Hospice Groups, AOs Speak Out on Proposed Accreditor Oversight Rule

Some accreditation organizations (AOs) have balked at the U.S. Centers for Medicare and Medicaid Services’ (CMS) proposed rule designed to strengthen oversight of those institutions.

CMS in February released a proposed rule that would introduce a number of provisions aimed at avoiding conflicts of interest and establishing more consistent standards, processes and definitions among accreditation entities, particularly those with deeming authority.

Three such organizations currently have deeming authority for hospices, The Joint Commission, the Accreditation Commission for Health Care (ACHC) and Community Health Accreditation Partner (CHAP). These accreditors have joined a host of other stakeholders in making public comments on the proposed rule, with some requesting clarifications and others outright denying that CMS has the authority to establish such requirements.

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“Congress has not granted CMS the authority to determine the AO’s service offerings or to regulate any aspects of the AO’s operations, governance structure, or business practices,” ACHC indicated in its comments. “In proposing that AOs only be allowed to provide certain services at certain times, CMS has exceeded its authority under the statute, venturing into operational grounds with which Congress never intended the agency to interfere.”

One of the major concerns raised by CMS is the provision of paid consulting services to providers by accreditors, designed to help them improve compliance. Some stakeholders believe that these lines of business represent conflicts of interest, reflecting a debate that has gone on in health care circles for more than a decade.

In their comments on the proposal, The Joint Commission detailed its current processes and procedures for prevention of conflicts of interest, arguing that these policies already provide sufficient protection. The accreditor provides publications, electronic products and consulting services through its subsidiary Joint Commission Resources.

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“While The Joint Commission supports sharing its [conflict of interest (COI)] policies and its COI log during the corporate onsite review or upon request from the agency, turning the policies and log over to CMS for the agency to keep requires The Joint Commission to share proprietary information and internal business operations,” the accreditor indicated in its comments. “Therefore, The Joint Commission recommends that CMS limit this proposal to sharing COI policies and the COI log during a corporate onsite review or at the agency’s request. Importantly, The Joint Commission should have the opportunity to investigate and verify a COI prior to providing notification to CMS.”

ACHC contended that CMS would be exceeding its authority if the agency were to place restrictions on consulting, whereas CHAP requested further clarification on the definition of “consulting” and how it differs from “education” that CMS also references in the rule.

Some in the hospice space have maintained that accreditors should be able to provide such education, but they should not be paid services, including the National Association for Home Care & Hospice (NAHC).

“CMS specifies that the proposals would not prohibit the AOs from providing no-cost education, such as general education about the AO’s accreditation and survey process and mock surveys,” NAHC indicated in its comments. “The restrictions [on] AO fee-based consulting would also not prohibit AOs from providing education about the Medicare conditions, AO standards, or survey process, to its accredited health care providers and suppliers, as long as this education is provided completely free of charge. This is a particularly confusing provision of the proposed rule to the industry as it is not clear what CMS would consider education versus consulting.”

The proposed accreditation oversight rule is the latest in a series of regulatory actions driven in part by quality and program integrity issues in the hospice space. In 2022, for example, CMS revamped the hospice survey process as mandated by 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). The first OIG report indicated that about 80% of hospices surveyed by regulators or accreditors between 2012 and 2016 had deficiencies in compliance. About 20% of those were condition-level deficiencies that posed serious patient safety risks. The second report gave specific examples of those risks.

After restructuring some of its own survey processes, CMS is now turning to accreditors to better ensure accurate and ethical assessments of health care provider quality.

“[CMS] seeks to protect the health and safety of patients that receive services from Medicare- and Medicaid-participating providers that are accredited by CMS-approved accrediting organizations (AOs),” the agency indicated in the proposal language. “We continue to review and revise our health and safety requirements and survey processes to ensure that they are effective in driving quality of care for beneficiaries receiving services from these accredited providers and suppliers.”

Further complicating the issue are widespread instances of fraud and malfeasance concentrated in four states, California, Arizona, Nevada and Texas.

Hundreds of newly licensed hospices have cropped up in these regions, some operating from the same location. Additionally, patients in some instances were admitted to hospice without their knowledge, while others eligible for care never received it. Many of these organizations have been accredited, two hospice leaders told Hospice News on background.

In its comments on the rule, the National Partnership for Healthcare and Hospice Innovation (NPHI) contends that the proposed reforms do not go far enough.

“We are concerned, though, that in multiple states there have been excessively large numbers of new hospices deemed eligible for Medicare certification in recent years. In many of these cases, there appears to have been insufficient attention paid to the hospice’s operations and its capacity to serve Medicare beneficiaries adequately,” NPHI stated. “While we largely support CMS’s proposals to strengthen the oversight of the AOs, we do not believe these provisions go far enough to ensure that every AO is adequately surveying and independently determining the qualifications of the hospices that are ultimately eligible for Medicare certification.”

Some organizations that commented on the rule, including NAHC and the senior care industry group LeadingAge, said that CMS should extend some of these reforms to the state agencies (SAs) that also conduct surveys.

“The proliferation of fraudulent hospices, especially those that only maintain a facade of a functioning office (or group together in a single office with no apparent staff), highlights the need for stricter adherence to statute to ensure [Conditions of Participation (CoPs)] are properly enforced,” LeadingAge indicated in its comments. “We would also encourage CMS to apply the same expectations outlined in the State Operations Manual for SAs regarding termination of non-compliant providers.”

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