Alternative Sanctions:
Minimizing the Impact on Your
Agency
Ken Burgess, JD
Matt Fisher, JD
David Broyles, JD
These materials have been prepared by Poyner Spruill LLP for informational purposes
only and are not legal advice. This information is not intended to create, and receipt of it
does not constitute, a lawyer-client relationship.
Why Are We Here Again
• AHHC of NC Webinars This Fall (Judy Adams)
One covered the alternative sanctions
Goal: not to repeat that
But, to come at them from a different angle
• Today’s Goals:
1. Establish a baseline of knowledge about alternative sanctions
1. What are the 5 alternative sanctions / mechanics of each
2. Some discussion of the Informal Dispute Resolution and Appeals
Processes
3. Share with you the 20+ year skilled nursing experience with them
4. Share a practical, proactive method of minimizing the impact of them
2
What Is An Alternative Sanction
• Alternative to termination of Medicare provider agreement
• Recent CMS presenter:
“Before, we could only terminate you; now we have these”
Implication: “this is a good thing”
Wrong: very few HHAs were ever terminated
CMS can still terminate an HHA and must for any noncompliance
lasting 6 months
These sanctions are not in lieu of termination, but in addition
Goal: bring about sustained compliance with COPs / eliminate
cyclical compliance
• Compliant only during / after surveys (complaint or recertification)
• CMS verbage: “the yo-yo syndrome”
3
When Can Alternative Sanctions Be Used?
• For any condition-level deficiency that:
Poses immediate jeopardy
Or substantially limits the HHA’s ability to furnish adequate care
• In the “professional judgment” of the surveyor
• Reference: CMS chart that guides surveyors on when to make a
deficiency “condition-level” but regs also permit use of “professional
judgment of surveyor
Or HHA has repeat deficiency:
• Condition-level deficiency that is substantially the same as or similar to
a condition-level OR standard-level deficiency on the most recent
standard survey or any intervening survey since the last standard one
CMS also says repeat standard deficiencies permit surveyor the
discretion to raise them to the level of a condition-level
4
First, An Example
• Ms. Smith = recent stroke patient but developed right hip
decubitus from immobility and incontinence during hospital
stay.
• Home health nursing is ordered for:
Decubitus care
Med teaching
Teaching related to skin care/integrity
And safety
Physical therapy ordered for mobility, strength training and to help
patient progress to a walker.
• Therapy is provided via a contractor to the HHA
5
The Survey
• From record reviews; interviews and home visit
observation, surveyor finds the following:
Patient has a new (second) decubitus on sacrum
Daughter, who has health issues, is primary caregiver and cannot
transfer patient or position her off of her back
Sacral decubitus is often wet with urine (and not getting pressure
relief from turning/repositioning)
MD was notified of the new decubitus but no interim order/verbal
order obtained indicating type of dressing change needed for
sacral decubitus to protect from incontinence
Nurse is using same dressing change on sacral and hip areas, but
there’s no order to do so—or any other order re that area
6
The Survey (continued)
• Nursing notes indicate drainage and foul odor
No medication changes sought/ordered re this
No recorded temperatures (do we have infection/sepsis?)
No contact with MD re the odor and drainage
• Therapy visits provided do not match the frequency
ordered
Therapy clinical notes don’t explain this disparity
Or whether various transfer techniques/options have been
explored in light of daughter’s inability to transfer patient
• No record of communication between nursing and therapy
re this patient or daughter’s inability to transfer/turn patient
7
The Survey (continued)
• No documentation that HH aide services were offered
despite OASIS documentation supporting need for
maximum assistance
• Result: Citations at:
G156 –Acceptance of patients; Plan of Care; Medical Supervision
G159-Plan of care is comprehensive/accurate/up to date
G164-Notification to MD of significant changes in patient condition
G165—Drugs/treatments administered as ordered
Likely cross reference to tags governing: skilled nursing services;
therapy services; clinical records; comprehensive assessments;
and administration (for oversight/communication, etc.)
8
The Survey (continued)
• This is a condition-level deficiency because:
It adversely affects patient’s safety or health
• Probably an immediate jeopardy because it caused or is likely to cause
serious harm to patient (immediate jeopardy)
And because it substantially limits HHA’s ability to provide
adequate care
• Now, let’s discuss the alternative sanctions CMS could
use
• Then the appeals processes
• Then, how we minimize the potential impact
9
SURVEY AND SANCTION
MECHANICSBY MATT FISHER
10
Overview of New Alternative Penalties
Regulations
• Where is it?
