This transcript has been auto generated
00;00;00;00 - 00;00;30;05
Bryan Nowicki
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. Key Takeaways From the Fiscal Year 2027 Hospice Final Rule. Well, hello Andrew and Brooke. How are you doing? Andrew, you’ve been a guest here before? Over the years several times.
00;00;30;07 - 00;00;38;18
Andrew Brenton
Yes, I have. And it’s always great to be back and be chatting with you, Bryan, about, in this case, a fun hospice topic.
00;00;38;20 - 00;00;44;02
Bryan Nowicki
Yeah, well, they’re all fun. If you’re having fun. I mean, some of them lately have been scary.
00;00;44;05 - 00;00;44;25
Andrew Brenton
Yes.
00;00;44;25 - 00;01;06;28
Bryan Nowicki
Not an easy time to be a hospice, but, hopefully through these podcasts, we’re able to illuminate the, the, the state of the hospice community. And, Brooke, this is your first podcast. You’re a longtime member of our team, kind of taking, responsibility over a lot of complex projects. But I was surprised that this is your first podcast.
00;01;06;28 - 00;01;09;17
Bryan Nowicki
We we should have had you on earlier. How are you doing?
00;01;09;19 - 00;01;15;18
Brooke Griffin
Yes, it is. I am doing well. It’s great to be great to make my debut on the on the podcast.
00;01;15;20 - 00;01;38;21
Bryan Nowicki
All right. So you know, the the tradition is the first time podcaster you got to take Andrew and I out to lunch. Yeah. Sometime. So it’s you know we don’t want to break truth tradition there. So. Well, yeah. Brooke. Yeah. You know, Brooke, you and I work together quite a bit on, audit appeals. I know you work with Andrew on regulatory stuff.
00;01;38;23 - 00;02;06;25
Bryan Nowicki
So. And you work in areas with other providers, which I think gives you a great perspective to bring that to our hospice home health palliative care clients. So appreciate all the work you do. And, for those who are listening, you know, you’re going to if you haven’t already worked with Brooke. She is she’s very good to work with and, you know, request her by name if you’d like, if you want to do some work for her.
00;02;06;25 - 00;02;08;18
Brooke Griffin
Appreciate that. Thank you.
00;02;08;19 - 00;02;36;23
Bryan Nowicki
And oh, you’re welcome. So anyway, we’re talking here about an annual right of the hospice community. The, the final rule for this year, it often comes wrapped up in a wage index, so-called, or other, kind of proposed rule that is put out there by CMS, subject to comments. And then a final rule. And so sometimes there’s a lot of interesting things in there.
00;02;36;25 - 00;03;12;23
Bryan Nowicki
Sometimes new developments, sometimes just tweaks. You know, the new payment rate comes out. So always, hospices are always very interested in seeing what kind of pay hike they’re going to get. And hopefully it’s a pay hike. So there’s a lot of stuff in there, but we’re going to focus on a few of what I think are the key items in there from a compliance regulatory perspective, and where we expect and in fact, have already had folks reach out to us for some additional guidance about what this means, what this portends for the future.
00;03;12;23 - 00;03;35;07
Bryan Nowicki
So let’s hit on a few of these. We’re going to go over the SSVI, the election statement addendum, and then a couple of requests for information CMS put out there that I think reveal kind of what’s down the pike for CMS and the hospice community. So let’s start with SSVI. Brooke, what can you tell us about that?
00;03;35;07 - 00;04;06;23
Brooke Griffin
Yeah so, CMS, they’ve been tracking, what they’re calling a troubling trend. So they’ve identified that Medicare spending on non hospice items and services for beneficiaries who have already elected hospice keeps rising. And this is even though hospice is per diem is supposed to cover all virtually all care related to the terminal illness. And so in response a CMS built the Service and Spending Variation Index or we’ll call it SSVI because that’s quite a quite a acronym.
00;04;06;25 - 00;04;21;05
Brooke Griffin
And that is a scoring system built from nine claims based metrics covering things like live discharge rates, length of stay over 180 days, skilled nursing minutes, weekend visit rates and total non hospice spending.
00;04;21;08 - 00;04;47;22
Bryan Nowicki
Yeah. And and so I think in the work we do Brooke we’re always are we always asked by clients why am I getting audited. And they might even say well my pepper report shows I’m not an outlier but the kinds of things they’re tracking with in the s they’re tracking and the SSVI, I think they coincide with a lot of the things that we tell clients might raise a red flag.
