TAHC&H has received numerous inquiries regarding the status of the new Medicare Home Health Conditions of Participation that have an effective date of January 13, 2018. Most questions focus on the fact that CMS has yet to issue the final Interpretive Guidelines (IG’s).
As reported late last year, TAHC&H had an opportunity to review the draft interpretive guidelines that CMS intends to use in tandem with the CoPs. Despite the absence of final Interpretive Guidelines, the effective date of the new CoPs will remain January 13, 2018. CMS continues to work on the Interpretive Guidelines given the comments received. In a message from CMS, David R. Wright, Director, Quality, Safety & Oversight Group (QSOG) indicates that:
- Surveyors will use the draft Interpretive Guidelines until the final version is issued
- The final version of the CoPs is expected to be much in line with the draft
- The actual CoP regulation, not the guidelines control survey determinations
- Both the regulations and the guidelines offer flexibility on compliance with CMS removing “guidance that may have been overly prescriptive”
TAHC&H recommends that Home Health Agencies undertake a good faith effort to achieve compliance with the regulations by January 13. To help you do that, TAHC&H is offering several opportunities for additional comprehensive CoP training this year in Dallas, Austin and the Valley. We have created a full day of content in order to give agencies the most information possible for compliance. We are exploring a Houston location depending on demand. This training will incorporate the draft IGs and feature an opportunity to walk away with some tools to take back with you to your agency. Additionally, we have invited representatives from CMS’ region IV office to participate in an expanded Q&A with participants at the workshop.
The surveyors should focus on the actual CoP regulations over any guidance issued in draft by CMS. We have confirmed with our Region IV CMS office that there has been very little training on the draft CoPs for surveyors. If an HHA is cited for a deficiency, but believes that its conduct complied with the applicable regulation, TAHC&H advises that the HHA bring the CMS Regional Office into the matter and let TAHC&H know as well so that we can continue our work with CMS. We are hopeful that CMS and surveyors will approach the early stages of the new CoP surveys with openness rather than a “cookbook” approach to compliance.
As noted above, the IGs for the new HHA Conditions of Participation was released in draft to all HHA state and national provider organizations late last year. We shared that draft with our Medicare / Medicaid and Govt. affairs committee who participated in sending comments to TAHC&H for distribution to CMS. Although many states participated and worked with the National Association, the incorporation of these comments did not result in substantive changes by CMS to the draft IGs The final document, while waiting final clearance from CMS’ Office of General Counsel, will most likely not be vastly different from the draft we commented on last year.
Below is an email directly from CMS’ David Wright, explaining the process and CMS’ intentions.
As we discussed during our meeting here in Baltimore and as I am sure your members noted, the HHA IG’S have been streamlined to provide clarifications of regulations when necessary. The goal of the IGs is to provide additional clarification when the actual regulation may be unclear for both the provider community and the surveyors. We have removed previous guidance that may have been overly prescriptive. The HHA provider must meet the regulation not the IG. The IGs do assist the surveyors to better understand the intent of CMS with the regulatory language but the IGs are not regulatory and are not intended to provide a road map to minimum compliance.
Although the IGs will not be issued in final before the January 13, 2018 effective date for the new CoPs, our surveyors will use the draft IGs to start surveys under the new HHA CoPs. This is not unusual and has been done on numerous occasions. The reason we can do this is that the IGs simply assist the surveyor to understand the intent of the regulation. They do not drive the citation of non-compliance. That can only be done based upon the regulation itself. That determination is made by the survey process which includes observations, interviews and record reviews. No deficiency is ever written on Interpretive Guidance alone.
CMS did agree, in an abundance of caution, to defer the imposition of CMPs for one year from January 13, 2018 to January 13, 2019. This would not apply in immediate jeopardy situations and all other HHA alternative sanctions will continue to be imposed.
Finally, CMS will work with the Regional Offices to review any specific cases where a provider feels that, in the absence of the IGs, a surveyors may have made an erroneous non-compliance call.
Hope this is helpful,
David R. Wright, Director
Quality, Safety & Oversight Group (QSOG)
(formerly Survey & Certification Group)
Center for Clinical Standards and Quality
Centers for Medicare & Medicaid Services