The following article is republished with permission from Elizabeth E. Hogue, Esq.. Elizabeth is an attorney in private practice with clients from across the healthcare continuum, all over the country. She is a subject matter expert on future healthcare trends and regularly publishes articles, like the one below, which are well regarded in the healthcare industry and widely published. We appreciate Elizabeth sharing this article with us. You can find the original article posted here.

For more information on maintaining compliance for your home health agency, you may want to read our recent interview with Cindy Firme from Renville County Public Health’s Home Health Agency with tips on how to have a successful CMS survey. 

As of January 13, 2018, home health agencies must comply with new Conditions of Participation (CoPs).

Now is the time to review draft interpretive guidelines and to be prepared to demonstrate compliance during surveys.

New Conditions of Participation (CoPs) of the Medicare Program for home health require agency executives to fulfill specific responsibilities.

The Centers for Medicare and Medicaid Services (CMS) issued draft Interpretive Guidelines for the new CoPs for home health agencies on October 27, 2017.

The draft provides information about what surveyors will be looking for when they survey agencies based on the new CoPs.


Section 484.65(e)

Specifically, Section 484.65(e) Standard: Executive Responsibilities says:

The HHA’s governing body is responsible for ensuring the following:

…Section 484.65(e)(4) That any findings of fraud or waste are appropriately addressed.

In the event that the HHA identifies a possibly illegal action by its employees, contractors or responsible/relevant physicians, it is the responsibility of the HHA to report the actions to the appropriate authorities according to the individual State laws and the nature of the action(s).

What must home health agencies do to meet this requirement?

Fraud and abuse compliance is a complex area about which surveyors may have very limited knowledge. It is, therefore, important for agencies to demonstrate that there are processes in place to handle fraud and abuse issues.

Consequently, consistent with other applicable requirements, home health agencies must have a Medicare/Medicaid Fraud and Abuse Compliance Plan that is up-to-date and fully implemented in order to effectively demonstrate compliance.

Why should all home health agencies have Fraud and Abuse Compliance Programs?

First, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has clearly stated that, consistent with the Affordable Care Act (ACA) as described below, all providers are now expected to have current Compliance Programs that are fully implemented.

As a practical matter, when agencies establish and maintain Compliance Programs, it clearly discourages surveyors from pursuing allegations of fraud and abuse violations. In other words, it is unlikely that surveyors will require agencies to take action with regard to findings of fraud and abuse if they have already done so, consistent with their Fraud and Abuse Compliance Programs.

In addition, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe as a result of properly implemented Compliance Programs.

In addition, providers with Compliance Programs are more likely to avoid fraud and abuse. This is because Programs routinely establish an obligation on the part of every employee to report possible instances of fraud and abuse. In addition, Programs require training for all employees.

Compliance Programs may help to prevent qui tam or so-called “whistleblower” lawsuits by private individuals who believe that they have identified instances of fraud and abuse.

There are significant incentives to bring these legal actions, since whistleblowers receive a share of monies recovered as a result of their efforts, and some whistleblowers have received millions of dollars.

Compliance Programs make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

In addition, the federal Affordable Care Act (ACA) requires providers to have Compliance Programs.

In short, it’s the law!

Finally, the Deficit Reduction Act (DRA) requires agencies that receive more than $5 million in monies from state Medicaid Programs per year to implement policies and procedures, provide education to employees, and put information in their employee handbooks about fraud and abuse compliance.   These requirements can be met through implementation of Fraud and Abuse Compliance Programs.

The OIG has published guidance for home health agencies. Should agencies just use this model guidance?

The answer is, “No!”

Guidance from the OIG is not a Compliance Program. Guidance from the OIG consists of general guidelines and does not constitute valid a Compliance Program.

In addition, the OIG has made it clear that Programs must be customized for each organization.

We have all sorts of policies and procedures in our organization. Why do we need something else called a Compliance Program?

Compliance Programs are specific types of documents that routinely address issues that providers do not usually cover in internal policies and procedures.

In addition, providers may not gain benefits during surveys, as described above, if there is no formal document called a Compliance Program.

We just spent a lot of money to become accredited or reaccredited. Doesn’t certification mean that we are in compliance?

On the contrary, Compliance Programs appropriately address potential fraud and abuse issues.

They also include mechanisms for helping to ensure compliance, such as processes for identification and correction of potential problems that are not addressed during the certification process.

In other words, organizations may be accredited, but fail to meet applicable compliance standards for fraud and abuse.

Will the fact that our organization has a Compliance Program make any difference with regard to the outcome of surveys?

Yes, it may make a considerable difference during surveys. If providers have Compliance Programs in place that are current and fully implemented, they will likely identify and address findings of fraud and abuse before surveyors do.

In addition, surveyors may be less aggressive regarding potential deficiencies if they are assured that agencies’ internal processes will likely identify and address any possible violations.

Compliance Programs for home health agencies don’t necessarily cost many thousands of dollars. Programs can be implemented that are understandable and do not burden agencies unnecessarily.

Draft interpretive guidelines make it clear that agencies must recognize and act upon the need to establish and maintain Compliance Programs. “Working on it” is no longer good enough!


©2018 Elizabeth E. Hogue, Esq.  All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.


Now you know more about your responsibilities when it comes to fraud and abuse, you can make sure that you comply with Section 484.65(e), and provide a better service.

We’d like to take this opportunity to thank Elizabeth for help on this matter.

You can contact Elizabeth at: (877) 871-4062 or

For more information on ensuring your agency is in compliance with CMS guidelines and is Survey-ready all the time, read our interview with Cindy Firme, RN, PHN with Renville County Public Health. Cindy shares about her agency’s recent successful CMS Survey and offers tips on how to prepare for yours.