Home Health & Hospice Week

Could a delay be on the horizon?

Along with the crushing everyday burdens home health agencies must bear, including securing physician face-to-face encounter documentation to quality improvement efforts to data and claims submission, HHAs now have a very short time frame to get into compliance with a sprawling revamp of Medicare’s Conditions of Participation that were finalized in January.

Critical to that compliance effort is the release of the HH CoPs’ interpretive guidelines for state surveyors from the Centers for Medicare & Medicaid Services. But so far, those guidelines are nowhere in sight.

HHAs calling into Medicare’s Home Health Open Door Forum Feb. 8 pressed CMS officials for news of their release. Agencies are “anxiously awaiting” the interpretive guidelines in light of the short deadline, one provider told CMS in the call.

“If the rule goes into effect July 13, it would be nice to have the guidelines out next month or whatever, very soon,” said Andrew Koski with the Home Care Association of New York State in the call. After the forum, CMS couldn’t provide Koski with an approximate date, Koski tells Eli.

It’s tough for agencies to start preparations without those guidelines, says attorney Bob Morgan with Much Shelist in Chicago.

Executive Orders’Impact Unclear

But HHAs and their reps are hoping that providers won’t have to actually hit that July 13 deadline at all.

The National Association for Home Care & Hospice sent a Feb. 2 letter to the heads of the Department of Health & Human Services and CMS requesting “that the new rules be rescinded or that the effective date be reset for July 1, 2018 at the earliest.”

Why? “It is crucial that home health agencies have sufficient time to properly implement the new requirements,” NAHC argued in the letter. “To do so, it not only would take more than the time currently permitted, it would necessitate CMS’s issuance of interpretive guidance. That guidance has not been issued and is not expected soon.”

Consequences are grave for HHAs that don’t meet the CoPs, NAHC warns. “Agencies that fail to meet any of the HH CoPs are at risk, at a minimum, for the imposition of a number of sanctions and potentially at risk for program termination,” the trade group says.

Arguments that agencies already comply with existing CoPs, so the new rule shouldn’t be a big departure, don’t hold water, NAHC maintains.

“Although CMS has made several significant revisions to the HH CoPs throughout the years, many of the current CoPs had remained unchanged since their inception, therefore many of the revisions will present significant process, operational and cultural changes for agencies,” it insists.

The areas that will be hardest for agencies to implement without guidelines and on such a short time frame include “patient rights, transitions of subunits to parent and branch operations, infection control, and care planning documentation,” NAHC said in its letter.

The effort to push back or even eliminate at least some parts of the CoPs may get a boost from relevant Executive Orders issued by the Trump administration. “Our view is that the CoP rule fits squarely within the White House order to suspend any rule issued during the previous administration that has not gone into effect and to re-evaluate the need for that rule,” NAHC’s VP for law William Dombi tells Eli.

Agencies also hope that the Executive Orders requiring government agencies to eliminate two existing regulations for every one new regulation imposed may apply to this rule, or the order directing government agencies to minimize the economic burden of the Affordable Care Act (see Eli’s HCW, Vol. XXVI, No. 5).

“The new administration has already begun applying the 2-for-1 policy to HHS,” Morgan points out. So it’s “unclear what, if any, rules will be applied moving forward.”

That uncertainty isn’t helping agencies now, however, with the CoPs deadline looming so close and an avalanche of work to do to get in compliance. A cloudy crystal ball leaves agencies on the hook.

“Anyone who tells you with any certainty about what the federal government ... will do, or when, is just making it up,” Morgan says. That might go double under the unconventional new administration.

In the forum, a CMS official said in response to a question about the Executive Orders that the agency can’t comment on that issue at this time, and that CMS is awaiting “further guidance on those orders.”

Stay Tuned

“Planning for the new rules are always a good idea, but it’s definitely a fluid situation,” Morgan concludes.

“We are awaiting a decision from HHS and CMS regarding our request that [the CoPs] be delayed,” Dombi reports. “We have been in contact with CMS and HHS on that request since our letter was sent on February 3.”

Note: The CoPs final rule is at www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2017-00283.pdf.