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 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.

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 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.

CMS Proposes ALJ Hearing Changes

By Brian Daucher on July 15, 2016 Posted in Hospice Law

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.

Hospice Cap Determination – 2015 Self Reporting Window Opening

By Brian Daucher on January 25, 2016 Posted in Hospice Law

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 Notice of Election / Direct Data Entry Perils

By Brian Daucher on January 12, 2016 Posted in Hospice Law

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

Hospice Payment Changes Take Effect

By Brian Daucher on January 5, 2016 Posted in Hospice Law

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

By Brian Daucher on November 20, 2015 Posted in Hospice 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

Hospice Cap Sequestration Update

By Brian Daucher on November 3, 2015 Posted in Hospice Law

In March 2015, CMS instructed its contractors to add sequestered funds, amounts never paid to providers, to revenue for purposes of calculating the hospice cap. This results in cap repayment demands that are overstated, in that they require repayment of funds never received. Continue Reading

CMS Proposes Payment Reform/Cap Adjustments

By Brian Daucher on May 6, 2015 Posted in Hospice Law

On April 30, 2015, CMS released its FY 2015 Hospice Wage Index, including long anticipated payment reform and some changes to the hospice cap calculation. Comments are due by June 29. Here is an initial summary and analysis. Continue Reading

ALJ Now Dismissing Hospice Appeals For Allegedly Insufficient Service On Beneficiary

By Brian Daucher and Sheppard Mullin on April 28, 2015 Posted in Hospice Law

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

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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