Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

The government watchdog agencies continue to focus their attention on Medicare oversight of hospice providers, with two recent reports from the US Government Accountability Office (GAO) and the HHS Office of Inspector General (OIG) focused in large part on ways to improve hospice surveys and nursing care oversight deficiencies. These reports, along with a portfolio of other OIG hospice reports, are giving way to renewed focus by the Centers for Medicare and Medicaid Services (CMS) on hospice surveys as well as by Congress, where legislation in the Senate (and soon the House) has focused on providing CMS with additional hospice survey tools. Proactive hospice providers will do more than take notice of these watchdog agency reports—they will also compare their practices with the critical findings in these OIG and GAO reports to prepare for what will likely be the future focus of Medicare hospice surveys, whether by state agency surveyors or accreditation organizations.

OIG Report

The OIG report, posted on November 21, found that hospices continue to struggle to meet the Medicare Condition of Participation (COP) related to 14-day registered nurse (RN) supervisory visits to hospice patient homes to assess the care furnished by hospice aides. In some instances, RN supervisory visits were not adequately documented in the patient records, though as the OIG report notes, there are no specific Medicare requirements related to how those supervisory visits must be documented. The COP for 14-day RN supervisory visits has been a common area of survey deficiency for many years, and the OIG urges CMS to increase both its promotion of compliance with the standard and its related educational efforts. CMS concurred with the OIG’s recommendations, and noted its launch in November 2019 of the Quality, Safety & Education Portal to increase mobile-friendly and on-demand training for Medicare surveyors.

GAO Report

The GAO report, posted on October 18, compared differences between for-profit and nonprofit hospices, noting that the for-profits showed a higher live discharge rate and a lower rate of hospice staff visits to patients in their last three days of life. The GAO recommended arming Medicare surveyors with hospice quality measure and caregivers’ experience survey data ahead of recertification surveys. The GAO report comes on the heels of the July 2019 OIG report that also found CMS could enhance hospice surveys to protect beneficiaries, although some of the OIG’s recommendations hinged on Congress giving CMS additional statutory authority to expand on reporting of accreditation organization findings and to impose intermediate sanctions for survey deficiencies.

A few interesting statistics noted in the GAO report: Nonprofits represent one third of the 4,500 hospice providers, but care for 50% of the approximately 1.5 million Medicare beneficiaries who receive hospice care annually. Although almost all growth in the hospice sector has been among for-profits, nonprofits account for a disproportionate market share and are increasingly looking to distinguish their services from for-profits.

The OIG, GAO and the Medicare Payment Advisory Commission (MedPAC) are also highlighting in their respective reports the differences between for-profit and nonprofit hospices. It remains to be seen what, if anything, CMS or Congress can or will do with the information related to disparities between for-profit and nonprofit hospices since Medicare does not regulate based solely on tax status. However, it may mean that future congressional or Medicare standard setting around quality and reporting may hew more closely to those standards promoted by nonprofits. A report released on November 25, 2019, by the National Partnership for Hospice Innovation also focused on cost and quality differences between nonprofit and for-profit hospices. With the Medicare Payment Advisory Commission (MedPAC) reporting very healthy margins among for-profit hospices, regulators may have formed the view that hospice providers can well afford to do more around quality and compliance.