00;04;47;22 - 00;04;51;28
Bryan Nowicki
So what are some of those items that are part of this scoring index.
00;04;52;04 - 00;05;13;26
Brooke Griffin
Yeah. So and by the way, all of these if you want some light reading, you can actually go pull up the table within the Federal Register, table nine. And it has a description of all of these, metrics. And so a few of these would be so one would be, continuous home care or like providing no continuous home care and no general inpatient care.
00;05;14;02 - 00;05;38;23
Brooke Griffin
So that would be, something that would be a flag and would earn you a point, on this SSVI. Aother would be the percentage of routine home care days that are provided in a in a nursing home or skilled nursing facility, and their threshold value is greater than or equal to 40%. And so if you hit that threshold, that would also earn you a point on the SSVI.
00;05;38;26 - 00;06;20;14
Brooke Griffin
Moving on. They have, the percent of the last two routine home care days of life with visits and their threshold value is less than or equal to 25, the 25th percentile, and so on. So, so yeah, there’s other ones that track like the percentage of total discharges that are live discharges, percentage of discharges with the length of stay over 180 days, average skilled nursing minutes on routine home care, weekend routine home care days with a skilled visit as a percentage of total routine home care days, and then percentage of live discharges where beneficiaries return to the same hospice in seven days.
00;06;20;17 - 00;06;48;28
Brooke Griffin
And then there’s one category of total non hospice spending. And so each each of these nine metrics that I just listed, they each have their own threshold. And so generally it’s the top or bottom 25th percentile. That and if a hospice earns a point each time they cross a threshold and those percentiles and that, that last metric of non hospice spending that’s scored on an eight tier scale of its own and it carries extra weight.
00;06;49;01 - 00;06;54;28
Brooke Griffin
And so the result will be a single score from 0 to 16 for every hospice.
00;06;55;01 - 00;07;12;08
Bryan Nowicki
Do we have any information about what CMS considers to be a score that might warrant additional scrutiny or help alert a hospice itself that it may need to, maybe apply some additional compliance resources to some of these areas?
00;07;12;10 - 00;07;34;26
Brooke Griffin
Yeah. So, CMS has indicated that a score so point value of 13 or higher would be roughly the 99th percentile. And that would be, a hospice that’s an outlier worth further review. And that whether that’s medical review education or in the really serious cases payment suspension or revocation.
00;07;34;28 - 00;08;17;00
Bryan Nowicki
Yeah. And I think, I think it’s a good idea for hospices to start tracking what their score is. And, Brooke, with our audit team, we’re going to be tracking hospices that get reviewed. What is their SSVI score. So we can see if CMS is sticking with this 13 point threshold or higher or departing from it. So I mean, there’s a lot of reasons hospices might get audited, but I think this is another good compliance tool for people to have to make sure you’re not becoming an outlier in any one of those categories, or your aggregate points are not exceeding a certain amount, you know, stay under the radar and you do that through
00;08;17;00 - 00;08;37;27
Bryan Nowicki
good compliance. Now, as I mentioned, these this final rule, the community, the hospice community was able to comment about all of these proposals, including the SSVI. What was the nature of the comments that the provider community, had about this particular index?
00;08;37;29 - 00;09;02;18
Brooke Griffin
Yeah, yeah, the commenters did, have a quite a bit of pushback. And they, they basically argued that the SSVI can’t distinguish inappropriate utilization from clinically appropriate care. That, that basically that the 25th and 70 75th percentile thresholds are arbitrary. And they basically ask CMS to pull it, from public view, or at least build in some sort of reconsideration process for providers.
00;09;02;20 - 00;09;30;03
Brooke Griffin
But unfortunately, CMS, held its ground and clarified that crossing one threshold is not meaningful on its own, and that the tool is designed to flag hospices that are outliers across multiple measures at once. And, because the SSVI is built entirely from finalized claims data, CMS said there’s no, natural mechanism for a provider’s specific reconsideration process the way there would be for a clinical quality measure.
00;09;30;05 - 00;09;57;20
Bryan Nowicki
So I guess we’re going to have to live with SSVI. We’ll see how it is used in practice. And there’s always the unexpected in terms of, you know, is it going to inadvertently, draw a lot of indisputable high quality providers into some sort of review? That kind of outcome I don’t know that that’s necessarily a deterrent for CMS anymore.
