§484.12(a) Standard: Compliance With Federal, State, and Local Laws
and Regulations
The HHA and its staff must operate and furnish services in compliance with all applicable Federal, State, and local laws and regulations. If State or applicable local law provides for the licensure of HHAs, an agency not subject to licensure is approved by the licensing authority as meeting the standards established for licensure.
Interpretive Guidelines
§484.12(a) Failure of the HHA to meet a Federal, State or local law may only be cited under the following circumstances: 1. When the Federal, State or local authority having jurisdiction has both made a determination of non-compliance and has taken a final adverse action as a result; or 2. When the language of the Federal regulation requires compliance with explicit Federal, State or local laws and codes as a criterion for compliance. If State law provides for the licensure of HHAs, request to see a copy of the current license. Publicly operated HHAs, such as public health agencies, or HHAs based in a public hospital, are examples of agencies that a State may exempt from State licensure. Notify the RO if you suspect that you have observed noncompliance with an applicable Federal law related to the provider’s HHA program. The RO will notify the appropriate Federal agency of your observations.
Probes
§484.12(a) How does the HHA ensure that all professional employees and personnel used under arrangement and by contract have current licenses and/or registrations if they are required?
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Today, we'll be looking at G-tag 118, compliance with Federal, State, and Local Laws and Regulations. Many surveyors have difficulty with this tag, as its title implies a broader reach than it actually possesses.
Based solely on a reading of the tag title, it appears that G118 should be cited whenever an HHA fails to comply with a Federal, State, or Local law or regulation. However, this is not the case. This is a good example of the importance of the interpretive guidelines in providing a more in-depth understanding of the intent of a regulation.
The interpretive guidelines state:
§484.12(a) Failure of the HHA to meet a Federal, State or local law may only be cited under the following circumstances: 1. When the Federal, State or local authority having jurisdiction has both made a determination of non-compliance and has taken a final adverse action as a result; or 2. When the language of the Federal regulation requires compliance with explicit Federal, State or local laws and codes as a criterion for compliance.
This means that merely discovering that an agency is not in compliance with a Federal, State or local regulation is not cause to cite G118. G118 can be cited when the HHA is not in compliance with a Federal, State or local regulation if the authority having jurisdiction has determined non-compliance and has taken a final adverse action as a result or G118 can be cited if a Federal regulation explicitly requires conformance with State or local regulations. So how does that work in practice?
Let's look at an example. The situation might look something like this: a survey of the Happy Home Health Agency, located in Los Angeles, CA, shows that the agency has provided between 75 and 90 hours of training for its home health aides. This meets the Federal requirement of 75 hours, so the agency is not in violation of G204 (§484.36(a)(1) Standard: Content and Duration of Training). However, the state of California requires that home health aides receive a minimum of 120 hours of training. Therefore, the Happy Home Health Agency is in violation of California's regulations. However, there is no record of any citation or adverse action being taken by the state of California.
Can they be cited under G118?
No. The state has not made a determination of non-compliance nor taken an adverse action, and G204 does not explicitly state that HHAs must comply with State/local requirements if they are more stringent. Therefore, the agency cannot be cited under G118 OR G204. So, although the HHA is inarguably out of compliance with a State regulation, no CMS regulation should be cited in this case.
For an example of a situation that COULD be cited, let's consider another case. Suppose the same survey reveals that the Happy Home Health Agency maintains its patient records for five years, then destroys them. The relevant CMS regulation would be G237, which states "Clinical records are retained for 5 years after the month the cost report to which the records apply is filed with the intermediary, unless State law stipulates a longer period of time. Policies provide for retention even if the HHA discontinues operations."
Five years' retention does meet the statutory Federal requirement. However, here we have an example of a CMS regulation that does specifically reference relevant State regulations - unless State law stipulates a longer period of time. So if the state of California required records to be kept for seven years, as opposed to five, then the agency would be in violation of G237 AND G118 because G237 specifically states that the State requirement is to be met if it is longer than five years.
To look at one, final example of how G118 should or should not be cited, let's consider another issue at the Happy Home Health Agency. During the survey, it is discovered that the agency regularly forces its home health aides to work unpaid overtime. This, of course, is a violation of Federal labor law. But is it a violation of G118?
No, it's not. There are no CMS regulations regarding labor law, and no CMS regulations that reference labor law. In this case, the surveyor should follow the interpretive guidance, which states: "Notify the RO if you suspect that you have observed noncompliance with an applicable Federal law related to the provider’s HHA program. The RO will notify the appropriate Federal agency of your observations." So the surveyor would notify the RO of the problem, and the RO would notify the U.S. Department of Labor of the situation.
Hopefully, this post has helped give you a better understand of the intent and application of G118. If you have questions, send us an email to hashtaghha@cms.hhs.gov.
