Home Health & Hospice Week

Number of agencies facing sanctions up 73 percent in last few months.

The chances of you getting hit with door-closing alternative sanctions at survey time are increasing by the day.

Back in April, the Centers for Medicare & Medicaid Services said that surveyors had imposed alternative sanctions on 15 home health agencies (see Eli’s HCW, Vol. XXIV, No. 15). Now that number is up to 26, CMS reveals in new survey data shared with Eli. (See a state-by-state breakdown, p. 171).

That 73 percent increase in the last few months “indicates that the imposition of sanctions is continuing to grow,” says William Dombi with the National Association for Home Care & Hospice.

The uptick shows that “surveyors are be-coming much more comfortable with imposing al-ternative sanctions,” observes attorney Robert Markette Jr. with Hall Render in Indianapolis.

Reminder: In the 2013 Home Health PPS final rule, CMS approved use of five new alternative sanctions for HHAs. CMS implemented three lesser sanctions in July 2013 — temporary management, directed plan of correction, and directed in-service training. In July 2014, civil money penalties and payment suspensions for new patients took effect.

Even the early adopting states didn’t really start imposing the new sanctions until the fall, Markette says. Now, surveyors are getting comfortable with the measures, which means agencies are more likely to encounter them when it’s their turn for scrutiny.

Tip of the iceberg: “I expect that as CMS and state survey agencies get more experience in such sanctions, that the frequency of sanctions will grow,” Dombi tells Eli.

Most Severe Sanctions Dominate

More than two-thirds of the sanctions CMS revealed back in April were either CMPs or payment suspensions for new patients. That ratio may reach even higher as sanctions become more widespread.

The less punishing sanctions of temporary management, correction plans, and training “require a lot more work on the part of the State Agencies and CMS,” explains former Illinois home health survey director Rebecca Friedman Zuber. “They have to identify individuals for temporary management, actually draft plans of correction and find clinical training sites,” says the Chicago-based regulatory consultant. “It is easier to issue a fine.”

This is bad news, because most of the time agencies hit with punishing CMPs or payment suspensions are going to go under, Markette believes.

For example: One of the Indiana cases was Markette’s client, he says. By the time they received the letter informing them of their CMP fine 30 days later, they were already more than $100,000 in the hole, he relates.

Receiving notice letters after big fines have racked up is common practice in the nursing home world, where CMPs have been in effect for years, Markette adds.

Bottom line: “That level of sanction is going to destroy most agencies,” he expects.

Another worry: The closure of your agen-cy may not even be your biggest problem. CMS may try to pierce the corporate veil and go after individual owners when the agency closes while owing CMPs, Markette cautions. Time will tell whether CMS employs that tactic, which is available to it.

States With Fraud Reputations Not High On Sanctions List

Although cases involving sanctions are on the rise, the overall numbers are still relatively low, Markette points out. The 26 cases over the past year are out of roughly 5,000 HHA surveys conducted, he estimates.

HHAs undergo surveys only every three years, so “I don’t expect super high numbers” of cases involving sanctions, Friedman Zuber says.

The frequency of surveyors and CMS imposing sanctions will increase steadily from this first year, though, Markette predicts.

The states leading the way when it comes to use of sanctions may surprise you. Many large states that have been notorious for home care fraud and/or have HEAT Medicare Fraud Strike Force teams operating are either low on the list (California, Texas and Louisiana each have 1 case) or not on it at all (Florida, Michigan, Illinois).

The states heading up the sanctions list are small and usually aren’t “the hotbed fraud states,” Markette notes.

One reason: Surveyors may prefer to use the traditional 90-day termination track for HHAs that they don’t think are able to come into compliance under the sanctions system, Markette offers. The old way can get agencies out of the program faster. v

Note: Guidance to surveyors on how to ap-ply the sanctions is in a March 2014 survey and cert letter that revises Appendix B of the State Operations Manual. The letter is online at www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-14.pdf