Development of the Hospice Care Accountability, Reform, and Enforcement (Hospice CARE) Act has signaled that a wave of change may be on the horizon in end-of-life care delivery – including how patients are certified to receive these services.

Earlier this month Rep. Earl Blumenauer (D-Oregon) announced the landmark legislation at the Hospice News Elevate conference in Washington D.C. The bill is currently in draft form and has not yet been introduced in Congress. 

The bill, if enacted, would introduce much needed and long overdue changes to the Medicare Hospice Benefit, according to Blumenauer.

“The area of end-of-life care was ripe for a pilot project. Can we actually make a difference?” Blumenauer told Hospice News. “It’s being able to push Congress … to reform the [Medicare] Hospice Benefit, which hasn’t really had an overview since 1982. The federal government ought to be able to respond to [changes] happening in the industry during the last 42 years, working with [hospice providers] to make it function better. That’s where we’re going with the purpose of this discussion draft.”

Once introduction occurs, the Hospice CARE Act will need to pass through the legislative process, including committee markups.

Among the bill’s most significant provisions are avenues to curb malfeasance in the hospice industry. Instances of fraud, waste and abuse have cropped up nationwide, particularly in hotbed states such as Arizona, California, Nevada and Texas. The fraudulent activity has ignited a swath of increased program integrity oversight and regulatory changes.

The bill’s language introduces new stipulations to Medicare enrollment requirements for certifying hospice physicians. It proposes to prohibit a hospice-employed physician or a one with an ownership, financial or contractual relationship with the hospice program — from certifying a patient with a terminal illness for the initial 90-day election period.

The change comes in response to a growing number of fraud schemes involving hospice physicians inappropriately certifying patients as terminally ill. The bill’s proposed changes around certifying hospice physicians could help curb rising fraudulent activity tied to kick-back schemes and violations of the False Claims Act (FCA).

“Currently, there is generally no prohibition on arrangements, financial or otherwise, between hospices and physicians that certify that a patient is eligible for hospice care,” according to the bill’s language. “Such arrangements can result in financial incentives for physicians to falsely certify patients as eligible for hospice care.”

The changes come at a time when regulators and policymakers alike are working to crack down on hospice fraud schemes related to enrollment and eligibility.

CMS earlier this month revised its guidance on the recently implemented hospice certifying physician Medicare enrollment requirement, stipulating that physicians who certify hospice services must enroll in or opt out of Medicare by June 3 in order to receive reimbursement for submitted claims, included in the 2024 hospice payment rule. CMS reframed some of its guidance to better align with current hospice regulations and provide greater clarity around the process of recertifying patients.

Hospices are navigating several concerns related to compliance and reimbursement with the new certifying physician enrollment requirements, according to Patrick Harrison, senior director of regulatory and compliance at the National Hospice and Palliative Care Organization (NHPCO), which recently completed its affiliation with the National Association for Home Care & Hospice (NAHC).

“These certifying physician enrollment requirements would require a certifying physician to be Medicare-enrolled or validly opted-out to certify a patient’s terminal illness under the Medicare Hospice Benefit,” Harrison told Hospice News at the Elevate conference. “Given that it’s a Medicare Condition of Payment (COP), if that’s not the case then Medicare will deny services. There have been some significant implementation challenges experienced [with some] enrolling physicians and with conflicting instructions to [Medicare Administrative Contractors (MACs)] on how to process claims.”

Hospice News / Merz Photography

A main barrier to curbing fraudulent certifications is that bad actors have a variety of ways to slip through the cracks of “dozens” of regulatory oversight bodies in the health care payment system, according to Blumenhauer.

Improving quality and program integrity will take careful consideration and increased understanding of the benefits and areas of risk within hospice among legislators, regulators and payers, he said.

“We’re trying to have the subcommittee of health and other members of Congress focus on the nature of the industry now, the services being provided and what CMS is or is not doing to be able to help [hospices] serve the public,” Blumenauer said at the conference. “Hopefully we can modify it, having meaningful discussions and working in a bipartisan, thoughtful way.”