Congress Members Call on CMS to Revise Proposed Hospice Special Focus Program

Four members of Congress led by Reps. Beth Van Duyne (R-Texas) and Earl Blumenauer (D-Oregon) have called for changes to the forthcoming Special Focus Program (SFP) from the U.S. Centers for Medicare & Medicaid Services (CMS).

Jimmy Panetta (D-CA) and Brad Wenstrup (R-OH) were also signatories on the letter to CMS Administrator Chiquita Brooks-LaSure and White House Office of Management and Budget Director Shalanda Young. The four lawmakers contend that the SFP, as currently designed, would not adequately identify poor performing hospices in need of the program.

Congress mandated the SFP in the Consolidated Appropriations Act of 2021, which contained language from the Helping Our Senior Population in Comfort Environments (HOSPICE) Act. CMS convened a Technical Expert Panel (TEP) to help design the program, which the agency plans to implement next year, according to its 2024 proposed rule for home health agencies.

“We are committed to ensuring that the HOSPICE Act is implemented in a manner that aligns with congressional intent to improve the quality of care delivered to Medicare beneficiaries nearing the end of life,” the lawmakers wrote in the letter. “Unfortunately, we believe the design for the Hospice Special Focus Program (SFP) that the Centers for Medicare & Medicaid Services’ (CMS) proposed in its Calendar Year 2024 Home Health Prospective Payment System Proposed Rule (CMS-1780-P) would, if finalized, not adequately identify hospices that are truly struggling with performance.”

The lawmakers objections focused on four main concerns:

1. The program would rely heavily on survey results, yet CMS has an extensive backlog for those inspections. Nearly 40% of hospices have not been surveyed within the three year timeframe, the agency reported.
2. The algorithm that CMS plans to use to identify hospices for the SFP would “disproportionately disadvantage” larger hospices and fail to capture poor performers, the four legislators indicated in the letter.
3. The proposed methodology places too much emphasis on data from the Hospice Care Index (HCI) and the Consumer Assessment of Healthcare Providers and Systems (CAHPS) surveys data, because large numbers of hospices do not report that information.
4. CMS has updated its processes for hospice surveyor training, but it remains unclear whether, at this point, a sufficient number of those personnel have received that education.

The SFP program was developed in response to July 2019 reports on hospice quality from the Office of the Inspector General (OIG) in the U.S. Department of Health and Human Services (HHS).

It would have the authority to impose enforcement remedies against hospices with poor performance on regulatory or accreditation surveys, the HCI and CAHPS scores. Hospices flagged by the SFP would be surveyed every six months rather than the current three-year cycle.

Among the potential enforcement actions for the SFP are monetary fines, suspended reimbursement, appointment of temporary management to bring the hospice into compliance or revocation of a provider’s Medicare certification.

“We request that CMS, in consultation with the TEP, address the aforementioned limitations, and provide opportunity for stakeholder input on the changes prior to finalizing the SFP,” the Congress members wrote. “Additionally, CMS should provide all Medicare-certified hospices a preview of how they perform under the updated SFP prior to formally launching the program. This dry run will allow hospices to better understand the SFP itself, as well as helping them to target quality improvement efforts.”

CMS indicated in the proposed rule that as many as 5,943 hospices could be placed in the SFP. The agency would select providers from the lowest 10% of performers based on its selected metrics.

The four largest hospice industry groups have all voiced similar concerns in public comments on the proposed home health rule, including LeadingAge, the National Partnership for Healthcare and Hospice Innovation (NPHI), the National Association for Home Care & Hospice (NAHC) and the National Hospice and Palliative Care Organization (NHPCO). Each of these organizations has also expressed support for the SFP as a concept.

Though the recommended changes to the SFP would require a significant delay, the need to ensure an effective program outweighs expediency, according to Mollie Gurian, vice president of home-based and HCBS policy at LeadingAge.

“It’s critically important that they get this right. [CMS] is taking great steps on fraud and abuse, we want to make sure that they take that same time and attention to this quality improvement effort,” Gurian told Hospice News. “They’re going to publicly report out who’s selected for it, and if the algorithm is not right, we could be steering beneficiaries to poor performing hospices, which would be a really bad outcome and worse than waiting.”

Consistent with the lawmakers’ concerns, the algorithm that CMS plans to use is the major sticking point for the hospice community.

“We appreciate the continued leadership by our congressional champions in sending a message to CMS to return to the drawing board and work with the TEP to fix the issues with the current selection algorithm,” Logan Hoover, vice president of policy and government relations at NHPCO, told Hospice News.

Van Duyne and Blumenauer have been vocal on hospice program integrity issues during the past two years, including reports of fraudulent practices among hundreds of newly licensed hospices in California, Texas, Nevada and Arizona.

Van Duyne and Blumenauer in February led a group of lawmakers who wrote to CMS Administrator Chiquita Brooks-LaSure, asking for the agency to brief them on fraud and abuse within the hospice benefit.

Any regulatory action should take input from the hospice community into consideration, Van Duyne told Hospice News in June. 

“There are opportunities to start making additional regulations. But before we start our policy in place, my first thought right now is talking to more of those people who are providing this critical care, because what I’ve seen so far is that care providers are desperate for regulations,” she said. “But they don’t want to get lumped in with bad actors, and they don’t want us creating needless regulations that are going to hamper their ability to do that care.”