House Introduces HOSPICE Act

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On February 10, 2020, Congressman Jimmy Panetta (D-CA) and Congressman Tom Reed (R-NY) introduced the Helping Our Senior Population in Comfort Environments Act or HOSPICE Act (H.R. 5821).  The HOSPICE Act is a bipartisan response to the July 2019 Office of Inspector General (OIG) reports that identified concerns in the hospice program related to oversight and enforcement of quality of care.

The HOSPICE Act will make several changes to the hospice survey process and introduce intermediate remedies into the hospice program.  The bill addresses hospice survey transparency, frequency, consistency, and the authorization of new remedies.  This article highlights key provisions of the legislation.

Transparency

The July 2019 OIG report found that from 2012 to 2016 more than 80 percent of hospices had at least one deficiency leading to beneficiary harm.  In response to its findings, OIG made the following recommendations aimed at increasing transparency of survey and certification information: (1) CMS should expand deficiency data reported by accrediting organizations; (2) CMS should seek statutory authority to make information from accrediting organizations publicly available on Hospice Compare and make them publicly available once authority is obtained; and (3) CMS should include on Hospice Compare survey reports or a compilation of important survey findings from State agencies.

The HOSPICE Act implements all of the OIG’s recommendations.  The bill requires State and local surveyors and accrediting organizations to submit any inspection report related to all surveys and certifications, any enforcement actions taken as a result of such survey or certification, and any other information determined appropriate by the Secretary.  Notably, accrediting organizations must now submit the same information as State and local surveyors so that information available to consumers is comparable across entities.  The Secretary must publish the data on CMS’s website “in a manner that is prominent, easily accessible, readily understandable, and searchable.”  The bill also instructs the Secretary to implement programs to measure and reduce inconsistency of surveys.

Survey Frequency

The HOSPICE Act would change the frequency of surveys for all hospice providers from three (3) years to two (2) years.  The bill also requires the Secretary to establish a special focus program to enforce requirements for hospice programs substantially failing to meet hospice program requirements.  The Secretary must also conduct surveys of every hospice program included in the special focus program at least once every six (6) months.

Survey Teams

The bill requires each survey to be conducted by a multidisciplinary team of professionals, including a registered professional nurse.  The survey team may not include any individual who is serving or has served within the previous two (2) years as a staff member of or consultant to the hospice program being surveyed or who has a personal or familial financial interest in the hospice program being surveyed.

Surveyor Training

The HOSPICE Act mandates development of a comprehensive training program for State and Federal surveyors, including training on the review of written plans for providing hospice care.  The bill also requires all individuals serving on a survey team to complete a training and testing program on survey and certification techniques that has been approved by the Secretary.

Remedies

The OIG recommended that CMS seek statutory authority to establish additional, intermediate remedies for poor hospice performance.  The HOSPICE Act provides this authority and instructs the Secretary to develop and implement a range of remedies in the hospice program along with appropriate appeal procedures.  The remedies include civil monetary penalties not to exceed $10,000 for each day of noncompliance, suspension of all or part of payments, and appointment of temporary management to oversee operation of the hospice program.

The bill also directs the Secretary to develop and implement specific procedures for applying the remedies.  The procedures should be designed to minimize the time between identification of deficiencies and the imposition of remedies as well as provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies.

Markup

The bill underwent markup by the Ways and Means Committee on February 12, 2020.  Only two small changes were made during the markup, which included adding “national accrediting organizations” to the surveyor training program and mandating that the GAO complete its report on quality and remedies within 36 months following enactment of the Act.  The Committee passed the bill by a voice vote the same day, and the bill is now available for consideration and a vote by the House.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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