Hospice 2013 Regulatory and
Legislative Update
Deborah Randall, Esq.
Law Office of Deborah Randall
www.deborahrandallconsulting.com
2013 copyright Deborah Randall
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Extent of Hospice Care
• Of 2,513,000 deaths in 2011 in the USA, as
reported by the Centers for Disease Control,
1,059,000 persons died in hospice care,
according to estimates of the National Hospice
and Palliative Care Organization. This is 44.6%
• An additional 313,000 were still on census at
year end.
• Approximately 278,000 were discharged live.
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Location of Care 2011;2010
• Patient’s Place of Residence 66.4%;
Private Residence
41.6%;
Nursing Home
18.3%
Residential Facility
6.6%
• Hospice Inpatient Facility 26.1%
• Acute Care Hospital
7.4%
66.7%
41.1%
18.0%
7.3%
21.9%
11.4%
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• Average length of stay in 2011 was 69.1 days
• The median length of stay was 19.1 days,
down from 19.7 in 2010.
Data from National Hospice and Palliative Care
Organization sources
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Hospice Quality Measures
• Hospices are required to comply with quality
measures
• Website instructions “imperative”
http://www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/DataSubmission.htmlhttps://www.qtso.com/hospi
cetrain.html
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Hospice Quality Measures
• Training at
https://www.qtso.com/hospicetrain.html
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Affordable Care Act
• Section 2302 Concurrent care for children –
Allows children who are enrolled in either
Medicaid or CHIP to receive hospice services
without foregoing curative treatment related to
a terminal illness.
SMD Letter on Implementation
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Health Reform Enacted
HHS Secretary establishes 3 year demonstration program
--patients who are eligible for hospice care could also receive all
other Medicare covered services while receiving hospice care.
• up to 15 hospice programs in rural and urban settings
• independent evaluation of patient care, quality of life and
spending in the Medicare program.
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Affordable Care Act
• Section 3132 Hospice reform - Requires a
hospice physician or nurse practitioner to have a
face-to-face encounter with the individual to
determine continued eligibility for hospice care
prior to the 180th day recertification and each
subsequent recertification and attests that such
visit took place as established by the Secretary.
• In Home Health PPS Proposed Rule 7/16/2010 –
HHA Final Rule 11/2/2010
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Health Reform Enacted
• After January 1, 2011, a hospice physician or nurse
practitioner [NP] must have a face-to-face encounter with
each hospice patient to determine continued eligibility
prior to the 3d benefit period, known as the “180th-day
recertification” & thereafter each 60 day recertification
.
This is regardless of how short the two preceding certification periods
have been in number of days.
• Attestation of the visit is required in writing, in addition to the
recordation of visit itself in the clinical record
• HHS medical review of certain patients in hospices with high
percentages of long-stay patients required by Congress
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Face to Face “F2F” Developments
• HHA Final Rule 11/8/12; Implementation has
been difficult for hospices
• Costs of implementation are being compiled
but given the fact that cost reports for
hospices have not been audited for years by
fiscal intermediaries/MACs, what
governmental body is going to respond?
• No telehealth F2F visit even though statute is
silent on hospice and telehealth
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Hospice Reimbursement
• ACA Market Basket adjustments and
productivity requirements/adjustments
• Directive to Department of Health and Human
Services to consider reform of the
reimbursement methodology for routine
hospice care, particularly for residents of long
term care facilities
• MedPac’s recommendations in December
2012 were to cancel fiscal 2014 update
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Uncertainty about Physician Billing
and Reimbursement in Hospice
• Requirements that the hospice bill on behalf
of physicians who have ANY financial
relationship [medical director, team physician,
consultant] are read by CMS to include office
visits an attending might have with her patient
• Pre-hospice evaluations are billable but not
well understood or utilized. Medicare
Beneficiary Manual Chapter 9, Section 80
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Challenges to Hospice Reimbursement
• MEDPAC recommendations to alter
reimbursement methodology and create
“ U-shaped curve“ with higher payment at
beginning and end/death; Congress includes
directive in Healthcare reform bill
· MEDPAC refers to ‘dark’ side of hospice industry
MedPac considering a different payment for nursing
home residents electing hospice, in Medicaid
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CMS warning: Include all diagnoses
• Hospices routinely included only the primary
admitting diagnosis upon admission & billing
• Most software systems established this way
• CMS warned in 2013 Hospice Wage Index that
all secondary diagnoses are required
• Secondary Dx possible trigger for denials, or a
case mix decrease in future payment
methodology? Alzheimer’s, debility, failure to
thrive, Parkinson’s, other chronic conditions
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The End of “CAP” disputes?
