Hospice Changes in Year-End Package

Legislation | December 21, 2020 | by Mollie Gurian

This article provides an overview of the changes specific to hospice providers in the year-end omnibus-coronavirus relief package. Hospice providers should also read the overview of the year-end package article for information on provider relief, testing, the Medicare sequester, and more.

Hospice Survey Reforms

The HOSPICE Act passed out of the House on December 8, 2020. LeadingAge and VNAA, along with other stakeholders, advocated for changes to the survey frequency provision of the HOSPICE Act and were successful. In the version of the bill that will pass as part of the Consolidated Appropriations Act, 2021, routine hospice survey frequency will remain permanently at 36 months (as opposed to 24 months as proposed by the House). We thank our Senate champions, Senator Portman (R-OH) and Senator Cardin (D-MD) for working with us to ensure this key change. We thank both our Senate and House partners for their work on this important legislation in response to the July 2019 Office of the Inspector General (OIG) reports and look forward to working with CMS on effective implementation.

Below is a brief summary of other key provisions in the HOSPICE Act in addition to survey frequency

Transparency

The OIG made the following recommendations related to public transparency of survey and certification information: (1) CMS should expand information reported by accrediting organizations (AOs) to make it more comparable to the data reported by State agencies; (2) CMS should seek statutory authority to make information from AOs publicly available (on Hospice Compare or a similar resource) and, once authority is obtained, make them publicly available; and (3) CMS should include (on Hospice Compare or a similar resource) survey reports or a compilation of important survey findings from State agencies and make the information more readily available and accessible in a user-friendly way.

The HOSPICE Act follows through on all these recommendations. Critically for members is that the bill does instruct that AOs submit the same information as State and local surveyors so that the information that is displayed to consumers is comparable across entities. The Secretary is instructed that the data that is posted prominent for consumers is easily accessible, and understandable. There is also a provision in the legislation instructing the Secretary to create programs to measure and reduce inconsistency of surveys. This data must be posted no later than October 1, 2022.

Training

The legislation mandates the development of a comprehensive surveyor training program, minimum requirements for the survey team, and that the training must be completed prior to being allowed to participate on a hospice surveying team. These provisions must go into effect no later than October 1, 2021.

Special Focus Program

HHS is instructed to develop a special focus program for enforcement of requirements for those hospices that have substantially failed to meet program requirements and surveys shall be conducted not less than once every 6 months for hospices in the special focus program. We will work with CMS regarding implementation of this program so it is effective for targeting problem providers.

Remedies

The OIG recommendation was to seek statutory authority to establish additional, intermediate remedies for poor hospice performance. The HOSPICE Act establishes this authority and instructs the Secretary to develop procedures for and implement a range of remedies in the hospice program along with appropriate procedures for appeals no later than October 1, 2022. One of the specific remedies named in the bill is civil monetary penalties (CMPs). 

Quality Reporting

The bill increases the penalty for failure to meet HQRP requirements beginning with FY2023 payment year (from 2% to 4%).

GAO Report

We also advocated for the inclusion of a report on the impact of the intermediate remedies which will be conducted by the Government Accountability Office (GAO) three years after the implementation of the remedies. The report will look at the frequency of application of each type of remedy and the impact of the remedies on access to and quality of hospice care.

IMPACT Act Changes to the Hospice Aggregate Cap Extended to 2030

Prior to the passage of the IMPACT Act in 2014, the hospice aggregate cap was updated annually by the Bureau of Labor Statistics medical expenditure category of the Consumer Price Index for all Urban Consumers (CPI-U). Starting in FY2017, due to the IMPACT Act, the aggregate cap has been updated by the net hospice market basket index. This accounting change was slated to run through Sept 30, 2025; the Consolidated Appropriations Act, 2021 changes this date to Sept 20, 2030.

Rural Access to Hospice Act

Included in the Consolidated Appropriations Act, 2021 is the Rural Access to Hospice Act. With the passage of the legislation, federally qualified health centers (FQHCs) and rural health centers (RHCs) will be allowed to receive payment under the Medicare program for hospice services. When electing the hospice benefit, a beneficiary normally elects an attending physician, often a community physician with whom they have an ongoing relationship. Depending on the state, hospice attending physicians can also be nurse practitioners or physician assistants. Under current law, the prospective payment systems for FQHCs and RHCs do not include hospice attending physician services so when patients with longstanding relationships with providers in these settings elect hospice, payment is a barrier to electing these providers as hospice attending physicians.

The bill will allow for payment for hospice attending physician services under both the FQHC and RHC payment systems. Providers employed or under contract with an FQHC or an RHC will be able to bill for hospice attending services as they bill for any other service provided in these settings. This payment change will take effect on January 1, 2022.