1. Hospice 2013 Regulatory and Legislative Update Deborah Randall, Esq. Law Office of Deborah Randall www.deborahrandallconsulting.com 12013 copyright Deborah Randall

2. 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. 2

3. Location of Care 2011;2010 Patient’s Place of Residence 66.4%; 66.7% Private Residence 41.6%; 41.1% Nursing Home 18.3% 18.0% Residential Facility 6.6% 7.3% Hospice Inpatient Facility 26.1% 21.9% Acute Care Hospital 7.4% 11.4% 3

4. Average length of stay in 2011 was 69.1 days The median length of stay was 19.1 days, down from 19.7 in 2010. Data from National Hospice and Palliative Care Organization sources 4

5. 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/hospi cetrain.html http://www.cms.gov/Medicare/Quality- Initiatives-Patient-Assessment- Instruments/Hospice-Quality-Reporting/Data- Submission.html 5

6. Hospice Quality Measures Training at https://www.qtso.com/hospicetrain.html 6

7. 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 7

8. Health Reform Enacted HHS Secretary establishes 3 year 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 spending in the Medicare program. 8

9. 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 9

10. Health Reform Enacted After January 1, 2011, a hospice physician or nurse practitioner [NP] must have a face-to-face encounter with each hospice patient to determine continued eligibility prior to the 3d benefit period, known as the “180th-day recertification” & thereafter each 60 day recertification. This is regardless of how short the two preceding 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 HHS medical review of certain patients in hospices with high percentages of long-stay patients required by Congress 10

11. Face to Face “F2F” Developments HHA Final Rule 11/8/12; Implementation has been difficult for hospices Costs of implementation are being compiled but given the fact that cost reports for hospices have not been audited for years by fiscal intermediaries/MACs, what governmental body is going to respond? No telehealth F2F visit even though statute is silent on hospice and telehealth 11

12. Hospice Reimbursement ACA Market Basket adjustments and productivity requirements/adjustments Directive to Department of Health and Human Services to consider reform of the 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 12

13. Uncertainty about Physician Billing and Reimbursement in Hospice Requirements that the hospice bill on behalf of physicians who have ANY financial relationship [medical director, team physician, consultant] are read by CMS to include office visits an attending might have with her patient Pre-hospice evaluations are billable but not well understood or utilized. Medicare Beneficiary Manual Chapter 9, Section 80 13

14. 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 MedPac considering a different payment for nursing home residents electing hospice, in Medicaid 14

15. CMS warning: Include all diagnoses Hospices routinely included only the primary admitting diagnosis upon admission & billing Most software systems established this way CMS warned in 2013 Hospice Wage Index that all secondary diagnoses are required Secondary Dx possible trigger for denials, or a case mix decrease in future payment methodology? Alzheimer’s, debility, failure to thrive, Parkinson’s, other chronic conditions 15

16. The End of “CAP” disputes? Beginning with the 2012 cap report years, hospices must utilize the “proportional” method of determining the number of reimbursable patients in that year’s census, which will take into account being on care in prior year(s), and will need to be adjusted for patients surviving into another cost year. Prior users: One time election of “streamlined” Medicare Benefit Policy Manual, Chap 9, Section 90-90.2.5, (rev’d 6/1/12) 16

17. Other HHS Projects Affecting Hospice Care Coordination Projects PEPPER Reports on risk areas provided to hospices in August 2012. 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 17

18. Hospice Competition Concerns Not terminally ill @ admission:documentation Patients on census after plateau; failure to discharge long stay cases Ignoring internal or external audit reports NEXT= Too many hospice physicians? OIG Work Plan on nursing facility/hospice Expanding into Palliative Care: Licensure, Corporate Practice of Medicine, Kickback law 18

19. Marketing; Ignored Reports; Fraud With “open access”, can you billing accurately If you heighten pressure on marketing staff, will this result in poor judgment, or worse If you receive internal or external reports or audits which are concerning, are they ignored If you suddenly discharge patients in large numbers, or gain admissions after a physician is hired, what is behind the numbers? 19

20. Even Non Profit Hospices in Trouble “San Diego Hospice files for bankruptcy” UT San Diego newspaper,Paul Sisson, 2.4 2013 http://www.utsandiego.com/news/2013/feb/ 04/hospice-files-for-bankruptcy/ http://www.utsandiego.com/news/2013/feb/ 04/hospice-files-for-bankruptcy/ www.ltlmagazine.com/news-item/oig-widens- crackdown-hospices 20

21. “Open Access” vs. the LCDs Open Access philosophy gained strength in recent decade+ Origin in concern that too few persons and families received palliative care and spiritual support at end of life due to Election of Benefit and other “death” language Issue is when are hospices ensuring compliant billing, if any, to Local Coverage Determinations, e.g. Palmetto LCD L31535-41 http://www.cms.gov/medicare-coverage-database/indexes/lcd- list.aspx?Cntrctr=227&name=Palmetto%20GBA%20%2811004,%20 RHHI%29&DocType=Active&ContrTypeId=3&s=48&bc=BBAAAAIAA AAAAA%3d%3d&#ResultsAnchor 21

22. Hospices in the News Singletary v. Harmony Care Hospice Inc., No. 2:10-cv-1404 (D.S.C), settlement 11/19/12. $1.3 million; non-terminal admissions alleged Altus Healthcare and Hospice Inc., No. 1:10-CV- 1380 (N.D. Ga.)settlement 7/12/12. $555,572. Alleged unqualified in-patient care. United States v. Goldman, E.D. Pa., No. 12-cr-305- ER, indictment unsealed 8/2/12. Alleged kickbacks to hospice medical director for referrals 22

23. OIG Advisory Opinion 12-17 Providing a volunteer friendly visitor and chore aid service to those not yet in hospice care Care about distinction between a hospice similar service and otherwise. Echoes OIG Advisory Opinion from 2000 on “bridge” programs Incentives to patient families 23

24. Telehospice & Palliative Care Vision Improved confidence, decreased isolation and depression, IDT integration and care planning, averting ER and hospitalization runs, using modern technology to expand access Partnering with palliation specialists Quality of end of life, reduction in suffering Meeting our new generation of patients 24

25. HIPAA Settlement with Hospice of No. Idaho Lost laptop; self report; <500 affected patients Lack of proper assessments of ePHI security risk, lack of proper policies, lack of implementation of security measures $50,000; 2 year Plan of Correction HIPAA has been lower compliance priority for some community-based care providers www.hhs.gov/news/press/2013pres/01/2013 0102a.html 25

26. Contact Information Deborah Randall JD and Consultant Law Office of Deborah Randall law@deborahrandallconsulting.com 202-257-7073 www.deborahrandallconsulting.com 26