Chapter 10 of the State Operations Manual
• What does it do?
Provide for a means to enforce the Rules applicable to all CMS
Participating Home Health Providers
• Why do you as providers care?
11
Survey Process
• How often are Standard Surveys?
No later than 3 years from last standard survey
May be performed within 2 months of a change in ownership or
administration
Must be performed within 2 months of a significant number of
complaints"
• Extended Surveys or Partial Extended Surveys for
situations where a deficiency was noted
See§ 10006.3 & 10007.1
12
Survey Process
• Post Survey Revisits required in any situation where there
are deficiencies noted.
But can be simply a letter or a phone call for minor deficiencies
See§ 10006.6
• Surveys to be conducted by survey teams of varying sizes
including at least one RN with home health survey
experience
See§10004.1 & 10004.2
• Surveys are unannounced
With penalties for anyone who gives advance notice to a provider
of a planned survey
See§ 10008.1 & 10008.4
13
Deemed Status
• Home Health Agencies ("HHAs") can acquire certification
for participation in Medicare via a State Agency survey or
via deemed status through a CMS-approved Accrediting
Organization (“AOs")
• Deemed status HHAs will be under the jurisdiction of their
AOs for survey purposes
Unless a Condition-Level deficiency is found in a survey, in which
case the deemed status provider reverts back to the oversight of
the State Agency
See§10008.1 & 10008.4
14
Branch Offices
• In some cases, deficiencies cited for Branch Offices may
be imputed to the Parent Offices and vice versa
• A Branch Office is defined as being:
…part of the HHA and is located sufficiently close to share
administration, supervision, and services in a manner that renders
it unnecessary for the branch independently to meet the conditions
of participation as an HHA.
• When a deficiency is found at one, the deficiency, and any
associated penalties, shall apply to both the parent and
the branch
See§10010.4
15
Available Sanctions
• In addition to Terminating the Provider Agreement, the
following penalties are available:
Civil money penalties ("CMPs")
Suspension of payment for all new admissions;
Temporary management of the HHA;
Directed plan of correction; and
Directed in-service training
See§10010.5
16
Factors Considered in Imposing Sanctions
• Whether there is Immediate Jeopardy;
• The frequency and duration of the non-compliance;
• Repeat deficiencies at either a parent or branch location;
• Extent that deficiencies are directly related to failure to
provide quality care;
• Extent to which the HHA is part of a larger organization
with systemic problems; and
• Indications of system-wide failure to provide quality care
See § 10010.6
17
Immediate Jeopardy Deficiencies
• Termination of the Provider Agreement is required if the
Immediate Jeopardy is not removed within 23 days
However, additional penalties – such as a Civil Monetary Penalty –
can be imposed in addition to terminating the Provider Agreement
See§100112& 10012
• The stated goal of this rule is for action to be swift in
enforcement for Immediate Jeopardy deficiencies
• The clock is ticking from the moment you receive
notification.
18
Condition-Level Non-IJ Deficiencies
• CMS has a choice:
Terminate the Provider Agreement within 100 days if still non-
compliant
-or-
Impose one of the Alternative Sanctions, such as a CMP
• If Alternative Sanctions are imposed, and there is no
substantial compliance with respect to the Condition-Level
deficiencies by the end of 6 Months, the Provider
Agreement is automatically terminated
See§10013
19
Civil Monetary Penalties
• CMPs can be imposed regardless of whether Immediate
Jeopardy exists
• Penalties are imposed for either:
Per Day Penalties: The number of days that the provider is not in
substantial compliance with one or more of the Conditions of
Participation '"CoPs”
- or -
Per Instance Penalties: For each instance that the provider is not
in substantial compliance
• The total amount of the CMP cannot exceed $10,000 for
each day of non-compliance
See§10017.1
20
CMPs : Choice of Penalties
• The key here is the definition of "per instance“
A single event of non-compliance identified and corrected during a
survey for which the statute authorizes CMS to impose a sanction.
• Thus, while there may be a single event which leads to
non-compliance ...
There can be more than one instance of non-compliance identified
and more than one civil money penalty imposed during a survey
• Cannot impose both a "per instance" and a "per day“
penalty simultaneously for a single deficiency ...
