ORT controversy continues to rage
ORT controversy continues to rage
More than 100 newspaper and magazine articles about audits by the Office of Inspector General (OIG) under Operation Restore Trust (ORT) of long-stay patients enrolled in 12 hospices have appeared in recent weeks, says John J. Mahoney, president of the National Hospice Organization (NHO) in Arlington, VA. The tenor of many of these articles is sympathetic to the hospice industry’s arguments that OIG is unfairly second-guessing hospices’ determinations of patients’ terminal prognoses, he says.
But some hospice leaders argue that a more aggressive response to the government is needed in order to protect dying patients’ access to hospice services.
"While nobody likes to see negative publicity for hospice, most of the actual stories have been quite pro-hospice and have called into question the OIG’s efforts in this particular area," Mahoney says. An example is the article, "Death be not swift enough," by Joseph P. Shapiro in the March 24 U.S. News & World Report. "Some experts contend that federal auditors have it exactly backwards. Rather than penalizing hospices for helping patients live longer, more money could be saved by getting terminal patients into hospice programs more quickly," Shapiro writes in the article.
Not the right place to be flexible
Ira Byock, MD, president of the Gainesville, FL-based American Academy of Hospice and Palliative Medicine and author of the recently published Dying Well: The Prospect for Growth at the End of Life, issued a warning on two occasions in March. Byock spoke at the California State Hospice Association’s annual meeting in Universal City and NHO’s Second National Conference on Clinical Hospice Care/Palliative Medicine in Miami.
"Focused medical review and Operation Restore Trust are being conducted in a crude and inept manner analogous to a surgeon operating with a machete," Byock said during his Miami speech. "In sifting to find instances of fraudulent practices, ORT has caught some of our country’s best and most progressive programs in its net and has really become Operation Inflict Fear. It has sent a chill through our discipline," he added.
"I will assert that our response to FMR and ORT is not a place to be overly flexible. While we should truly cooperate in attempts to ferret out fraud, I worry more about our willingness to compromise with the accusatory and incompetent manner in which these programs are going forward. They must be countered with strong action in the press, in the courts, and if need be, through demonstrations in the streets, " Byock says.
Incorrect diagnoses not found
In testimony before the House Ways and Means Oversight Committee in March, OIG principal deputy Michael Mangano said that OIG audits of 12 hospices in five states had identified $83 million in overpayments to the hospices for 1,373 long-stay patients deemed ineligible for the benefit at the time of enrollment, plus an additional 263 cases in which auditors could not determine the prognosis from evidence contained in the medical record. However, no fraud has been alleged by the government in these cases, merely an incorrect (or inadequately documented) determination of prognosis. Mahoney says he is not aware of any efforts underway to actually recoup the alleged overpayments from the 12 hospices.
Mangano also testified that hospices, along with home health care and durable medical equipment providers, are "particularly vulnerable to systemic fraud, waste, and abuse." Hospice care in the nursing home is an area of particular concern for its higher proportion of patients deemed ineligible and for the type and frequency of services provided to patients. (See related story, p. 53.) Mangano said OIG will "continue to investigate hospice providers who are blatantly enrolling Medicare beneficiaries that do not quality for the benefit."
Later that month Mangano’s boss, June Gibbs Brown, Health and Human Services inspector general, testified before a House Government Reform and Oversight Subcommittee that she believed Congressional action is warranted to address abuses of the hospice benefit, which grew 24-fold in total outlays, to $2 billion, between 1986 and 1995.
Brown said the government’s goal was not to penalize hospices for patients who live beyond initial estimates, but to remedy the problem of patients with chronic or lingering rather than terminal conditions enrolling in hospice. These represent not only fraudulent Medicare billings but a threat to the health of the patients since hospice enrollment means giving up curative care, she explained.
Should hospice take aggressive stance?
"I’m trying to be constructive, not inflammatory," Byock tells Hospice Management Advisor. "But hospice folks seem to be almost apologetic about what we do. This is an opportunity for us to tell our story; but as it is, we look defensive," he observes. "While we should never condone fraud, we should take the higher ground. The government is fishing with explosives. In my community [in Missoula, MT] we have patients and family members calling our hospice, apologetic that they’re doing something wrong by not dying on time. We have doctors calling, worrying about referring patients," Byock explains.
"This issue is having a real impact on hospice, even though we do better at prognosticating [terminal illness] than the fancy computer models, plus we’re saving the government money in the care we provide. And this is all happening in a context in which physician-assisted suicide is being seriously considered," Byock says. "Not enough people are getting the care we provide. People are dying alone and in pain. There’s so much unmet misery among the dying. That’s the real crisis, not the few patients who don’t die on time."
In fact, NHO has challenged ORT findings on long-stay patients, and has argued the point in the media, Mahoney says. In his March 13 memo to NHO members, Mahoney writes, "NHO does not agree that the majority of determinations made by the OIG’s auditors relative to the eligibility of patients for the Medicare hospice benefit based on the patient’s prognosis are correct. . . . NHO believes the OIG’s process for making these decisions is seriously flawed."
"I see Ira’s reaction as worthy and important," responds Martha Barton, RN, CEO of Pikes Peak Hospice in Colorado Springs and a member of the NHO Board of Directors. "But do we want to butt heads with the government and come up against them as adversaries, when we know there are abuses going on by unsophisticated hospices and knowing abuses by some providers? For us to be seen as standing in the way of that is very dangerous," Barton says.
"We need to be in favor of policing our own industry, and we have to strategize. But I hope it’s all together, so we can speak with a single voice. We need to say we will support appropriate and high-quality hospice care wherever the patient resides. If we don’t do it together, we’ll all lose," she adds.
"Here in Colorado, our state association leadership is calling an emergency meeting to talk about the quality of nursing home services in the state. If we don’t take care of it, those people won’t have access to quality services.
Opportunity to transform end-of-life care
Carolyn Cassin, president and CEO of Hospice of (Southfield) Michigan, describes the controversy around ORT and long-stay patients as primarily a political issue, "although I wouldn’t challenge the fact that we haven’t always been very sophisticated in charting or determining who is appropriate for hospice. But if we can utilize the information we’ve been receiving and fix what we haven’t been doing right, then we have a real opportunity now to be the provider of end-of-life care in this country."
The larger issue for hospices, Cassin says, "Are we going to stand up and demand a larger role in the health care system and say we should be taking care of a much larger group of patients or not? We have been a niche player for 15 years, and we have allowed ourselves to stay small and outside of the system. I think this is a critical turning point for hospices. What happens now will determine whether this was all just a grand experiment or whether we really will transform care of the dying."
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