Hospice providers are still unpacking the substantial changes that the U.S. Centers for Medicare & Medicaid Services (CMS) announced this week via to the proposed rule for Fiscal Year 2022 payments to home health agencies. While questions persist, providers can expect a learning curve as they prepare to undergo a revamped survey process, comply with new requirements and brace for the possibility of heavy penalties for consistent noncompliance.
While the rule in its current form is a proposal rather than final, CMS has limited flexibility on the scope of changes they can make. Congress mandated many of these provisions in the Consolidated Appropriations Act of 2021. Legislators added the hospice language in response to July 2019 reports on hospice quality from the Office of the Inspector General (OIG) at the Department of Health and Human Services (HHS).
“It’s all a new framework for hospice programs. There will have to be a lot of training and thinking about how these new criteria apply and the potential for other enforcement remedies,” said Mollie Gurian, director of hospice, palliative and home health policy for LeadingAge. “Hospices are going to need education about what can happen when they do get a citation, the deadlines they have to meet and how to comply as effectively as possible.”
Among the most significant moves the agency is taking is the establishment of a Special Focus Program (SFP) with the authority to penalize hospices that have a history of serious deficiencies during CMS or accreditation surveys.
SFPs would be authorized to impose fines, suspend reimbursement, appoint temporary management to bring the hospice into compliance, or revoke a provider’s Medicare certification. The rule would also set up a hospice quality hotline through which patients and families could report concerns.
The OIG reports that spurred these decisions shocked many in the hospice space and received widespread media attention. 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.
Industry stakeholders have voiced a number of concerns about the law, arguing that remedies should be focused on organizations that have a history of serious deficiencies rather than the hospice community as a whole. Some see the SFP program as an effort to do just that, though the revamped survey requirements would affect every provider.
“SFP will help help identify providers who have some problems with compliance, but it also gives CMS some more tools in their arsenal so that we can help providers get back into compliance and provide good care,” Judi Lund Person, vice president of regulatory and compliance for National Hospice and Palliative Care Organization (NHPCO), told Hospice News.
One area of concern regarding the SFP approach is that the process is modeled after an existing system applicable to Medicare-certified long term care providers. In the long term care space, SFPs apply a quota-like system in which each state has to report a certain number of providers to the program.
A company designated as a poor performer in one state may actually do better on compliance than a provider in another state because of the way the numbers work in that particular region, according to Katie Wehri, director of home health and hospice Regulatory Affairs for the National Association for Home Health & Hospice (NAHC).
Working out the details of how such a program would work will be key during the public comment period that takes place before the rule becomes final, as well as in future discussions of potential program revisions.
“We’ll want to evaluate carefully to make sure that the criteria that they’re using are very hospice specific and to make sure that it’s really focused on the programs that need the most improvement rather than on factors like geography,” Gurian said. “I think that there’s an attempt to do that, and the rule and [CMS] seem very open to feedback on this program.”
The proposed language would also require accreditation organizations with deeming authority to use the same forms to report deficiencies as CMS state agencies. Three accreditors currently have this authority: the Accreditation Commission for Health Care (ACHC), Community Health Accreditation Partner (CHAP), and The Joint Commission. These agencies have deemed close to 50% of Medicare-certified hospices, according to CMS.
The proposed rule would make accreditation survey reports publicly available. Historically these have been kept confidential. CMS and the accreditors are faced with the complex task of making those reports available in a format that lay people can understand.
“This introduction of uniform training expectations is something that could be very positive, and really moved us towards much greater consistency in the survey process,” Theresa Forster, vice president for hospice policy and programs for NAHC told Hospice News. “That could provide great relief to providers. Because this is a national program, you want to be certain that people are being judged on this by the same standards regardless of where they live.”