Home and Community Support Services Agencies (HCSSAs) Provider Letter #07-11 HCSSA Houston Roundtable Questions and Answers

COMMISSIONER Adelaide Horn April 23, 2007 To: Subject: Home and Community Support Services Agencies (HCSSAs) Provider Letter #07-11 HCSSA Houston Roundtable Questions and Answers On May 31, 2006 and November 15, 2006, Regulatory Services staff met in Houston Texas with HCSSA provider groups. The attached table of questions and answers was developed as a result of these meetings. The table is organized into the following sequential topic areas: Licensing, Training, Coordination of Care, Survey Questions, Administrative Issues, OASIS, and General Questions. If you need additional information or have specific questions, please contact a Home and Community Support Services Agency program specialist in the Policy, Rules, and Curriculum Development Unit at 512-438-3161. Sincerely, [signature on file] Veronda L. Durden Assistant Commissioner Regulatory Services VLD:mdv Attachment 701 W. 51st St. P.O. Box 149030 Austin, Texas 78714-9030 (512) 438-3011 www.dads.state.tx.us

HCSSA Houston Roundtable Questions and Answers Question Response Regulations and Statutes Licensure Issues If my office is in Houston, do I need to have a sub-office before I can service a patient there? No. In Texas, there are no sub-offices or subunits. A separate license is required for each place of business where an agency maintains client records or directs home health, hospice, or personal assistance services. A license includes the physical address from which services are to be provided. A parent agency must identify its service area. If the parent agency applies for and is issued a license for a branch office or an alternate delivery site, it must be located within the parent agency s service area. An agency must provide notice before it relocates an office or wants to increase or decrease its service area. 40 TAC 97.2, 97.11, 97.15, 97.27, 97.29, 97.213, and 97.220 Can one own more than one agency in different counties? When applying for licensing should we apply both for licensure and certified? What s the difference? What are the requirements for LHH with dialysis? Financially An administrative support site is a site where an agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services; this site does not require an agency license. Yes, rules on the criteria and eligibility for an agency license do not restrict a person from owning more than one agency in different counties. All home health agencies in Texas must be licensed by the state. When applying for a license, the applicant may request to be licensed in one or more of six categories of services. An applicant that requests the category of licensed and certified home health services (LCHHS) on an initial license must also make an application for certification by CMS as a Medicarecertified agency. Requirements for an agency licensed to provide licensed home health services with home dialysis designation can be found in 40 TAC Chapter 40 TAC 97.11 40 TAC 97.1 and 97.13 40 TAC 97.40500 1 of 26

or manpower wise? Re-survey cycles, 18 months or 36 months? What will happen if my license expires before the surveyor is able to survey my agency? If an agency has a change of ownership (the tax ID changed) is the agency required to request an initial survey? 97, Licensing Standards for Home and Community Support Services Agencies. The rules describe the types and qualifications of staff required to receive the license and to serve clients. An applicant must submit an affidavit of financial solvency with its application for an initial license. The applicant would have to determine the financial requirements to start up and run such an agency. After the initial licensing survey, DADS conducts a licensure resurvey within 18 months, and then resurveys for licensure every 36 months thereafter. The regulations require that an agency submit a written request for an initial survey at least six months before the expiration date of the initial license. If the agency has followed the regulation and it has not been surveyed, the agency will not receive a new license but may continue to care for its clients until it is surveyed. DADS makes every attempt once notified to survey the agency before expiration of the license. However, the agency must complete and submit an application to renew its license if it is going to expire while waiting for the initial survey. If proper notice has been given to DADS, the agency will not be penalized for continuing to operate even though its license has expired. If the agency did not follow the regulations, it could be subject to enforcement actions. Yes. When there is a change of ownership, the new owner must submit an initial application for a new license. The agency must request an initial survey, as this is the initial license. 40 TAC 97.501 40 TAC 97.521(c) 40 TAC 97.23(c) An agency recently submitted Yes. DADS regulations require the new owner to submit a request for an 40 TAC 97.23, 97.25 (a), and 2 of 26

a CHOW and was informed by CMS that the agency did not need to have another survey. Is the request for a survey after a CHOW a DADS regulation? When is a faith-based organization exempt from licensure and when is it not exempt? A license expires on January 31, 2007 and the agency has not received the application forms. The agency contacted the licensing department during the last week of October 2006 and was advised that it would be sent at a later date, but they have not received it as of November 2006. Does a change in the agency s name require a new license application and an initial survey? initial survey, as this is a new license. Then, once the new owner has received its license, the agency must submit a notification of readiness to the regional program manager (PM). At the discretion of the PM, DADS may either conduct a survey in response to the CHOW or may conduct a survey when the next scheduled survey is due. If a church (members only) or religious denomination (members only) is providing visiting nurse services or treatment by prayer or spiritual means only, then it is exempt from licensing. If the church or religious denomination becomes a place of employment (hiring employees to provide visiting nursing services), then the church or religious denomination would be required to obtain a license. DADS will send notice of expiration of a license at least 60 days before the expiration date. If the agency has not received the notice from DADS at least 45 days before the expiration date, the agency must notify DADS and submit a written request for an application for a license renewal. The DADS Web page at http://www.dads.state.tx.us/providers/hcssa/forms.html contains a list of forms that an agency may need; the application is one of them. If an agency would like to be proactive, it may print the application and begin the reapplication process this way. No, if the agency is only changing its name (legal entity or doing business as), it must only provide DADS with these three things: 1) written notification of the name change within five working days before the effective date of the change, 3 of 26 97.52 HSC Chapter 142, 142.003(12)(A)(B) 40 TAC 97.17(e) 40 TAC 97.215 and 97.23

