Hospice Industry Groups: CMS Must Retool Proposed Special Focus Program to Ensure Accuracy, Fairness

The U.S. Centers for Medicare & Medicaid Services’ (CMS) proposed 2024 home health rule includes plans to implement a hospice Special Focus Program, but some stakeholders contend that some aspects are flawed.

Three of the largest hospice, home health and senior services advocacy groups submitted comments to CMS on the proposed rule — LeadingAge, the National Association for Home Health & Hospice (NAHC) and the National Hospice and Palliative Care Organization (NHPCO).

While all three organizations voiced general support for the program, they raised questions about the algorithm that CMS would use to select hospices for the SFP.

“LeadingAge is broadly supportive of the idea of [an SFP]. Targeting low-performing hospices for increased oversight via a specific program makes sense and is aligned with our overall thoughts on wanting to support high-quality hospice …,” LeadingAge indicated in its comments. “Our members are concerned that the algorithm, as proposed, would not achieve the goal of targeting the poorest-performing programs.”

The SFP was among the requirements established by the Consolidated Appropriations Act of 2021. Congress included the language in response to July 2019 reports on hospice quality from the Office of the Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS). CMS expects that implementation of these proposals would cost an estimated $5.5 million annually.

The agency initially pitched the idea in 2022 but instead convened a Technical Expert Panel (TEP) to further guide the development process. The agency wants to move ahead with it in 2024.

If designed similarly to those used in other settings, the SFP would have the power to impose enforcement remedies against hospices with poor performance on regulatory or accreditation surveys. Hospices flagged by the SFP would be surveyed every six months rather than the current three-year cycle.

The program 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.

However, the algorithm that CMS plans to use will not effectively identify the hospices that are most in need of a course correction, according to NAHC.

“The consequences of being selected for the SFP are severe, which is why the selection criteria must be designed to identify the subset of hospices that are truly the poorest performers and most in need of remediation to address quality concerns,” NAHC indicated in its comments on the rule. “An interim performance period (or preview period) would help providers understand the algorithm, learn how their performance compares to others nationally, and identify where they need to target improvements to ensure high-quality care.”

The three industry groups earlier this month wrote to CMS to recommend a delayed start for the SFP, allowing time for the agency to improve the algorithm, as well as conduct a national pilot to test it. During the pilot period, SFP results would not be posted publicly and providers would receive interim reports on their performance under the program’s designated metrics.

CMS already has SFPs in place for providers in other settings. In most of those programs, enforcement remedies are applied based on factors such as the extent to which the deficiency poses immediate jeopardy to patient health and safety, the degree and duration of deficiency or noncompliance, and the presence of repeat deficiencies.

CMS indicated in the proposed rule that 5,943 hospices would be eligible to participate in the SFP and that the agency would select providers from the lowest 10% of performers based on quality data, survey results and other factors.

But NAHC contends that hospices need more detailed information about how CMS will choose SFP participants before the program can be implemented.

“CMS must provide additional information as to how it will decide which of the bottom 10% of hospices will be selected for the SFP,” NAHC indicated. “The SFP should not be used as a punishment but rather as an educational tool for struggling hospices. We have concerns CMS provided no guidance on how it would utilize its discretion in selecting SFP candidates from the bottom 10% of performers. Due to this lack of transparency, hospices are not able to ascertain and provide fully informed comments on the full impact of the SFP.”

Meanwhile, LeadingAge is seeking greater clarity on the intended purpose of the SFP. Originally designed as a program to help hospices with a pattern of survey deficiencies to improve their quality of care, CMS has since described the program as a tool for fighting fraud.

“We also want to underscore that the SFP program is a program intended to be targeting poor performing hospices. It was written with the intent toward looking at the quality of care. This is a concept distinct from fraud … We hope in its work that CMS is able to walk and chew gum at the same time – in other words, improve the SFP so that it can be used to focus on poor-performing hospices AND continue to modify its program integrity efforts so that the right hospices are targeted for audits and other PI oversight.”

A key concern about the SFP is that, as proposed, condition-level deficiencies and substantiated complaints would not be scaled to account for the number of beneficiaries that a hospice serves, according to NHPCO.

This conflicts with recommendations from the TEP that CMS brought together to help design the program, which would have scaled those deficiencies and complaints per 100 Medicare beneficiaries.

“A large provider who has two substantiated complaints with an [average daily census (ADC)] of 450 should not rise to the same level of concern as two substantiated complaints for a program with an ADC of 50,” NHPCO said in its comments. “If the goal of the SFP is to find the poorest performing programs, scaling both eligibility and graduation criteria and looking at these data as ratios rather than raw numbers is a change to the methodology that must occur.”