NAHC Comments to CMS on Behalf of Home Care Industry

The National Association for Home Care & Hospice (NAHC) submitted comments to the HH PPS 2013 update and proposed rule on September 4, 2012. The proposed PPS rule was published in the July 13, 2012 Federal Register.

The August NAHC Report offered a summary of comments submitted on: Acute Care Hospitalization reporting, F2F encounter documentation requirements, therapy reassessment requirements, and CMS’ proposal to change the PPS case-mix Grouper logic. The second article summarized NAHC’s comments to CMS proposals on payment issues. This article provides a summary of alternative sanctions and informal dispute resolution comments.

Comments on Specific Elements of the Alternative Sanctions Proposal

It is has been NAHC’s longstanding position that any alternative sanction rule include certain principles. NAHC believes that the proposed sanction process falls short of these standards. Of prime concern is the imposition of penalties for self-corrected deficiencies, a practice that will only build walls between the HHAs and surveyors rather that encourage compliance. NAHC advised CMS as follows:

  • HHAs should be allowed full access to all rights of appeal prior to the imposition of any sanction
  • Any public notice of deficiencies should be withheld pending any appeal
  • Sanctions should be limited to condition level deficiencies that directly impact quality of care
  • Sanctions should not be imposed for deficiencies that are self-corrected prior to the survey
  • Personnel with authority to impose sanctions should be subject to objective, rigorous training based on publicly available standards

Alternative Sanctions

The NPRM on “alternative sanctions” that could be imposed when it is determined that an HHA is out of compliance with the Medicare Conditions of Participation (CoPs).

In view of the many advances in home health quality since that time, NAHC recommended the following modifications to the proposed alternative sanctions model.


  • CMS should limit the alternative sanctions at this stage to non-monetary sanctions, such as directed plans of correction;
  • Should CMS choose to continue with monetary sanctions at this stage, those sanctions should be authorized only if demonstrated that the HHA was noncompliant with because of a “reckless disregard” of responsibilities or intentionally ignored obligations;
  • CMS should institute joint and concurrent training of state surveyors, accrediting organizations, federal surveyors, and HHAs;
  • When determining the imposition of a particular sanction, CMS should require that the impact on access and quality be a prime consideration;
  • No alternative sanction should be imposed if the natural and foreseeable impact is closing the HHA and each of the elements of the proposed model should be evaluated to determine if it may have that unintended impact.

Surveyor Training and Qualifications

CMS’ proposal for a Basic HHA Surveyor Training Course adds some specificity to surveyor qualifications. However, the proposed rule infers that more, unstated credentials will be developed by CMS. NAHC recommended the following:

  • Qualifications should be set out in the formal rule, not in some later-to-be-determined process;
  • Personnel with authority to impose sanctions should be subject to objective, rigorous training based on publicly available standards

Informal Dispute Resolution (IDR)

The NPRM proposes that IDR must be offered to the HHA to refute one or more condition-level deficiencies or repeat deficiencies warranting a sanction, but it is unclear whether an HHA can pursue IDR while concurrently pursuing an acceptable plan of correction.


  • CMS should amend the proposed rule and permit IDR on all deficiencies;
  • The IDR should be adjudicated by an impartial party, preferably outside of the State Agency or CMS Regional Office;
  • CMS should permit a concurrent IDR and plan of correction in the event that sanctions are not postponed pending an IDR.

Payment Suspension

Regarding payment suspension as a sanction, NAHC pointed out that since an HHA must be able to demonstrate compliance through real patient service on a resurvey if payment is suspended the patients will likely be discharged. As a result, it would be unlikely that the HHA will have many skilled care non-Medicare patients remaining to demonstrate compliance in the resurvey. “Suspension” as proposed here means permanent loss of payment, not delayed or retroactive payment. In light of the unfairness of payment suspension, NAHC recommended:

  • CMS should include a directed plan of correction and directed in-service training as alternative sanctions;
  • Payment suspension of any nature should be imposed as a sanction only where CMS determines that an HHA can reasonably achieve compliance and financially survive.
  • Suspension should be authorized only when it is determined that no other approach would be sufficient to incent the HHA to achieve compliance.

Civil Money Penalties (CMPs) (488.845)

In view of the fact that the vast majority of HHAs do not have the capital or financial reserves to cover such a cost, NAHC stressed to CMS that all but the lowest amount of CMP is the slow equivalent to termination. In consideration of the high dollar amount and delay in resurveys, the recommendations are:

  • The amount of the sanctions should be reduced to no greater than $1000 per day
  • CMS should convene an industry/beneficiary/surveyor expert panel to help construct the criteria for determining the amount of a CMP
  • A CMP should begin no earlier than the day following the day when the HHA is notified that its plan of correction was not acceptable.
  • The CMP should continue only until such point where it is demonstrated that the HHA achieved compliance, a date that is likely to precede the date of the resurvey.

Temporary Management

NAHC expressed the belief that the imposition of temporary management is an extraordinary remedy that must be applied carefully.


  • A qualified temporary manager must be fully bonded to cover the cost of any liabilities that stem from the action of that temporary manager.
  • The HHA must be indemnified from any liabilities that are the fault of the temporary manager.
  • The temporary manager must be considered an independent contractor rather than an employee of the HHA in order to protect the HHA from any liabilities triggered by actions outside the scope of the contractual arrangement.
  • An HHA shall not be terminated or subject to additional sanctions if the temporary manager is at fault in the failure to correct deficiencies.
  • No sanctions should be imposed in addition to the temporary manager.
  • An HHA must have a choice among at least three pre-qualified temporary managers to ensure the best chance for a good fit with the existing staff.

Due Process and Appeal Rights

NAHC advised CMS that it believes that all deficiencies should be subject to full appeal prior to imposition of any penalty.


An HHA that prevails in a deficiency or sanction appeal should be made whole for any costs incurred

Disbursement of Recovered CMP Funds/Costs of Home Health Surveys

On the topic of the CMS’ proposal to disburse CMPs to the U.S.Treasury and State Medicaid Agency, NAHC advised:

  • States should not be forced to share in the costs of Medicare surveys
  • CMP revenues should not be shared with any party involved in the survey process or sanction determination.

Public Notice

Finally, as to issuance of a public notice when sanctions are imposed on a home health agency, the recommendations were that:

  • No public notice should be given regarding the imposition of alternative sanctions;
  • Public notice should occur only after the finalization of findings following any appeal of CoP violations and/or sanctions.