But, the Haven Hospice and other decisions do nothing for other hospices that receive demand letters.  Hospices that receive repayment demands should appeal such demands (within 180 days).   By doing so, hospices may reduce their liability and recover prior interest payments to HHS.

For more information contact Brian Daucher at (714) 424-2843 or at bdaucher@sheppardmullin.com.

Sheppard, Mullin, Richter & Hampton (SMRH) serves as counsel to Haven Hospice and also represents a dozen other hospices in individual cases around the country, eight of whom have already obtained decisions providing relief from the unlawful regulation and repayment deamnds thereunder.  No court has said that the regulation is valid.  Because litigation can be expensive, SMRH also has established Group Appeals to make it more affordable for hospices to defend their rights.  In these Group Appeals, hospices joining the group will challenge the regulation in a single combined case.  Complete terms of the Group Appeal are detailed in the Group Appeal Engagement Letter, but in summary:

• The Group Appeal is open to any hospice that has received a cap demand letter in the last three years.
• Hospices pay only costs until a benefit is achieved (initial deposit $500 per provider).  Cost deposits will not be used to pay attorneys’ fees.
• SMRH will handle the PRRB appeals and lawsuit in Washington, D.C., in a group case, including appeals if necessary.
• Hospices agree to pay 15% of any net benefit (i.e., net reduction in repayment demands, interest savings), but only after such benefits are secured.
• Groups are already formed and in court with respect to FY 07 (for demands for fiscal year ending 10/31/07) and are formed and still open for FY 08 and FY 09 as well.

To join the Group Appeal, you will need to take each of the following steps:

• Sign and return the Engagement Letter with a $500 cost deposit;
• Sign and return to SMRH, on your hospice letterhead, the PRRB Authorization Letter;
• Fill out and return to SMRH a completed Hospice Fact Sheet; and
• Provide SMRH with cap repayment reports (whether demands or surpluses) FY 2004 – 2009.

We urge all hospices to appeal these unlawful 2008 and/or 2009 demands. 

If you are a hospice that has received a cap repayment demand letter within the past three years, you should carefully review your options.

Group Appeal resources on NAHA’s website:

1. Group Appeal Engagement Letter
2. Group Appeal List of Required Documents
3. Group Appeal Hospice Information Worksheet
4. PRRB Authorized representative Statement
5. Format for a Hospice PRRB Appeal Letter
6. Haven Hospice Final Judgment (docketed version) 20 August 2009

MedPAC Myth #1 – Medicare’s costs would benefit from shorter hospice patient stays;  30 to 60 days would be nice.

FACT:  MedPAC staff mischaracterizes Duke University researchers’ findings, which explicitly say:

• Medicare saves over $2,300 per hospice user, and would save more if most users’ length of stay increased
• Medicare saves money on patient stays up to 154 days (non-cancer patients) and 233 days (cancer patients)
• Medicare savings are maximized per user on stays between 50 and 108 days
• Medicare could reduce costs by increasing the length of stay of 70% of hospice users
• Medicare should focus on increasing access and on increasing the length of stay of short-stay patients, not on decreasing long stays

Why would MedPAC staff selectively (mis)quote Duke’s research to imply that Medicare would benefit from shorter hospice length of stay?  

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MedPAC Staff Myth #2– Access to hospice is adequate, and “saturated” in some areas.

FACT: Despite growth since 1998, hospice choice remains poor. Only about 40% of terminally ill seniors receive any hospice care, which means 1 million seniors die each year without hospice.  And those who do get a choice usually receive that choice far too late. 

• Increasing hospice access from 40% to 60% would save $1 billion annually, and hospice would still be far from ”saturated”
• Only 7% of Medicare decedents receive 61 to 180 days of hospice, the range in which quality and cost-savings coincide
• Non-cancer patients’ access is 50% below cancer patients
• Minority access is 25% below whites
• Access in Arizona is 82% for white cancer patients and 41% for minority non-cancer patients, while access in New York is only 53% for white cancer patients and only 8% for minority non-cancer patients
• Medicare’s non-cancer eligibility criteria are not evidence-based, have lost credibility and, in practice, result in hospice admissions standards that vary widely by state, by community, by hospice, by diagnosis and possibly by race  

How could MedPAC staff study hospice for two years without exploring these huge access gaps, and how to close them?  Why did MedPAC staff not identify the value opportunity offered by improving length of stay for the 70% of hospice users whose stays are too short, as Duke University researchers emphasized in 2007?

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MedPAC Staff Myth #3 - Hospice growth since 2000 has been driven by an “influx of new for-profit providers” scamming the system.

