OIG: CMS Must Develop Intermediate Sanctions For Home Care Companies

Editor’s Note:  The OIG communication to CMS is attached below.

From: Inside Health Policy

CMS recently told the HHS Office of Inspector General it will issue a proposed rule by September laying out alternative sanctions that stop short of terminating home care organizations from Medicare when they fail to meet conditions of participation, but the OIG does not appear to be convinced. The OIG sent a sternly worded memo to CMS March 2 calling for prompt action on a 20-year-old congressional mandate that such regulatory steps be taken. One issue that CMS and stakeholders appear to be struggling with is how to deal with home care organizations that miss deadlines for submitting OASIS data, because currently the only option is to either do nothing or kick them out of Medicare.

The agency is also facing pressure from key lawmakers and visiting nurses to promptly address home health violations. On Wednesday (March 7), the Visiting Nurse Associations of America, which represents nonprofit organizations, backed recent calls by Republican Sens. Chuck Grassley (IA) and Orrin Hatch (UT) to temporarily block new Medicare home health providers and suppliers from entering the market.

OIG notes in its “early alert memorandum report” to CMS that Congress called 20 years ago for the agency to impose intermediate sanctions, including civil money penalties, payment suspension, and appointment of temporary home health agency management. These sanctions should be put in place as soon as possible, according to the OIG, which gave CMS 60 days to comment and respond to the memorandum.

At issue is how to sanction non-compliant HHAs short of kicking them out of Medicare, a route that OIG says CMS rarely takes.

A provision in the Omnibus Budget Reconciliation Act of 1987 called for CMS to develop and implement the intermediate sanctions by no later than April 1, 1989. A year later, the OIG issued a report calling for the agency to take action against home health agencies with repeat deficiency citations. CMS subsequently issued a Notice of Proposed Rulemaking in 1991, proposing intermediate sanctions to apply to noncompliant home care organizations, but then withdrew the NRPM in August 2000. CMS didn’t explain at the time why it was withdrawing the proposed rule, but told the OIG that legislative changes and other demands impeded promulgation of a final rule, the OIG says. In the years since, CMS has repeatedly promised action, according to OIG’s March 2 alert, but never delivered. Most recently, CMS, in a written response to the OIG for the forthcoming 2012 Compendium, stated that a draft proposed rule containing “alternative sanctions” would be published by September 2012.

The OIG is keeping the pressure on CMS with its March 2 alert. “Given the length of time since the passage of the original statute, CMS should make HHS intermediate sanctions a high priority and should complete their implementation as soon as possible,” the alert states.

“Without such sanctions, HHAs may face few consequences for noncompliance, other than possible termination, an option that our 2008 report found CMS rarely exercised,” the alert adds.

Stakeholders have been expecting details on the alternative sanctions for some time, sources say.

One issue potentially complicating CMS’ effort is how to deal with those home care organizations that narrowly miss the 30-day deadline for submitting Outcome and Assessment Information set data. Late submission of OASIS data is a violation of conditions of participation, and the 30-day deadline for home health agency OASIS reports was missed by almost 15 percent of claims in 2009, according to a recent OIG report. But some stakeholders view the 30-day deadline as arbitrary, saying that even late reports make it to CMS in plenty of time for data analysis, and CMS also signaled recently to the OIG that it opposes slapping penalties on those narrowly missing the deadline.

Submitting OASIS data did not become a condition of participation for home health agencies until 2010.

The OIG report found that almost 400,000 claims submitted by home health agencies representing almost a million dollars did not have any OASIS data documenting the patients’ conditions. Eighty-five percent of home care organizations did not submit data for at least one claim.

OIG also notes in a recent report that CMS currently does not penalize home health agencies for submitting OASIS data late and said home health agencies lack an incentive to submit the data before final payment claims are due, which is usually 3-4 weeks after the data is due. OIG suggested that enforcement actions, the 1987-mandated sanctions, be taken against consistently late agencies.

But CMS did not agree, telling the OIG that 95 percent of claims are in to CMS within 10 days of the due date.

OASIS data are used to evaluate Medicare beneficiaries’ conditions and the need for home care. These reports are the basis for home health agencies’ payments and quality measures. Each home health agency receives a standardized payment for each 60-day episode of patient care, as marked by OASIS data codes. The data is also the basis for the CMS Outcome-Based Quality improvement effort.

Mary St. Pierre at the National Association for Home Care and Hospice said that while the deadline is important for compliance, CMS gets the OASIS data in plenty of time for the data to be useful. The OIG report says timely and accurate submission of the data is vital for efforts to improve home health agency quality and for consumers researching home health agencies on the CMS website.

HHAs need only submit one OASIS report during the year to avoid a 2 percent payment penalty levied on those who do not submit data, OIG says.

The OIG, CMS and stakeholders agree the threshold of compliance should be raised from one report, although St. Pierre said raising the expectations from one report to 100 percent compliance would be unrealistic and lead to an automatic 2 percent payment reduction.

CMS said it its currently working to raise the threshold, but did not elaborate as to what that level might be.

CMS also said it is working to enforce OASIS submissions so that all claims submitted without OASIS assessments would be denied, a path St. Pierre also said is inappropriate. Instead, she said agencies should be allowed to resubmit the claim after submitting the OASIS data and verifying the Home Health Resource Group.

The OIG also suggested that CMS review interactions with states regarding timely and accurate OASIS data entry as federal guidelines do not stipulate that CMS has oversight responsibilities, but rather that CMS oversees state agencies through an annual review. CMS did not agree, and said the OIG did not take into account all state agencies involved with OASIS data submission or several aspects of the OASIS data submission system. — Michelle M. Stein

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