Home Health & Hospice Week

You could have to fork over more than a plan of correction for survey dings, if a federal watchdog agency gets its way.

The HHS Office of Inspector General wants the Centers for Medicare & Medicaid Ser-vices to implement intermediate sanctions for survey citations, the OIG says in a new report on home health agency surveys (see related story, p. 226).

Currently, CMS has only one punishment for HHAs that are out of compliance with the Medicare Conditions of Participation and don't correct the problem -- termination. The OIG wants intermediate sanctions that "may include civil money penalties [CMPs], suspension of all or part of Medicare payments, and appointment of temporary management for cyclically deficient HHAs," it says in the report.

There could be positives to intermediate sanctions, says attorney Shirley Morrigan with Foley & Lardner in Los Angeles. They could keep some HHAs who would otherwise be terminated from leaving the Medicare program and going out of business, Morrigan tells Eli.

Intermediate sanctions "could help providers stay in business for the short term, especially if the noncompliance is not directly related to patient care," adds attorney Marie Berliner with Lambeth & Berliner in Austin, TX.

It's "kind of crazy" that the only option now is termination, Morrigan says. CMS should have tools that are short of the termination track to help providers get in gradual compliance, she urges.

But there would be downsides to intermediate sanctions too. As with surveys, "there is an equal risk of overzealous and uneven application of penalties," predicts Bob Wardwell with the Visiting Nurse Associations of America.

And state survey agencies could come to rely on the sanctions as a revenue-generator, warns attorney Elizabeth Zink-Pearson with Pearson & Bernard in Covington, KY.

Another problem: CMPs would take mon-ey away from agencies just when they need it the most to make improvements, says Chicago-based regulatory consultant Rebecca Friedman Zuber.

"A more enlightened approach would be to offer management assistance in conjunction with temporary management," Berliner suggests.

And intermediate sanctions may not provide the relief to termination-track agencies that CMS anticipates, Zuber cautions. "Payment suspension is probably worse than decertification," she says. "No money and the agency will close."

But the good thing about a payment suspension is that it can be quickly revoked, while a termination takes at least a year to undo, Morrigan notes.

Don't hold your breath: HHAs may not need to worry about intermediate sanctions for surveys any time soon. A 1987 law required the sanctions and CMS proposed them, notes the National Association for Home Care & Hospice. But CMS never followed through on finalizing them due to shifting priorities and legal changes requiring revisions to the rule, the agency says in the report.

NAHC opposed many provisions in the sanctions rule, including the likelihood of financial penalties closing agencies' doors and the subjectivity of the survey process, the trade group notes.