The HHA and its staff must operate and furnish services in compliance with all applicable Federal, State, and local laws and regulations. If State or applicable local law provides for the licensure of HHAs, an agency not subject to licensure is approved by the licensing authority as meeting the standards established for licensure.
Interpretive Guidelines
§484.12(a) Failure of the HHA to meet a Federal, State or local law may only be cited under the following circumstances: 1. When the Federal, State or local authority having jurisdiction has both made a determination of non-compliance and has taken a final adverse action as a result; or 2. When the language of the Federal regulation requires compliance with explicit Federal, State or local laws and codes as a criterion for compliance. If State law provides for the licensure of HHAs, request to see a copy of the current license. Publicly operated HHAs, such as public health agencies, or HHAs based in a public hospital, are examples of agencies that a State may exempt from State licensure. Notify the RO if you suspect that you have observed noncompliance with an applicable Federal law related to the provider’s HHA program. The RO will notify the appropriate Federal agency of your observations.
Probes
§484.12(a) How does the HHA ensure that all professional employees and personnel used under arrangement and by contract have current licenses and/or registrations if they are required?
***********************************************************************************
Today, we'll be looking at G-tag 118, compliance with Federal, State, and Local Laws and Regulations. Many surveyors have difficulty with this tag, as its title implies a broader reach than it actually possesses.
Based solely on a reading of the tag title, it appears that G118 should be cited whenever an HHA fails to comply with a Federal, State, or Local law or regulation. However, this is not the case. This is a good example of the importance of the interpretive guidelines in providing a more in-depth understanding of the intent of a regulation.
The interpretive guidelines state:
§484.12(a) Failure of the HHA to meet a Federal, State or local law may only be cited under the following circumstances: 1. When the Federal, State or local authority having jurisdiction has both made a determination of non-compliance and has taken a final adverse action as a result; or 2. When the language of the Federal regulation requires compliance with explicit Federal, State or local laws and codes as a criterion for compliance.
This means that merely discovering that an agency is not in compliance with a Federal, State or local regulation is not cause to cite G118. G118 can be cited when the HHA is not in compliance with a Federal, State or local regulation if the authority having jurisdiction has determined non-compliance and has taken a final adverse action as a result or G118 can be cited if a Federal regulation explicitly requires conformance with State or local regulations. So how does that work in practice?
Let's look at an example. The situation might look something like this: a survey of the Happy Home Health Agency, located in Los Angeles, CA, shows that the agency has provided between 75 and 90 hours of training for its home health aides. This meets the Federal requirement of 75 hours, so the agency is not in violation of G204 (§484.36(a)(1) Standard: Content and Duration of Training). However, the state of California requires that home health aides receive a minimum of 120 hours of training. Therefore, the Happy Home Health Agency is in violation of California's regulations. However, there is no record of any citation or adverse action being taken by the state of California.
Can they be cited under G118?
No. The state has not made a determination of non-compliance nor taken an adverse action, and G204 does not explicitly state that HHAs must comply with State/local requirements if they are more stringent. Therefore, the agency cannot be cited under G118 OR G204. So, although the HHA is inarguably out of compliance with a State regulation, no CMS regulation should be cited in this case.
For an example of a situation that COULD be cited, let's consider another case. Suppose the same survey reveals that the Happy Home Health Agency maintains its patient records for five years, then destroys them. The relevant CMS regulation would be G237, which states "Clinical records are retained for 5 years after the month the cost report to which the records apply is filed with the intermediary, unless State law stipulates a longer period of time. Policies provide for retention even if the HHA discontinues operations."
Five years' retention does meet the statutory Federal requirement. However, here we have an example of a CMS regulation that does specifically reference relevant State regulations - unless State law stipulates a longer period of time. So if the state of California required records to be kept for seven years, as opposed to five, then the agency would be in violation of G237 AND G118 because G237 specifically states that the State requirement is to be met if it is longer than five years.
To look at one, final example of how G118 should or should not be cited, let's consider another issue at the Happy Home Health Agency. During the survey, it is discovered that the agency regularly forces its home health aides to work unpaid overtime. This, of course, is a violation of Federal labor law. But is it a violation of G118?
No, it's not. There are no CMS regulations regarding labor law, and no CMS regulations that reference labor law. In this case, the surveyor should follow the interpretive guidance, which states: "Notify the RO if you suspect that you have observed noncompliance with an applicable Federal law related to the provider’s HHA program. The RO will notify the appropriate Federal agency of your observations." So the surveyor would notify the RO of the problem, and the RO would notify the U.S. Department of Labor of the situation.
Hopefully, this post has helped give you a better understand of the intent and application of G118. If you have questions, send us an email to hashtaghha@cms.hhs.gov.
