Hospice 2010 Regulatory & Reimbursement Update Deborah Randall, Esq. Law Office of Deborah Randall law@deborahrandallconsulting.com

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  • Hospice 2010 Regulatory & Reimbursement UpdateDeborah Randall, Esq.Law Office of Deborah Randalllaw@deborahrandallconsulting.com

  • Challenges to Hospice ReimbursementMEDPAC 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

  • Hospice Growth* change2005 2006 2007 2008 2001-8 aggr.All hospices 2,870 3,073 3,258 3,389 47 % For profit 1,282 1,464 1,637 1,748 128 Nonprofit 1,181 1,184 1,188 1,197 1 *MedPac 2010 report

  • Hospice Use Growth* All beneficiaries [Medicare and Medicaid] utilizing hospice as percent of benes Change2000 2005 2006 2007 2008 AvAnnl22.9% 34.237.0 38.9 40.12.3% *MedPac 2010 report

  • Hospice Expenditures*In 2008, more than 1 million Medicare beneficiaries received hospice services from more than 3,300 providers and Medicare expenditures exceeded $11 billion.

    *MedPac 2010

  • Hospice QualityQuality of care

    We do not have sufficient evidence to assess quality, as information on quality of care is very limited. Efforts completed or under way might provide a pathway for further development of quality measures.

    *MedPac 2010 report

  • Health Reform Act [du jour] Allows children who are enrolled in either Medicaid or CHIP to receive hospice services without foregoing curative treatment related to a terminal illness.

  • Health Reform EnactedValue-based purchasing programs for long-term care providers, including hospice providers, by Jan.2016.

  • Health Reform EnactedHHS Secretary to establish 3 yr 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 spendingi n the Medicare program.

  • Health Reform Enacteddata collection and Medicare hospice claims forms and cost reports updates by 2011.

    Based on this information, required changes to implement revisions to the methodology forpayment rates for routine home care and other services in hospice care" beginning 2013

  • Health Reform EnactedAfter January 1, 2011, a hospice physician or nursepractitioner must have a face-to-face encounter witheach hospice patient to determine continued eligibility prior to the 180th-day recertification & thereafter. Attestation of visit

    HHS medical review of certain patients in hospices with high percentages of long-stay patients.

  • Health Reform Enacted

    Productivity adjustment reduction in reduction of market basket update beginning fiscal year 2013

    Market basket reduction of .3% from fiscal years 2013-2019.

  • Health Reform EnactedNational screening program =

    Criminal and other background checks onprospective employees with direct accessto patients.

  • Health Reform Enacted

    Institute of Medicine Conference on Pain Care =

    evaluate the adequacy of pain assessment, treatment, and management;identify and address barriers to appropriate pain care; increase awareness;

    Pain Consortium at the National Institutes of Health =to enhance and coordinate clinical research on causes and treatments.

    Grant program FY 2010 through 2012 to improve health professionals ability to assess and appropriately treat pain.


  • Health Reform EnactedHOSPICES MUST REPORT ON QUALITY [AS HHAs SNFs and Hospitals have to do now]

    .or take a 2 % reduction in Market Basket Update. Reporting as of 2014.

  • CAP LitigationSojourn Care, Inc. v. Sebelius, Case No. 07 CV 375 GKF (N.D.Ok.) First case to be filed. Court gave summary judgment of invalidity of regulation 2/08; Court then took briefing on the proper form of judgment and entered judgment 3/09; In this judgment court entered a mere remand to HHS for further proceedings, without expressly holding the regulation invalid or setting aside the challenged demand Both sides appealed and oral argument is set for May 3d before the 10th Cir.

    Heart to Heart Hospice, Inc. v. Sebelius, Case No. 07 CV 289 (N.D. Miss.) In response to motion for summary judgment, the court declined to grant either motion Instead remanded the case to HHS for determination of the difference in calculations HHS assigned this task to the PRRB; this is in midstream before the PRRB, but the fiscal intermediary recently filed papers conceding that for the first year in question The difference would have been in excess of $375K in provider's favor.

    Los Angeles Haven Hospice, Inc. v. Sebelius, Case No. 08 CV 4469 (C.D. Cal.)