2) a copy of the certificate of amendment from the secretary of state s office or other governmental authority within 30 days after receiving the certificate, and 3) a copy of the current federal taxpayer identification number. However, if the agency is having a change of ownership (CHOW), the new owner must submit an application requesting a new license; when the new license is received, the agency must request an initial survey. How does an agency go about changing the name of their agency? When an agency has a name change do they have to go through another initial DADS Web site at http://www.dads.state.tx.us/providers/hcssa/report_changes.html#dba provides instruction for when an agency has a name change. When an agency changes its name (the legal entity or its doing business as name) it must provide DADS with these three things: 1) written notification of the name change within five working days before the effective date of the change, 2) a copy of the certificate of amendment from the secretary of state s office or other governmental authority within 30 days after receiving the certificate, and 3) a copy of the current federal taxpayer identification number. DADS Web site at http://www.dads.state.tx.us/providers/hcssa/report_changes.html#dba provides instruction for when an agency has a change in name. No, the agency does not need to have an initial licensure survey unless the agency has undergone a CHOW. If the agency s name was changed due to a CHOW, the agency should have applied for a new license and, in this 40 TAC 97. 215 40 TAC 97.23 and 97.25 4 of 26

licensure survey? Some pediatric agencies are changing from L&C to LHH only, therefore is it possible to treat Medicaid pediatric patients under LHH licensure category? What license do you need to care for non-medicare or private pay patients? What is deemed status for an agency? What is the rate of agency closure? instance, would be required to request an initial survey. Whether a licensed home health agency can treat pediatric Medicaid patients depends on the needs of the client and the referral source. Some referral sources have specific requirements and may require that a pediatric Medicaid client be served by a licensed and certified agency. If the pediatric Medicaid client were referred to the agency because the agency has contracted with the state, then the agency would need to review its contract requirements. To provide home health services, a person must obtain a home and community support services agency license. There are multiple categories within this license. Depending on the non-medicare or private-pay client needs, the agency may want to have one or more of the following categories: licensed and certified home health services, licensed home health services, licensed home health services with home dialysis designation, or personal assistance services. If a national accrediting organization, such as JACHO or CHAP, has enforcement standards that meet or exceed the federal Conditions of Participation and the state licensing standards for the healthcare provider type, the accrediting organization may be considered to have deeming authority. Deemed status exempts the agency from licensing surveys but not from licensure and proper notification to DADS of such things as name changes, location changes and changes in ownership. DADS conducts complaint investigations of allegations it receives against an agency regardless of deemed status. There are multiple types of agency closure within the HCSSA program. The following statistics reflect all types of agency closure for the last two years: HCS Chapter 142, 142.002 40 TAC 97.13 SOM Chapter 1, Section 1018 D & E 5 of 26

in fiscal year 2005 there were 3,470 agencies and 407 closures, and in fiscal year 2006 there were 3,991 agencies and 428 closures. Please refer to DADS Regulatory Services Annual Report at http://www.dads.state.tx.us/providers/reports/index.html for more Clarify denial of license renewal. Training Does DADS have any plans to provide an information session for agency medical directors? Are the 24 credit hours applicable only to administrators who are starting in the business or do they apply to all administrators? What type of training is acceptable for administrative information. DADS has the ability to deny the renewal of a license when an agency has submitted an incomplete renewal application. DADS may also deny a license if the applicant, the manager of the applicant, the affiliate of the applicant, or any person required to submit background and qualification information fails to comply with the statutes or licensing regulations; knowingly aids, abets, or permits another person to violate the statutes or licensing regulations; or fails to meet the criteria for a HCSSA license. No, DADS does not have plans to provide an information session for agency medical directors at this time. If an agency s medical director is interested in learning about the home health business, that person may contact one of the home health associations or go to the DADS Web pages that provide information for providers and presurvey training: http://www.dads.state.tx.us/providers/hcssa/training.html. The requirement for 24 hours of training in the administration of an agency applies to any person designated as the administrator or alternate administrator for the first time ever on or after December 1, 2006 by any agency licensed in Texas. Training in administration of agencies for those designated to these positions for the first time on or after December 1, 2006 must be provided 40 TAC 97.17(f)(3) and 97.21 40 TAC 97.259 40 TAC 97.259 6 of 26

