Hospice legislative/ regulatory update

Navigating the new legislative currents

In the early weeks of the new year, the hospice industry received another Medicare anti-fraud scare when the administration briefly considered changing hospice coverage for nursing home residents. President Clinton also singled out hospice care in his Jan. 24 radio chat as one of the targets for a new anti-fraud initiative being proposed to Congress. This 10-point proposal aims to save Medicare more than $2 billion over five years.

"Medicare fraud is a real crime, committed by real criminals, intent on stealing from the system and cheating our most vulnerable citizens," the president said. Along with proposals to pay no more than market prices for drugs and to double the number of audits for hospitals and nursing facilities, physicians would be subject to civil monetary penalties for certifying Medicare hospice services for patients who do not need them.

The National Hospice Organization (NHO) promptly expressed its concern that the President's plan may not draw a clear enough distinction between knowingly and fraudulently certifying an ineligible patient for hospice and differences in medical opinion or honest mistakes, especially given the industry's recent history of conflict with the Office of Inspector General (OIG) on this issue. If physicians fear legal action for honest mistakes, this could have the effect of further shortening already squeezed hospice lengths of stay, with serious consequences for hospices' bottom lines and dying patients' quality of life.

The Clinton administration also briefly considered sending up a trial balloon similar to one that arose last spring, proposing to modify, reduce, or even eliminate hospice coverage for nursing home residents. A federal target for "vulnerabilities" and potential abuses, hospice care in the nursing home has been studied by OIG and by an ad hoc NHO Nursing Home Task Force.

January meetings between the administration and representatives from NHO and the Hospice Association of America (HAA) focused on what the administration views as the "unfinished business" of overpayment for hospice services in the nursing home. The associations stressed the importance of not making far-reaching changes without good data, which currently are sorely lacking.

Nursing home trial balloon looks grounded

"There was some discussion again by the White House of somehow changing the nursing home benefit, but it quickly calmed down, and the budget was submitted to Congress without it," reports J. Donald Schumacher, PsyD, CEO of the Hospice Association of Western New York in Cheektowaga and chair of NHO's Nursing Home Task Force. "It seems that HCFA is now content to wait for our task force's report, which we hope to present to the NHO Board of Directors on April 26," he says.

"I feel very positive about what's happening. The nursing home benefit is in a good place to be reviewed and rehabbed," Schumacher says. He expects the final task force report to identify compliance issues and recommend how payment might be restructured, in mind that patients residing in nursing homes have a right to the services," he says. "There are problems in some areas of this industry, and we have to try to reduce those."

Meanwhile, outgoing NHO president John J. Mahoney told the association's members in January that President Clinton's proposal to lower the age of Medicare eligibility creates a "legislative vehicle . . . for other types of Medicare-related legislation. Even a few weeks ago, it seemed unlikely that a viable opportunity to move forward a hospice legislative agenda would present itself over the next two years." NHO's Legislative Committee met in Washington in early February to develop a 1998 legislative agenda, while its Committee on the Medicare Hospice Benefit and End of Life Care is also preparing recommendations for enhancing the hospice benefit, some of which may require legislative action.

In other developments, new draft hospital conditions of participation, published in the Federal Register on Dec. 19, 1997, incorporate language from 1994 legislation requiring that hospital discharge planning evaluations include an evaluation of the need for hospice care and the availability of hospice services, along with other post-hospital care needs. The regulations also require informing patients and their families of their "freedom to choose among participating Medicare providers of care." However, it is not as clear whether this means hospitals must provide lists of all available hospice providers in the community for patients who need hospice services.

A deadline for comment was extended for the Occupational Safety and Health Administration (OSHA)'s proposed new rule on occupational exposure to tuberculosis. The new rules would apply to hospice facilities and to the provision of home health or home-based hospice care.

Although drug-resistant tuberculosis has emerged recently as a growing occupational danger, some providers felt that the draft rules proposed by OSHA underestimated the time and costs needed for implementation. Public hearings on the proposed rules are also planned for Washington, DC, Los Angeles, New York City, and Chicago, starting in April.