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Thought Leadership

Grace from CMS: Unexpected Good News on HIS and CAHPS Appeals



November 01, 2023
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Hospice & Palliative Care 


For a variety of unfortunate reasons, some hospices found themselves facing a 4% rate reduction for non-compliance with either Hospice Item Set (HIS) or Consumer Assessment of Healthcare Providers & Systems (CAHPS) requirements. For the third year in a row, the Husch Blackwell hospice team successfully advocated that the penalty not be imposed on its clients and CMS agreed! In this episode, Husch Blackwell’s Meg Pekarske and Jacob Harris share more about how they achieved these thrilling results. This is a good listen and reminder for all of us that good advocacy can make a difference and CMS does keep an open mind.

Read the Transcript

This transcript was auto-generated using Adobe Premiere Pro.

00;00;05;01 - 00;00;41;27
Meg Pekarske
Hello and welcome to Hospice Insights: The Law and Beyond where we connect you to what matters in the ever changing world of hospice and palliative care. Grace from CMS: Unexpected Good News on HIS and CAHPS Appeals. Jake Harris here you are again third year in the row with good news to deliver, which was really exciting. I ran out of my office to your office because we were in the office that same day together, gave you a big hug and was like jumping up and down and like my heart was beating fast.

00;00;41;27 - 00;00;44;11
Meg Pekarske
And anyway, it was a very exciting day.

00;00;45;10 - 00;01;28;21
Jacob Harris
I can confirm it was a scene here at our new office in Madison when we learned that we saved our clients a combined several million dollars in the fiscal year 2024 APU. This was the first year that CMS increased the penalty from 2% of the APU to 4% of the APU. You so would have been a tremendous, tremendous hit for the providers or the non-compliant, but thankfully we were able to win and many of our reconsideration requests and they gave that penalty as the first stage of the appeal process this year.

00;01;29;10 - 00;02;04;12
Meg Pekarske
Yeah. So we've sort of built a machine around this because we have done them for now the last three years and have had tremendous success and hence the title Grace from CMS. I mean, I have really appreciated that CMS has been willing to really look at the circumstances and sort of see holistically the impact this is having and what people's efforts were.

00;02;05;16 - 00;02;34;26
Meg Pekarske
Because I don't know that you necessarily always feel that people understand and the impact that this is going to have. Because I think in all the cases we had, we had clients with a variety of different circumstances, but all made great efforts to comply and for a variety of circumstances did not. So I guess tell me a little bit about the stories that sort of weave all these different cases together.

00;02;34;26 - 00;02;44;23
Meg Pekarske
Like in the past, COVID was really the thing. But, you know, in this year there was more, I think, variety than that.

00;02;44;23 - 00;03;18;27
Jacob Harris
There's no doubt about that. This was by far the greatest variety of circumstances that our providers faced three years that I've been preparing and submitting these. You know, a couple of years ago, these reconsideration requests looked very similar because everyone was being beset by challenges related to the COVID 19 pandemic. And while there were certainly COVID 19 related challenges that faced providers in calendar year 2022 as well, there were other things.

00;03;19;05 - 00;03;54;09
Jacob Harris
We had clients who or deemed not compliant with the HIS reporting requirements. We also had clients who were deemed non-compliant with the CAPS survey requirements. We had clients who were brand new providers in 2022. And thanks to delays, frankly, a large part on CMS’s then we're not able to begin successfully submitting data right away. We also had, you know, long time providers who just ran into issues during this particular this particular year.

00;03;54;26 - 00;04;35;09
Jacob Harris
We had staffing challenges for different providers, particularly in an inflationary environment is in an environment where it's difficult to find well-qualified, well-trained employees to handle these responsibilities. And as I mentioned, we did still face some COVID related challenges as well. So what we were able to do this year was really try and dig deep into the unique facts of each particular provider's circumstances to try and build a narrative, try and stack two, three or four different things going on and, you know, portray their situations as accurately as we possibly could.

00;04;35;19 - 00;04;41;05
Jacob Harris
And thankfully, the result of that was sort of great mercy from CMS.

00;04;42;01 - 00;05;01;15
Meg Pekarske
Yeah, it was an exciting day to get the mail so because it took, you know, into October to get some of these results. So it was a lot of hand wringing I think, till then.

00;05;01;15 - 00;05;27;00
Jacob Harris
So that was another kind of interesting wrinkle this year is typically these results are received within about 30 days. So the reconsideration request deadline is sometime in mid-August and then we'll usually receive that by mid-September. But that didn't happen this year. And then CMS sent out a bulletin about a number of different things related to the Hospice Quality Reporting Program.

00;05;27;10 - 00;05;49;09
Jacob Harris
And one of the things they mentioned was they was that the decisions should be coming by October 1st and then that didn’t happen. We kept waiting a few weeks longer, following up periodically with our contacts over at CMS. But so I think that's sort of another take away is sometimes no news is good news and good things come to those who wait. And that was certainly the case this year.