education hours? as specified in 97.259(c)-(f). For those designated to these positions who did not serve in them during the 180 days before December 1, 2006, training must be provided as specified in 97.259(c), (h), and (j). For those designated to these positions who did serve in them during the 180 days before December 1, 2006, training must be provided as specified in 97.259(h) and (j). Clarify 12/01/06 Administrator qualifications: 1) 24 hours of training before on record as the Administrator; 2) just 8 hours? If an alternate administrator was named before December 1, 2006, is the 8 hours of training still a requirement? A person designated as the administrator or alternate administrator for the first time ever on or after December 1, 2006 in any agency licensed in Texas must have eight clock hours of educational training at designation and must complete an additional 16 clock hours within the first 12 months, for a total of 24 hours of training. Their training must be obtained and documented as specified in 97.259(b)-(g). Refer to 97.259(i), (c), (h), and (j) for the training requirements for a person designated as the administrator or alternate administrator prior to December 1, 2006 in any agency licensed in Texas who did not serve in that position for 180 days or more before December 1, 2006. They must complete 12 clock hours of continuing education within 12 months after designation, with at least eight clock hours in the topics listed in Subsection (c). The eight clock hours at designation are not required for these administrators. Refer to 97.259(h) and (j) for the training requirements for a person designated as the administrator or alternate administrator prior to December 1, 2006 in any agency licensed in Texas who did serve in that position for 180 days or more before December 1, 2006. They must complete 12 clock hours of continuing education within the first 12 months 40 TAC 97.244 and 97.259 40 TAC 97.259 7 of 26

What are administrative continuing education units apart from pre-survey inservices? How do you know what are considered administrative CEUs? Coordination of Care How can a LHH or an L&C agency provide coordination of care when a client has PAS and the client does not know the name of the agency providing the PAS services? If an agency is providing home health services and provider services do you still have to communicate? of their designation to the position. The presurvey conference seminar is a way of educating the administrator, the supervising nurse, and their alternates about the home and community support services agency licensing regulations and the federal regulations for agencies seeking Medicare certification prior to submitting the application for an initial license. Effective 12/01/06, presurvey cannot be used to meet the requirements for administrator training. The requirements for training in the administration of an agency are listed at 40 TAC 97.259. The agency must make every attempt to try to identify the other service provider and document the efforts being made to do so. The LHH or L&C agency may attempt to identify the PAS service provider by: 1) looking for the PAS agency home folder, 2) having an agency employee or the nurse make a home visit when the client s PAS provider is at the home, 3) contacting a family member or the emergency contact to see if they have any information as to who is providing the PAS, and 4) contacting the regional DADS contracts office and requesting to speak to a contract manager to enlist their help in trying to identify the agency that is providing the PAS to this individual. Yes, if multiple employees are seeing the patient, they should be coordinating the care that is being provided. The agency should refer to its coordination of services policy to determine how this should occur. 40 TAC 97.259 and 97.13 40 TAC 97.259 40 TAC 97.288 40 TAC 97.288 8 of 26

Survey Questions Regulations state that complaint resolutions must be signed by the person filing the complaint: 1) Is it in compliance to mail out? 2) Does there have to be a home visit made? 3) What is the consequence if the person refuses or cannot be located to sign? No federal or state requirement regarding complaints or grievances requires that complaint resolutions be signed by the person filing the complaint. State rules require the agency to adopt and enforce a written policy governing client rights in accordance with 40 TAC Section 97.282, including a grievance mechanism under which a client can participate without fear of reprisal. An agency s written policy that includes any additional requirements should be enforced. 40 TAC 97.282, 97.287, 97.292, and 97.301(a)(9)(K) 42 CFR 484.10(f) Do we have to have an RN on call 24 hours a day? Federal regulations for certified agencies require that the supervising registered nurse be available at all times during operating hours on the premises or by telecommunications. How the supervising RN structures his/her availability is a management decision for the agency. Operating hours means all hours that staff from the agency are providing services to patients. State rules require agencies licensed to provide licensed home health services, licensed and certified home health services, or hospice services to designate in writing a supervising RN and alternate supervising RN. One or the other must be available to the agency at all times in person or by telephone. Hospice and intravenous therapy services require an RN to be on call 24 hours a day. In any agency, an RN qualified to supervise unlicensed personnel must be available in person or by telecommunications when an unlicensed person is performing tasks delegated by an RN. When delegating administration of insulin, the agency must arrange for an RN to be available 24 hours a day. Agencies are also required by state rules to adopt and enforce a written policy to ensure that 40 TAC 97.243, 97.290, 97.403, and 97.407 42 CFR 484.14(d) 22 TAC Chapter 225 9 of 26

clients are educated in how to access care from the agency or another An RN does not have to do an assessment on a provider (PAS) patient. What s the qualification of someone who does it? health care provider after regular business hours. Agencies with the PAS category of service must adopt and enforce staffing and client care policies to ensure compliance with applicable licensing rules and state laws, including rules adopted by the BNE in 22 TAC Chapter 225. Staffing policies must include written job descriptions, written job qualifications, and supervision of personnel. Client care policies must include initial assessment, reassessment, start of care, care planning, and anything else pertaining to client care if covered under the scope of services the agency provides. If admitted to the PAS category of services, client records must include an individualized service plan, defined as a written plan prepared by the appropriate health care personnel for a client of an agency licensed to provide PAS. The tasks that may be performed under the PAS category are listed in 97.404(d). When Chapter 225 of the BNE applies, a RN must assess the client to determine if certain tasks can be performed by an unlicensed person without an RN s delegation, can be performed by an unlicensed person only with RN delegation, or should not be performed by the unlicensed person. Policies addressing supervision in agencies with the PAS category must also include the minimum qualifications for a PAS supervisor, who must be a licensed nurse; someone who completed two years of full-time study at an accredited college or university; or an individual with a high-school 40 TAC 97.281, 97.245, 97.301(a)(9), and 97.404(g) 10 of 26

diploma or general equivalence diploma who can substitute one year of full-time employment in a supervisory capacity in a health care facility, What are back up services? Why does a surveyor have 10 working days to make his/her report and we have only 10 calendar days to respond? Pediatric only hospice guidelines. agency, or community-based agency for each required year of college. An agency must adopt and enforce a written policy to ensure that backup services are available when an agency employee or contractor is not available to deliver the services. An agency employee, a contractor, or the client s designee who is willing and able to provide the necessary services may provide these backup services. The agency must have the client s designee sign a written agreement to be the backup service provider. This written agreement must be kept in the client s file. An agency must not coerce a client to accept backup services. The CMS SOM for certified agencies specifies that DADS will forward the official findings of a survey in writing on Form CMS-2567 within 10 working days from the date of the exit conference. It also specifies that the provider has 10 calendar days to submit a plan of correction. Licensing rules adopted in Chapter 97 were written to be consistent with these time frames. An agency licensed with the hospice services category must comply with the applicable licensing rules in Chapter 97. Staffing policies for agencies that provide services to pediatric clients must address requirements for providing and supervising services to these clients and ensure that staff who provide services to them have been instructed and have demonstrated competence in their care. Agencies must also adopt and enforce client care policies for the scope of services provided by the agency under each category of services, including care of the pediatric client and care of the dying patient/client, as applicable. Certified hospice agencies must provide all required services in a manner consistent with accepted standards of 40 TAC 97.290 CMS SOM Section 2724A 40 TAC 97.527 40 TAC 97.245 and 97.281 42 CFR 418.50(b) 11 of 26

practice. These standards include but are not limited to federal hospice regulations; state practice acts; commonly accepted health standards established by national organizations, boards, and councils; and the hospice s own policies and procedures. If a hospice developed or adopted professional practice standards and principles for staff that care for pediatric patients, the hospice should monitor them for compliance with Can you list diagnosis on the 485 by date without indicating that it is the date of onset or the date of exacerbation? Does a patient have to have written 5-day notice of discharge? Please clarify 5-day written notice of discharge. these standards and principles and take corrective action as needed. No. The Form CMS-485 (Home Health Certification and Plan of Care) meets regulatory and national survey requirements for the physician s plan of care, certification, and recertification. Instructions for completing Form CMS-485 in the CMS Pub. 100-8, Program Integrity Manual, indicate that for diagnoses listed in boxes 11-13, the date must reflect either the date of onset if it is a new diagnosis or the date of most recent exacerbation if it is a previous diagnosis and must be as close to the actual date as possible. Standards for the plan of care and periodic review are at 42 CFR 484.18(a) and (b). 97.295(e) lists situations that allow an agency to discharge a client without delivering written notice no later than five days before the date of discharge. Documentation of the situations listed in Subsection (e) should be included in the client s record in accordance with applicable rules in 97.301 for client records. Except as provided in 97.295(e), an agency must provide written notice to a client or their representative no later than five days before the date of discharge and notify the client s attending physician or practitioner if involved in the agency s care of the client. The written notice for the client must be delivered by hand or by mail. If delivered by mail, it must be 40 TAC 97.295 and 97.301 40 TAC 97.295 12 of 26

mailed at least eight working days before the date of discharge and the agency must provide verbal notice by phone or in person to ensure notice is provided at least five days before the date of discharge. The written notice provided before discharge must be documented in the client s record by filing a copy of the written notification provided by hand or by mail, documentation of the personal contact if written notice was delivered by mail, and documentation that the physician or practitioner was notified of Is it a requirement to fax all missed visits to MD for signature or should we just notify MD without requesting his signature? Why can t we have at least 8-24 hours notice of re-survey so administrators can be aware? the date of discharge. There is no federal or state requirement that notice of missed visits be faxed or signed by the physician. The clinical record must include documentation that the physician was notified and is aware of visits missed. The agency should specify in its written policies the procedure for its professional staff to communicate to the physician that visits ordered on a plan of care were missed and the manner of documentation. The agency s written policies should be enforced and the client s record should show this coordination of care. Both federal and state regulations require unannounced certification and recertification surveys and initial licensure and relicensure surveys. 40 TAC 97.301 and 97.401(b)(2)(B) 42 CFR 484.18 CMS SOM Chapter 2, 2700A Social Security Act 1891(c)(1) 40 TAC 97.505 13 of 26

