Surveyors get more tools. If your home health agency isn't carefully policing compliance deficiencies you could be socked with an array of newly proposed alternative sanctions or even termination. The Centers for Medicare & Medicaid Services sets out a whole new array of "alternative sanctions" that surveyors can use before they get to Medicare termination, according to CMS's 2013 home health prospective payment system proposed rule published in the July 13 Federal Register. The new sanctions range from Civil Monetary Penalties (CMPs) to mandatory in-service training. The sanctions aim to provide "incentives for HHAs to achieve and maintain full compliance with the requirements ... before termination becomes necessary," CMS says in the rule. If finalized, the alternative sanctions will result in "an enormous change" in how home health agencies deal with issues of noncompliance, predicts Washington, D.C.-based health care attorney Elizabeth Hogue. "Surveyors will have all kinds of tools they never had before." Old way: Even when deficiencies go on for a while, agencies often can avoid termination "with a credible allegation of compliance and a resurvey," Markette says. New way: In other words, "the use of intermediate sanctions against an HHA could be a negative if the agency would not have been sanctioned otherwise," says attorney Marie Berliner with Joy & Young in Austin, Texas. Surveyors also could pile on multiple sanctions where now they might impose only one. Background: CMS received authority in a 1987 law to implement alternative sanctions for HHAs, and proposed a rule on the matter in 1991. But the agency never finalized the rule. "Sweeping changes in the law and other regulations, together with the demands of additional improvement efforts, impeded the promulgation of a final rule," CMS explains in the 2013 HH PPS proposed rule. Why has the issue become a priority now? Recently, "CMS has been under fire by the OIG for the inaction" on this topic, notes the National Association for Home Care & Hospice. A March report from the HHS Office of Inspector General may have given CMS a push, Markette notes. CMS's alternative sanctions proposal is a wakeup call for HHAs, judges therapy consultant Cindy Krafft with Fazzi Associates. CMS is getting more serious about enforcement, and is sending a message to agencies that they'd better get serious too, Krafft tells Eli. CMPs Could Shut Agencies' Doors Quicker Than Termination The alternative sanction most likely to significantly impact HHAs is Civil Monetary Penalties, experts agree. Under the proposal, CMS could fine agencies up to $10,000 per day for condition-level or repeated deficiencies. The proposed sanctions, particularly CMPs, give "more clout and teeth to surveys," warns financial consultant Tom Boyd with Rohnert Park, Calif.-based Boyd & Nicholas. "Even a disputed survey or a pending correction could put an HHA out of business while awaiting resolution and proper payments or return of fines." HHAs can get socked with a $10,000 fine for just one instance of noncompliance, points out attorney Liz Pearson with Pearson & Bernard in Edgewood, Ky. And CMS is a "big fan" of using daily CMPs in the nursing home setting, attorney Markette points out. Expect the same in home care. "Even a lower fine would reach a prohibitive penalty amount, if it was a per day fine," he cautions. The fines will be hard on agencies that already are struggling under years of Medicare payment cuts, Markette expects. Burden: Currently, agencies may end up dawdling when it comes to implementing an acceptable POC. But when they are racking up daily fines and other penalties, "they will feel enormous pressure," Hogue predicts. The new motto will be, "we've really got to get it corrected the first time around." Fines Will Impact Care Resources And remember, these fines will come out of agencies' pockets, says attorney Jim Pyles with Powers Pyles Sutter & Verville in Washington, D.C. That money often would otherwise be going to patient care, he maintains. "The money doesn't drop out of the sky," he laments. New policies should put patient care first, he maintains. Even more frustrating will be CMPs based on "poor" survey findings, Pearson says. Under the proposal, "incompetent and arbitrary survey findings ... will result in CMPs, suspension of payments on new admissions, and potential terminations," she stresses. Pyles estimates that half of the citations issued by surveyors are outright wrong or not as described. Authorities may need a CMP model for nursing homes, because homes have an inpatient population that would make termination burdensome. "Termination is not a viable sanction when there is a building full of residents with potentially nowhere to go," Pearson says. But the CMP model doesn't fit home health, Pearson argues. "For HHAs the patients can be orderly transferred to another agency " as there is always a 30 day notice of termination." In most areas, "there is no shortage of HHAs so the clients can be moved." The alternative sanction system will mostly serve to make a lot of money and "potentially deter good people from getting or staying in the business," Pearson fumes. It "won't really impact the bad [actors], because they are only in for a short time and if caught, will just shut down." Follow the money: Watch out: Give your 2 cents: Note: