2022 is sure to present many new challenges for the healthcare industry, and home hospices will be no exception. On Jan. 1, 2022, new survey and enforcement regulations for Medicare-certified hospice programs took effect, allowing the Centers for Medicare & Medicaid Services to impose a range of enforcement penalties for each condition-level deficiency identified during federal surveys, similar to CMS’s enforcement authority over skilled nursing facilities and home healthcare agencies.
Currently, the only remedy that CMS can impose upon hospice providers that do not comply with the Medicare conditions of participation is termination. Starting Jan. 1, these new regulations authorized CMS to impose an array of “intermediate” sanctions such as civil monetary penalties, suspension of Medicare payments for new admissions, temporary management, directed plans of correction, and directed in-service trainings.
Civil monetary penalties and Medicare payment suspensions for new admissions can have a severe financial impact. Fines can be based on the number of days, or for each instance, that the hospice program is not in compliance, ranging from $500 to $10,000 per day or $1,000 to $10,000 per instance. CMS may also suspend Medicare payments for all new admissions to a hospice program when CMS determines that the deficiency is tied to poor patient outcomes. Medicare payments will only resume prospectively on the date that CMS determines that the hospice program has achieved substantial compliance with the conditions of participation and the hospice will not be permitted to bill for services provided to any patients admitted during the payment suspension.
Hospices may appeal a determination of noncompliance that leads to the imposition of a remedy, but a pending appeal will not delay the effective date of the remedy. Unlike nursing homes and home health care agencies, hospices will not have the opportunity for informal dispute resolution (“IDR”), and therefore will not be able to pursue an informal process to contest deficiencies prior to having to file a formal appeal. When considering whether to appeal, hospices will need to take into account the fact that CMS will automatically reduce any civil monetary penalty amount by 35% if the hospice waives its appeal right.
Home hospice providers should get prepared now to avoid survey penalties. Here are steps that home hospices can take before, during, and after the survey to reduce the risk of a bad survey outcome.
Before the survey: Before the survey even begins, start to get ready by self-auditing and appointing a survey team with assigned roles. The CMS State Operations Manual, Appendix M is a useful tool for assessing survey readiness. CMS also maintains a website, QCOR, with data on the most frequently cited deficiencies. Furthermore, the new regulations specifically note that when selecting remedies and the amount of civil monetary penalties, CMS may consider evidence that the hospice program has a “built-in, self-regulating quality assessment and performance improvement system to provide proper care, prevent poor outcomes, control patient injury, enhance quality, promote safety, and avoid risks to patients on a sustainable basis that indicates the ability to meet the conditions of participation and to ensure patient health and safety.” Invest now in a robust compliance and quality improvement program to reduce the likelihood of survey deficiencies and avoid civil monetary penalties.
During the survey: During the survey itself, maintain a professional atmosphere. Ensuring that the surveyors have what they need to do their jobs and are treated respectfully is essential to maintaining an open dialogue to immediately address concerns as they arise. Being proactive during the survey can be very helpful. Ask the surveyors periodically if they have concerns and clear up any misunderstandings early. Providing the survey team with the right facts and with the context as needed, can go a long way towards avoiding deficiencies. Also make sure to photocopy or scan whatever documentation is provided to the surveyors. If needed for defensive reasons later in the process, that copy will allow you to identify what the surveyors may be missing. Instruct all staff to be honest and to maintain document integrity. During and after the survey, be ready to implement corrective action immediately- even if you disagree with the surveyor’s conclusions. By correcting problems in real time, you can limit the number of days of noncompliance – and hence the potential per day penalties can be minimized.
After the survey: After the survey, the plan of correction must be submitted within 10 days of receiving the Statement of Deficiencies. The “completion date” you choose for each corrective action will be the date that the hospice will be deemed back into compliance, so long as that date is verified upon resurvey. Therefore, choose a completion date that is as soon as possible to reduce the number of days of noncompliance, but also ensure that the date is realistic for the organization. Also, once the survey is over, be mindful of deadlines. Appeals must be submitted within 60 days of receipt of the CMS notice of the imposition of the penalty. If you opt to waive the right to appeal and take advantage of the 35% reduction of the fine, you must notify CMS within 60 days as well and be ready to remit payment within 15 days of CMS’s approval of the waiver.
CMS’s new hospice survey and enforcement regulations raise the stakes for Medicare participating home hospices. As these regulations are rolled out across the country, home hospices should be on the lookout for further regulatory guidance from CMS and get to work now on survey preparedness to mitigate risks.
Maureen Weaver and Jody Erdfarb are partners at the national law firm Wiggin and Dana.