How long do you have to keep a patient with chronic illness? Can a surveyor tape-record agency staff without the provider s knowledge? Explain the CMS use of the TIER system? Is the home chart required to record visit information? An agency must adopt and enforce written policies that specify the agency s client care practices, including start of care, transfer, and discharge practices. These policies must cover the scope of services provided under each category on the license to which clients are admitted. The length of time an agency keeps a patient with a chronic illness could be determined by the eligibility requirements of the client s funding source. The agency must also comply with requirements for client transfer or discharge notification. Findings based on observation, interview, and review of agency records are recorded by the surveyor in handwritten notes during an on-site visit. A surveyor can request that agency staff write and/or sign written statements. A surveyor will honor a request from agency staff that information provided during an interview be kept confidential. Neither federal nor state survey protocols include a surveyor tape recording agency staff. Please refer to Provider Letter 2006-47, located at http://www.dads.state.tx.us/providers/hcssa/index.cfm, for an explanation of the tier system. DADS regulations require the agency to adopt and enforce specific, written procedures regarding client records and require that each record contain complete documentation of all known services and significant events. There is no regulation requiring the agency to record visit information in the home chart; this would be at the discretion of the agency. The agency should take into consideration what the purpose of the home chart is and whether this information will be incorporated into the permanent record. 40 TAC 97.281and 97.295 40 TAC 97.301 14 of 26

To better accommodate and expedite surveys has DADS considered allowing a nonregistered nurse to survey the PAS program? What information must an agency send to the hospital after the patient has been transferred? Must the medication list be in the written record or can it be maintained in a database and available for printing on request? How many clients are needed for a PAS initial survey? Do you need to provide services before submitting the Notice of Readiness for Survey form? What if you give a patient/family a home health advanced beneficiary notice (HHABN) and they do not want to discontinue the services. Yes, DADS is exploring a number of options to expedite surveys, and the hiring of a non-nurse professional is one of the options. These new employee positions are posted throughout the state. There are no regulations specifying what an agency must send to the hospital after a patient has been transferred. HCSSA regulations do require that the agency coordinate the services provided and that the agency adopt and enforce a written policy that requires this coordination of care. If the agency s clinical records are computerized, then all requested documents must be made available to the surveyor either by allowing the surveyor access to the computer system or by printing out the requested documents to allow the surveyor to perform the clinical record review. Whether the clinical record is a computerized record or a paper record, the clinical record must contain a current medication list, if required based on the services provided. Before an agency can submit the Notice of Readiness for Survey form, it must have admitted at least one client and initiated the services. The client need not be an active client at the time of survey. CMS has provided guidance regarding advanced beneficiary notice at http://www.cms.hhs.gov/center/hha.asp. The agency should remember that the client has the right to appeal the termination of services decision. If the client chooses to appeal, the agency should continue to provide services until the Quality Improvement Organization (QIO) has completed its review. 40 TAC 97.288 40 TAC 97.301(a)(9)(E) 40 TAC 97.521 SSA 1891 15 of 26

What is the agency s responsibility? Does an agency have to give a home health advance beneficiary notice (HHABN) every certification period when the frequency is decreased? Can a cell phone be used as the main number for the agency or does it have to be a landline? Do HHAs have to instruct on drug interactions or is it the pharmacy or physician s responsibility? The client must be informed by the agency what the cost of services will be if the appeal is denied and the agency s decision is upheld. The QIO for Texas is the Texas Medical Foundation (TMF) Health Quality Institute. There is a formal process that the client must follow in order to appeal the agency s decision to terminate services. CMS determines when the HHABN must be given to a client. CMS has a Web site that provides a link to the HHABN notice manual. For more information, you may go to http://www.cms.hhs.gov/bni/03_hhabn.asp. The type of phone an agency should use when conducting its business is not specified within the HCSSA rules. The regulations state that if the agency is closed during its operating hours, a notice must be posted as to how to contact the person in charge and a message must be left on an answering machine or similar electronic mechanism. The agency must also notify DADS within five days after a change in the agency s telephone number. If the patient s plan of care contains orders for the nurse to provide instruction on medication interactions, then the surveyor will seek to verify that that plan of care is being followed. The physician and pharmacist must follow their own licensure requirements concerning what they are required to recognize or teach related to drug interactions. Regulations for certified home health agencies require the qualified clinician (RN or therapist) to include a review of all medications used during the comprehensive assessment of all patients served by the agency in the L&C category. The drug regimen review must be conducted to identify any 40 TAC 97.210 and 97.214 40 TAC 97.243(c)(2)(A)(iii) 42 CFR 484.55(c) 16 of 26

