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02/12/2020

House Version of Hospice Bill Marked Up This Week

As anticipated, key members of the House Ways & Means Committee (Representative Jimmy Panetta (D-CA), and Tom Reed (R-NY)) introduced legislation this week to address concerns regarding hospice compliance with quality and safety standards under the Hospice Conditions of Participation. The legislation – H.R. 5821(the Helping Our Senior Population in Comfort Environments Act (HOSPICE Act)) was developed in response to the July 2019 Office of Inspector General (OIG) reports that identified several concerns in the hospice program related to the survey process and quality of care. LeadingAge and its partners VNAA/ElevatingHOME worked in coalition with other hospice stakeholders, including the National Hospice & Palliative Care Organization and the National Association for Home Care & Hospice,  to formulate joint recommendations for the Congressional staff that worked on the legislation, many of which impacted the final version of this bill.  In response to stakeholder input, an earlier draft of H.R. 5821 has been revised to include provisions aimed at improving the survey process through training and testing of hospice surveyors and to require that the Centers for Medicare & Medicaid Services (CMS) and states develop programs to measure and reduce inconsistency in the application of survey findings.  

The following is a summary of the legislation’s provisions:

Survey Frequency

  • Makes routine hospice surveys (no less than once every 36 months) permanent
  • Beginning October 1, 2021, routine survey frequency increases to no less than once every 24 months

Transparency

  • States/Accrediting Organizations (AOs) must submit timely survey/certification information
  • Beginning October 1, 2021, AOs will be required to submit Form 2567 to CMS
  • Beginning October 1, 2022, CMS must publish survey/certification information on a public website in a manner that is  “prominent, easily accessible, readily understandable, and searchable” ; info shall be updated in a timely manner
  • Information  shall include any inspection reports and other information, as determined by CMS

Improvement in the Quality and Consistency of Hospice Surveys

  • Requires each state and CMS to implement programs to measures and reduce inconsistency in the application of survey results among surveyors
  • Surveys conducted by more than one person that occur on or after October 1, 2021, shall be conducted by a multidisciplinary team of professionals (including a registered professional nurse)
  • Beginning October 1, 2021, a state may not use an individual who has served a hospice within the previous two years as a consultant or employee (or has a personal or familial financial interest in the hospice)to perform a survey of that program
  • Requires, not later than October 1, 2021, that CMS provide for comprehensive training and testing of state and federal surveyors

Funding

  • Transfers from Trust Fund ($10 M. for FY 2022 and each subsequent year) to conduct hospice surveys; this funding is in addition to funding legislated under the IMPACT Act

Special Focus Program

  • Requires that CMS develop a special focus program for enforcement of requirements for those hospices that have substantially failed to meet requirements; special focus surveys shall be conducted not less than once every six months

Enforcement

  • Instances of IJ:  HHS must take immediate action to remove the jeopardy and correct deficiencies using temporary management or terminate the program.  CMS may also provide for one or more of the other remedies under the act (including civil money penalties (CMP), payment suspension, and temporary management)  (This language is also in the Skilled Nursing Facility (SNF) and Home Health statute)
  • Instances of Non-IJ:  In such cases in lieu of termination, HHS may impose additional remedies for a period not to exceed six months; if program is still not in compliance, HHS shall terminate
  • Penalty for previous non-compliance:  If CMS determines a hospice is in compliance but had been out of compliance for a previous period, CMS may impose CMP for the days for which the program was not in compliance (this language is also in the SNF and Home Health statute)
  • Option to continue payments for an out of compliance hospice for a period of not longer than 6 months if:
    • Survey agency finds it more appropriate to take alternative action to termination
    • Hospice has submitted plan and timetable for corrective action that is approved by HHS
    • Program agrees to repay Federal payments during such period if corrective action is not taken in accordance with the agreed-upon plan of correction
    • CMS shall establish guidelines for approval of corrective action

Remedies

  • Not later than October 1, 2021, CMS shall develop and implement a range of remedies to address circumstances of concern identified for enforcement (see above) along with procedures for appealing determinations relating to imposition of such remedies
  • Not later than October 1, 2021, CMS shall develop and implement specific procedures and conditions for applying new remedies (including amounts of fines and severity of each remedy).  Procedures must reflect incrementally more severe fines for repeated or uncorrected deficiencies.
  • Specific remedies (these are in addition to State/Federal sanctions and shall not limit other available remedies):
    • §  Any  portion of CMPs collected may be used to support activities that benefit individuals receiving hospice care, including education and training programs for hospices to ensure compliance
    • §  Suspension of payment shall terminate upon findings of substantial compliance with all requirements
    • CMPs not to exceed $10,000 per day
    • Prospective payment suspension
    • Temporary management

Creation of Toll Free Hotline

  • A State/local agency must maintain toll-free hotline to take public inquiries, provide information and take complaints; must maintain up-to-date information about hospice survey performance; eff. for agreements entered into on/after one year following enactment (identical to existing Home Health language)

Quality Reporting

  •  The penalty for failure to meet Hospice Quality Reporting Program (HQRP) requirements shall be increased from 2% to 4%, effective for fiscal years beginning with FY2023)

Government Accountability Office (GAO) Report on Remedies

  • Not later than October 1, 2024, the Comptroller General of the United States shall submit a report to Congress containing analysis of the effects of the legislation, including the frequency of application of various remedies, on access to, and quality of, care furnished by hospice program

In response to the legislation, NAHC noted that in its work with members of both houses of Congress NAHC has emphasized the need for any legislative reform to:

  • Address weaknesses in the survey process through comprehensive, uniform surveyor training and testing and through creation of a process to ensure greater consistency of surveyor findings;
    • Target problem and at-risk providers for enhanced oversight/interventions;
    • Increase the availability of resources (information and education) to support continuous quality improvement for all hospices; and
    • Increase transparency of hospice survey findings that support informed consumer choice.

      (National Association for Homecare & Hospice, LeadingAge)

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Our national partner, LeadingAge, is an association of 6,000 not-for-profit organizations dedicated to expanding the world of possibilities for aging. Together, we advance policies, promote practices and conduct research that support, enable and empower people to live fully as they age.