OIG pressures CMS on home health sanctions
By Stephanie Bouchard, Managing Editor
As the number of home health agencies and fraud cases related to home health agencies continues to skyrocket, the Office of Inspector General (OIG) is exerting more pressure on the Centers for Medicare & Medicaid Services (CMS) to fulfill an obligation that is 15 years old.
Back in 1987, the Omnibus Budget Reconciliation Act (OBRA) directed CMS to implement intermediate sanctions for noncompliant home health agencies (HHAs). OBRA specified that the intermediate sanctions CMS created should include civil money penalties, payment suspension and appointment of temporary management. While there is a corrective process for noncompliant HHAs, the only HHA sanction option CMS currently has at its disposal is termination, an option it doesn’t use often.
Even though the number of Medicare-certified HHAs has seen a 59 percent increase between 2002 and 2009, CMS still has not issued a final rule for intermediate sanctions. It did issue a Notice of Proposed Rulemaking in 1991 but later withdrew it.
In 2008, OIG issued a report about HHAs with repeat deficiency citations and the lack of intermediate sanctions. OIG recommended that CMS follow OBRA’s 1987 directive to implement intermediate sanctions. CMS agreed with OIG’s recommendations but as of the spring of 2012, had yet to issue a proposed rule on intermediate sanctions. (CMS did not respond to an interview request for this story.)
Last March, OIG again pressed CMS on implementing the intermediate sanctions. In a letter to Marilyn Tavenner, CMS’ acting administrator, OIG reminded CMS of its legal obligations and that OIG had already prodded the agency on this issue in 2008.
“Although CMS indicated activities toward promulgating regulations to implement HHA intermediate sanctions, it has not yet issued a proposed rule,” OIG’s letter to Tavenner said. “Given the length of time since the passage of the original statute, CMS should make HHA intermediate sanctions a high priority and should complete their implementation as soon as possible.”
HHAs are aware that a proposed rule on intermediate sanctions may be issued soon – by some reports, in September – so there is some concern within the industry, said Mary St. Pierre, vice president, regulatory affairs, the National Association for Home Care and Hospice, about what additional burdens the new rule may add.
“Agencies now have condition levels, they are writing their plan aggression, they are being resurveyed, they are staying in the program and so they would look on this as an additional burden,” she said. “Having to either pay a fine or have some sort of management over them or whatever else CMS comes up with.”
HHAs need to begin preparing themselves now for more CMS scrutiny, said Neil Hoffman, an Atlanta-based lawyer with Arnall Golden Gregory, who represents home health agencies and providers.
“Any home health agency that has been experiencing (problems related to Medicare conditions of participation), try and get their house in order because, obviously, the ultimate penalty is the exclusion from Medicare and nobody wants that,” Hoffman said.
While HHAs are not excited about the likelihood of more hoops to jump through, they also recognize more oversight from CMS could help the industry tamp down the dark cloud it labors under because of the many reports of home healthcare fraud.
“I would politely state that we do not believe that CMS is doing all that they could/should to enforce home health rules and penalize noncompliant, sometimes fraudulent and abusive providers,” said Vicki Purgavie, executive director, Home Care and Hospice Alliance of Maine. “Instead, we have been battling for years with the constant ‘broad brush’ and black eye given to the entire industry for the behaviors of a few providers.”
“It’s too easy for CMS to say ‘Let’s regulate them more,’” she added. “They just keep putting out more regulations but they’re not providing the oversight.”
Back in 1987, the Omnibus Budget Reconciliation Act (OBRA) directed CMS to implement intermediate sanctions for noncompliant home health agencies (HHAs). OBRA specified that the intermediate sanctions CMS created should include civil money penalties, payment suspension and appointment of temporary management. While there is a corrective process for noncompliant HHAs, the only HHA sanction option CMS currently has at its disposal is termination, an option it doesn’t use often.
Even though the number of Medicare-certified HHAs has seen a 59 percent increase between 2002 and 2009, CMS still has not issued a final rule for intermediate sanctions. It did issue a Notice of Proposed Rulemaking in 1991 but later withdrew it.
In 2008, OIG issued a report about HHAs with repeat deficiency citations and the lack of intermediate sanctions. OIG recommended that CMS follow OBRA’s 1987 directive to implement intermediate sanctions. CMS agreed with OIG’s recommendations but as of the spring of 2012, had yet to issue a proposed rule on intermediate sanctions. (CMS did not respond to an interview request for this story.)
Last March, OIG again pressed CMS on implementing the intermediate sanctions. In a letter to Marilyn Tavenner, CMS’ acting administrator, OIG reminded CMS of its legal obligations and that OIG had already prodded the agency on this issue in 2008.
“Although CMS indicated activities toward promulgating regulations to implement HHA intermediate sanctions, it has not yet issued a proposed rule,” OIG’s letter to Tavenner said. “Given the length of time since the passage of the original statute, CMS should make HHA intermediate sanctions a high priority and should complete their implementation as soon as possible.”
HHAs are aware that a proposed rule on intermediate sanctions may be issued soon – by some reports, in September – so there is some concern within the industry, said Mary St. Pierre, vice president, regulatory affairs, the National Association for Home Care and Hospice, about what additional burdens the new rule may add.
“Agencies now have condition levels, they are writing their plan aggression, they are being resurveyed, they are staying in the program and so they would look on this as an additional burden,” she said. “Having to either pay a fine or have some sort of management over them or whatever else CMS comes up with.”
HHAs need to begin preparing themselves now for more CMS scrutiny, said Neil Hoffman, an Atlanta-based lawyer with Arnall Golden Gregory, who represents home health agencies and providers.
“Any home health agency that has been experiencing (problems related to Medicare conditions of participation), try and get their house in order because, obviously, the ultimate penalty is the exclusion from Medicare and nobody wants that,” Hoffman said.
While HHAs are not excited about the likelihood of more hoops to jump through, they also recognize more oversight from CMS could help the industry tamp down the dark cloud it labors under because of the many reports of home healthcare fraud.
“I would politely state that we do not believe that CMS is doing all that they could/should to enforce home health rules and penalize noncompliant, sometimes fraudulent and abusive providers,” said Vicki Purgavie, executive director, Home Care and Hospice Alliance of Maine. “Instead, we have been battling for years with the constant ‘broad brush’ and black eye given to the entire industry for the behaviors of a few providers.”
“It’s too easy for CMS to say ‘Let’s regulate them more,’” she added. “They just keep putting out more regulations but they’re not providing the oversight.”
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