The California State Assembly is mulling a bill that would require a second physician to sign off on patient recertifications for hospice and mandate that providers undergo an inspection by the California Department of Public Health every three years.
The California legislation, if enacted, would go beyond current federal requirements from the U.S. Centers for Medicare & Medicaid Services (CMS). Currently, Medicare requires two physician signatures for initial certification, but allows the hospice physician to recertify without a second opinion.
Assembly Member Randy Voepel (R-71st District) introduced the bill.
“The decision to introduce this bill came from our sponsor, the senior legislature and the major concerns that California has significantly more hospice care facilities with violations than any other state,” Clayton J. Holmes, legislative aide for Voepel, told Hospice News. “The [U.S. Department of Health & Human Services Office of the Inspector General (OIG)] reported in 2019 that, out of over 700 California hospice facilities, 94% have at least one complaint filed against them.”
Holmes cited examples of physical abuse, neglect, lack of meals, failure to toilet or clean patients, and other forms of harm.
OIG released two hospice reports in 2019 citing serious safety and compliance issues. 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.
OIG indicated that California and Texas were the states that saw the most serious deficiencies.
Existing California law makes it a criminal misdemeanor for anyone other than a medical director or the physician member of the hospice interdisciplinary group to recertify a patient, according to Holmes. The new bill would add a second, outside physician to that process and would be enforced through the triennial inspections the legislation would require.
In addition to the recertification provisions, the bill would require the state’s Department of Public Health to inspect hospices every three years, rather than on an “as-needed” basis under current law. The results of these inspections would be publicly reported.
Some members of the hospice community support greater transparency for patients and families, while voicing concern about how the legislation would be implemented, if enacted.
“I really welcome that as an opportunity to get more information into the hands of consumers so they can make informed decisions and choose a hospice that provides the highest quality of care,” Cathy Conway, CEO of Hospice of Santa Cruz County, told Hospice News. “Hospice providers were often linked to each other in the consumer’s mind. “We all focus on differentiating ourselves from other hospices.”
Providers have questions such as how hospices would be reimbursed for the additional recertification review, Conway said.
These state actions are in addition to new national rules from CMS that revised the hospice survey process and surveyor training practices, while also requiring greater transparency in publicly available quality reports. CMS is also establishing a technical expert panel to design a Special Focus Reporting program to address hospice safety violations.
These federal rules were also spurred predominantly by the 2019 OIG reports.
“California has been taking some steps to think about hospice growth, including a moratorium on new licenses. So potentially, they’re thinking through other actions that they could take to make sure that the hospices of their state are of high quality,” Mollie Gurian, vice president of home- and community-based services policy for senior care organization LeadingAge, told Hospice News. “Though I don’t think that this is a good way to address those issues.”
Gurian raised concerns that the proposed law is not consistent with Medicare policy and would therefore be challenging to enforce, as well as the potential for this to interfere with patient access to hospice.
The hospice market has been expanding in California, largely due to favorable demographics. The state also does not have a certificate of need law.
Seniors currently represent nearly 15% of California’s overall population, according to the U.S. Census Bureau. The number of adults 60 and older is expected to double by 2060, accounting for 30% of the population, according to a report from the California Department of Aging. The agency also indicated that a majority of the state’s counties would see increases of more than 100% in this age group.
Hospice utilization reached 46.1% in California during 2018, according to the National Hospice and Palliative Care Organization (NHPCO). This trailed behind the national average of 50.6% that year reported by MEDPAC.
California has been paying close attention to hospice regulation since the 2019 reports came to light. The legislature last October approved two bills instituting a moratorium on new hospice provider licenses as well as an extensive audit of California’s licensing and oversight processes.
“I think it’s understandable that they’re trying to get to the root of some of our bad actors in hospice care, but as this is written, it just poses a lot more questions,” Conway said. “It brings burden to the upstanding, high-quality hospices that are committed to providing this exceptional care, and I think there’s just room for clarification on it.”