Home Health & Hospice Week

A whole raft of hospice survey changes are pending finalization, and one revision in particular has hospices fearing for their survival.

Recap: The Consolidated Appropriations Act enacted last December requires a variety of significant hospice survey changes. The law followed two high-profile HHS Office of Inspector General reports critical of the process in 2019, which garnered a lot of mainstream media attention. Hospice industry experts thought the implementing regulations for those changes might appear in the hospice rule this year, which was finalized in late July, but they did not. Instead, they showed up in the home health rule proposed published in the July 7 Federal Register.

One of the most impactful changes is the proposal to implement enforcement remedies, formerly known as alternative sanctions, for survey deficiencies. And of the remedies, suspension of Medicare payments has hospices and their representatives concerned.

Payment suspension will “be a very dramatic remedy in the hospice program,” LeadingAge’s Mollie Gurian warns in the trade group’s comment letter on the proposed rule. “Hospice receives more of its revenue from Medicare than other settings so payment suspension, even for new patients, will have a dramatic impact on finances.”

The National Hospice and Palliative Care Organization “is very concerned about CMS’ proposed language regarding the potential suspension of all payments,” NHPCO’s Edo Banach emphasizes in its comment letter.

“Hospice providers have a higher volume of new admissions annually than most other post-acute care providers,” points out the National Association for Home Care & Hospice in its comment letter. “Smaller, independently owned hospice providers may be disproportionally burdened financially by imposition of payment suspensions as well as other remedies as compared with larger hospice providers or hospice providers that are part of a larger healthcare network. This could result in less choice for the hospice consumer as smaller providers are increasingly pushed out of the hospice marketplace,” NAHC cautions.

“In states like New York with hospice Certificate of Need (CON) requirements, suspending all payments to … a hospice could result in the only hospice in a region of the state closing due to financial constraints instead of working towards performance improvement and the delivery of quality hospice care,” Patrick Conole with the Home Care Association of New York State Inc. offers in the group’s comment letter.

“The same could occur in non-CON states, especially in rural areas and inner-city areas,” NAHC tells the Centers for Medicare & Medicaid Services.

Ask: HCANYS “encourage[s] CMS to use the suspension of all or part of payments remedy sparingly and only to new admissions and only in the case of immediate jeopardy,” according to its letter. Many other commenters make the same requests.

Allowing payment suspensions for all patients, rather than only new admissions, and for non-IJ situations “is not consistent with the remedies that are in effect for home health agencies and nursing homes,” notes the National Coalition for Hospice and Palliative Care in its comment letter.

While payment suspensions appear to be commenters’ top concern regarding enforcement remedies, they also highlight these problems with the new actions:

• Application. Multiple commenters advocated for a gradual implementation of more serious actions, rather than jumping to the most severe consequences at once. “It is important for CMS to approach remedies in a stepwise approach that considers the seriousness and prevalence of the deficiency at hand,” Erin Cubit with the Hospice and Palliative Care Association of Iowa says in the group’s comment letter. “This will ensure appropriate accountability measures are taken for each different situation.”

• Appeals. The proposed rule contains “a notice period and appeals process” for enforcement actions, Humana says in its comment letter. “We recommend CMS fully complete appeals or expedited appeals before imposing the various remedies. This will ensure providers are not inappropriately penalized for actions that could be overturned or withdrawn,” says the insurer and purchaser of Kindred at Home.

• CMPs. The Consolidated Appropriations Act passed last December “provides detailed statutory guidance ... [that] CMP penalties paid by hospices ... be available to support activities that benefit individuals receiving hospice care,” the Coalition notes in its letter. The statute reads that HHS “may provide that any portion of civil money penalties collected under this subsection may be used to support activities that benefit individuals receiving hospice care, including education and training programs to ensure hospice program compliance”:

“The Coalition does not see this statutory provision in the proposed rule,” it highlights. Other commenters made the same observation. “The Coalition strongly urges CMS to add this section to the final rule and to develop specifications for how the penalties collected can be used at the national level and/or state level for hospice program improvements and how a hospice or state agency may access these funds for hospice program improvements.”

Note: The 143-page proposed rule is at www.govinfo.gov/content/pkg/FR-2021-07-07/pdf/2021-13763.pdf — the survey section starts on p. 94 of the PDF file.