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 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

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. It’s not easy, it’s not an exact science. 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 Ashton Massey 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 construction, CMS could actually reopen every year, forever and ever.

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 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.

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 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).

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

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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