In recent weeks, hospice providers have been receiving revised cap demands for fiscal years 2012 and earlier. Although the initial demands in these cases were issued more than three years earlier, CMS now claims that it can reopen and revise cap demands for up to three years from the most recent demand. Based upon this construction, CMS could actually reopen every year, forever and ever.
Traditionally, the cap accounting year has ended October 31, putting the cap accounting year one month off of the Federal government fiscal year. In May 2015, CMS proposed to adjust the cap accounting year to end September 30 to align with the Federal government fiscal year. This transition will occur in 2017.
To change the accounting year, CMS will cut short the 2017 cap year, assessing cap for the 2017 cap year across only 11 months from November 2016 through September 2017.
Following an OIG report on election statements in September, CMS has posted a suggested, but not mandatory, notice of election statement.
From inception of the benefit, hospices have been required to formulate their own notice of election. Regulations require only that the election statement: (a) identify the hospice; (b) identify the attending physician chosen by the patient, if any; (c) acknowledge the palliative rather than curative nature of hospice care; (d) acknowledge that Medicare benefits related to the terminal illness are waived during hospice care; and (e) state the current or prospective (not retroactive) effective date. 42 C.F.R. § 418.24(b).
In recent months, ZPICs, tiring of the post-payment audit due process constraints imposed by Congress, have begun utilizing devastating and unlawful tools to put hospices, and presumably other providers, out of business – full payment suspension and full prepayment audit. CMS has now reviewed and blessed this conduct.
In the case of a longstanding Puerto Rican hospice, Hospicio Toque de Amor, a founder of the Puerto Rican Palliative Care Association, SafeGuard Services, LLC (aka ZPIC) started a post payment audit in May 2016. In September, before issuing any results, and without any advance notice, SGS placed Hospice on full payment suspension due to findings on five patients. The notice letter, issued after the suspension was imposed, did not allege fraud, but rather identified alleged lack of medical necessity as to these patients.
On September 16, 2016, the Office of Investigator General for CMS issued a report on hospice election statements, concluding that many of the statements in use by hospices are deficient in some respect. In its review of 565 election statements, OIG concluded that 35 percent were deficient in some manner.
Hospice patients are required to elect the hospice benefit. To confirm that election, hospices must obtain a signed election statement from the patient or authorized representative. The election statement must include language confirming that the patient understands that: (a) she is waiving the right, during the term of the election, to certain Medicare treatment related to the terminal illness; and (b) the hospice benefit is palliative rather than curative.
As most hospice providers know all too well, CMS faces an ever growing backlog of ALJ cases. This backlog stems in large part from aggressive audit procedures employed by ZPICs, RACs, and MACs that issue sweeping numbers of pre- and post-payment denials, often on less than substantive or meritorious grounds, leading to more appeals.
Beginning February 1, the hospice cap self-reporting window (February through March) opens again.
Under regulations (42 C.F.R. § 418.308(c)), beginning last year, hospices are required to file reports in the February-March timeframe for the prior hospice cap year (e.g., for 2015, the period 11/1/2014 to 10/31/2015). Continue Reading
In October 2014, Medicare adopted new policy (not a statute, not a regulation) requiring hospices to submit any notice of election within five days of admission. Medicare backed this policy (lacking any force of law) with substantial apparent teeth: Continue Reading
With the advent of the 2016 (Happy New Year!), hospices now face the revised hospice payment system. Specifically, Medicare will pay a higher routine home care rate for the first 60 days of care ($187 average) and a lower routine home care rate for days beyond 60 ($147 average). These adjustments are supposed to be approximately budget neutral. Continue Reading
Following a trial in which a national hospice chain (AseraCare) was initially found to have submitted false claims, the Court ordered a new trial. In making this rare order, the Court acknowledged that it had failed to provide the jury with proper instructions as to required findings for a false claim, including that the government must show an “objective falsehood,” and not a mere lack of supporting evidence; and that a mere “difference of opinion” between doctors, without more, could not support a false claim finding. In the same order, the Court indicated it will reconsider granting summary judgment to the hospice and required the government to identify any evidence offered at trial that it believes would support a finding of “objective falsehood.” Continue Reading