• Beginning with the 2012 cap report years,
hospices must utilize the “proportional” method
of determining the number of reimbursable
patients in that year’s census, which will take into
account being on care in prior year(s), and will
need to be adjusted for patients surviving into
another cost year.
• Prior users: One time election of “streamlined”
Medicare Benefit Policy Manual, Chap 9, Section
90-90.2.5, (rev’d 6/1/12)
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Other HHS Projects Affecting Hospice
• Care Coordination Projects
• PEPPER Reports on risk areas provided to
hospices in August 2012. Need to be addressed.
• Penalties to hospitals for re-hospitalization of
patients within 30 days for particular diagnoses
• Advancement of accountable care organizations
[ACOs]
• Expansion of Medicaid programs in the States
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Hospice Competition Concerns
• Not terminally ill @ admission:documentation
• Patients on census after plateau; failure to
discharge long stay cases
• Ignoring internal or external audit reports
• NEXT= Too many hospice physicians?
• OIG Work Plan on nursing facility/hospice
• Expanding into Palliative Care: Licensure,
Corporate Practice of Medicine, Kickback law
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Marketing; Ignored Reports; Fraud
• With “open access”, can you billing accurately
• If you heighten pressure on marketing staff,
will this result in poor judgment, or worse
• If you receive internal or external reports or
audits which are concerning, are they ignored
• If you suddenly discharge patients in large
numbers, or gain admissions after a physician
is hired, what is behind the numbers?
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Even Non Profit Hospices in Trouble
“San Diego Hospice files for bankruptcy”
UT San Diego newspaper,Paul Sisson, 2.4 2013
• http://www.utsandiego.com/news/2013/feb/
04/hospice-files-for-bankruptcy/
• www.ltlmagazine.com/news-item/oig-widenscrackdown-hospices
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“Open Access” vs. the LCDs
• Open Access philosophy gained strength in recent decade+
• Origin in concern that too few persons and families received
palliative care and spiritual support at end of life due to Election of
Benefit and other “death” language
• Issue is when are hospices ensuring compliant billing, if any, to
Local Coverage Determinations, e.g. Palmetto LCD L31535-41
• http://www.cms.gov/medicare-coverage-database/indexes/lcdlist.aspx?Cntrctr=227&name=Palmetto%20GBA%20%2811004,%20
RHHI%29&DocType=Active&ContrTypeId=3&s=48&bc=BBAAAAIAA
AAAAA%3d%3d&#ResultsAnchor
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Hospices in the News
• Singletary v. Harmony Care Hospice Inc., No.
2:10-cv-1404 (D.S.C), settlement 11/19/12. $1.3
million; non-terminal admissions alleged
• Altus Healthcare and Hospice Inc., No. 1:10-CV1380 (N.D. Ga.)settlement 7/12/12. $555,572.
Alleged unqualified in-patient care.
• United States v. Goldman, E.D. Pa., No. 12-cr-305ER, indictment unsealed 8/2/12. Alleged
kickbacks to hospice medical director for referrals
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OIG Advisory Opinion 12-17
Providing a volunteer friendly visitor and chore
aid service to those not yet in hospice care
Care about distinction between a hospice similar
service and otherwise. Echoes OIG Advisory
Opinion from 2000 on “bridge” programs
Incentives to patient families
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Telehospice & Palliative Care
• Vision
• Improved confidence, decreased isolation and
depression, IDT integration and care planning,
averting ER and hospitalization runs, using
modern technology to expand access
• Partnering with palliation specialists
• Quality of end of life, reduction in suffering
• Meeting our new generation of patients
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HIPAA Settlement with Hospice of No.
Idaho
• Lost laptop; self report; <500 affected patients
• Lack of proper assessments of ePHI security
risk, lack of proper policies, lack of
implementation of security measures
• $50,000; 2 year Plan of Correction
• HIPAA has been lower compliance priority for
some community-based care providers
• www.hhs.gov/news/press/2013pres/01/2013
0102a.html
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Contact Information
• Deborah Randall JD and Consultant
• Law Office of Deborah Randall
• law@deborahrandallconsulting.com
• 202-257-7073
• www.deborahrandallconsulting.com
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