FACT: Hospice has grown because Congress and Medicare expanded the benefit in 1998 to provide access to non-cancer patients, which essentially quadrupled the eligibile hospice population.  90% of hospice growth since 2000 is due to increased access for non-cancer patients, which was exactly Congress’ and Medicare’s 1998 intent.  And, over two-thirds of hospice growth since 2000 has been provided by hospices that were Medicare certified well before 2000, mainly non-profits.   Hospice is now saving Medicare about $2 billion annually, four times what it was saving in 1998.  Yet, MedPAC appears determined to “whack” hospice and apparently decided to conjure up a story line that attributes hospice growth to fraud and abuse. It is demonstrably not true, and horribly misleads public policy.

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MedPAC Staff Myth #4 – Hospice length of stay growth since 2000 has been driven by for-profit providers engaging in a widespread conspiracy to “manage up” patient length of stay.

FACT:  “Bad actors” are not responsible for hospice LOS growth.  Virtually 100% of the growth in hospice average LOS since 2000 has come from LOS growth among only the longest-staying 10% of patients, and mainly in only four non-cancer diagnoses.  There has been no increase in length of stay for the shortest-staying 75% of patients.  Any even-handed, competent analysis would conclude there is no widespread conspiracy to “manage up” of length of stay.  (Surely bad actors would be smart enough to “manage up” LOS across most patients and diagnoses, not just the 10% who are already living the longest.) There is overwhelming evidence that increasing length of stay of the top 10% of patients is driven by (i) Congress removing any limit on patient length of stay in 1998, (ii) increasing non-cancer patient access, and (iii) Medicare’s flawed non-cancer eligibility criteria, which are not evidence-based but which by law guide admissions decisons and which in practice result in very long length of stay for some non-cancer patients.  Again, bad analysis, bad public policy recommendations.

We respectfully disagree with CMS’ argument that increasing the time period limitation by one or two years will solve the issue, because “99.98% of hospice beneficiaries who died in 2007 were admitted to hospice in either 2006 or 2007.” CMS should focus not upon which beneficiaries die in a given year, but rather upon which beneficiaries continue to live. NAHA commissioned independent researchers at Avalere to examine 100% of the 3.5 million Medicare beneficiaries who elected the hospice benefit between 1/1/2003 and 12/31/2007, and asked them how many of those hospice patients were still alive years later, at 12/31/2007. Avalere’s findings were: 2% of patients admitted in 2003, 3% of those admitted in 2004, 5% of those admitted in 2005, 9% of those admitted in 2006 and 23% of those admitted in 2007 were alive at 12/31/2007. And, non-cancer patients’ and minority patients’ “still alive percentages” were significantly higher than average, suggesting that limiting cap allocations will have a disproportionate impact on these already-underserved populations.

See summary of independent research data commissioned by NAHA and complied by Avalere: Percentage of Hospice Patients Admitted 2003-2007 Still Alive at 12/31/2007, by Diagnosis, by Race.

How to send an email to Secretary Sebelius in a few simple steps:

First, adopt the right attitude… remember Secretary Sebelius did not draft the hospice cap regulation BUT she can decide to not use it now that it has been invalidated (twice).  So, be firm, direct, open, and very polite.  Any lack of civility in your email will, at a minimum, diminish its value and, potentially, damage the overall cause.

Second, compose your own letter in your own words.  “Cookie-cutter” or “cut and paste” letters will be much less effective than a sincerely worded, personal letter.  The following text template is provided for your reference as to what types of information you should include.  Please use the full closing information (name, address, and phone number).  You will not be contacted but it is important that your email communicate that you are a “real” person rather than some computer generated mailing campaign.

Remember, the following is for guidance only, PLEASE USE YOUR OWN WORDS to maximize our impact.  To that end, please modify the content of your email as you wish.  What is important is that you identify your involvement (even if you are just a supporter/fan of hospice care) with and your commitment to continued timely hospice access and hospice care.

I am <Name>, and I’m <an owner of / a manager with / a nurse/chaplain/social worker/nurse’s aide/secretary/employee/other with>, <do business with>, <am a supporter of> ________ Hospice in <city/town, state>. _________ Hospice cares for ______ patients every day, over ____ hundred/thousand over the last several years and employs ____ caregivers.

Tell the Secretary of HHS, in a couple of brief sentences, something special about your job, your hospice or your patient(s), without revealing any confidential patient information.

I want to add my voice to that of NAHA’s Board of Directors in asking you to direct HHS and Medicare to do the right thing regarding the hospice cap. The federal courts have now clearly told you and all hospices that the regulation under which hospice cap demands are issued is wrong, and is harming hospices and our patients. Please stop using it, at least until you can write a regulation that is fair and legal.

Signed,

(Name)

(Address)

(Phone number)

Remember, your letter should be in your own words. Please be sure to include your full name, address, and phone number in your closing.

Third, once you have composed your letter, send it to Secretary Sebelius at:

email:  Kathleen.Sebelius@hhs.gov

subject line:  “Please Do the Right Thing: Stop Using Invalid Hospice Cap Regulation”

If you are using Microsoft Outlook or Outlook Express, you can simply click on the following link to create your email.  Then you can copy and paste your message into the body of the email.

