Hospice Organizations File Lawsuit to Halt Special Focus Program

A group of hospice providers and state associations have filed a lawsuit against the U.S. Department of Health and Human Services (HHS) over the implementation of the Special Focus Program (SFP).

The organizations filed the lawsuit in the U.S. District Court in the Southern District of Texas-Houston Division. The plaintiffs include: Texas Association for Home Care & Hospice, Indiana Association for Home & Hospice Care, Association for Home & Hospice Care of North Carolina, South Carolina Home Care & Hospice Association and Houston Hospice.

The hospice organizations have asked the court for a preliminary injunction that would halt the SFP, according to their complaint. They allege that the SFP harms patients by falsely labeling certain hospices as poor performers, uses flawed data and criteria, fails to address growth of low quality providers and diverts operators’ resources from patient care.

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“Plaintiffs represent high-quality hospice programs that each have a mission of promoting the well-being of terminally ill patients and their families at a most fragile phase of their lives,” the organizations indicated in their complaint. “Plaintiffs actively support efforts to improve oversight of hospice providers, especially ones that provide poor care or operate fraudulently. But Defendants’ publication of a list of ‘poor performing’ hospices is so arbitrary and flawed that it will make it harder for patients and families to find trustworthy providers.”

CMS in late December made public the names of its first cohort for the hospice SFP.

Finalized in the 2024 home health payment rule, the program is designed to identify poor performing hospices, mandate quality improvement and in some cases impose additional penalties. However, stakeholders in the hospice space have contended that the agency’s methodology for selecting hospices for the program is deeply flawed.

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The SFP can 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. Enforcement actions could include expulsion from the Medicare program, as well as other penalties.

In the lawsuit, the plaintiff organizations also contend that CMS should withdraw its list of providers selected for the SFP, along with underlying data. They have also asked that CMS withdraw the SFP final rule and revise to “align with congressional intent.”

The nation’s largest hospice industry groups quickly acknowledged the lawsuit and reiterated statements about possible flaws in the SFP algorithm, including LeadingAge, the National Alliance for Care at Home and the National Partnership for Healthcare and Hospice Improvement (NPHI).

“Good hospice care, because of its holistic, patient- and family-centered compassionate approach to the dying, is a godsend,” Katie Smith Sloan, president and CEO of LeadingAge said in a statement emailed to Hospice News. “That’s why we support the spirit and intent of the SFP. The SFP’s goal is to improve poor-performing hospices. For the SFP to succeed, good execution is critical – and on this, CMS is failing. Sadly, this is not a surprise: for months leading up to the program’s launch, we urged CMS to go back to the drawing board on several important issues, including data selection and scaling, and the weighting used in the SFP algorithm.”

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