Hospice industry blasts OIG’s proposed compliance plan

By MATTHEW HAY

HHBR Washington Correspondent

WASHINGTON – The Hospice Association of America (HAA; Washington) recently weighed in on the Department of Health and Human Services’ (Washington) Office of Inspector General’s (OIG) draft compliance program for hospice with a laundry list of 19 specific concerns about the size and scope of the proposed plan.

"A large number of hospices will find it very difficult to devote the significant additional resources or to reallocate already meager and stretched resources necessary to implement the extensive compliance program guidelines detailed in the guidance," HHA said in it comments Aug. 20. "While the OIG acknowledges the size and structure differences that exist among hospice programs, it is not entirely clear that the OIG recognizes the vulnerability of many of the hospice programs."

The association, which represents more than 2,800 hospices, said it is particularly concerned that the OIG believes "every hospice can and should strive to accomplish the objectives and principles underlying all of the compliance policies and procedures recommended." That concern echoes a complaint registered by the durable medical equipment (DME) industry that the OIG was attempting to promote a one size fits all’ program for an industry marked by significant variation.

The OIG’s draft compliance program for hospice, published in the Federal Register July 21, is similar to other guidance already issued by the OIG for clinical laboratories, hospitals, home health agencies, third-party medical billing companies, and DME suppliers. The guidance identifies specific compliance risk areas for hospice providers such as admitting patients to hospice care who are not terminally ill, underutilization of services, improper arrangements with nursing homes, and high-pressure marketing of hospice care to ineligible beneficiaries. But HAA found fault with the OIG’s view of almost all those areas.

While all OIG compliance programs are voluntary, they serve to put healthcare providers on notice about potential violations, and by any estimate the list of risk areas laid out by the OIG for hospice is a lengthy one. HAA said its comments were based on input from the hospice industry obtained in collaboration with the National Hospice Organization.

While HAA said it strongly supports the concept that hospices should develop effective controls to comply with federal and state laws and regulations, as well as private payer program requirements, it argued that the OIG creates a perception that hospice providers are prone to engage in fraudulent behavior. That prompted the association to make the unusual request that the OIG add a statement that "expressly acknowledges that hospice providers in general comply with applicable federal and state laws in the provision of services to terminally ill patients."

HHA targets litany of OIG risk areas

According to the OIG’s draft compliance program, hospices should develop standards of conduct for "all affected employees," including "affiliated providers operating under the hospice’s control." The OIG said that list of "affiliated providers" should include attending physicians, pharmacies, DME suppliers, hospitals, nursing homes, home health agencies, and supplemental staffing entities." But HHA argued that many of these providers are rarely, if ever, affiliated with hospices and under the hospice’s control. "This is particularly true of attending physicians," argued the association. "It is unrealistic to expect that a hospice program could assure that these providers adhere to the hospice’s standards of conduct."

HAA also argued that that the OIG takes an overly broad view of "risk areas" that tend to "criminalize" behavior that is not specifically illegal. "The OIG included many behaviors on the list of risk areas that are not indicators of false claims or kickbacks, or in some cases, could not really even lead to false claims," argued the association. "This likely will cause hospice providers to believe that such activities are prohibited by some specific law and will cause a de facto prohibition of such activities, without legal basis."