2013 copyright Deborah Randall 1

Hospice and Home Health Update – AHLA July 2013

Deborah Randall, Esq.Law Office of Deborah Randall

www.deborahrandallconsulting.com

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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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Hospice Quality Measures

• Hospices are required to comply with quality measures

• Website instructions “imperative” http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Data-Submission.htmlhttps://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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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: an in-person “face to face” visit by a

hospice physician or nurse practitioner reporting to that physician, to ensure terminal status at 3d benefit period,

Regardless of how short the two preceding hospice 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. Hospices have engaged Physician or a Nurse Practitioners specifically to do these visits.

• HHAs: within 90 days prior to or 30 days after admission , patient must have F2F visit with a NON-HHA practitioner

• 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. Hospices: gaps between benefit periods. HHAs: Hospitalists doing F2F but not “certifying” or doing plans of care

• Costs of implementation are being compiled but given the fact that cost reports have not been fully audited 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

• Congress directed Department of Health and Human Services to reform 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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CMS seeking more hospice data

• Hospices routinely included only the primary admitting diagnosis upon admission & billing

• Most software systems established this way• CMS warned in the 2013 Hospice Wage Index

that all secondary diagnoses are required• Could trigger denials, or a case mix decrease in

future payment methodology for Alzheimer’s, debility, failure to thrive, Parkinson’s or other chronic conditions

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In this proposed rule, we wouldclarify that ‘‘debility’’ and ‘‘adult failure to thrive’’ would not be used as principal hospice diagnoses on the hospice claim form. When reported as a principal diagnosis, these would be considered questionable encounters forhospice care, and the claim would be returned to the provider for a more definitive principal diagnosis.

Issues in Hospice MAC reviews

• Local coverage determinations not supported• 6 month prognosis not supported• Plan of care not signed; team meeting unclear• Billing for in-patient care location but record

suggests routine home care location• Hospitalist, not attending physician, signing

first certification of hospice entitlement• Missing/incomplete election or face to face

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HHS Projects Affecting HHAs & Hospice

• Care Coordination Projects. Bundling for HHAs.• PEPPER Reports on risk areas provided to

hospices. 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

COMPLIANCE: FOCUS ON HOME CARE

• ZPICs and RACS looking at home care– Homebound status– Medical necessity– Technical compliance incl. F2F

• High level fraud/False Claims Act investigations– E.g., $375M physician-directed fraud allegation

• OIG continues home care efforts– New report alleges widespread fraud and abuse– Report is weak on facts and methodology, strong on hyperbole

• Medicaid home care new on the agenda– Personal care is the main focus– Staff credentials including health screening a target

Home Health Intermediate Sanctions

• Long awaited; often deferred• Mirroring the nursing home regulations• Concerns include: penalty levels, the concept

of immediate jeopardy in the home setting, lack of provider control over many aspects of care delivery, surveyor rigidity or inexperience

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OIG Report on HHA Surveys

• 12% of surveys in 2010-11 had a condition-level deficiency. OEI-06-11-00400 [5.13.13]

• 15% of HHAs in same time frame had a complaint survey from a state agency

• 98% of regular state surveys occurred within the proper timeframe

• OIG suggested more “look behind” surveys federal government were necessary

Sanction Rule Developments• April 1, 1989 deadline for implementation under the

law• Medicare issue a proposed rule on August 2, 1991• OIG issued report on Medicare’s failure to promulgate

intermediate sanction consistent with OBRA 1987 law on March 2, 2012

• CMS issues proposed rule,77 Fed. Reg. 41548 (July 13, 2012)

• CMS issues Final Rule, 77 Fed. Reg. 67068 (November 8, 2012)

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Marketing; Audit Reports; Physicians under Contract

• If you heighten pressure on marketing staff, will this result in poor judgment, or staff using illegal inducements on their own

• If internal or external reports or audits raise concerns, are these ignored because they hinder growth of the business

• If a hospice discharges patients in large numbers, or gains admissions after a physician is hired, what is behind the numbers?

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Marketing to Patients

A “bridge” program may be a volunteer-staffed, friendly visitor and chore aid service for persons in end-stage who are not yet electing hospice care. Bridge programs may be free services in some cases.

The risk is that hospices seeking a competitive edge are also including a free social worker to provide information about community resources on an individual basis--a service that would be part of the counseling service under the Medicare hospice benefit--and other free resources. Two OIG Advisory opinions give very precise guidance on what is permissible and what could be an illegal incentive to patients or families. No hospice- like services of a licensed professional are included free under the OIG opinions.

New Reimbursement Methodologies

• Both hospice and home health already subject to MedPac-recommended and CMS implemented payment reductions in 2013

• Sequestration effects• Home health moving towards a case-mix

approach and away from # of therapy visits as measure of acuity and thus payment

• Congress mandates Hospice changes for routine care; the “U” shaped curve or “other”

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OIG Studies

• Medicaid Home Health Personal Care (A-07-11-03170) Issues in monitoring assessments, documentation, eligibility

• Inappropriate and Questionable Billing Medicare Home Health Agencies (OEI-04-11-00240) 8/02/12

• Medicare Hospice: Use of General In-patient Care OEI-02-10-00490 5/3/2013

Most Recently....

• Renaissance Home Health: unqualified aides LA v. Bell: Medicaid personal care fraud

• $223 million DOJ “takedown” in May 2013• Federal government:$112 million FCA-based

bankruptcy claim against San Diego Hospice• Jonathan Blum, CMS acting principal deputy

administrator, to House Ways and Means Health Subcommittee:12% HHA profit margins = “clear signal” of overpayment

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Telehealth & Remote Monitoring

• Vision of reduced ER and hospitalization for chronic care patients; self-management support

• Improved confidence, decreased isolation and depression, integration and care planning, modern technology to expand access given insufficient clinical professionals in future

• Partnering with palliation specialists• Quality at end of life, reduction in suffering• Meeting a generation of tech-savvy patients

Telehealth Compliance Concerns

• Licensure and Credentialing• Under-serving patients; Liability• Consent• Reimbursement and Documentation• Management of the Case• Privacy and confidentiality• Security of Communication• Fraud and Abuse

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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