Home Health & Hospice Week

Daily fines add up quickly.

Home care providers hungry for details of how surveyors, survey agencies, and Medicare will choose civil money penalty amounts will have to wait a bit longer.

In the 2013 home health prospective payment system final rule, the Centers for Medicare & Medicaid Services spells out many details of the new CMP process, but leaves other crucial components unaddressed. CMS lays out these CMP levels and fine amounts:

• Upper range -- For a deficiency that poses immediate jeopardy to patient health and safety, CMS would assess a penalty within the range of $8,500 to $10,000 per day of condition-level noncompliance. Specifically, CMS will impose a CMP at $10,000 per day for deficiencies that pose an immediate jeopardy to patients and that result in actual harm. For a deficiency that poses an IJ situation and results in a potential for harm (but no actual harm), CMS will impose a CMP of $9,000 per day. For an isolated employee incident of noncompliance in violation of established HHA policy, CMS will impose a CMP of $8,500 per day.
• Middle range -- For repeat and/or a condition-level deficiency that did not pose immediate jeopardy, but is directly related to poor quality pa-tient care outcomes, CMS will assess a penalty within the range of $1,500 to $8,500 per day of noncompliance with the CoPs.
• Lower range -- For repeated and/or condition-level deficiencies that did not constitute immediate jeopardy and were deficiencies in structures or processes that did not directly relate to poor quality patient care, CMS will assess a penalty within the range of $500 to $4,000 per day of noncompliance.

Even the lower range of the fines can quickly add up to a punishing amount, laments attorney Robert Markette Jr. with Benesch, Friedlander, Coplan & Aronoff. A middle range CMP assessed at the lowest value would still cost an agency $21,000 if it took two weeks to correct, for example.

Multiple commenters pressed CMS for more details on how CMP values would be chosen and expressed dismay at the power individual surveyors would have on the process (see related story, this page). In the rule published in the Nov. 8 Fede-ral Register, CMS pushes off the CMP determination details to its manual and interpretive guidance due to come out next year.

CMS does offer these rather vague factors taken into consideration in setting CMP amounts:

• The six factors surveyors will use to determine which sanctions apply (see box, p. x);
• HHA size and resources, based on accurate and credible sources such as PECOS and Medicare cost reports and claims information;
• Evidence that the HHA has a built-in, self-regulating quality assessment and performance improvement system.

In the face of industry protest, CMS does remove one proposed factor -- the availability of other HHAs within a region.

More details: All CMPs combined can not exceed $10,000 per day. And per-day and per-instance CMPs will not be imposed simultaneously for the same deficiency.

CMS confirms in the rule that HHAs can appeal the CMPs, but will receive a 35 percent lower CMP rate if they forego an appeal. Nursing homes call this the "appeal bribe," Markette tells Eli.

CMPs will begin accruing on the date of the survey and will be due 15 days from the final administrative notice of the penalties, CMS says. "This provides time for an IDR or administrative hearing to take place before the due date for collection," the agency points out.

Markette expects many agencies to pursue both an IDR and formal appeal simultaneously, since they can't risk missing the appeal deadline while waiting on IDR results.