Home Health & Hospice Week

Keep these factors in mind when pursuing this alternative sanction.

Along with a myriad of new civil money penalties and alternative sanctions, you also have a new informal dispute resolution (IDR) option. Although the new process sounds "friendly" enough, the terms of this provision aren’t all peaches-and-cream.

According to the 2013 Prospective Payment System final rule, you now have the opportunity to request an IDR to dispute any condition-level survey findings following your receipt of an official statement of deficiencies (see §488.645). You would receive the notification of your opportunity to request an IDR along with the Statement of Deficiencies. The IDR can change the outcome of your survey, even spurring a revised Statement of Deficiencies.

Be Prepared -- Do This Beforehand

As with any agency audit, the work you do beforehand can make or break the entire process. So before you even have a survey -- much less request an IDR -- Lynda Laff of Laff Associates recommends that you:

• Read and understand the Conditions of Participation;
• Identify any areas where your home health agency may be deficient; and
• Immediately commence action plans to mitigate deficiencies before you are surveyed.

When you’re surveyed -- but before you consider or initiate an IDR -- Laff advises that you:

• Make sure you understand any condition-level deficiencies that arise in the survey (consult an expert if you’re not sure);
• While the surveyor is still onsite, learn as much as possible about what the surveyor is finding and documenting; and
• Understand what condition(s) the surveyor is focusing on, and be able to quickly identify what issues the surveyor found that makes him believe that your HHA does not meet the condition(s).

Act Quickly: You Have Only 10 Days

You must submit your IDR request in writing within 10 calendar days. "To request an IDR you must respond as quickly as possible," Laff urges. You should submit the IDR request within the same timeframe as submitting an acceptable plan of correction.

Caution: Don’t expect your IDR request to halt all other survey outcomes. "This request does not postpone any associated enforcement actions -- so the clock is already ticking," Laff tells Eli.

"Even if an HHA were to pursue IDR or a formal appeal … CMPs continue to accrue, causing further financial strain on an HHA," attorney Kristen McDonald of Nelson Mullins Riley & Scarborough, LLP comments in a brief.

You must make a written IDR request that includes the specific deficiencies that you’re disputing, according to the final rule. Also, you must send the request to either the Centers for Medicare & Medicaid Services or the State, as appropriate.

Don’t Waste Time Arguing

Just as you shouldn’t delay an IDR request, you shouldn’t waste your time bickering about issues where you feel the surveyor is incorrect, Laff says. "Direct staff to begin your own ‘discovery’ of evidence [supporting] that you are indeed meeting the condition that will be cited," she recommends. "Actual evidence of compliance is imperative -- you will not make any headway if the agency staff are argumentative."

What to do: While onsite, if you feel the surveyor is not responsive to discussing any conditions or potential issues, or to considering your evidence, "immediately begin to compile as much additional evidence as possible and begin to document a request for an IDR," Laff recommends.

And timeliness in collecting that documentation and evidence may become paramount to your success in the IDR process. Some stakeholders worry that, like in the nursing home industry, the IDR process would vary too much from state to state and "often holds a priority for expediency over full disclosure of evidence," Leading Age stated in a comment letter on the proposed rule.

Nor does the final rule include any language requiring a timetable for CMS or states to provide IDR. "Should a condition-level finding be accompanied by [CMPs] on a per-day basis or suspension of payments, a HHA might be discouraged from requesting the IDR process," writes Rick Pollack, Executive Vice President of the American Hospital Association in a comment letter to CMS.

Look ahead: Although in the final rule CMS provided few details about the mechanics of the IDR process, keep your eyes peeled for fleshed-out instructions in the State Operations Manual, advises the Maryland National Capital Homecare Association.