Transcript Hospice 2010 Regulatory and Reimbursement Update

Hospice 2010 Regulatory &
Reimbursement Update
Deborah Randall, Esq.
Law Office of Deborah Randall
[email protected]
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
Hospice Growth*
change
2005
2006
2007
2008
2001-8 aggr.
• All hospices
2,870 3,073 3,258 3,389
• For profit
1,282 1,464 1,637 1,748
128
• Nonprofit
1,181 1,184 1,188 1,197
1
*MedPac 2010 report
47 %
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
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 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
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 Enacted
Value-based purchasing programs for
long-term care providers, including
hospice providers, by Jan.2016.
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.
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
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.
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 Enacted
National screening program =
Criminal and other background checks on
prospective employees with direct access
to 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 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
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.
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.
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
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.)
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 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.
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
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
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)
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”
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”?
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
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
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.
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.
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
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
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
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 NFbased hospice care….suggesting CMS
might want to consider implications
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.’
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
Contact Information
• Deborah Randall JD and Consultant
• Law Office of Deborah Randall
• [email protected]
• 202-257-7073
• www.deborahrandallconsulting.com