00;09;57;20 - 00;10;28;09
Bryan Nowicki
I think they’re doing a lot of across the board enforcement with PPEO and other things that aren’t necessarily tied to how reputable you are or the quality of care you’re providing. So you had mentioned Brooke, one of the one of the factors here is non hospice spending. And of the 16 point scale this non hospice spending can account for up up to how many up to eight points or what’s the what’s the amount that that non hospice spending can account for.
00;10;28;16 - 00;10;33;24
Brooke Griffin
Yeah. That can account for up to up to eight points of the. Yeah of the 16.
00;10;33;26 - 00;10;38;26
Bryan Nowicki
And are there any particular areas that CMS is concerned about with that kind of spending.
00;10;38;28 - 00;11;01;08
Brooke Griffin
Yeah. And in the final rule skin substitutes and wound care came up repeatedly. And CMS noted that carrier claims for pressure ulcers increased almost 4,000% from fiscal year 2020 to fiscal year 2024. And pushed back hard on the idea that this is purely a non hospice provider problem outside of hospice control.
00;11;01;10 - 00;11;27;06
Bryan Nowicki
Yeah. Yeah. Well the wound care thing, that whole practice area seems to have collapsed as of early this year when they changed the LCD. I think CMS just decided that’s that’s not a good area for Medicare to be investing funds. So we’re not likely to see that continue. But I think that’s a good example of the kind of things that CMS would expect the hospice to cover.
00;11;27;08 - 00;12;04;00
Bryan Nowicki
CMS had a had a call last week about about this particular topic, and I think there were some, pushback suggesting that really out the non hospice spend ought to be measured on a per patient basis as opposed to an aggregate basis, because as an aggregate, larger providers are just going to add up more of those non hospice spending dollars, even if it’s minimal across a minimal on a per patient basis, because the threshold starts at like $1 I think.
00;12;04;00 - 00;12;29;03
Bryan Nowicki
And and goes up from that. So CMS really again like you had described with that other kind of the use of the quality measure CMS stuck to its guns during the call at least. And they view, you know, the dollar problem, the problem as the aggregate dollars. It’s $1 million, even if it’s spread across, you know, 100,000 patients or claims it’s still $1 million problem.
00;12;29;03 - 00;12;51;08
Bryan Nowicki
And that’s what they’re going to take seriously. So more to come on that. Andrew, let me bring you into this because there is another issue with it, not an issue. But, there was updates in the, final rule relating to the election statement addendum. So it’s been with us for a while, but what did they do this time?
00;12;51;10 - 00;13;21;26
Andrew Brenton
CMS did a couple things with the addendum, and all of these changes go into effect or went into effect October 1st, 2026. So before October 1st, 2026, the addendum provision saw hospitals having to furnish the addendum. It was conditioned on a couple different factors. The patient had to request the addendum, and the hospital had to have determined that the patient had something that was unrelated to hospice.
00;13;21;28 - 00;14;03;08
Andrew Brenton
So on October 1st, those distinctions, those conditions collapsed. And the addendum is just now it required to be provided to every Medicare beneficiary at hospice admission. And that’s within five days of the hospice admission related to that requirement. Now to furnish the addendum to all Medicare beneficiaries, technically, the election statement itself, the content or required content of the election statement also changed because the, the content in the regulations sort of, you know, referenced this kind of regime where the addendum was provided upon request.
00;14;03;08 - 00;14;23;20
Andrew Brenton
But now that it’s provided, mandatorily some tweaks were made to the election statement content itself. So, CMS actually updated both model forms, both the the model hospice statement form and then the model election statement addendum form to kind of reflect that.
00;14;23;22 - 00;14;48;25
Bryan Nowicki
So I think a couple of, of items that we’ve encountered is, how how do you what does it mean to furnish the addendum to a patient or representative? And then there’s the signature requirement where you need somebody outside the hospice’s control to, sign the signature as a requirement. But there are some contingencies in the regulation.
00;14;48;28 - 00;14;52;14
Bryan Nowicki
What can you tell us about those aspects of this requirement?
00;14;52;16 - 00;15;21;07
Andrew Brenton
Yeah. So in terms of furnishing we have that and questions from clients essentially, you know, can we furnish the addendum electronically, you know, via email or posting it to a portal? The answer seems to be yes. There was some ambiguity, I would say, in the role commentary itself, or CMS seemed to maybe be backing off of a more liberal stance that it had taken.
