New California Law Imposes Moratorium on New Hospice Licenses

By Kenneth Yood and Ariana Stobaugh on October 6, 2021 Posted in Hospice Law

On October 4, 2021, California Governor Gavin Newsom signed California bill SB-664 “Hospice licensure: moratorium on new licenses” (the “Bill”) into law. The Bill, which passed the California Assembly on September 8, 2021 and the California Senate on September 9, 2021, imposes a moratorium on the California Department of Public Health (the “Department”) issuing new hospice licenses on or after January 1, 2022. Under the California Hospice Licensure Act of 1990, a person, political subdivision of the state, or other governmental agency must obtain a license from the Department to provide hospice services to an individual who is experiencing the last phase of life due to a terminal disease. The moratorium will end either three hundred and sixty five (365) days from the date the California State Auditor publishes a report on hospice licensure or when the provisions of the Bill are repealed on January 1, 2027, whichever is sooner. The Department may grant an exception to the moratorium upon making a written finding that an applicant for a new license, or with a license application pending on January 1, 2022, has shown a ‘demonstrable need’ for hospice services in the area. However, the Bill does not affect the Department’s ability to renew existing licenses.

MEDPAC Reviews Hospice; Proposes Quadrupling Cap Recoveries

By Brian Daucher on December 9, 2020 Posted in Hospice Law

On December 3, 2020, MEDPAC reviewed hospice data from 2019, noting these key metrics:

Medicare payments grew just under 10% to $20.9 billion;
Hospices served 1.6 million patients, including 51% of 2019 decedents (both modest increases);
Average length of stay grew by 2 days to 92.6 days; and
4,800 providers gave service, numerical growth of 4.3%.

CMS Sending Hospice Cap Demands Ahead of Schedule

By Brian Daucher on March 30, 2020 Posted in Hospice Law

Hospice providers within regions administered by NGS are reporting that NGS is presently finalizing and serving out final 2019 hospice cap repayment demands. This action, which tacks on sequestration (funds never received) to revenue, is entirely inappropriate and must be rescinded. Continue Reading

CARES Act: Telehealth Allowed for Hospice Recertification/Face to Face

By Brian Daucher on March 27, 2020 Posted in Hospice Law

In the CARES Act, passed last night, section 3706 allows hospices to conduct recertifications including face to face visits using telehealth “during the emergency period.”

Coronavirus: Hospices Can Help

By Brian Daucher on March 18, 2020 Posted in Hospice Law

Our healthcare system is in just the initial stages of the Coronavirus19 crisis. Hospices have a role to play. Let’s keep it short. Here is what we need to do:

Coronavirus Continue Reading

Annual DDE Recertification Due 9/30 (And Other DDE Pitfalls)

By Christopher PFund and Brian Daucher on September 23, 2019 Posted in Hospice Law

Direct Data Entry (DDE) access is a company’s revenue lifeline: without it, hospices cannot comply with NOE filing requirements or submit claims for payment. Every hospice has DDE login rights, but many fail to recognize (and take due care to avoid) the serious hidden pitfalls that are found in this system. Failure to avoid these pitfalls can cause loss of access; and, in turn, hospices face at least significant administrative work to recover access and perhaps forfeiture of certain billings (if NOEs cannot be timely filed). Many hospices (and other Medicare providers) have found themselves in crisis mode based upon billing employee departures, forgotten passwords, and suspended/deactivated accounts. Continue Reading

Hospice False Claims: AseraCare Lost A Battle But Has Helped Win The War

By Brian Daucher on September 17, 2019 Posted in Hospice Law

Last week, the 11th Circuit Federal Court of Appeals reversed summary judgment given to AseraCare in its hospice false claims case, setting up more litigation on the question whether AseraCare’s certifications were made in good faith. But, the appeals court also affirmed a critical trial court ruling on the standard to be applied to review of hospice claims for “falsity,” holding that a mere difference of opinion among physicians is insufficient to establish that a claim is false; and, holding that, a “physician’s clinical judgment dictates eligibility as long as it represents a reasonable interpretation of the relevant medical records.” Continue Reading

CMS Finalizes 2020 Hospice Rule: Big Changes Coming

By Brian Daucher on August 12, 2019 Posted in Hospice Law

On August 6, 2019, CMS finalized its 2020 hospice rule, including adopting, without substantial modification, two controversial and material changes to the hospice benefit:

Rebasing payment rates to shift about $500 million from routine care to enhanced levels of care including general inpatient, continuous, and respite care.
Adopting a requirement that, upon request (either at admission or later), hospices disclose in an extensive written addendum to patients (and other health care providers) any care that would be deemed unrelated to hospice care.

We reviewed these proposals in detail in prior blogs posts on rebasing and unrelated care disclosures; and, we submitted these comments to CMS. In this blog, we will note the changes that CMS did make to these proposals and note some of the potential effects. Continue Reading

CMS Proposes To Shift Hospice Funding From Routine To Enhanced Care Days

By Brian Daucher on May 2, 2019 Posted in Hospice Law

With the FY 2020 proposed hospice rule, CMS proposes two material changes for hospice providers:

CMS proposes to shift approximately $500 million of hospice funding (2.7% of payments) from routine care to enhanced care payments (inpatient, continuous, and respite care); and
CMS also proposes, as a condition of payment, to require hospices to provide patients with a complete list (on request) of any services, drugs, or treatments that will be deemed unrelated to terminal illness (and therefore covered separately by Medicare).

In a prior post, we reviewed the proposed change for unrelated treatments. This post will review the proposed payment adjustments. Continue Reading

CMS Proposes To Force Hospices to Specify Unrelated Treatments

By Brian Daucher on April 29, 2019 Posted in Hospice Law

In its FY 2020 proposed hospice update, CMS proposes two changes of significant interest to providers:

Shifting $500 million of reimbursement from routine to enhanced care levels; and
Requiring providers to notify patients in writing of treatments that will be deemed “unrelated” to the terminal illness (and therefore still covered by Medicare separately).

Given that both of these topics deserve significant attention, we will address them in separate posts. This first post covers the notice of unrelated treatments. Continue Reading

The Hospice Law Blog is designed to provide timely news, insights, legal analysis and resources on Hospice reimbursement issues. The blog’s primary editor, Brian Daucher, has counseled clients on all aspects of hospice law, including hospice cap appeals, selection of cap calculation method, pre-payment edits, and post payment ZPIC audit appeals.

In 2007, Mr. Daucher filed the first challenge to the streamlined hospice cap regulation on behalf of a single hospice in Oklahoma. From 2008 to 2011, more than 15 other courts (from California to the District of Columbia), including the 5th and 9th Circuit Courts of Appeal issued rulings for Sheppard Mullin clients finding the streamlined method unlawful; no court upheld the regulation.

During this time, Sheppard Mullin won suspension and set aside more than $50 million in cap repayment demands for more than 100 hospices. Sheppard Mullin has secured settlements for these providers that required credit of interest paid on such demands, recalculation of demands under the new pro-rated method, forgiveness of interest through the date of the recalculated demand, partial reimbursement of attorneys’ fees, and return of overpayments by hospices with interest.

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