Category Archives: Hospice Law

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 … Continue Reading

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 … Continue Reading

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 This action, which tacks on sequestration (funds never received) to revenue, is entirely inappropriate and must be rescinded.… Continue Reading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.”… Continue Reading

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:… 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 … 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 … 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 … 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 … 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 … Continue Reading

PRRB Sides With CMS On Hospice Cap Sequestration – Federal Court Next

By Brian Daucher on March 5, 2019 Posted in Hospice Law

On Thursday, February 28, 2019, two years after hearing arguments in lead group cases, the Provider Reimbursement Review Board affirmed CMS’ approach to counting sequestered funds as part of provider revenue for hospice cap calculations. In 2012, to address budget deficits, Congress passed the Budget Control Act, providing for, among other things, a 2% reduction in … Continue Reading

Hospice Short Film End Game Up For Academy Award

By Brian Daucher on February 4, 2019 Posted in Hospice Law

Though beloved as a service, hospice can be a difficult subject for patients, families, and even caregivers. The recent short film, End Game (2018 NetFlix), follows a set of patients, families, and their caregivers through the difficult discussions and choices faced at end of life. It may help facilitate difficult discussions. End Game provides a … Continue Reading

Humana, TPG Capital, and Welsh, Carson, Anderson & Stowe Create the Country’s Largest Hospice Provider, “Kindred at Home”

By Kenneth Yood on July 13, 2018 Posted in Hospice Law

This article was originally posted on the Healthcare Law Blog on July 12, 2018. Kindred Healthcare. On July 2, 2018, Humana Inc. and private equity firms TPG Capital (TPG), and Welsh, Carson, Anderson & Stowe (Welsh) (collectively referred to as the Consortium) issued a press release announcing the closure of their $4.1 billion joint acquisition … Continue Reading

Can AI Help Solve The Hospice Eligibility Question?

By Brian Daucher on June 19, 2018 Posted in Hospice Law

Medicare beneficiaries are eligible for hospices if they have a life expectancy of six months or less if the illness runs its normal course. And, while providers can take an objective set of characteristics (FAST score, PPS, hospitalizations, MAC, etc.) and predict life expectancy for a population around an average, no one has come close … Continue Reading

CMS Rolls Out Provider Appeals Settlement Efforts

By Brian Daucher on April 12, 2018 Posted in Hospice Law

This year CMS is rolling out two new programs aimed, finally, at helping to settle certain types of pending provider reimbursement appeals. The programs are the Low Volume Appeals Initiative and Settlement Conference Facilitation. As pointed out in this space before, CMS’ longstanding policy of refusing to negotiate overpayment findings has been a significant factor … Continue Reading

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

By Tamar Rosenberg, Jay Gerzog and Amanda Zablocki on December 5, 2017 Posted in Hospice Law

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 … Continue Reading

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

By Tamar Rosenberg, Jay Gerzog and Amanda Zablocki on November 15, 2017 Posted in Hospice Law

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 … Continue Reading

Hospice Live Discharges: Some Perspective

By Brian Daucher on August 23, 2017 Posted in Hospice Law

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. … Continue Reading

CMS Publishes 2016 Hospice Data, Indicating Further Scrutiny/Changes

By Brian Daucher on May 11, 2017 Posted in Hospice Law

With the publication of the proposed FY 2018 hospice wage index and payment update, CMS indicates further scrutiny and less compensation for hospices. Here are some key points:… Continue Reading

CMS Plans To Reopen Cap Demands Forever

By Sheppard Mullin on January 26, 2017 Posted in Hospice Law

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 … Continue Reading

Hospice Cap Calculation Changes

By Brian Daucher on January 6, 2017 Posted in Hospice Law

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 … Continue Reading

CMS Issues Suggested Notice Of Election Statement

By Brian Daucher on December 30, 2016 Posted in Hospice Law

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 … Continue Reading

ZPICs Terrorize, Close Hospices; CMS Blesses Approach

By Brian Daucher on November 21, 2016 Posted in Hospice Law

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 … Continue Reading

OIG Issues Report On Hospice Election Statements

By Brian Daucher on September 26, 2016 Posted in Hospice Law

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 … 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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