Tax-Exempt Healthcare Organizations Brace for Impact as Senate Tax Reform Bill Passes

Update. We described in a previous blog post major changes that tax-exempt hospitals and other tax-exempt organizations in the healthcare industry face in the tax reform proposals working their way through Congress. In the early hours of Saturday, December 2, 2017, the Senate narrowly passed its tax reform bill. Although the Senate’s bill has much in common with the bill passed by the House of Representatives, there are significant differences. Accordingly, the House voted yesterday, December 4, 2017, to proceed with a conference committee to reconcile the two bills. A reconciled bill would still need to be approved by both the House and Senate. The Republicans are pushing hard to enact a final bill before year end. Continue Reading

Tax-Exempt Hospitals & Other Tax-Exempt Healthcare Organizations Not Immune from Federal Tax Reform

As federal tax reform efforts proceed rapidly in both chambers of Congress, tax-exempt hospitals and other tax-exempt healthcare organizations are facing major potential changes. New tax burdens on tax-exempt organizations are among the ways in which the bills would raise revenue to pay for proposed tax cuts for businesses and individuals. Importantly, it is still early in the legislative process, and much may change as Republicans race to have a bill signed into law before the end of the year. Continue Reading

Hospice Live Discharges: Some Perspective

News outlets have noted that hospices discharge, on average, 1 in 5 patients alive.

The presumptive and easy explanation, one that fits political assumptions, is profit motive: for profit hospices admit unwitting patients, earn fees, then discharge them alive.

The truth is that assessing when someone will pass away is among the most complex medical determinations. It’s not easy, it’s not an exact science. Continue Reading

CMS Plans To Reopen Cap Demands Forever

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.

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Hospice Cap Calculation Changes

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.

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CMS Issues Suggested Notice Of Election Statement

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).

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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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