ZPICs Terrorize, Close Hospices; CMS Blesses Approach

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.

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OIG Issues Report On Hospice Election Statements

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.

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CMS Proposes ALJ Hearing Changes

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.

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Hospice Cap Determination – 2015 Self Reporting Window Opening

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

Hospice Payment Changes Take Effect

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

Hospice False Claims Case Helps Clarify Law

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

ALJ Now Dismissing Hospice Appeals For Allegedly Insufficient Service On Beneficiary

In the last few years, we have seen a growing and alarming trend of administrative law judges (“ALJ”) dismissing appeals solely based on purported lack of service to the hospice patient (the Medicare beneficiary).  A search of recent decisions shows over 150 such cases at the Medicare Appeals Council starting in 2012 and continuing to the present.  Administrative law judges appear to increasingly be using these grounds as a basis for dismissal. Continue Reading

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