Hospice 2010 Regulatory Reimbursement Update

1. Hospice 2010 Regulatory & Reimbursement Update Deborah Randall, Esq. Law Office of Deborah Randall drandall.solutions@comcast.net

2. 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

3. Hospice Growth* change 2005 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

4. Hospice Use Growth* All beneficiaries [Medicare and Medicaid] utilizing hospice as percent of bene’s Change 2000 2005 2006 2007 2008 AvAnn’ l 22.9% 34.2 37.0 38.9 40.1 2.3% *MedPac 2010 report

5. 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

6. Hospice Quality Quality 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

7. 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.

8. Health Reform Enacted Value-based purchasing programs for long-term care providers, including hospice providers, by Jan.2016.

9. Health Reform Enacted HHS 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.

10. Health Reform Enacted data collection and Medicare hospice claims forms and cost reports updates by 2011. Based on this information, required changes to “implement revisions to the methodology for…payment rates for routine home care and other services in hospice care" beginning 2013

11. Health Reform Enacted After January 1, 2011, a hospice physician or nurse practitioner must have a face-to-face encounter with each 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.

12. 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.

13. Health Reform Enacted National screening program = Criminal and other background checks on prospective employees with direct access to patients.

14. 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.

15. Health Reform Enacted INDEPENDENT PAYMENT ADVISORY BOARD ADDRESS EXCESS COST GROWTH IMPROVE QUALITY FOR MEDICARE AND PRIVATE HEALTH SYSTEMS BOARD PROPOSALS TAKE EFFECT IF CONGRESS DOES NOT TAKE ACTION TO MATCH SAVINGS WHEN COSTS ARE UNSUSTAINABLY GROWING FAST TRACK APPROACH ALLOWED LEGISLATIVELY IN 2020, BINDING BIENNIAL RECOMMENDATIONS TO CONGRESS

16. Health Reform Enacted HOSPICES 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.

17. CAP Litigation Sojourn 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 HHS’S 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.

18. CAP Litigation, 2 Autumn 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 for  FY 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

19. 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 day deadline; 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.)

20. Lion Court "no reasonable argument can be made that § 418.309(b)(1) could legitimately be considered to be a permissible“ February 22, 2010

21. Changes to Hospice Certification and Billing Processes CR #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.

22. ONE YEAR IN = Implementation of the New Conditions of Participation 42 CFR 418; Dec. 2008 and Feb. 2009 IDG [Interdisciplinary Group]; Medical Director; Nursing Facility contracts when hospice patient is a resident; Patient Rights Credentialing and Quality of Care

23. 418.56 Interdisciplinary Group RN IDG member must coordinate care and ensure “continuous assessment” of patient and family needs IDG must “work together”, “provide the care” “meet the needs” & reassess every 15 days Must have a “Super IDG” to set policies on day to day care, if >1 IDG in the hospice IDG must document patient’s understanding, involvement and agreement w care planning

24. Medical Directors If 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)

25. Right person; right care Credentialing Training and competencies Supervision Core Services from Hospice Employees or Contractors when permitted Waivers of Required Services Role of Personal Care Workers and NF employees as “Family-equivalents”

26. Persons residing in NFs Legally binding, written arrangement Designated liaison for both providers Primacy of the hospice in care decisions — ”full responsibility” Mandated strong communication and coordination — in written terms 112(e)(3) Absent revised SNF regulations, however, how will it “work”?

27. Nursing Facility Contracts Hospice must ensure NF staff trained Offer 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

28. QAPI – New quality assurance Formalized programs; strenuous work on outcomes Governing Body responsibilities for oversight Intersection between quality, incident reporting, risk management, compliance program audits, staff training

29. Access to Pain Medications in NFs and the DEA Enforcement Issue DEA has begun aggressive enforcement of position that NF nurses are not ‘agent’ of prescribing physicians. Pharmacies are enforcement targets. Pain medications are not being delivered timely to patients. Sen Kohl of Wisconsin held a ‘listening session’ [instead of hearing] yesterday on this issue. Hospice patients at risk, too.

30. RACs come to Hospice RAC REGION D ISSUES POSTED DME Services related to a Hospice terminal diagnosis provided during a Hospice period are included in the Hospice payment and are not paid separately. Services related to a Hospice terminal diagnosis provided during a Hospice period are included in the Hospice payment and are not paid separately.

31. Compliance Cases Kaiser Foundation Hospitals - Kaiser Sunnyside Medical Center, Kaiser Foundation Health Plan of the Northwest and Northwest Permanente P.C., Physicians & Surgeons agreed to pay $1,830,322.41 in False Claims Act liability services billed w/o written certifications of terminal illness in 2000-2004. 11/09

32. Compliance Focus Hospice COPs effective year- end 2008 and February 2009 change relationships between Hospices and Nursing Facilities • Hospice COPs alter the role of physicians in hospice care delivery • Hospice quality of care is a COP focus; failure = ?? unbillable claims

33. OIG 2010 Work Plan Hospice-Nursing Home relationships Physician billing and ? Double billing for hospice patients by attending physicians and hospices Trends in Hospice growth Part D duplicate billing- pharmaceuticals

34. OIG Reports for Hospice and Nursing Facilities Sept. 2009 – OIG found 82 %of claims for hospice/NF residents lacked one or more coverage requirements; 31 %of cases provided fewer services than the care plan called for Second OIG Report was statistical and gave the intensity and frequency of NF-based hospice care….suggesting CMS might want to consider implications

35. Operation across State lines Section 2085 – of State Operations Manual SOM section now states that when a hospice provides services across state lines, the involved states must have a written reciprocal agreement permitting the hospice to provide services in this manner. This is a consistent position of CMS BUT no effort is made to bring States to the table to make such agreements ‘expected behavior.’

36. Criminal Kickback Case May 2009– family-run hospice paid outside person to be ”capper” and refer patients $500 per referral, with continuing payments for longer length stays Patients were paid $200 to agree to be “terminal” Physicians were paid for sign-offs

37. Contact Information Deborah Randall JD and Consultant Law Office of Deborah Randall drandall.solutions@comcast.net 202-257-7073 www.deborahrandallconsulting.com