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Home Health & Hospice Week

Regulations:

New Sanctions Put You At Surveyors' Mercy

Published on Thu Nov 29, 2012

Experts skeptical of checks and balances.

What may bother home health agencies even more than the new alternative sanctions going into place are how surveyors will wield them.

Many commenters on the proposed rule voiced worries over rogue or just plain mistaken surveyors imposing punishing penalties based on erroneous deficiencies. Or surveyors could end up as "bounty hunters," imposing fines to enrich their own state, one commenter said.

"Determinations on whether to impose alternative sanctions and the specific sanction to be imposed will not be left to the sole discretion of an HHA surveyor," the Centers for Medicare & Med-icaid Services insists in the 2013 home health pro-spective payment system final rule. "First, condition-level-findings by the surveyor are reviewed by the [Survey Agency] Office before the SA sends their noncompliance certification and enforcement recommendation to the CMS [Regional Office]. Second, all final decisions regarding whether or not to impose a sanction and what type of sanction to be imposed, will be made by the applicable CMS RO."

Bottom line: "Condition-level findings are vetted at both the state and Regional level," CMS says elsewhere in the rule published in the Nov. 8 Federal Register.

Further, "to avoid any appearance that the imposition of sanctions would become a revenue source, it is our policy ... that no penalty funds may be utilized for survey and certification operations or as the state's Medicaid non-federal medical assistance or administrative match," CMS says. "We believe these are effective protocols to safeguard the integrity of the HHA enforcement process."

Attorney Robert Markette Jr. with Be-nesch, Friedlander, Coplan & Aronoff in Indianap-olis is among the many home care experts who view CMS's claims with skepticism. A survey is "an in-credibly subjective process," Markette insists. "Sur-veyors will be driving this," he says in reference to the determination of sanction types and amounts.

In practice, most states and CMS ROs rubber stamp surveyors' findings, many experts agree.

With sanctions coming into play, expect to see many more home care providers lodging pro-tests both under informal dispute resolution (IDR) and the formal appeal process, Markette says.

Pursuing an appeal at the Administrative Law Judge level is not cheap, Markette notes. So even if you win, expect to factor those costs into the new regulatory burden of alternative sanctions.

And while CMS may wait to collect CMPs until after an appeal, other sanctions will start during the appeal process. In some cases, it may be cheaper and more expedient to just acquiesce to a less onerous sanction such as a directed plan of correction or training, Markette predicts.

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