00;15;21;10 - 00;15;52;11
Andrew Brenton
But in some more recent, guidance from CMS and presentations from CMS, it does appear that CMS permits the election statement addendum to be furnished electronically, with the big caveat that, the patient has to sort of want that method. It has to be capable of receiving it via that method. So if a patient doesn’t know how to use computers, right, that then you know that no one can help that person use a computer.
00;15;52;11 - 00;15;57;17
Andrew Brenton
That might not be the best method to furnish it electronically.
00;15;57;19 - 00;16;12;27
Bryan Nowicki
So, so with some of these timeframes, like the five day timeframe, if the if you furnish it to the patient on day four, they return it signed on day seven. Is that, is that a problem?
00;16;12;29 - 00;16;44;14
Andrew Brenton
No, that is not a problem. So the, the addendum has to be furnished within that, that five days. It doesn’t have to be signed within that five days. And in fact, there’s the regulation actually contemplate that a patient may refuse to sign the addendum or, you know, may expire, you know, before they ever received it. And, but no, if you furnish the addendum timely, that is acceptable, even if the patient takes a bit of time to, to sign it.
00;16;44;17 - 00;17;05;23
Bryan Nowicki
So, okay. Yeah. Anything else about the addendum that, again, this is the kind of thing that we’ll see how enforcement follows this new set of regulations the Max tend to have. They’re not always in lockstep with what CMS may intend. So and they’re not always consistent with one another. So we’ll see how it goes.
00;17;05;23 - 00;17;42;08
Andrew Brenton
I think kind of, a last, observation will be on, updates to the addendum. So the regulations also were adjusted, starting on October 1st. So, right, you’ll be creating the addendum for all Medicare patients. The regulations also say that if there are changes to the care plan that impact the relatedness determinations, that the hospice made in preparing the addendum, then the then an updated, then an has to be provided within three days.
00;17;42;10 - 00;18;00;10
Andrew Brenton
So I think again to to your point, want to see how enforcement plays out. But I think providers will want to keep in mind not just the mandatory provision at admission, but also, monitoring care plan updates that impact the relatedness determinations that were already made.
00;18;00;13 - 00;18;16;02
Bryan Nowicki
All right. Great. Well thank you, Andrew and and Brooke, let’s go back to you. I had reference these requests for information. Were there some requests for information that we thought were particularly noteworthy in this final rule?
00;18;16;04 - 00;18;41;09
Brooke Griffin
Yeah. So CMS, they had asked for input on a couple other of topics. The first was community based palliative care outside of hospice. CMS does not currently have a dedicated palliative care benefit. And so, they asked how providers currently bill for palliative services under part V the Evaluation and Management codes, advanced care planning codes and chronic care management codes.
00;18;41;16 - 00;19;10;06
Brooke Griffin
And then also where those gaps are, it seemed that commenters broadly supported expanding community palliative care. And they also floated ideas like a dedicated palliative care assessment code, a bundled or capitated palliative care benefit, new billing codes for social workers and community health workers, and making palliative care telehealth flexibilities permanent. And so, CMS basically said they will take the feedback under advisement for future potential, rulemaking.
00;19;10;09 - 00;19;19;27
Brooke Griffin
And of course, nothing’s finalized here. But, I think it gives good perspective as to where CMS head is at. Looking ahead.
00;19;19;29 - 00;19;46;24
Bryan Nowicki
Yeah, it seems this is part of them taking a fresh look at the hospice benefit. You know, they’re really coming down hard on the enforcement side to try to root out fraud. And I think it’s also having the effect of making the hospice space less attractive to providers or more expensive to be in. We know there’s legislation out there to reform the payment system for hospices.
00;19;46;24 - 00;20;09;10
Bryan Nowicki
And I’m kind of looking at this as do they see an expansion of the palliative care or the creation of a palliative care benefit as another way to kind of be a substitute for some of the ways for the hospice benefit and addressing some of the ways the hospice benefit has been abused. So I think that they’re probably looking for other ways
00;20;09;10 - 00;20;40;12
Bryan Nowicki
I don’t think this is because they are, kind of altruistically thinking in and of itself palliative care is a great thing, but how can we use a palliative care reform to help lower the incidence of bad actors or problems with the hospice benefit? So, yeah, this is this could foretell a lot of interesting discussions within CMS about what else they’re going to do apart from enforcement to change the hospice benefit.