potential adverse effects and drug reactions, including significant drug interactions. If the clinician determines the patient is experiencing problems with medications or identifies any potential adverse effects and/or Does an agency have to keep clinical records longer than five years and will a surveyor ask to review a record that is older than five years? reactions, the physician must be alerted. An agency must retain original client records for a minimum of five years after discharge; if the agency is aware of a litigation issue, then the agency must keep original client records until the litigation is resolved. During the course of a survey, a surveyor will request clinical records to review. A surveyor will not request a record more than five years old unless the agency policy has directed the agency to maintain the client record for a longer period of time. 40 TAC 97.301(b)(1) How many clients must a hospice agency have serviced before they can request an initial survey? How does an agency go about requesting an initial survey? A hospice must have admitted and provided services to at least one client in order to request its initial licensure survey. If applying for certification, the hospice must be prepared to provide all services necessary to meet the hospice Medicare conditions of participation and must demonstrate the operational capability of all facets of its operations. For further guidance, please refer to the informational letters at the following Web addresses: http://www.dads.state.tx.us/providers/hcssa/index.cfm and http://www.cms.hhs.gov/surveycertificationgeninfo/pmsr/list.asp#topofp age. When an agency is ready for its initial survey, the agency must submit a written notice of readiness to the regional program manager; this must be done at least six months before the expiration date of the initial license. The form can be found on the DADS Web site for HCSSAs at http://www.dads.state.tx.us/providers/hcssa/index.cfm. 40 TAC 97.521 S&CC 06-09 S&C 01-13 40 TAC 97.521 (c) 17 of 26

Administrative Issues Can an administrator be an administrator for LHH as well as PAS? A license holder must designate an individual to be the administrator and another individual to be the alternate administrator of the entire agency. Those individuals must meet the qualifications and conditions for these positions based on the categories of service on the license. The administrator must meet the responsibilities of the administrator for all 40 TAC 97.243 and 97.244 Is it possible to be a DON in 2 home health agencies? Are there any upcoming rate changes for the Primary Home Care contracts? services offered by the agency. As long as the agency complies with applicable federal and/or state requirements, there is nothing to prohibit a registered nurse from being employed, or under contract, as the supervising nurse of two different home health agencies. Applicable federal requirements would include that the agency disclose to DADS, during its initial request for certification, for each survey, and at the time of any changes, the name and address of the agency s supervising RN. Also, the agency must comply with the federal and state requirements regarding the availability of the supervising RN and alternate supervising RN. The Texas Health and Human Services Commission (HHSC) is the Texas agency that sets the rates for PHC. The 2007 rates have been posted on its Web site at http://www.hhsc.state.tx.us/medicaid/programs/rad/ltcsvs.html. 42 CFR 484.12(b) and 484.14(d) 40 TAC 97.243(c) Do we have to have a client s Medicaid number on their nursing note? No. However, each agency must establish a systematic way of organizing its client records in order to facilitate the retrieval of information. If the agency feels that placing the clients Medicaid numbers on the nurses notes will better facilitate the retrieval of this information, then that is one way that the systematic organization could be performed. 40 TAC 97.301 18 of 26

What is the requirement for supervisory visits for LVNs? Does an agency have to have a medical director? There are not specific requirements for supervisory visits for licensed vocational nurses (LVNs). An agency s policies should consider the federal regulations, licensing rules, and professional standards of practice that apply to the services provided under each of the categories of service to which the agency admits a patient/client and specify the frequency and manner of supervision accordingly. These include that: the agency s supervising nurse or alternate supervising nurse are responsible for supervising services to ensure that a client s plan of care is executed as written; if an agency provides services to pediatric clients, its staffing policies must address the requirement for supervising these services; and an agency that provides nursing services must adopt and enforce a written policy to ensure compliance with the rules governing registered and licensed vocational nurses. Additional licensing standards specific to license categories and specific to special services may be found in Chapter 97, Subchapter D. Agencies with the hospice and dialysis categories must have a medical director. Federal regulations for certified home health agencies require that the agency s governing body arrange for professional advice. This group of professional personnel must include at least one physician. Agencies often refer to the physician member(s) of this group as the agency s medical director(s). 40 TAC 97.241, 97.243, 97.245, 97.299, 97.403, and 97.405 42 CFR 484.30(b) 40 TAC 97.403 42 CFR 484.14(b) and 484.16 19 of 26

When billing in home health, can an agency claim the general supplies cost for the patient on the end of the episode? Also will the agency get reimbursed for the total from Medicare? DADS does not play a role in setting reimbursement rates or determining how to process them or what is reimbursable. This is a provider/fiscal intermediary question. For more information, providers may go to http://cms.hhs.gov/manuals, or the provider may call its fiscal intermediary for specific reimbursement information. OASIS Does an agency need to do a follow-up OASIS when there is a new wound care order or frequent changes? The agency determines what it considers a major decline or improvement in a patient s care. The agency must determine if the new wound care or frequent changes were significant enough to warrant a follow-up OASIS. The agency is required to have a policy that directs client-care practices regarding reassessment of its clients. 42 CFR 484.55(d) 40 TAC 97.281(1) 20 of 26

