Two federal reports on hospice care in the United States could change the way regulators approach their enforcement activities. The U.S. Department of Health and Human Services Office of the Inspector General (OIG) released two documents last week discussing serious patient safety events in some hospices, including recommendations to the U.S. Centers for Medicare & Medicaid Services on changing their processes for evaluating compliance.
The first report indicated that about 20% of hospices surveyed by regulators or accreditors between 2012 and 2016 had a condition-level deficiency that posed a serious safety risk. A second report discussed 12 examples of those deficiencies in-depth. OIG examined state agency and accreditor survey findings as well as complaint data from 2012 through 2016. Regulators and accreditors surveyed nearly all hospice providers in the nation during those years.
The reports garnered widespread media attention and elicited strong reactions from hospice organizations. In addition to bringing attention to safety incidents in hospices, the reports called into question the effectiveness of CMS’ enforcement strategies.
“These cases reveal vulnerabilities in CMS’s efforts to prevent and address harm that have implications for the wider hospice population,” OIG reported. “These vulnerabilities include insufficient reporting requirements for hospices, limited reporting requirements for surveyors, and barriers that beneficiaries and caregivers face in making complaints. Also, these hospices did not face serious consequences for the harm described in this report.”
OIG made several recommendations to CMS to address these observations. According to the Inspector General, CMS should expand the deficiency data that accrediting organizations report to CMS and use these data to strengthen its oversight of hospices; seek statutory authority to include information from accrediting organizations on Hospice Compare, include on Hospice Compare the survey reports from State agencies; include on Hospice Compare the survey reports from accrediting organizations, once authority is obtained; educate hospices about common deficiencies and those that pose particular risks to beneficiaries; and increase oversight of hospices with a history of serious deficiencies.
CMS responded to OIG, concurring or partially concurring with each recommendation except including on Hospice Compare deficiencies identified by accreditors such as The Joint Commission, Community Healthcare Accreditation Partners or the Accreditation Commission for Health Care, Inc. Current law forbids CMS from publicizing this information. In most cases, CMS does not receive information regarding specific deficiencies from accreditors. The reports contain detailed discussions of the agency’s responses.
Industry organizations responded in short order, arguing that instances of fraud, abuse or neglect are indefensible and should be addressed, with the caveat that enforcement efforts should focus on providers who have a history of condition-level findings rather than the industry at large.
“The egregious examples of harm discovered by the OIG require an immediate focus on the small number of providers with incidents of jeopardizing patient safety. CMS should employ a variety of methods to address these agencies’ failings, including subjecting them to the closest of scrutiny until they are able to demonstrate the ability to meet quality standards and the Conditions of Participation on an ongoing basis,” the National Association for Home Care & Hospice said in a statement.
Hospice organizations were generally supportive of the recommendation that CMS should offer more education to hospices on applicable regulations as well as common deficiencies and their causes.
In additional to quality and safety concerns, OIG alleged that inappropriate billing by hospices has cost Medicare millions of dollars, particularly by enrolling patients who are not terminally ill. This issue has been a leading cause of CMS audits of hospice organizations in recent years and has been a source of much consternation to hospice providers due to the cost and workload associated with these audits.
Regulators often target hospices with a proportion of patients whose lengths of stay exceed six months. Though some documented instances of fraud have occurred, hospices argue that such cases are rare and that most instances involving longer lengths of stay occur due to the inherent difficulty of accurately predicting time of death and does not represent fraud in a large majority of cases.
“The OIG office has good intentions but does not seek out information about the industry that it is trying to regulate,” Christy Whitney, CEO of Colorado-based hospice provider HopeWest told Hospice News. “They are not informed and are penalizing hospices that are doing the right thing; when a patient doesn’t die within six months, that doesn’t mean that the hospice has a fraudulent billing practice.”
A key factor contributing to the proliferation of audits based on billing practices, longer lengths of stay or live discharges from hospice is the design of the Medicare Hospice Benefit itself, some in the industry have said. In particular they point to the requirement that the patient must have a prognosis of death within six months in order to enroll.
“Scrutiny over lengths of stay are a product of the six-month requirement. Whether care is related or unrelated [to a patient’s terminal prognosis] or whether care is too long or too short is a product of the fact that hospice is a six-month prognosis benefit, and that patients can’t get concurrent care,” Edo Banach, president and CEO of the National Hospice & Palliative Care Organization told Hospice News. “I think that should be changed, which would free providers and those who oversee them to actually look at the quality of care being provided. They are looking at the wrong thing.”