00;20;40;14 - 00;20;41;24
Bryan Nowicki
What else? Brooke.
00;20;41;26 - 00;21;03;21
Brooke Griffin
Yeah. So the second area, what, worth noting is the medical aid in dying. Sometimes the, abbreviation is MAiD or in CMS is on regulatory terms, assisted suicide. And so federal law flatly prohibits using Medicare funds for anything related to causing a patient’s death. Even in states, I think there’s 11 states where MAiD is legal under state law.
00;21;03;23 - 00;21;33;27
Brooke Griffin
And CMS asks in the in the commentary, they had asked hospices how they handle patients who pursue MAiD and, do they continue providing hospice care? Do they encourage revocation? And what happens to unused medication? And hospice commenters generally said that they continue care through the day of death and have clear internal policies. Other commenters, including physician groups, oppose any move towards integrating MAiD into Medicare funded hospice care, and raised billing fraud and oversight concerns.
00;21;33;29 - 00;21;50;07
Brooke Griffin
And, and the final rule CMS was, careful to say that this RFI does not signal a coming proposal to integrate MAiD into the hospice benefit. And that it’s purely fact finding to understand whether additional oversight is needed to keep federal funds walled off for MAiD related items and services.
00;21;50;09 - 00;22;15;29
Bryan Nowicki
Yeah, this has become an issue that in the past three years or so, our team has devoted more attention to because of those 11 states and states mandating that health care providers allow it with certain exceptions. And the federal government prohibiting federal funds was led to some interesting questions. I think you can’t use federal funds to assist or cause.
00;22;16;01 - 00;22;40;20
Bryan Nowicki
What does that mean? How are you causing that or participating in causing that? By providing information, providing brochures, referrals. And you really got to dig into each state’s laws because we have folks who they say we don’t want to participate, how do we not participate? Or what if we have an employee who refuses to participate in that? So yeah, it’s, a can be a sticky situation.
00;22;40;20 - 00;23;15;13
Bryan Nowicki
I guess it’s good that CMS might be coming, might becoming mindful of this, checkerboard of different state regulations on this. Now, what CMS is going to do with all this information? Unclear to me right now. But, but I think if uniformity is available or they come up with some general principles that might, help our clients who right now are coming to us with rather nuanced questions that we can answer on a state by state, issue by issue basis.
00;23;15;15 - 00;23;27;13
Bryan Nowicki
But more general guidance might be helpful for hospices just to get some clarity on this. So. All right, any last words Andrew or Brooke on what we talked about?
00;23;27;16 - 00;24;02;20
Andrew Brenton
Well, on on the addendum, part of the discussion, I would just reiterate, right. You know, the requirements went into effect, October 1st. So, you know, important to kind of get your process in place to start providing, the addenda to everyone and keeping track of, you know, care plan updates that impact the addenda. And then also, take a look at your election statement itself to, you know, see if you need to update the language to address the fact that you’re providing it to everyone, not not upon request.
00;24;02;20 - 00;24;08;04
Bryan Nowicki
All right. And, Brooke, you get the last word. You can. Yeah. The rookie here, you can take us out with a bang here.
00;24;08;07 - 00;24;36;27
Brooke Griffin
Yes. Well, similar to Andrew’s, advice related to the election statement addendum. With respect to the SSVI, and all the new, everything new from the final rule, I would suggest to take a look at your own utilization data the way that the SSVI does. And if you’re an outlier on several of the nine metrics at one particular particularly on non hospice spending, I think that’s worth getting ahead of before CMS does.
00;24;36;29 - 00;24;58;04
Bryan Nowicki
Great, great advice. Well, thank you, Brooke, and we will have you on again real soon. Appreciate all your work. And Andrew, as always, thanks for the insights. And, for those listening, feel free to visit our website, send us suggestions for future podcast episodes. We’re always happy to address what’s on your mind, but till next time, take care.
00;24;58;06 - 00;24;59;04
Brooke Griffin
Thank you.
00;24;59;06 - 00;25;03;04
Andrew Brenton
Thank you, bye.
00;25;03;07 - 00;25;23;07
Bryan Nowicki
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 huschblackwell.com or sign up wherever you get your podcasts. Until next time, take care.