… but both can be used in the same survey cycle
See§10017.1
21
CMPs : Factors Impacting Amount of
Penalty
• Factors considered in determining amount of penalty
include:
The size of the agency and its resources;
Accurate and credible resources such cost reports and
claims information, that provide information on the
operations and the resources of the HHA; and
Evidence that the provider has a built-in, self-regulating
Quality Assessment and Performance Improvement
("QUAPI") system
See§ 10017.2
22
CMPs : Amount of Penalty: Immediate
Jeopardy Deficiencies
• Immediate Jeopardy Deficiency: Penalties in the upper
range of the $10,000 per day limit
The penalty in this range will continue until compliance can be
determined.
A revisit will follow only after the provider submits a "credible
allegation of compliance" in the form of documented execution of a
Plan of Correction
If on revisit, the IJ has abated, but a Condition-Level deficiency still
exists, the penalty amount may be reduced prospectively
See§10018. 1
23
CMPs : Per-Day Penalties : Immediate
Jeopardy Deficiencies
• High-End Per-Day Penalty Ranges:
Penalty of $10,000 per day for a deficiency or deficiencies that is
determined to be immediate jeopardy and that results in actual
harm;
Penalty of $10,000 per day for a deficiency or deficiencies that is
determined to be immediate jeopardy and that result in a potential
for harm; and
Penalty of $8,500 per day for an isolated incident of non-
compliance that is in violation of established HHA policies and
procedures
See§ 10018.1
24
CMPs: Per-Day Penalties: ConditionLevel
Non-IJ or Repeat Penalties
• Middle Per-Day Penalty Ranges:
Penalties imposed for a repeat and/or Condition-Level deficiency
that does not constitute immediate jeopardy, but is directly
related to poor quality patient care outcomes will be in the
range of $1,500 to $8,500 per day of non-compliance.
• Lower Per-Day Penalty Ranges:
Penalties imposed for a repeat and/or Condition-Level deficiency
that does not constitute immediate jeopardy and that is related
predominately to structure or process-oriented conditions
rather than directly related to patient care outcomes will be in
the range of $500 to $4,000 per day of non-compliance
See§ 10018.2 & 10018.3
25
CMPs : Per-Instance Penalties
• Can be multiple instances of non-compliance during a
survey leading to multiple penalties.
• Individually, these penalties can range from $500 to
$10,000 per instance, without exceeding the limit of
$10,000 for each day of non-compliance
See§ 10018.4
• There are charts which lay out some of the suggested
Penalties in § 10019
26
Other Sanction Types
• While CMPs are the often the most discussed, the other
types of penalties can be just as concerning:
Suspension of payment for all new admissions;
Temporary management of the HHA;
Directed plan of correction; and
Directed in-service training
See§10010.5
27
Suspension of Payment for New
Admissions
• Suspension of payment for new admissions of Medicare
patients may be imposed anytime an HHA is found to be
out of substantial compliance with Condition, IJ, or not
Notice of 2 calendar days before the effective date in immediate
jeopardy situations
Notice of 15 calendar days before the effective date in non-
immediate jeopardy situations.
• This would have no impact on patients who have been
receiving care from the HHA before the effective date of
this sanction
See§10016.2 & §10016.3
28
Suspension of Payment for New
Admissions• Suspension of Payment can last a grand total of 6
months, ending when either:
CMS terminates the Provider Agreement
- or -
When substantial compliance with the CoPs is achieved
• There is no recoupment for services provided to Medicare
patients admitted during the time the suspension was in
place
See§10016.4
29
Suspension of Payment for New
Admissions
• Thus, any new referrals and admissions while under this
sanction are taken at the risk of no payment until the
sanction is lifted
• Furthermore, the provider is precluded from charging a
Medicare patient for such services unless it could show
that, before initiating the care, it had notified the patient
or representative both orally and in writing in a
language that the patient or representative can
understand that Medicare payment is not available
See§10016.3
30
Temporary Management of the HHA
• In situations where the failure to comply with the CoPs is
deemed to be directly related to poor management or lack
of management such that it is likely to impair the HHA’s
ability to correct deficiencies, CMS may choose to impose
temporary management of the HHA
• Temporary Management may be imposed anytime an
HHA is found to be out of substantial compliance with
Condition, IJ, or not
Notice of 2 calendar days before the effective date in immediate
jeopardy situations
Notice of 15 calendar days before the effective date in non-
immediate jeopardy situations.