Are there additional plans for DADS to provide in-service training on the OASIS adverse events? The OASIS education coordinators (OECs) offer "OASIS Assessment and Reporting" classes that teach providers about the Medicare regulations covering the collection and transmission of OASIS data, how to protect the data, and patient rights related to OASIS data. While the OECs do not offer classes covering Adverse Event (Outcome Based Quality Monitoring (OBQM)) Reports, the OECs are available by telephone to answer questions about how to read the reports and how the reports are derived. In addition, CMS has posted the OBQM Manual, which explains the reports in detail, online at http://www.cms.hhs.gov/quality/hhqi/. For additional information, please contact an OASIS education coordinator through the OASIS Help Desk at 512-438-4122. 40 TAC Chapter 97 General Questions What is the appropriate resolution of a criminal background check that revealed a felony when the court with authority had ruled the conviction as a misdemeanor? Does the fiveyear statue of limitations apply? Certain misdemeanor or felony convictions may be a permanent bar to agency licensure or participation in agency management regardless of the date of the conviction; others may be a bar to agency licensure or participation in agency management only if the final date of the conviction is within the last five years. Convictions that permanently bar employment and convictions that would bar employment before the fifth anniversary date of the date of the conviction for certain applicants or employees of an agency whose employment duties involve direct contact with agency clients are listed in Health and Safety Code Chapter 250, 250.006. The agency must notify the employee or applicant that convictions discovered as a result of a criminal history check through the Department of Public Safety 40 TAC 97.223(d), 97.223(e), 97.245(b)(5), and 97.247 21 of 26

(DPS) may bar employment or be a contraindication to employment. DPS will give a person so notified the opportunity to be heard concerning the Can the survey tool be made available to providers? Please give statute or rule definition of Immediate Jeopardy. What is the JCAHO or CHAP process? How much does it cost? Agencies stealing other s patients, what should be done? accuracy of the criminal history record information. There are no state survey tools available to providers other than the PDF files that list the state tags, tag title, and Texas Administrative Code (TAC) numbers. These are available on the DADS Web site at http://www.dads.state.tx.us/providers/. Federal survey tools described in Chapter 2 of CMS SOM are available on the CMS Web site at http://www.cms.gov from the Forms page or in the list of Downloads on the Internet-only Manuals page by clicking on Exhibits. Immediate Jeopardy is defined in Appendix Q of CMS State Operations Manual as a situation in which the provider s noncompliance with one or more conditions of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a patient. (See also 42 CFR Part 289.3.) The state statute and rules include provisions for the immediate suspension or revocation of an agency license when the health and safety of persons are threatened by the agency s failure to comply with the rules for licensing in Chapter 97. To learn more about JCAHO s accreditation program for home care agencies, visit their web site at http://www.jointcommission.org/accreditationprograms/homecare/. For CHAP, go to http://www.chapinc.org/accreditprocess.htm. Allegations that an agency s practice for obtaining patients/clients violates federal regulations for certified agencies, or violates the state statute or licensing rules in Chapter 97, should be directed to the DADS Consumer Rights and Services Division, P.O. Box 149030, Austin, TX 78714-9030, or toll free at 1-800-458-9858. CMS SOM Chapter 2, 2080 Hospice and 2180 Home Health Agencies CMS SOM Appendix Q 22 of 26

Why must agencies that contract with therapy services make a policy for their professional peer review? To whom do we report an agency that may be committing fraud such as paying office personnel for referrals? Licensing standards require an agency to adopt and enforce a written policy to ensure that all professional disciplines that provide services for the agency comply with their professional practice acts or title acts about reporting and peer review. The rules on staffing policies require that contract therapy staff be oriented to the policies, procedures, and objectives of the agency. Rules regarding services provided through a contract specify what the contract must clearly designate and that it must be enforced by the agency. This includes the necessity to conform to all applicable agency policies. Therefore, contract therapy staff must also be oriented to the agency s policy to ensure that all professional disciplines are aware of and comply with the rules for reporting and peer review. There are similar federal conditions and standards for certified agencies. Allegations that an agency employee, or someone acting on behalf of the agency, is paying for patient/client referrals should be directed to the DADS Consumer Rights and Services Division, P.O. Box 149030, Austin, TX 78714-9030, or toll free at 1-800-458-9858. Paying office personnel for referrals would violate state rules prohibiting the solicitation of patients (Occupations Code Chapter 102). The anti-kickback statute (Section 1128B of the Social Security Act) makes it a criminal offense to knowingly and willfully offer to pay, solicit, or receive any remuneration to induce or reward referrals of services reimbursable by a federal health care program. For purposes of the anti-kickback statute, remuneration includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind. For more information, go to http://oig.hhs.gov/fraud.html. Suspicions of fraud or abuse may also be reported to Medicare s Customer Service Center at 1-800-633-4227. 40 TAC 97.245, 97.251, and 97.289 42 CFR 484.12(c), 484.14, 484.14(f), and 484.14(h) 40 TAC 97.255 23 of 26

