Civil Rights, Disability Laws of Rising Importance in Hospice Compliance

Hospice providers will need to be well-versed in laws and regulations, as well as proactive in compliance education to avoid bringing regulators to their doorstep. Increasingly, this includes careful adherence to laws and regulations pertaining to civil rights and protections for the disabled.

Compliance is a critical priority among hospice providers as regulators sharpen focus on the industry. The U.S. Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health & Human Services (HHS) Office of the Inspector General (OIG) continue to look hard at hospice providers to address concerns ranging from billing and claims to patient eligibility for the hospice benefit.

Questions of patient eligibility for hospice impacts many aspects of a provider’s business, according to Bill Dombi, president of the National Association for Home Care & Hospice (NAHC). Dombi stated in a recent NAHC webinar that decisions around patient eligibility can trigger legal concerns, compliance issues with Medicare and Medicaid rules as well as state licensing laws.


“There has been increased scrutiny of hospice in several areas. These include federal fraud and abuse investigations and indictments related to Medicare claims by the OIG and [the U.S. Department of Justice], as well as quality of care complaints and audits, and concerns about profit margins and payment model issues by the [Medicare Payment Advisory Commission (MEDPAC)],” Dombi told Hospice News. “With respect to quality of care, Congress took the unusual step of including legislation authorizing hospice intermediate sanctions, including civil monetary penalties in the end of the year COVID bill.”

Federal legislators incorporated language from the Helping Our Senior Populations in Comfort Environments (HOSPICE) Act to the Consolidated Appropriations Act of 2021, which passed in late December last year. The bill created a Special Focus Facility Program to zero in on hospices with a history of serious deficiencies, requiring those organizations to be surveyed at least once every six months. It also doubles fines for organizations that fail to report quality data to HHS. The law also contained provisions for CMS survey improvements and surveyor education.

CMS proposed a new rule last month containing a Fiscal Year 2022 hospice payment rate increase of 2.3%. The agency also raised the hospice payment cap to $31,389, up from $30,683 for 2021. The rule also contains updates to quality reporting requirements and CoPs.


The combination of these actions is a strong indicator that hospice is on the radar of oversight bodies, according to Dombi.

CMS suspended audits and medical reviews by Medicare Administrative Contractors (MACs) in July 2020, but resumed enforcement activity by August, despite the continued status of the federally declared public health national emergency. Hospice providers have seen an uptick in audits since then.

Hospices will need to remain diligent to stay current on the details of laws and regulations. Key areas of focus include Medicare anti-discriminatory rules, state civil laws, malpractice laws and the Americans with Disabilities Act.

Although largely underserved by hospices, patients with disabilities represent a growing need as well as an untapped market for providers. Nearly 40% of people 65 and older had at least one disability from 2008 to 2012, according to a 2014 U.S. Census Bureau report. More than a quarter (25.4%) of disabled seniors were 85 or older, though that age group represented slightly more than 13% of the nation’s aging population, the report found.

Hospice companies working to meet the specific needs of these patients are zeroing in on the key components of the Medicare Hospice Benefit requiring that they provide patients with “the right to access high-quality, end-of-life care, and that care should be individualized to the specific needs of the patient and family,” according to Sarah Simmons, interim executive director of Maryland-based Calvert Hospice.

“Hospices need to increase their emphasis on ensuring that their staff are trained to provide culturally-competent care in all settings, and that provisions are in place for quality interpreting services, visual assistance devices, and other means of caring for individuals with disabilities,” Simmons told Hospice News. “The population of people needing hospice care is diverse and varied, and our ability to provide excellent care needs to evolve to meet the needs of all of our patients.”

Hospices need to understand relevant provisions in the Americans with Disabilities Act ,the Rehabilitation Act of 1974, state civil rights laws, and Medicare discrimination rules to ensure they are in compliance. According to Dombi, providers can expect more potential oversight in these areas.

“[With] your [patient] admission decisions, if you start rationing care, do you discriminate against certain kinds of patients who might demand more volume of service than others? Does that then lead to discrimination based on the Americans with Disabilities Act?” Dombi said. “You don’t want to find yourself facing an abandonment lawsuit where the claim presented and the primary allegation is that you discharged a patient because they weren’t profitable enough. That is not going to put you in great standing before the court.”

A lack of staff may also trigger discharges, according to Dombi. Focusing on staffing education will be key to a hospice’s compliance strategy. Having both a sufficient and educated workforce trained in Medicare coverage standards, claims processing requirements and Conditions of Participation is an ongoing challenge for hospice providers. Hospices should consider internal auditing to make sure staff is fully knowledgeable of these rules and regulations, Dombi indicated.

Staff education around rules associated with disabled patients can help hospice providers identify and proactively address compliance issues, according to Simmons.

“Our most effective strategy in ensuring that we are staying vigilant has been to pull our entire team into the world of hospice compliance,” said Simmons. “Every member of our team is educated on hospice regulations and receives a monthly report on our performance on compliance audits. If we identify an issue that requires improvement, we are careful to pull in the key stakeholders in that process so that the conversation is happening at the ground floor, where the real work is being done.”

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