See§ 10015.1 & 10015.2
31
Temporary Management
• Temporary Management can last a grand total of 6
months, ending when either:
CMS terminates the Provider Agreement
- or -
When substantial compliance with the CoPs is achieved
See§ 10015.2 & 10015.4
• The Temporary Manager will be selected by the State
Agency
• Failure of the existing management to relinquish control of
the HHA to the Temporary Manager will result in
Immediate Termination of the Provider Agreement
See§ 10015.5
32
Temporary Management
• The provider must pay the Temporary Manager’s salary at
the prevailing rate
See§ 10015.5
• Temporary Manager has full operational and executive
authority over the staff and HHA
This includes, hiring, firing, policies, and all other aspects of
operations
See§ 10015.3
33
Directed Plan of Correction
• A Directed Plan of Correction may be imposed when the
HHA has either:
deficiencies that warrant directing the HHA to take a specific
action(s)
- or -
when the HHA fails to submit an acceptable plan of correction
for condition level deficiencies
See§10023.3
• Notice
Notice of 2 calendar days before the effective date in immediate
jeopardy situations
Notice of 15 calendar days before the effective date in non-
immediate jeopardy situations.
See§10023.6
34
Directed Plan of Correction
• The actions outlined in a Directed Plan of Correction are
not optional or subject to interpretation
Each of the outlined actions are an imperative mandate which
must be fulfilled
• The costs associated are to be born entirely by the
provider and can prove to be quite expensive
35
Directed In-Service Training
• Directed in-service training is a remedy that may be used
when the State Agency, CMS, or the temporary manager
believe that education is likely to correct the deficiencies
and help the HHA achieve substantial compliance.
• The provider bears all costs of the directed in-service
training
The trainers are mandated to the provider by CMS or the State
Agency
See§10024.1 – 10024.5
• For Home Health providers, there is likely to be added
expense considering that the staff is not tied to a single
bricks and mortar facility
36
Notice of Penalty
• Upon receiving a Notice of Penalty, the clock starts ticking
on appeal rights.
A request for Informal Dispute Resolution ("lDR”) must be made in
writing within the 10 days provided for submitting a Plan of
Correction
See§10009.3
A formal notice of appeal must be made in writing within 60 Days
from receipt of the notice of imposition of a penalty
See§ 10021.1
• Which brings us to an overview of the IDR and Appeal
process by David Broyles…
37
REFUTING DETERMINATIONS:
INFORMAL DISPUTE
RESOLUTION & APPEALS
BY DAVID BROYLES
38
YOU RECEIVED THE CMS-2567 FORM…WHAT
COMES NEXT??
• Informal Appeal Procedure
Informal Dispute Resolution (IDR)
See§ 10009 & 42 CFR 488.745
• Appealing Noncompliance
Noncompliance Leading To CMP
See§ 10020.3 & 42 CFR § 4108.40
Waiver of Hearing By HHA
See§ 10020.4
• Settlement of CMPs
See§ 10021.4
39
INFORMAL DISPUTE RESOLUTION (IDR)
What is IDR & when is it available?
• IDR offers an HHA the opportunity to informally dispute one or more
condition-level deficiencies cited by the State or CMS Regional Office
(RO).
See§ 10009.1 & 10009.2
• IDR will occur with the agency that conducted the survey.
• The IDR process, as established by the State or CMS RO, must be in
writing and available for review.
Elements for IDR adopted by CMS designed to clarify and expedite the
process.
• 3 elements.
• States are free to incorporate elements into their own procedures.
See§ 10009.1
40
INFORMAL DISPUTE RESOLUTION (IDR)
Elements Adopted By CMS In Notice To HHA
• Notice indicating the process is an informal administrative process and not a
formal evidentiary hearing.
• Notice that the HHA may be accompanied by counsel and if the HHA so
chooses, must indicate in its request so CMS may also have counsel
present.
• Notice that CMS will verbally advise HHA of decision on the informal dispute,
followed by a written confirmation.
See§ 10009.1
41
INFORMAL DISPUTE RESOLUTION (IDR)
Notification of IDR Availability To HHA
• HHA will be notified of the availability of IDR in transmittal letter sent with the
CMS-2567.
• Transmittal letter contents:
– Inform the HHA of the opportunity for IDR and requirements for submitting
request by the HHA.
– What the request by HHA should include.
