Home Health & Hospice Week

If you operate in one of six states singled out by a recent report, you're more likely to get dinged on your surveys.

That's what the HHS Office of Inspector General found when looking at "cyclical noncompliance" for home health agencies, according to its report issued Aug. 7 (OEI-09-06-00040).

About 15 percent of HHAs repeated the same deficiency citation on three consecutive surveys, the OIG also found. These repeat offender agencies were most commonly cited for "written plan of care established and periodically reviewed by a doctor" or G Tag 158. (For all 10 most frequently cited deficiencies, see box, p. 228.)

Cyclically deficient HHAs also received twice as many citations on average (11.3) as agencies that did not repeat citations (5.7), the OIG notes.

Notorious 6: A whopping 64 percent of repeat offender agencies were in six states -- Cali-fornia, Florida, Illinois, Iowa, Michigan and Texas, the OIG adds. Only 30 percent of HHAs in the study population were in those states.

That figure probably points out uneven application of the Medicare Conditions of Participa-tion by surveyors across states as much as a difference in the provider population, suspects Bob Wardwell with the Visiting Nurse Associations of America. "There certainly has always been significant variation in both State Survey Agency performance and in the composition of the home health agency community between states," Wardwell says.

"There is a distinct difference in the survey process across the states," maintains consultant Sharon Litwin with 5 Star Consultants in Ballwin, MO. "Some states are much more lenient than others, which is certainly not fair to the agencies in very strict states," Litwin says.

"I have had clients who should have gotten many deficiencies on survey, that have received none," Litwin tells Eli. "And in another state, very good agencies may have received four or five deficiencies -- it is that different between states."

"There are always rumors and reports of particularly aggressive surveyors in some states," points out attorney Marie Berliner with Lambeth & Berliner in Austin, TX. "This may account for the disproportionate distribution."

Provider populations just aren't that different. The OIG's finding "does in my opinion reflect surveyors' subjectivity in most cases," maintains attorney Elizabeth Zink-Pearson with Pearson & Bernard in Covington, KY.

Agencies can also look to the demographics of the states in question, suggests Chicago-based regulatory consultant Rebecca Friedman Zuber. Many of the states have very large Medicare populations and many new entrants into the Medicare program, which could lead to more deficiencies.

Often "there are problems with the providers who are new to health care altogether and do not understand the strictness of COP compliance," Pearson agrees.

More sinister: The disproportionate citations may also be due to a more disturbing reason, Pearson offers. "I would also not rule out the potential for discriminatory conduct here," she tells Eli. "The Detroit area, Chicago area and L.A. and San Diego have high populations of minority-owned HHAs."

Industry representatives have beseeched the Centers for Medicare & Medicaid Services to im-pose "better consistency in state agency performance, a more educational versus punitive approach and more complete and uniform communication between state agencies and HHAs on expectations," Wardwell reports. But lack of resources for survey activities leaves CMS with its hands largely tied.

CMS is also "hamstrung" by its inability to just dismiss a state agency if it's not surveying up to standard. "They can't exactly fire them for poor performance and use another state," Wardwell observes.

All HHAs are supposed to be subject to surveys every 36 months. That has changed since 2005, when new agencies received surveys every 12 months for the first three years.

CMS also changed its 5 percent sample that it surveys in addition to the 36-month surveys. Formerly it was a random sample, but starting in 2006 it's been based on a targeting algorithm that takes into account things like most recent survey results and patient outcomes.

The recommendations: The OIG wants CMS to include deficiency information from multiple past surveys in that algorithm to target troubled providers in need of extra surveys. It also wants the agency to have surveyors review "all available survey data," including survey history, before upcoming surveys.

On the right track: CMS should survey agencies with repeated deficiencies more often, agrees attorney Shirley Morrigan with Foley & Lardner in Los Angeles. Surveyors should use "the whole deficiency history" when selecting and reviewing providers, she says.

That may make it difficult for providers to get off the survey track, Berliner acknowledges. But those are the types of agencies that need more oversight to avoid patient care problems.

The OIG's findings show that even though cyclically noncompliant agencies are submitting plans of correction after each survey, they are not actually fixing the problems, Morrigan stresses. "The point of the plan of correction is to learn to correct."

Caveat: But surveyors should also look at the content of the citations, not just the "raw numbers," Zuber cautions. Citations for patient care-related problems should count more heavily than for COPs related to administrative items like budgets and capital improvement plans, Pearson believes.

CMS' response: The agency says it already has undertaken surveyor training that will reinforce instructions to consider an agency's entire survey history when reviewing the record. But CMS does not want to change its algorithm that identifies at-risk HHAs for extra surveys.

Requiring survey data from the past three surveys, which could encompass nine or 10 years, would exclude newer HHAs from the targeting process and would base the targeting on data that "is often quite outdated," CMS maintains in its response to the OIG report.

Note: The OIG report is online at http://www.oig.hhs.gov/oei/reports/oei-09-06-00040.pdf. Or email editor Rebecca Johnson at rebeccaj@eliresearch.com with "OIG Survey Report" in the subject line for a free copy.