Reps. Jimmy Panetta (D-Calif.) and Tom Reed (R-N.Y.)., sponsors of the HOSPICE Act, have called on the U.S. Department of Health & Human Services (HHS) to reserve the use of payment suspension penalties to hospices in severe cases of noncompliance. CMS has included provisions of the law in the proposed 2022 payment rule for home health agencies.
Enacted last December as part of the Consolidated Appropriations Act, the Helping Our Senior Population in Comfort Environments (HOSPICE) Act. The bill is designed to bolster regulatory enforcement in response to two July 2019 reports from the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG).
“We want to help struggling hospices improve and deliver quality care and give [the U.S. Centers for Medicare & Medicaid Services (CMS)] the ability to target bad actor organizations with appropriate penalties,” said Reps. Panetta and Reed in a letter to HHS Secretary Xavier Becerra and CMS Administrator Chiquita Brooks-LaSure. “One of the new penalties created by our bill for hospices is the suspension of payment. We support limiting the use of the payment suspension remedy to the most egregious deficiencies, consistent with its use in other care settings.”
Reps. Panetta and Reed also recommended that CMS establish a Technical Expert Panel (TEP) of diverse and experienced stakeholders, advocates and providers of all types to aid in implementation of new oversight, including those regarding payment mechanisms.
The payment suspension sanction currently exists in post-acute settings, where it is commonly reserved for the most severe cases of noncompliance, according to the representatives. This penalty would be applied when a provider has several condition-level deficiencies or serious substantiated complaints, and when other remedies have been unsuccessful.
The proposed CY 2022 Home Health rule provides some regulatory clarification to the provision in the HOSPICE Act that proposed suspension of all or part of the payments, according to a spokesperson from the National Hospice & Palliative Care Organization (NHPCO).
“CMS considers this remedy for any deficiency related to poor patient care outcomes, regardless of whether the deficiency poses immediate jeopardy,” said the NHPCO spokesperson. “Suspension of [the] payment remedy may be imposed anytime a hospice program is found to be out of substantial compliance with the Conditions of Participation.”
CMS proposed the creation of a Special Focus Program (SFP) with the power to impose penalties on hospices with poor performance on regulatory or accreditation surveys. These hospices would be surveyed every six months rather than the regular 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.
Among the most critical outstanding questions is whether CMS will apply payment suspension to only new patient admissions or to all Medicare revenue, according to the NHPCO spokesperson.
In its comments on the rule, NHPCO recommended that the penalty be limited to only new admissions as a last resort when the hospice has an Immediate Jeopardy finding. This would mirror the approach that CMS applies to oversight of nursing homes, home health and other post-acute providers.
“We appreciate Reps. Panetta and Reed for their continued leadership in support of high-quality hospice care. We will continue working with them and CMS on behalf of the hospice community,” said NHPCO President and CEO Edo Banach. “We’re gratified [that] their recommendations to HHS and CMS regarding implementation of the act are in line with the comments NHPCO recently submitted to CMS, particularly with regard to careful use of payment suspensions.”
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