» Deadline for written request by HHA – within same 10 calendar day POC
submission period.
» Contact information to request IDR.
» State’s procedure for the IDR.
See§ 10009.3
42
INFORMAL DISPUTE RESOLUTION (IDR)
Purpose of IDR Availability
• HHA opportunity to informally dispute condition-level deficiencies.
• Condition-level deficiencies only – not available for standard-level
deficiencies cited.
• Dispute is limited to the deficiency cited, not aspects of the survey.
• Initiation of the IDR process (or failure to complete the process) will not
postpone or otherwise delay effective date of enforcement action.
See§ 10009.2
43
INFORMAL DISPUTE RESOLUTION (IDR)
Procedure & Mandatory Elements of IDR
• Process in place to implement Federal (CMS) control and accountability for
reliable and accurate State agency determinations of HHA noncompliance.
• Mandatory Elements of IDR Process:
– IDR may not be used to delay formal imposition of sanctions or challenge any
other aspect of the survey process.
– HHA must be notified of IDR availability in transmittal letter with certain
information to the HHA.
– Failure to complete IDR timely will not delay the effective date of enforcement
action.
– When HHA is unsuccessful at IDR, must be notified of such in writing.
– Certain actions must take place when HHA is successful at IDR.
– HHA shall have the opportunity to request IDR for each survey citing condition-
level deficiencies.
44
INFORMAL DISPUTE RESOLUTION (IDR)
Procedure & Mandatory Elements of IDR (cont’d)
• State agency has the option to involve outside persons or entities
qualified to participate in the IDR process.
– What is the purpose of this option?
– What impact will this have?
• If successful at IDR, the HHA has the option to request a clean (new)
copy of the CMS-2567.
– When will that be available?
– When will the reporting systems be updated reflecting HHA success?
See§ 10009.3
45
APPEAL OF NONCOMPLIANCE DETERMINATION
• Before any CMP can be collected, HHA is entitled to a hearing, so long as it
is properly requested.
– What is the procedure for requesting a hearing and where can it be found?
See§ 10020.3 & 42 C.F.R. § 4108.40
• Hearing requested with the Administrative Law Judge (ALJ) on the
determination and basis for the CMP.
– If a hearing is requested, when can the CMP be collected?
• HHA does have the opportunity for review by the Departmental Appeals
Board if the HHA is unsatisfied with the ALJ decision.
See§ 10020.3 & 1128A of Social Security Act
46
APPEAL OF NONCOMPLIANCE DETERMINATION
Waiver of Hearing By HHA
• HHA may waive the right to a hearing if done in writing within 60 days from
the date of the notice imposing the CMP.
• Why would an HHA waive its right to a hearing?
– If the HHA properly waives its right to a hearing, CMS will approve the waiver and
reduce the CMP by 35%.
• How long will the HHA have to pay if it waives its hearing?
– Payment of the reduced CMP must be made within 15 days of the HHA’s receipt
of CMS’s approval of the waiver and reduction of the CMP.
– Examples of the impact on when CMP payment is due.
See§ 10020.4
47
ONE MORE OPTION - SETTLEMENT OF CMPs
• CMS Regional Office (RO) has the authority to settle CMP cases at any time
prior to a final administrative decision related to the case.
• What potential opportunity is available here?
– Potential opportunity for the HHA to settle a CMP for an amount less than total if it
is unsuccessful at IDR.
• How much authority does the RO have to settle?
– A settlement should not be for a better term or amount than the 35% reduction
available to the HHA had it waived its right to a hearing.
See§ 10021.4
48
HOW TO APPROACH A DECISION TO REFUTE A
NONCOMPLIANCE DETERMINATION
Practical Implications & Experience – Appealing Noncompliance
• What to do when a transmittal letter and CMS-2567 are received.
• The IDR process and opportunity:
– Chance to do the “real work” and have a “mini trial” at this level.
– Coordinate documents and prepare the case between legal counsel and clinical
representatives.
– Preference for informal and efficient resolution by all parties.
• Formal appeals:
– Complexity of formal appeals.
– Success rates seen with formal appeals in similar situations.
– “Option of last resort” with formal appeals and hearings.
49
PRACTICAL CONSIDERATIONS
BASED UPON THE
EXPERIENCE OF SKILLED
NURSING FACILITIESBY KEN BURGESS
50
The Skilled Nursing Facility Experience
• First, why do we care about the SNF experience?
