Home Health & Hospice Week

Special Focus Program taken off fast track.

The 2022 home health final rule will make a big difference to hospices this year, because it contains sweeping survey changes for the sector mandated by law.

In the home health proposed rule published in the July 7 Federal Register, the Centers for Medicare & Medicaid Services proposed a vast array of survey changes ranging from enforcement remedies to surveyor qualifications to a new targeting program.

Most of the proposed changes have gone through without modification, but hospices did clinch these important departures from the proposal:

• Special Focus Program. As required by the Consolidated Appropriations Act enacted last December, the Centers for Medicare & Medicaid Services must formulate a hit list of poor-performing hospices for special scrutiny, including surveys every six months and progressively stronger enforcement actions, among other things. Affected hospices would either graduate from the SFP or be placed on the termination track.

“We are not finalizing our proposal for the Special Focus Program,” CMS says in its fact sheet about the final rule. “Numerous comments indicated CMS should not finalize the proposed provision until a Technical Expert Panel (TEP) is convened to further define the parameters and provide a targeted approach based on national measures. Therefore, we are establishing a TEP with stakeholder engagement that integrates the public comments and will finalize this program through future rulemaking.”

That’s great news, industry experts agree. The National Hospice and Palliative Care Organization “was very concerned that the program would be designed and implemented without sufficient stakeholder input, so we were very pleased to see that the special focus program details were removed from the final rule and slated for rulemaking in FY 2024,” NHPCO’s Judi Lund Person tells AAPC.

Skilled nursing facilities have the similar Special Focus Facility system and it is extremely onerous, shared attorney Robert Markette Jr. with Hall Render in Indianapolis. “It’s very resource-intensive, you get surveyed all the time,” Markette tells AAPC. And “once you get on that list, it’s really hard to get off,” he relates.

• Payment suspensions. In the proposed rule, CMS indicated that one of the enforcement remedies surveyors could impose would be suspension of payment for all patients. In the final rule, CMS changes that “to limit the suspension of payment to all new patient admissions, rather than suspension of all or part of the payments to which a hospice program would otherwise be entitled,” it notes in the fact sheet.

“This is a big and important change for hospice providers, as 90 percent of our patients are Medicare beneficiaries and a suspension of all payments would put the hospice out of business in a very short time,” Lund Person emphasizes.

• Surveyor conflicts. In the proposed rule, CMS set out a variety of conflicts that would cause a surveyor to not be able to survey a hospice, including formerly working for the hospice or having a financial interest in it. In comment letters on the rule, hospices and their representatives presented a whole list of additional situations that should also qualify as a surveyor conflict of interest.

As a result, CMS says “we are revising § 488.1115 to add a requirement that surveyors must disclose actual or perceived conflicts of interest prior to participating in a hospice program survey and be provided the opportunity to recuse themselves as necessary,” according to the rule.

“We were very pleased to see this language in the final rule,” Lund Person praises.

• Multidisciplinary teams. In the proposed rule, CMS wanted “the use of multidisciplinary survey teams when the survey team comprises more than one surveyor, with at least one person being a RN.” But many commenters wanted to know if two-person teams would be allowed to have two RNs serve as surveyors.

Opinions on two-nurse teams were split, with many providers and their reps wanting a non-nurse member who had hospice experience, and Accrediting Organizations wanting all-nurse teams (see HCW, Vol. XXX, No. 37).

Now hospices, AOs, and others have their answer. “Because an RN will be on every survey team, to ensure that the survey team is multidisciplinary, if there is more than one surveyor, then the additional team members must be selected from other disciplines included in the interdisciplinary group,” CMS spells out in the final rule.

Hospices and their reps did strike out in one area — an informal dispute resolution process for survey deficiencies.

The National Association for Home Care & Hospice “reminded CMS that there is not any type of dispute resolution process available to hospices for a deficiency(ies) cited upon survey as there are for other provider types,” NAHC says in its rule analysis. “Such a process is especially important when enforcement remedies are being added to the survey process,” the trade group stresses.

“Because the IDR process was not proposed in this rule, we are not including it at this time,” CMS says. “We will consider the commenter’s suggestions for future rulemaking,” however, the rule offers.