Can policies for waiver programs be integrated into DADS policies so that one policy and procedure manual can be created instead of two? Or will DADS only accept policy and procedure manuals written exclusively for DADS? Surveys are conducted by the Department of Aging and Disability Services to determine if an agency is in compliance with Health and Safety Code Chapter 142, Texas Administrative Code Chapter 97, and applicable federal requirements for certified agencies. DADS surveyors review agency records to determine if they have adopted and are enforcing all policies and procedures specifically required by these rules and regulations under any of the categories of service authorized on the agency s license. The rules and regulations do not prohibit the agency from incorporating procedures the agency must follow to comply with the rules for waiver programs, as long as the rules for licensure and for certification are followed. The rules and regulations applied by the surveyor are based on the category of service to which the agency admitted the patient/client and not on the requirements established by the waiver program providing the funding. 40 TAC 97.1(c) What is meant by violation? Is that of COP or TAC? Are agencies allowed to have contract marketers? Violation is defined in the Texas Administrative Code (TAC) as a finding of noncompliance with this chapter (Chapter 97) or the statute (Health and Safety Code Chapter 142) resulting from a survey. Deficiency is the term used for noncompliance with federal conditions of participation (CoP) resulting from a survey. Yes. Agencies that hire contract marketers should keep in mind that the agency administrator is responsible for employing or contracting with qualified personnel and for ensuring the accuracy of public information materials and activities. The agency must adopt and enforce staffing policies that govern all personnel used by the agency, including contractors. The agency must have a written job description and job qualifications for each position within the agency, whether filled by employees, volunteers, or contract staff. The license holder is responsible 40 TAC 97.2 40 TAC 97.241, 97.243, 97.245, and 97.255 24 of 26

for the conduct of the agency and for the monitoring of adherence to the Is it okay to hire a community liaison in a home health setting? Transfer from home health to hospice tends to break the continuity of care for the patient. It causes frustration to agencies and patients and is not cost effective transitioning from home health to hospice. It is not patient oriented, it increases patient anxiety, and how does the patient benefit from this? What is the Medicaid Estate Recovery Program? written policies required throughout Chapter 97. This would be a management decision made by the agency. Agencies that decide to hire a community liaison should keep in mind that the agency administrator is responsible for employing qualified personnel and for ensuring the accuracy of public information materials and activities. The agency must adopt and enforce staffing policies that govern all personnel used by the agency. The agency must have a written job description and job qualifications for each position within the agency. The license holder is responsible for the conduct of the agency and for the monitoring of adherence to the written policies required throughout Chapter 97. A Medicare beneficiary (or their authorized representative) receiving services from a certified home health agency (HHA) that qualifies for hospice care under the Medicare program must agree to elect hospice care to receive it. They may also revoke the election of hospice care at any time in writing. Chapter 9 of the Medicare Benefit Policy Manual lists the services the individual that elects hospice care must waive for the duration of the election/revocation of hospice care. A hospice recipient can concurrently receive covered Medicare home health services from a certified HHA for a condition completely unrelated to the terminal condition for which hospice was elected if he or she is eligible for such care. The hospice and the HHA would be expected to coordinate services. Similar state laws for the Medicaid hospice program are found in 40 TAC Chapter 30. The Medicaid Estate Recovery Program (MERP) is required by the Omnibus Budget Reconciliation Act of 1993 (OBRA '93) to recover the costs paid by Medicaid for long-term care benefits received by certain 40 TAC 97.241, 97.243, 97.245, and 97.255 CMS Pub. 100-2, Chapter 9 40 TAC Chapter 30 25 of 26

Medicaid recipients. For more information, residents of Texas may go to http://www.dads.state.tx.us/services/estate_recovery/faqs.html; there is a What are we doing to provide some formal training for student nurses to prepare them for service in home health and hospice? What is the definition of homebound? question and answer section at this Web site. Licensing rules do not prohibit agencies from using student nurses as volunteers, administrative staff, or unlicensed direct-care employees as long as they meet any qualifications for those positions and the agency complies with all applicable federal and/or state rules regarding such volunteers or employees. DADS has a contract with the University of Texas in Austin that allows a nursing student to choose DADS as a rotation for observation, which could include a HCSSA survey. For certified home health agencies, visits made by a student nurse may be covered as skilled nursing care when an agency participates in training programs that use student nurses enrolled in a school of nursing to perform skilled nursing services in a home setting. To be covered, the services must be reasonable and necessary skilled nursing care and must be performed under the general supervision of a registered or licensed nurse. The supervising nurse need not accompany the student nurse on each visit. You can contact the Texas Board of Nurse Examiners or your local nursing school for more information. DADS does not define what makes a client homebound; this is a Medicare requirement. An agency can find guidance on this issue at the following Medicare Web site: http://www.cms.hhs.gov/manuals/iom/list.asp. The guidance is located in the Medicare Benefit Policy Manual. CMS Pub. 100-2, Chapter 7, 40.1.2.14 Student Nurse Visits CMS Medicare Benefit Policy Manual, Chapter 7, 30.11 26 of 26