HHA alternative sanctions closely match the HHA sanctions
As do the mechanisms for use; notice periods; periods of duration
And the IDRs and the appeals
SNFs have a 20 plus year experience with these things
Our August meeting with DHSR Interim Director of DHSR Acute
Care Section (covering HHAs):
• “We will follow the SNF experience in enforcement”
So, you need to know what that experience has been
51
The SNF Experience With Sanctions
• CMPs are the most popular sanction
$$ in the bank
The feeling that providers feel it first in the wallet
And they can run daily until compliance achieved so they keep the
pressure on
• At $10,000/day for 30 days, total CMP = $300,000.00
For SNFs, in CMS Region IV, the CMPs have steadily increased:
• In terms of frequency of use as an alternative sanction
• In terms of per day value (the range selected from)
• In terms of duration
• So in terms of total dollars
52
The SNF Experience With Sanctions
• Suspension of admissions has been on the rise
Choice: stop admitting patients while it’s in effect
Or admit patients and hope you return to compliance fast
Often used in combination with CMPs – double financial impact
Generally, CMP is used for more routine deficiencies rather than a
suspension of admissions
• But CMS can impose suspension of admissions any time it can impose
any sanction
• They use it with serious issues/repeats/patterns of related deficiencies
53
The SNF Experience With Sanctions
• Directed Plans of Correction
Historically, rarely used…
• What if it doesn’t work?
• What if it makes things worse—whose liability?
Recently, DPOC use on the rise
• CMS dictates elements of your plan of correction & deadlines
– Missing them means additional sanctions and CMPs per day
• So, in the same time period you are developing your own POC; and
implementing it; and calling for a survey revisit to end the
noncompliance, you are wrangling to implement very expansive
DPOCs from CMS
• Recent SNF case: 14 separate steps in DPOC, including onsite in-
service training of every MD who worked with any patient
• These are time-consuming and can get very expensive
54
The SNF Experience With Sanctions
• Directed inservice training
Again, historically rarely used
Of late, on the increase
CMS can dictate:
• Who must be trained
• On what
• By when
• Covering specific topics
• Who you can use for training (CMS approved trainer)
• Required post-testing
• Require evidence of completion/testing/effectiveness
55
Minimizing the Impact of Sanctions
• It’s all about Plans of Correction (POCs)
• For virtually every cited deficiency, you must prepare POC
DHSR letter tells you this, and the due date, and required elements
In a POC, you must:
1. Address how corrective action will be accomplished for patients
affected by deficient practice;
2. Address how HHA will identify other patients having potential to
be affected by deficient practice;
3. Address how HHA will identify the underlying process/systems
that need improvement and what procedures/systemic changes
will be made to prevent recurrence; and
4. How HHA will monitor changes to ensure they work and last
56
Using POCs Proactively to Reduce
Sanction Impact
• When you have any self-discovered deficient practice, go
into full-post survey mode, as if you’d been cited, and
implement the full 4-point POC—and DOCUMENT IT
• Why?
CMS says return to compliance requires full POC implementation
ALJ’s who hear these appeals say the same thing—no return to
compliance until full POC has been implemented
Our SNF experience, using this approach, has resulted in:
• Minimizing the number of days of noncompliance (fewer CMP days)
• Avoiding suspension of admissions/directed POCs/in-service training
• In many cases: no citation at all because we found/fixed it !!!!!
