The hospice space has seen waves of regulatory changes in recent years that are affecting sustainable access, according to Meg Pekarske, partner at the law firm Husch Blackwell. Ensuring program integrity and quality will take an overhaul of hospice regulation.
Pekarske, a hospice and health care attorney, is retiring with more than 25 years of legal experience, effective March 31. She recently sat down with Hospice News to reflect on the most significant regulatory changes impacting the future scope of hospice care delivery. Greater consideration is needed around a potential revamp of the Medicare Hospice Benefit, Pekarske said.
Pekarske joined Husch Blackwell in 2020, working predominantly in its hospice and palliative care legal team and also hosted the law firm’s podcast. She was previously a shareholder for Rienhart Boerner Van Deuren s.c., a Wisconsin-based law firm focused on hospice and health care regulatory issues.
Since graduating more than two decades ago from law school, Pekarske has collaborated with advocacy groups such as the National Hospice and Palliative Care Organization (NHPCO) to foster greater regulatory education. NHPCO has since merged with the National Association for Home Care & Hospice to form the National Alliance for Care at Home.
Photo courtesy of Husch BlackwellWhat drew you into, and kept you in, the hospice legal space?
I came out of law school seeing health care as a right, not a privilege. I was very driven more from a policy perspective. Health care is about helping people, not about money, and that was motivating. I had this radical idea that I might help hospices from a legal perspective, which back in the day there were not as many as there are now.
Hospice was a scarier choice as a young lawyer, but it’s something I’m passionate about. It’s very mission-driven and has changed my life personally, who I am as a person. I’m passionate about health care and the importance of quality. There are remarkable people who really taught me so much, and that’s what led me to do this for all of these years. I have done hospice volunteering too, and that was really helpful and powerful. People are attracted to this legal work because it’s deeply meaningful and deeply human.
What are the most significant evolutions that have taken place in the hospice legal landscape throughout the course of your career?
When I started doing this work, hospice was still sort of in a grassroots evolution and wasn’t as mainstream as it is now. That movement into the mainstream came at a great cost. Hospices [are] reaching more lives, but that comes with challenges.
The regulatory infrastructure hospice had was more loose compared to other settings. It was a low bar of entry, you didn’t need health care experience to make it work. We had a very general structure from a regulatory standpoint in that grassroots period. Now that hospice care has become larger, that low bar of licensing entry hasn’t really changed — there’s some catching up to do. It’s unfortunate that we focus on eligibility, which is important, but equally important are higher standards for the people who run hospices and their qualifications and different roles.
The mainstream nature has probably been one of the biggest changes I’ve seen. It’s sort of a double-edged sword, because there is more access and because we’re in the infancy of some regulatory changes in hospice care. Not everyone is doing it the same way and not all four levels of care are available to everyone in all settings. Regulation is important to setting basic standards that would be good to see in the future of hospice.
What are you noticing as some of the pivotal inflection points in hospice right now?
You don’t need much to start this kind of business. Even with the survey and audit changes, there are still real gaps in terms of really evaluating the qualifications of doing this work.
We’re at a point where we’re seeing this huge pendulum shift pretty far from an auditing standpoint, and it doesn’t seem like that is letting up. That is just chasing money and what is not getting dug into is whether the hospice benefit is working for patients. What are things other than eligibility to focus on, like higher standards for hospice personnel? Some of these things aren’t about money and are about improving quality, that is where I’d like to see more attention.
Right now hospices are living in fear that they could be bankrupt tomorrow because of claims disagreements and now they are needing to shut down. That’s how draconian these things are right now as we’re seeing them play out. This net to catch the bad actors is cast so wide. Right now it’s about the crudest measure that looks at one snapshot in time in a claim, and that’s really hard to get a good picture.
What are the red flags that could get hospices in legal hot water, and how do they avoid these issues?
I really think that right now there is no way to avoid it. The old fashioned [adage] is solid documentation. We’re seeing now this evolution of artificial intelligence and different AI tools that help with documentation. But what that doesn’t capture is the physician narrative, the changes in a patient’s subtle decline.
It’s balancing really solid documentation with a strong compliance program and auditing. As technology develops in the AI space, it’s not to replace doing the charting but a helpful tool to prompt what questions to ask.
What might the past and present legal trends mean for the outlook of hospice care delivery? How should hospices be preparing now for what is on the future horizon?
The hospice benefit does not really work all that well for how people die today of chronic illness. The benefit needs to be revamped in a much bigger way than chasing this arbitrary eligibility standard of six months of life. It’s more about how to meet people where they are and never losing sight of that holistic, integrated nature of what hospice care is about.
Signing a piece of paper that says you’re giving up all curative treatment is a barrier to access. If we uncoupled these curative treatment and life expectancy aspects, we could look at it from an advanced illness and integrated care standpoint.
I’m really concerned that if there is not a bigger overhaul of hospice, what is going to happen is that the benefit will get diminished. I think the benefit already is getting diminished. People are not receiving continuous care or general inpatient care, some people are only getting nursing visits and models are not including the chaplain or social worker as much. The magic in hospice is that death is not an event, it’s an experience. It’s as much psychological as it is physical, and that part is a pretty large diminishment over the past 20 plus years I’ve been in this space.
It’s about how we can get upstream until the hospice benefit is revamped. How do we diversify, whether it’s case management or care coordination. There are opportunities to diversify.
What are some of your words of wisdom that you would like to bestow upon the current and future generations of hospice providers and legal professionals?
Your passion, enthusiasm and kindness make a difference. Everyone is concerned about how they retain their workforce. We need leaders who are passionate, mission-driven, authentic and real, that is what attracts people because it is contagious. What you do really matters and can be inspiring to others.
The heart of hospice is really the passion for the work we do, it is full circle in attracting good people to this work. It is not for the money, it isn’t transactional. It’s having a larger purpose than just myself. Hospice has left that legacy.
I think younger people want to be part of something important, ethical and work that is meaningful. Hospice professionals have that in spades. We can’t get jaded by the regulatory burdens or run it like a business plan. That is not going to inspire anyone. It’s filling the gaps in community needs, that’s been the success of hospice.
Hospices are uniquely situated because of the interdisciplinary team that can do transformative things in health care. How and what hospices do is really what matters. There’s a lot of heaviness in this work because of the inflection point we’re in, but there’s also a lot of opportunity to really have unique skills brought to the table.
What are some of your post-retirement plans?
In what I’m calling my move into volume two, I’m retiring to explore more of who I am. I’m living this creative part of my life, because life is not finite. I feel like I would regret it if I did only law and never did anything else. Hospice is rewarding, but I feel it’s time for personal growth and living a creative life is very different from the legal side.
Hospice wasn’t the grand plan I had to do, but it’s wonderful to be connected to what you do. That’s where life makes sense in reverse and how all the puzzle pieces ended up fitting together. Sometimes it’s saying yes to experiences.
Companies featured in this article:
Husch Blackwell, National Alliance for Care at Home, Rienhart Boerner Van Deuren
