Archive for Hospice Cap
Group Appeal: Small Hospices Challenging Unlawful 2008, 2009 Hospice Cap Demands
Posted by: | CommentsIn August 2009, NAHA member hospice Haven Hospice won its court challenge to the hospice cap regulation. Federal Judge George Wu ruled the hospice cap regulation invalid, set aside CMS’ 2006 cap demand to Haven Hospice and ordered HHS to either return funds previously paid by Haven Hospice or apply those funds (including interest already paid) to a new demand. Since then, more than ten other federal judges, in suits brought on behalf of individual hospices, have held the regulation invalid and precluded further application to those hospices.
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. Read More→
Who Fact-Checked MedPAC Staff’s Hospice Analysis?
Posted by: | CommentsMedPAC staff’s shoddy hospice analysis is misleading MedPAC Commissioners and healthcare policy; it also misses reform opportunities that would improve patient access and save money. Read More→
Independent research data shows that the unlawful 1983 hospice cap regulation disproportionately harms already underserved non-cancer and minorty patients. And so will any regulation that arbitrarily limits the proportional allocation of cap allowances to less than a full allocation across all of each patient’s days of service. Any such regulation would fail to meet Congress’ express requirement to match allowances with revenues, would understate allowances and overstate repayment demands, and would make non-cancer and minority patients second class hospice citizens.
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.
Federal Court Judge Puts Hold on His Own Nationwide Injunction
Posted by: | CommentsFederal Court Judge Puts Hold on His Own Nationwide Injunction; Will HHS Resume Use of Invalid Hospice Cap Regulation?
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. Read More→
Group Appeal – Updated!
Posted by: | CommentsSheppard Mullin Group Appeal of the Hospice Cap Regulation —
NAHA Information and Resources Page
Group Appeal resources on NAHA’s website:
- Group Appeal Engagement Letter
- Group Appeal List of Required Documents
- Group Appeal Hospice Information Worksheet
- PRRB Authorized representative Statement
- Format for a Hospice PRRB Appeal Letter
- Haven Hospice Final Judgment (docketed version) 20 August 2009
For more information contact Brian Daucher at (714) 424-2843 or at bdaucher@sheppardmullin.com.
In August 2009, NAHA member hospice Haven Hospice won its court challenge to the hospice cap regulation. Federal Judge George Wu entered final judgment against HHS finding the hospice cap regulation invalid and setting aside the 2006 cap demand to Haven Hospice. Under its terms, HHS must either return funds previously paid by Haven Hospice or apply those funds (including interest already paid) to a new demand.
Since then, more than ten other federal judges, in suits brought on behalf of individual hospices, have held the regulation invalid and precluded further application to those hospices.
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.
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 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.
For more information contact Brian Daucher at (714) 424-2843 or at bdaucher@sheppardmullin.com.
Big News! Federal Court to HHS: Stop Using Invalid Hospice Cap Regulation, Nationally
Posted by: | CommentsNAHA Press Release: August 26, 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
Federal Judge says “Stop Using Invalid Regulation”
Posted by: | CommentsJudge Tells Department of Health and Human Services (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 (read Final Federal Court Judgment Remand) and in favor of NAHA member hospice Los Angeles Haven Hospice on its challenge to the hospice cap regulation. Read More→
HR 3454 Legislation
Posted by: | CommentsHR 3454 Medicare Hospice Reform and Savings Act of 2009 will amend title XVIII of the Social Security Act to reform payments and coverage for hospice care.
HR 3454 Legislation Information and Resources:
- Full text of proposed HR 3454 legislation
- HR 3454 Legislative Benefits Fact Sheet
- Talking Points for HR 3454 Legislation
- HR 3454 Background Slides
- NAHA Hospice Access Report based on Avalere Data
H.R. 3454: Medicare Hospice Reform and Savings Act of 2009 is an integrated 4-Part reform that would save over $1 billion annually, while improving hospice access and reforming the hospice cap.
National Coverage Determinations (NCDs) – Establishing evidence-based hospice NCDs in 2010 will save $1 billion to $2.5 billion annually and $5 billion to $12.5 billion from 2010 – 2014, while increasing timely patient access to hospice care. Medicare’s current hospice Local Coverage Determinations are not evidence-based, and have resulted in a morass of arbitrary eligibility standards that in practice vary by state, by hospice, by diagnosis and possibly by race. As a result, timely hospice access in America is persistently low and varies widely by state, by diagnosis and by race. This increases Medicare’s costs.
- NCDs would clarify eligibility and increase access from 41% to 60% over the next five years. Such access would save $1 billion per year, according to Duke University’s 2007 research.
- Clarifying eligibility would also increase timely access for 75% of hospice users whose current hospice stays are short. Increasing short stays by an average of only 7 days would save $500 million per year, again according to Duke’s 2007 research.
- NCDs would improve the accuracy of hospice eligibility decisions, and would stop the growth in, and subsequently reduce, length of stay above the 90th percentile, saving $1 billion annually.
Cap Reform – Reforming the retrospective 1982 hospice cap with a pay-as-you-go 10% reduction in per diem routine home care payments as patient stays exceed 180 days, and directing CMS to compromise 2006 – 2008 Cap demands to allow law-abiding hospices to survive, will save Medicare $600 million from 2010 through 2014. It will also allow hundreds of quality hospices to survive the current hospice cap crisis, and to continue to provide cost-effective hospice access for tens of thousands of beneficiaries, especially in rural, minority and economically disadvantaged communities.
- Reducing routine home care payments to hospices by 10% as patient stays exceed 180 days will save CMS about $400 million annually, or $2.0 billion from 2010 through 2014.
- Instructing CMS to compromise 2006, 2007 and 2008 Cap demands to allow law-abiding hospices to survive would cost a maximum of $400 million, on a one-time basis only, and it will preserve access to cost effective care for tens of thousands of beneficiaries.
- Cap reform will reduce CMS hospice payments by $1.6 billion over the next 5 years. Partially offsetting this, CMS will forego collections of no more than $200 million annually from the old 1982 cap. Net, a reformed pay-as-you-go Cap will save $600 million over the next 5 years while at the same time dramatically reducing CMS’ administrative burden and credit risk.
Payment reform - Part 3 of this hospice reform legislation is budget-neutral in every year; it will improve hospice payment accuracy and patient access by increasing routine home care payments for the first five and last five days of every patient’s hospice stay by 20% per diem, self-funded by reducing per diem payments by a further 2.5% (in addition to the 10% in Part 2) as patient stays exceed 180 days.
- This reform will benefit hospices with relatively short lengths of stay that argue that short-stay patients’ expenses are not met by current routine home care per diem reimbursement. The limited payment shift in this Part 3 strikes a balance between meeting the legitimate expenses of short-stay patients, while ensuring that we do not reward hospices that fail to provide timely choice to the terminally ill Medicare beneficiaries in their communities.
Restore the full hospice BNAF, Self-Funded from NCD savings in Part 1 Above - Establishing NCDs will generate measurable savings of $1 billion to $2.5 billion annually for Medicare; full restoration of the BNAF should cost no more than $0.5 billion annually. The BNAF can be fully restored at no cost to the federal government, with significant annual savings left over.
Support HR 3454 Medicare Hospice Reform and Savings Act of 2009
CMS-1523-NC
Posted by: DaveDaucher | Comments (0)Read NAHA’s letter to CMS commenting on CMS-1523-NC Hospice 2011 Wage Index Notice.