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Home Health & Hospice Week

Hospice:

Brace for Background Checks To Hit Your Hospice

Published on Mon May 16, 2005

Proposed COP changes may throw your hospice a curve ball.

Get ready to put all your employees through a criminal background check - before they do a single day's work for you.

The Centers for Medicare & Medicaid Services has proposed new hospice conditions of participation, and chief among the changes are those for patient assessments and quality improvement (see Eli's HCW, Vol. XIV, No. 21).

But a host of other regulatory changes could throw your hospice for a loop, if finalized, experts warn. One major shift might be in how you conduct criminal background checks for your employees.

In 2002, 39 states required some kind of criminal background check for hospice employees, CMS says in the proposed rule. But the new background check procedures CMS floats could be stricter than your current ones, if you have them.

Background checks are "an economic and administrative burden on hospices,"
notes attorney Deborah Randall with Arent Fox in Washington, DC.

CMS wants hospices to conduct checks on all employees, whether they furnish hands-on care or not. And the agency proposes requiring hospices to complete the check before the employee can start working. In places where checks can take weeks or even months, that can be a major hurdle to staffing.

And hospices would have to conduct checks for both directly employed staff and contracted staff, the proposed rule says. Currently, many hospices have the companies they contract with conduct the background checks on their contracted staff. Whether CMS would still allow those arrangements under the new COPs is unclear, Randall points out.

Other changes in the COPs include: 

  • SNF relationships. CMS proposes a new COP on hospice care for patients residing in skilled nursing or other facilities. But industry veterans found guidance sorely lacking in this area that is often a hot bed for compliance problems.

    "There are important details of the regulations that need to be understood," says attorney Mary Michal with Reinhart Boerner Van Deuren in Madison, WI. "Specific issues surrounding hospice care in the nursing home setting" need clarification, Michal urges.

    "I was disappointed that more attention was not given to inpatient care and patients in nursing homes," offers attorney Connie Raffa with Arent Fox in New York City. For instance, intermediaries are denying inpatient care for some hospice beneficiaries because the inpatient care benefit is described as "short-term," Raffa says. CMS needs to better explain criteria for inpatient care so that patients don't have to revoke hospice to receive such care, she maintains.

    Raffa also wants to see better methodology for determining when a SNF versus a hospice is responsible for certain costs, such as medications, adult diapers, etc. "Sometimes these are a very gray area" when trying to figure out what's related to the terminal diagnosis and what's not, she tells Eli.
     
  • Satellite offices. CMS wants to add a new definition of satellite offices that could run some hospices into trouble, warns Randall. Although satellite offices have been allowed under longstanding survey and certification policy, CMS now wants to include in the COPs that it must approve a satellite office before the office can start furnishing services.

    Watch out: Hospices that fail to comply with this new requirement, if finalized, will be courting False Claims Act exposure for any services they furnish out of an unapproved office, Randall cautions. Hospices should obtain CMS approval for all existing satellites and be sure to obtain approval for new ones before starting services, she advises.
     
  • Core services and continuous care. The proposed COPs would adopt the Medicare Moderniza-tion Act mandate allowing hospices to contract for core services in extraordinary or non-routine circumstances. But that wouldn't include certain times or continuous care, CMS spells out.

    "Hospices may not routinely contract for a specific level of care (e.g., continuous care) or for specific hours of care (e.g., evenings and weekends), as these are regularly occurring situations that hospices are able to plan staffing for," CMS says in the regulation.

    If finalized, this could mean a big change for hospices that currently contract for continuous care with SNFs for their residents, Randall points out. Making this a regulation-level requirement could spell big survey problems for those who don't comply, she warns.
     
  • Inpatient nursing. The COPs would remove the requirement that a registered nurse provide patient care in an inpatient facility on a 24-hour basis, CMS notes in a release. "CMS is proposing to remove this prescriptive, process-oriented requirement, contained in the current hospice conditions of participation, and replace it with an alternative outcome-oriented requirement that focuses on the results of care provided to patients and their families," the agency says.
     
  • Professional management. Hospices that use professional management companies should stay tuned to a section of the facility resident COP, Randall counsels. The new professional management standard would require hospices "to assume full responsibility for all of the hospice care provided to the resident," the proposed rule says.

    That leaves questions on how much a management contractor can take on, Randall worries. It also calls into question whether contractors can supervise contracted staff, such as therapists, she adds.
     
    Editor's Note: The proposed COPs are in the May 27 Federal Register at     www.access.gpo.gov/su_docs/fedreg/a050527c.html. CMS will take comments on the regulation until July 26.

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