    7/09 Summary judgment of invalidity and strong opinion. 8/09- court entered judgment holding reg unlawful, setting aside payment demand and enjoining HHSS use of the regulation generally; 9/09 on HHS request, district court agreed to suspend that portion of its injunction which required HHS to stop using regulation, generally, pending appeal; HHS in late fall then began issuing demands once again under the unlawful regulation.

  • CAP Litigation, 2Autumn Bridge, LLC v. Sebelius, Case No. 5 08 CV 819 (W.D. Ok.) In fall 2009, court remanded for calculation of the potential effect of using an alternative method to calculate the repayment demand; this is in process. Odd proceedings: PRRB found sufficient injury forFY 2006, just greater than 10K (more of the benefit to the hospice falls in 2007); HHS Administrator reversed the PRRB finding on injury. Case is now headed back to court.Tri-County Hospice, Inc. v. Sebelius, Case No 6 08 CV 273 (E.D. Ok.) After Sojourn Care "judgment" referenced above, court here issued a stay of proceedings pending determination of Sojourn Care's appeal

  • CAP Litigation, 3

    Compassionate Care Hospice, LLC v. Sebelius, Case No 5 09 CV 28 (W.D. Ok.) Court denied HHS motion to dismiss the case, no other proceedings yet.

    Zia Hospice v. Sebelius, Case No 1 09 CV 55 (D.N.M.) Appeal of the repayment demand after the 180 daydeadline; rejected by HHS; Zia filed suit; preliminary injunction motion denied. Summary judgment hearing approx March 28.

    American Hospice, Inc. v. Sebelius, Case No. 1:08-CV-01879 (N.D.Ala.) Jan 27, 2010 DCt opinion denying cross motions but noting the regulation is invalid; court rejects HHS request for PRRB remand for further fact finding on hypothetical injury; court says it will determine.Lion Health Services, Inc. v. Sebelius, 4:09-CV-00493 (N.D.Tx.)

  • Lion Court"no reasonable argument can be made that 418.309(b)(1) could legitimately be considered to be a permissible

    February 22, 2010

  • Changes to Hospice Certification and Billing ProcessesCR #6540 (re-issued on 12/23/09) includes the requirements for the attending physician or Medical Director to provide written explanation of basis of terminality when certifying the terminal illness. But if certification is verbal, this narrative is not required until the first billing. CR # 6440 CMS seeking line-item services data, but clarifies rounding up 0 to 14 minutes=1 unit and allowing social work phone calls to be included in the data.

  • ONE YEAR IN = Implementation of the New Conditions of Participation42 CFR 418; Dec. 2008 and Feb. 2009IDG [Interdisciplinary Group]; Medical Director; Nursing Facility contracts when hospice patient is a resident; Patient RightsCredentialing and Quality of Care

  • 418.56 Interdisciplinary GroupRN IDG member must coordinate care and ensure continuous assessment of patient and family needsIDG must work together, provide the care meet the needs & reassess every 15 daysMust have a Super IDG to set policies on day to day care, if >1 IDG in the hospiceIDG must document patients understanding, involvement and agreement w care planning

  • Medical DirectorsIf there is only one physician connected to the hospice, this physician is expected to provide direct patient care to each patient.Medical Director [MDir] provides overall medical leadership in the hospice.Numerous physicians in the MDir role would likely result in inconsistent care and decreased accountability.Certifications depend on information= review of DX, current medical findings, meds and treatments 418.102 (a) and (b)

  • Right person; right careCredentialingTraining and competenciesSupervisionCore Services from Hospice Employees or Contractors when permittedWaivers of Required ServicesRole of Personal Care Workers and NF employees as Family-equivalents

  • Persons residing in NFsLegally binding, written arrangement Designated liaison for both providersPrimacy of the hospice in care decisions full responsibilityMandated strong communication and coordination in written terms 112(e)(3)Absent revised SNF regulations, however, how will it work?

  • Nursing Facility ContractsHospice must ensure NF staff trainedOffer of bereavement services to facility staff goes in contract= 418.112(c)??Hospices can use some of its own staff for NF staffing, if it is in the contract.Single, identified NF staff as liaison

  • QAPI New quality assurance Formalized programs; strenuous work on outcomesGoverning Body respo