The National Hospice & Palliative Care Organization (NHPCO) in consultation with its members have submitted comments to the U.S. Centers for Medicare & Medicaid Services (CMS) on hospice provisions within the proposed 2022 home health rule. If made final the rule would overhaul the survey and regulatory enforcement processes that CMS uses to evaluate hospices.
CMS is taking these actions pursuant to the Consolidated Appropriations Act of 2021. Congress included these provisions 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).
“While the intent of the proposed rule is sound, many of the specifics raise concerns,” said NHPCO’s President and CEO Edo Banach. “NHPCO’s recommended revisions to the proposed rule would protect patient interests, bring hospice regulations in line with regulations governing other post-acute care providers, and improve standardization and consistency in hospice accreditation and surveying systems.”
If made final, the new regulations would require multidisciplinary survey teams, prohibit surveyor conflicts of interest and update the surveyor training process. The agency expects that implementation of these proposals would cost an estimated $5.5 million annually. The rule would also mandate that surveys be conducted more frequently, no later than 36 months following the providers’ previous survey.
Among the numerous elements contained in the proposal is the creation of a Special Focus Program (SFP) with the power to impose enforcement remedies against hospices with poor performance on regulatory or accreditation surveys. The agency also has plans to implement a hospice program complaint hotline through which the public can report issues to CMS.
Hospices flagged by the proposed Special Focus Program would be surveyed every six months rather than the current three-year cycle. The SFP would have the authority to impose fines, suspend reimbursement, appoint temporary management to bring the hospice into compliance, or revoke a provider’s Medicare certification altogether.
NHPCO in its comments indicated concern that the criteria for identifying poor performing hospices for an SFP would not accurately capture poorly performing hospices.
The advocacy group also raised issues with a lack of language in the rule about the status of condition-level deficiencies while CMS considers placing a hospice on an SFP. In many cases, those deficiencies may be corrected before the hospice comes up for inclusion in the Special Focus Program.
“We encourage CMS to consider a matrix approach that will avoid placing undue weight on any one citation. Furthermore, we encourage CMS to provide additional guidance on how complaint and validation surveys will be used to make a determination for entry into the SFP,” NHPCO commented. “Another area of surveys that may raise alarm but would not be included by focusing on [condition-level deficiencies] is the frequency of re-visits needed to ensure a hospice is compliant.”
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 organizations have deemed close to 50% of Medicare-certified hospices, according to CMS.
The proposed rule would also make accreditation survey reports publicly available. Historically these have been kept confidential. While NHPCO has expressed support for increased transparency, the organization and others in the hospice community, including the accreditors, have called on CMS to devise ways to present that information in a way that would be accessible and understandable to the general public.
Accreditors would also have to require their surveyors to undergo the same training programs as those affiliated with Medicare state agencies, which would be updated if this rule were made final. The new training program would emphasize quality of care, according to CMS. Accreditation surveyors would also be included in CMS conflict of interest policy that the agency applies to its own personnel.
“Implementing these reforms will help to ensure the competency and consistency of surveyors which is critically important to establish if enforcement remedies are to be levied against hospices based on their findings,” NHPCO commented. “However, we note that there is no mention of updating the surveyor training modules when new regulations are promulgated and urge CMS to provide updates to the surveyor modules and add requirements for continuing education for surveyors.”
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