By: Elizabeth E. Hogue, Esq.
New Conditions of Participation (CoPs) went into effect for home health agencies on January 13, 2018. Agencies anticipate that they may receive unwarranted deficiencies as a result of these new CoPs. Consequently, it is important for agencies to know how to contest deficiencies that they believe are inappropriate. Likewise, hospices and private duty agencies may also come under increasing fire from surveyors. In some cases, these deficiencies received by hospices and private duty agencies are unfair. So, it is important for home care providers to know how to contest deficiencies.
The first action home care providers should take when they disagree with deficiencies is to contest them in Plans of Correction (PoCs) submitted in response to Statements of Deficiency. Surveyors in some states have reacted negatively to this practice, especially in those states that have what may be described as “bad survey culture.” Some surveyors have even demanded that any language expressing disagreement in PoCs must be removed before PoCs will be accepted.
"Providers must, however, be meticulous about how they contest deficiencies in PoCs."
It is important for providers to know that the Centers for Medicare & Medicaid Services (CMS) has instructed providers to indicate disagreement in PoCs when they wish to contest deficiencies. Specifically, Chapter 3 of the State Operations Manual 3016E - Disagreement over Deficiencies states as follows:
A provider that disagrees with an SA finding regarding a cited deficiency or an acceptable PoC should be advised to annotate its positon on the PoC, and should specify why the SA’s citation is not correct.
In other words, providers that want to be heard regarding contested survey findings should express their disagreement in PoCs. Providers should express disagreement and the reasons for their disagreement in PoCs. They may also wish to request specific actions in PoCs, such as withdrawal of deficiencies.
Providers must, however, be meticulous about how they contest deficiencies in PoCs. Despite the fact that providers have expressed disagreement with deficiencies and perhaps have asked that the deficiencies be withdrawn, they must also submit a PoC for each contested deficiency. If providers do not also submit PoCs for each contested deficiency and the challenges to deficiencies are rejected, providers may suffer adverse action, including decertification, because they did not submit a PoC for every deficiency.
In addition to challenging inappropriate deficiencies, providers should also utilize independence dispute resolution (IDR) processes that may be available to them. The processes for IDR may vary from state to state, so providers should identify state requirements and follow them.
Using these two ways to protest inaccurate or inappropriate survey deficiencies has produced excellent results for many providers. Especially in the face of new CoPs for home health agencies that may provide unfair survey results, providers must prepare to stand up for themselves during the survey process by contesting deficiencies using the mechanisms available to them.
Elizabeth E. Hogue, Esq.
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