Home Health & Hospice Week

Hospices had better start toeing the compliance late before it’s too late, attorney warns.

Medicare may be starting out on the wrong foot with its program to single out poor performers on hospice surveys for extra scrutiny.

Recap: In a blog post late last month, the Centers for Medicare & Medicaid Services decries the rise of hospice fraud and abuse and lists many actions it is taking to combat the problem — including the Special Focus Program (see HHHW by AAPC, Vol. XXXII, No. 30). To fight “hospices … profiting from fraud at the expense of beneficiaries far too often,” CMS has proposed SFP specifics “that would increase oversight of poor-performing hospices that have repeated cycles of serious health and safety deficiencies,” say Dara Corrigan, deputy administrator and director of the CMS Center for Program Integrity, and physician Dora Hughes, chief medical offer for the CMS Center for Medicare and Medicaid Innovation, in the post.

Regulators, hospices, and hospice representatives all agree that they want quality of care to improve. But using the SFP as a fraud-fighting tool is another thing altogether.

“We were surprised to see that the proposed [SFP] was included as one of the regulatory changes CMS is proposing this year to better tackle hospice fraud,” says Katie Wehri with the National Association for Home Care & Hospice. The SFP is supposed to be “in response to quality-of-care issues identified by CMS and the HHS Office of the Inspector General (OIG) in reports published in 2019,” Wehri tells AAPC.

Reminder: Under the SFP provision included in the 2024 proposed home health rule, CMS “would select some hospices from the bottom 10 percent of quality performance to be part of the SFP,” Wehri recounts. (See more details in HHHW by AAPC, Vol. XXXII, Nos. 24-25 and 27.) “Hospices selected will be under additional oversight to enable continuous improvement,” she adds.

“There are factors other than quality indicators that are far better at identifying fraudulent behavior and could do so early in the period of behavior allowing CMS to terminate the activity and the provider from the Medicare program quickly,” Wehri counters. “These factors are related to provider enrollment and billing, are intended to catch all fraudsters instead of a subset, and are not part of the SFP,” she stresses.

And CMS could try some new enrollment-based tactics that would pinpoint fraud better, suggests attorney Robert Markette Jr. with Hall Render in Indianapolis. “The problem is that there are few entry barriers to hospice (or home health), especially for a criminal enterprise,” Markette says. “It’s easy to complete the paperwork, operate a few weeks to get through survey, and shut down once the survey is done,” he judges.

Instead, “it would be more effective to randomly go back several times during the certification process and the first year after certification for nothing more than a verification the agency is seeing patients,” Markette proposes. Just “show up, knock on the door and visit one or two patients in the field,” he offers. “That would mean the fraudsters had to keep operating for at least a year, and would put little to no burden on the good guys, who would be operating anyway,” he concludes.

Bottom line: “The SFP allows providers to remain in the program while working on improvement,” Wehri notes. “Fraudsters have no place in the hospice program and should be dealt with swiftly,” she maintains.

“We believe CMS is expanding its tools under the Center for Program Integrity (CPI) to ferret out fraudulent behavior while also expanding its tools under the Center for Clinical Standards and Quality (CCSQ) to improve the quality of hospice care,” Wehri explains. “These important parallel initiatives should not be conflated,” she emphasizes.

“With recent changes made by CMS in addressing fraud and abuse concerns in the hospice sector, it is clear that CMS is increasing oversight of hospices,” note attorneys Trey Andres, Zoe A. Simon, Colin McCarthy, and William Clayton Landa with law firm McGuireWoods. CMS is “using its administrative authority to propose regulatory changes intended to strengthen the integrity of the hospice benefit,” the lawyers stress in online analysis of the post.

Hospices, even well-intentioned ones, still have some hard work to do, suggests Washington, D.C.-based healthcare attorney Elizabeth Hogue. “Although it’s difficult to assess current compliance in the hospice industry, it seems clear that the hospice industry got a ‘pass’ for many years,” Hogue observes. “Some providers fell into habits of non-compliance as a result.”

Now: “It’s time to pay up,” Hogue exclaims. “Hospices must adapt to the new environment in which they must do business. Providers must keep their heads and their hearts in the right place to care for patients,” she tells AAPC.

Watch for the hospice SFP final details in the home health final rule expected in late October or early November.