Send email to Secretary Sebelius at HHS

Finally, send an email to colleagues, friends, employees, and anyone else you know who supports the NAHA request that HHS “Do the Right Thing…” asking them to express their support in an email to Secretary Sebelius.

September 15, 2009

Dear Ms. Sebelius:

Re:  Hospice Cap Regulation

The National Alliance for Hospice Access (NAHA) represents more than 500 independent hospices in 32 states that serve tens of thousands of patients every year, primarily in rural, minority or economically disadvantaged communities.   As you know, NAHA is supporting hospice reform legislation (HR 3454) as well as hospice cap compromise efforts that would improve patient choice, reform the hospice cap, reduce HHS’ administrative burden, and reduce Medicare’s costs by $10 billion to $20 billion over the next ten years. We hope you will consider supporting these reforms…

Read the full text of the NAHA_Board_Letter_to_Sebelius_15Sep09

We urge you to email Secretary Sebelius with a message of support for the NAHA letter urging her and HHS to “Do the Right Thing:  Stop Using the Invalid Hospice Cap Regulation”.  Click here for easy to follow directions and a template to use for your message to Secretary Sebelius.

On August 20, 2009, Federal district court judge George Wu entered final judgment against the Department of Health and Human Services (read Final Federal Court Judgment Remand) in favor of NAHA member hospice Los Angeles Haven Hospice on its challenge to the hospice cap regulation.  In addition to provisions affecting only Haven Hospice, Judge Wu’s decision included a nationwide injunction precluding HHS from using the invalid regulation to calculate any future cap demands.

NAHA understands that, in the wake of this judgment, Medicare told its fiscal intermediaries to stop issuing new cap demands.

However, on September 11, 2009, Judge Wu put a hold on his own nationwide injunction until this portion of his judgment can be reviewed by the 9^th Circuit, a process that could take up to 2 years.  All other aspects of the August 20 judgment remain in place.

Although Judge Wu noted that “there is no significant likelihood that the Secretary of Health and Human Services will prevail on the merits of its underlying claim” that the regulation is valid, Judge Wu also noted that there was a legitimate question whether the broad injunction against further use as to other hospices would be approved on appeal, given that only Haven Hospice was in Court before him.  In making this ruling, Judge Wu accepted HHS’ contention that the injunction could disrupt HHS’ ability to administer the hospice benefit.

HHS must now make a choice:

• HHS can choose to resume the use of an regulation that has been held invalid by Federal District Judges, twice, because it overstates cap demands and harms hospices.

• Or, HHS can voluntarily cease use of the invalid regulation.

NAHA calls on HHS to respect the rule of law, understand the cap crisis facing independent hospice providers, and do the right thing: voluntarily suspend use of the invalid regulation.

NAHA’s Board of Directors is preparing a letter to senior CMS officials and the Secretary of HHS, copied to all of our Congressional representatives, urging HHS to do the right thing.

In light of Judge Wu’s decision, NAHA also urges its members – and all hospices — to be vigilant.  In the event any hospice receives a cap repayment demand, we urge each hospice to take an immediate appeal to the PRRB, then take the case to Court, either through the developing Group Appeal of the hospice cap regulation or individually.

Finally, Judge Wu’s decision in no way alters those portions of his August 20 Haven Hospice judgment that (i) hold the regulation invalid, (ii) set aside the FY 06 repayment demand to Haven Hospice, (iii) order HHS to refund or credit prior payments on the FY ‘06 demand, and (iv) award costs and invite Haven Hospice to apply for an award of attorney’s fees.

Judge Wu’s decision to put a hold on the national injunction precluding HHS from issuing cap demands under the invalid regulation further underscores the urgency for:

• Every hospice to take action to challenge the regulatory basis for repayment demands it has received, to protect its rights

• HHS and Congress to support fiscally responsible reform of the retrospective and flawed 1982 hospice cap statute; such reform is before Congress now as HR 3454 Medicare Hospice Reform and Savings Act of 2009

“H.R. 3454: Medicare Hospice Reform and Savings Act of 2009“

Judge Tells HHS to Stop Using Invalid Hospice Cap Regulation

On Friday, August 21, 2009, Federal District Court Judge George Wu entered final judgment against the Department of Health and Human Services in favor of Los Angeles Haven Hospice on its challenge to Medicare’s hospice cap regulation.  Haven Hospice had challenged the regulation used to calculate the hospice cap on the grounds that it did not meet the clear requirements of the governing hospice cap statute. The decision demonstrates that HHS has been miscalculating the cap, and harming hospices, by failing to give proportional allowances that could decrease the cap liability of any hospice that has experienced periods of long average length of stay.

Read the full text of the NAHA Press Release

Read the Federal Court Judgment in favor of NAHA member Haven Hospice