00;05;49;09 - 00;06;12;12
Meg Pekarske
Yeah. So I can't say I'm always the optimistic one, but when I was talking to Bryan on our team, I was like, I have a good feeling about this because it's like, if someone's going to say no, you sort of say No fast, not no slow. So I kept my optimism for a while. Of course, as a lawyer, any good lawyer like I'm sure it will never happen.

00;06;12;12 - 00;06;50;19
Meg Pekarske
But I wasn't giving up all hope so maybe that's as optimistic as lawyers get. But so I guess one interesting thing that well, maybe even before we go there, I think, you know, a takeaway for everyone listening is if you do get noncompliance, you should file reconsideration and it's a fairly low cost affair. And we've been doing so much of this over, you know, the last number of years that I think we have, you know, really good infrastructure around how to do this efficiently.

00;06;51;02 - 00;07;34;29
Jacob Harris
100% that that's the biggest takeaway takeaway for me when I look at the last three years is that the success rate and the reconsideration phase with CMS is actually taking a look at these on an individual level before they go to those next levels of appeal. The success rate is pretty high. And candidly, I'll tell you that the success rate, even on sets of facts, where when they come in the door, we look at them as attorneys and we say, oh, gosh, you know, this doesn't really seem like a great excuse or it doesn't really seem like what we think CMS might be looking for and we submit a reconsideration request anyway and we get

00;07;34;29 - 00;08;04;23
Jacob Harris
a good result a lot of the time. So there is no set of circumstances where I would say it's not worth it to submit a reconsideration request. And as Meg mentioned, we have become quite inefficient at putting these together, preparing the submissions, getting them filed early. And it really is is a kind of a no brainer cost, particularly now that it's 4%.

00;08;04;26 - 00;08;06;27
Meg Pekarske
Yeah, yeah.

00;08;06;27 - 00;08;22;23
Jacob Harris
For the vast majority of our clients and the amount that it costs us to gather facts, review records, prepare and submit a reconsideration, request is just enormous. So we would we would recommend that any time you get a noncompliance determination.

00;08;23;20 - 00;08;41;18
Meg Pekarske
Well, and maybe the last takeaway here is if you think you might be non-compliant for whatever reason, don't wait to get that letter because we have worked with clients to and you'll give me the right. Is it an extension or exception?

00;08;42;11 - 00;09;07;28
Jacob Harris
Yeah, there are actually two different paths you could you could seek an extension, which means we will submit the data or we have we have submitted the data, but it's late as outside of that 30 days from the events. And then there's an exemption, which means something is going on such that we can't get you the data, even if again, giving us a little bit more time is not is not really going to help that.

00;09;08;01 - 00;09;35;03
Jacob Harris
And a lot of times that will be a natural disaster, such as a hurricane or earthquake or something that happens to the Hospice's facility. But either way, whether you just need a little bit more time or whether you need some grace to be shown for a particular period, seeking an extension or exemption request is always going to be viewed more favorably by us than waiting until you're deemed non-compliant and then seeking a consideration.

00;09;35;20 - 00;10;05;12
Meg Pekarske
Yeah, so I think that's something that maybe folks don't know was an opportunity. And so I guess don't sit on your hands or wringing your hands. I mean, like, oh, you know, I might not comply, you know, when in doubt, seek, seek relief early because we have had good results there. And again, some grace from from CMS in those circumstances, too.

00;10;05;12 - 00;10;39;11
Meg Pekarske
So, gosh, I hope we can do not that I want anyone to be non-compliant next year, but I hope we can do a four year in a row podcast on this because it is it's nice to know that that CMS does really listen and take to heart what providers have to say. And so this was this was a wonderful result because I think, you know, in today's current you called it inflationary environment and staffing challenges, just all costs going up.

00;10;39;11 - 00;11;07;03
Meg Pekarske
I mean, essentially a 4% rate reduction is essentially completely eliminating the rate increase that we got. So to stay flat, you know, it just it's not a good situation. So I think that this this is meaningful work that we did, Jake. So so thank you for your efforts and leading the charge. And it was just really remarkable what we were able to achieve.

00;11;07;03 - 00;11;12;16
Meg Pekarske
If I am going to pat myself on the back here and you I've already talked to you so but.

00;11;13;02 - 00;11;19;25
Jacob Harris
So that's great. And our hope is that we get as few of these issues as possible, but that we win the ones that we do get.

00;11;20;09 - 00;11;32;10
Meg Pekarske
Yeah, exactly. So. Well, thanks for making the time to talk about this. Good news, right? We need more time to talk about good news. So thanks for making the time and great job.

00;11;32;12 - 00;11;34;27
Jacob Harris
I appreciate it.

00;11;36;09 - 00;11;53;24
Meg Pekarske
Well, that's it for today's episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at or sign up wherever you get your podcasts. Until next time, may the wind be at your back.


Jacob B. Harris

Senior Associate