the draft IGs CMS issued in the fall are either so vague as to be useless or do not address problem areas at all, providers said (see Eli's HCW, Vol. XXVI, No. 45).

CMS "considered and incorporated into the draft IGs, as appropriate," the comments on the guidelines that it received from the industry, the Medicare official says in the email to NAHC.

"However, the incorporation of these comments did not result in substantive changes to the draft. The final document, while waiting final clearance from our Office of General Counsel, will most likely not be vastly different from the draft provided to the HHA community earlier."

It's "disconcerting to hear that providers probably won't get much guidance even when the final interpretative guidelines are published," Hogue tells Eli.

Bottom line: "The HHA provider must meet the regulation, not the IG," the CMS source stresses. "The IGs do assist the surveyors to better understand the intent of CMS with the regulatory language, but the IGs are not regulatory and are not intended to provide a road map to minimum compliance."

HHAs will have recourse if the lack of final IGs proves damaging to them, the CMS staffer adds. "CMS will work with the Regional Offices to review any specific cases where a provider feels that, in the absence of the IGs, a surveyors may have made an erroneous non-compliance call," according to the message.

Industry observers, however, question whether providers will get a fair shake in such a review.

Instead, "based on the lack of clarity, it seems clear that agencies must be ready to contest deficiencies on surveys," Hogue advises. "They can do so in several ways, including contesting deficiencies in Plans of Correction (POCs) and using states' processes for independent dispute resolution (IDR)."

Old way: "Providers have been reluctant to do both in the past, at least in part because they were concerned about alienating surveyors," Hogue relates. "And some surveyors have demanded that agencies remove any statements contesting deficiencies from POCs even though CMS makes it clear that agencies can and should do so."

New way: "Now is surely the time for agencies to put aside such reticence and stand up for themselves," Hogue urges. "We have had great success using these processes for many years, so it is clear that they are likely to produce positive results for agencies in an uncertain survey environment."

Timeline: Exactly when CMS will issue the final IGs remains uncertain, Dombi observes.