Home Health & Hospice Week

Are HIPAA-based survey citations on deck?

Between reimbursement cuts, Pre-Claim Review, Probe & Educate, Value-Based Purchasing, and a host of other initiatives, home health agencies already had their hands full for 2017 before the new Condition of Participation final rule came out. Now they must move CoP compliance to the front of the line for action.

“Agencies already have a lot on their plates and ... had this way down the priority list,” believes attorney Robert Markette Jr. with Hall Render in Indianapolis. Coming into compliance “will likely require a major effort,” Markette predicts.

Even CMS admits complying with the changes will be a lot of work. The agency’s burden estimate has doubled since the proposed CoP rule, Markette points out. “The overall economic impact for all of the new CoPs is estimated to be $293.3 million in year 1 and $290.1 million in year 2 and thereafter,” CMS says in the final rule.

Take a look at the changes that the experts predict will present you with the biggest challenges:

1. Patient rights. “The patient rights changes could be the biggest burden, with requirements for written and verbal notices expanded and limitations on patient discharges,” forecasts William Dombi, VP for law with the National Association for Home Care & Hospice.

For example: Under the new CoP, “the notice of patient rights must be provided to both the patient and his or her representative,” CMS clarifies in the rule. While HHA commenters complained about the new requirements necessitating too many forms, CMS dismisses the complaint in the rule.

To make matters more complicated, CMS “changed the definition of representative to create two categories — legal representative and patientselected representative,” Markette highlights. That “requires the agency to provide notice to both the legal and patient-selected representatives. This will require agencies to review and make sure they have identified the representatives (if there are two) and treated them accordingly.”

2. Discharge summaries. Medicare’s concern with transfers — and the potential hospitalization and emergency room visit risks that accompany them — is evident in its new discharge summary requirements. On one hand, CMS withdraws its CoP requirements for the contents of the discharge summary, in light of another proposed rule on the matter it issued in November 2015 (see Eli’s HCW, Vol. XXIV, No. 39).

On the other hand, CMS has finalized a strict deadline for transmitting those summaries. “Two business days for a transfer summary and five business days for discharge summary are appropriate maximum standards,” the agency says in the rule.

But CMS would like you to send them even faster. “Transfer summaries prepared and sent on the day of transfer, and discharge summaries prepared and sent in 2 calendar days after discharge are ideal, and we strongly encourage all HHAs to meet these timeframes,” CMS says in the rule. “However, we understand that this may not be feasible in all transfer and discharge situations.”

You’ll need to start working on the process for hitting these deadlines right away, Dombi advises.

3. QAPI. How much work the new Quality Assurance Performance Improvement requirement presents will depend on the status of your current quality improvement programs. You might need to start a whole new program, or you might just need to adapt your existing QI process a bit, Markette offers.

CMS leaves many of the QAPI details — such as which personnel are involved (including physicians), the specific topics addressed, and even whether projects show gains — up to agencies. “The regulation … requires that performance improvement projects ... be focused on indicators related to improved health outcomes, patient safety, and qualityof care; focused on high risk, high volume, or problem-prone areas; and that the number and scope of distinct improvement projects conducted annually be reflective of the scope, complexity, and past performance of the HHA’s services and operations,” CMS notes in the rule. “To be more specific than these requirements would restrict the flexibility that HHAs need in order to effectively and efficiently comply with these requirements.”

4. HIPAA. CMS mentions in the rule that “Section 484.110(d), Protection of records, requires that HHAs must be in compliance with the HIPAA Privacy and Security rules... [T]his requirement establishes an appropriate expectation of security in the maintenance of patient data, and the systems used to collect and analyze it.”

“I don’t understand why requirements to comply with HIPAA are now included in the CoPs,” protests Washington, D.C.-based healthcare attorney Elizabeth Hogue. “Does this mean that surveyors will survey for HIPAA compliance?”

5. Infection control. This new CoP will affect every member of your visiting staff. “In-fection prevention and control” at §484.70 contains three standards: (1) Prevention, (2) Control, and (3) Education, CMS says in the rule. HHAs must follow infection prevention and control best practices, and maintain a coordinated agency-wide program for the surveillance, identification, prevention, control, and investigation of infectious and communicable diseases.

The program must be “an integral part of the agency’s QAPI program,” CMS adds. HHAs also must provide education on “current best practices” to staff, patients, and caregivers, the rule says. This is another area where you should start preparing immediately, Dombi recommends.

6. The regulation’s scope. The sheer size of the Conditions of Participation final rule, and its myriad of changes, will present HHAs with a serious compliance challenge.

This may be particularly true because, in the rule, CMS pushes through a number of “substantive” changes that it presents as “minor,” Markette worries. For multiple provisions, CMS states that it will waive formal rulemaking (along with its notice and comment periods).

For example: “Revised 484.110(e) now requires access to the patient’s clinical record in a specific period of time,” Markette offers — at the next home visit or within four business days (see box, p. 20). “The proposed time frame is much shorter than the time frames provided under HIPAA,” he says. “We have always followed HIPAA unless state law was more stringent. Now, the CoPs are changing our responsibilities.”

Bottom line: “This is a surprising and substantive change,” Markette judges.