57
Using POCs Proactively
• Other reasons are contained in your HHA alternative
sanction regulations:
Factors considered in imposing CMPs:
• Frequency/duration of noncompliance
– So, goal is to shorten duration and prevent recurrence
• Repeat deficiencies
• Getting a per day CMP versus a per instance
– “Per instance” means found and fixed during survey
– If corrected before time of survey, then there’s no basis under regulations
for an ongoing, prospective CMP
– SOM 10020.6: “the per day CMP would begin to accrue on the last day of
the survey that identified the noncompliance and would continue to accrue
until the HHA achieves substantial compliance” or is terminated”
58
Using POCs Proactively
Factors impacting amount of CMP: evidence the HHA has a built-
in, self-regulating QAPI system
• The 4 required POC elements are, in essence, also core components
of any good QAPI program
Definition of “repeat deficiency”—condition-level deficiency that is
same or substantially the same as one cited on prior standard
survey or any intervening survey since your most recent standard
survey (i.e., complaint surveys)
• So, implementing a full-scale POC before a survey, and hopefully
avoiding a citation, means that issue cannot later become the basis for
a “repeat deficiency” and thus a sanction
59
Applying The Approach — Our Earlier
Example: Step 1
• Step 1: What corrective action for Mr. Smith:
Full assessment of Mr. Smith re complications from second,
infected decubitus (vitals; temps; indicia of infection)
Consult with and obtain order from MD for treatment of second
decubitus
• Include proper dressing; medications; issues around incontinence
Discuss with therapy approaches to resolve inability of daughter to
assist with turning/repositioning
• Repair documentation going forward of nurse/therapy communication
Arrange for HH aide services to assist with repositioning
Determine why therapy not provided as scheduled and either
modify schedule or provide therapy as scheduled
60
Applying The Approach: Step 2
• Step 2—Identifying other patients at possible risk from
deficient practice:
This is an internal audit step and process. Example:
Audit charts and in-home care of all current patients with limited
mobility to look for:
• Schedules for repositioning and plans to implement that schedule;
• Assessment of ability of primary caregiver to assist;
• Need for aide services
• Therapy consults
Audit charts of patients with therapy orders to ensure frequency of
care matches prescribed/scheduled therapy and, where
appropriate, that transfer techniques/options have been discussed
with therapy and primary caregiver
61
Applying The Approach: Step 2
Audit charts of all patients with pressure ulcers to look for:
• Ongoing assessment of status and change of condition
• Communication with MD for new/modified orders/new interventions
• Recordation of assessments and vitals / infection symptoms
Ask are there other issues, besides those specifically cited here,
we need to be examining to determine if we have systemic issues
• Here, we are identifying other patients who might be at
risk from any and all elements of our deficiencies
So, you must tailor that “audit” or inquiry to the facts in play
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Applying the Approach: Step 3
• Step 3: Process / system/ other changes we’ll implement
to prevent recurrence (aka “the Fix”):
Retrain applicable nursing staff re:
• Recognizing and assessing all changes in condition
– Including causes (daughter’s condition here led to immobility and problems)
• Reporting all changes in condition to MD
• Obtaining orders related to new/changed conditions
• Reflecting same on assessment/plan of care documents
• Coordinating with other disciplines where appropriate (therapy)
• Infection control procedures (re the sacral wound treatment)
• Responding to signs of infection / determining cause / follow up
• Documentation of interactions with patient, caregiver and MD
– Including caregiver interactions showing limits in ability to assist patient
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Applying the Approach: Step 3
Revise assessment tools to prompt consideration of the above
elements
Revise communication tools for:
• Reporting change in condition
• Prompting staff onsite to report to supervisor / MD change in condition
– Including follow up with MD for failure to respond with changed orders
• Therapy / nursing interactions and documentation of same
– Including therapy self-audit of patients being followed by therapy
Revise HHA policies and procedures on:
• [select those topics where you feel the Ps and Ps were the problem,
not the implementation of those by staff and list here]
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Applying the Approach: Step 4
• Step 4: How the HHA will monitor these “fixes” to ensure
they work and deficient practice doesn’t recur:
Example: Director of nursing or designee will:
• Audit 10% of charts weekly for 6 months on issues identified above
– And/or conduct targeted random in-home visits to observe compliance
• Thereafter, DON/designee will audit 5% of HHA charts quarterly
• Results will be shared with QAPI Committee
– Further evidence of issues will be addressed with appropriate further
revisions to policies/procedures; staff training and/or communication tools
• This step is all about how do we know our “fix” worked and
is being maintained
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For Each of the Four Steps
• Include date by which each step/task is to be completed in
your self-directed POC process
• Then ensure they really are
• Document all of this carefully and hang on to it
We recommend spoon feeding surveyors
• Notebook divided into 4 parts, one for each step
– Tabbed
– Organized
• Our friends at the survey agency, as least for SNFs, tell us
they’ve really seen improvements since we began
teaching this in NC several years ago
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Finally . . .
• Is there anything new about this?
Not about Plans of Correction
But, yes, about using them to minimize the potential harm and
costs to you of this brand new set of sanctions and
survey/enforcement expectations
Before now, POCs helped you avoid termination from Medicare
They still do but they can also help you avoid sanctions
Or at least minimize their impact
And the approach is consistent with your QAPI obligations
And will be right in line with your risk management goals
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