Skip to Main Content
Thought Leadership

Survey Woes: CMS Ramps Up Hospice Survey Program and Consequences



Hospices have been the target of increased government scrutiny in 2023, and the Centers for Medicare and Medicaid Services (CMS) is planning to take further aim in 2024 through surveys. Join Husch Blackwell’s Meg PekarskeEmily Solum, and Erin Burns as they talk about a cautionary survey tale and proposed changes to the hospice survey process, including the introduction of an informal dispute resolution (IDR) process, and a special focus program for poor performing hospices.

Additional Resource:

Read the Transcript

This transcript was auto-generated using Adobe Premiere Pro.

00;00;05;01 - 00;01;44;23
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. Survey Woes: CMS Ramps Up Hospice Survey Program and Consequences. Oh Erin, Emily very fun topics that we're talking about today. I think that though, what I hope to do and we're recording this at the end of July 2023 and so are things we're talking about or more hot off the press kind of things. But there is some good news in here. I mean, in terms of as a lawyer about due process and getting more rights and things, but but where I wanted to start this conversation about sort of the survey was, is this case that recently came out that we're going to have a link to. And and Erin, I want to talk to you about this case because you and I were both, you know, found it disturbing. Is this case where you were calling a cautionary tale where and this is under the old survey regime. And so as we talk through this podcast, hopefully the things that happened in this case are not going to happen because there is going to be intermediate remedies and, you know, there's not going to be a run to termination. But but anyway, why don't you talk about this case briefly and then we can sort of say, you know, if I'm running a hospice, what would I do in light of this?

00;01;45;19 - 00;04;13;07
Erin Burns
Yeah, Thanks, Meg. And I'm happy to be here talking about although it's not a great topic or a fun topic, but something different than what I'm normally here talking about, which is artists. But so in this case, it was a Department of Appeals board decision or really an administrative law judge decision where the ALJ affirmed a CMS termination of a hospice provider, their Medicare agreement in their participation in Medicare, really for what we would consider maybe a minor reason and alone single deficiency in a survey. It was a condition level deficiency and immediate jeopardy related to the core services requirement. So that sat for 18.64 and specifically nursing services. And what happened here was the hospice had a patient, he was a sniff cancer patient, and he had ongoing pain from the time of admission through being admitted into the nursing facility. And what happened was the nursing facility had an incorrect amount or an incorrect note related to a specific medication for this patient, and the hospice failed to catch it quickly. And when they did catch it, the ALJ and CMS essentially allege that they didn't fix it promptly enough and therefore it they didn't adequately manage the patient's care. It impacted the patient's health and safety by having two days delayed worth of medication. The really crucial thing here, the thing I think that blew you and Iowa and AG was that overall the hospice really won this case. They had a couple other survey citations that the ALJ kind of threw out, disagreed with the CMS on their findings. But on this one issue related to the discrepancy in the pain medication in the sniffs MA, that alone was enough to get them terminated. And the judge actually says termination is justified based on a hospices noncompliance with even a single condition of participation and so we've talked about before how the current survey process for hospices is pretty draconian. The only option if you have a survey level or a condition level citation and you don't get it cleared is termination. And this is one of those cautionary tales.

00;04;13;12 - 00;07;23;09
Meg Pekarske
Yeah. And labeling this, you know, you win, but you lose, right? Because they really got most of the survey citations kicked out, yet they still ended up being terminated. And, you know, I think there's a couple of things to remember. And really in this case, it brought back like PTSD when I did a lot of nursing home work because this happens where you have a bad survey and now there's additional remedies that nursing homes have, but the cards are really stacked against you and doing federal appeals on survey citations because there's a lot of deference to seniors and the legal standard is very different. So when I moved to just doing hospice work all the time, it was like moving to the winning side. Like, well, we actually burned cases because on the survey side it's a real uphill battle. And so I did feel very much like, Oh, I remember these days. And I think that and this is why this is sort of good news, bad news podcast, because hopefully when there are additional remedies and CMS doesn't just have one, you know, trick in its pocket, it is not going to use termination as the means of doing this. Another thing that stuck out at me when I read this case and given some recent survey work, we've been doing a lot of focus on core services and things that I don't even really, you know, think about core services because this was really a nursing issue, but they cited as core services. So I think being able to look out for that and then, you know, if I'm running a hospice, something that I take away from nurses, I need to build new skills on my team in managing survey process because the remedies are going to be more significant. And developing that relationship with surveyors is really important. And like if that relationship goes south, like there can be a spiral. And I've worked on many cases. I know you have to Emily and the survey work you've done where it's just that relationship goes south, there's becomes a lack of trust and then, you know, then it's just like it's very hard to pull yourself out. And so I think, you know, and I can think of several clients who are have great people who are very adept at dealing with surveyors. And I think, you know, if I'm the CEO of a hospice, just thinking, hey, who doesn't lose their cool and who can, you know, think on their feet and manage what can be sometimes a very you know, if you have a situation like this heated process that, you know, you bring solutions to it and not sort of escalate things. So I don't know. You know, we're going to talk about the due process part here in a second. But Emily, anything to add to your impressions of this case?

00;07;23;23 - 00;07;52;21
Emily Solum
No, I'll just echo what you just said, that it's it's incredibly important that you have a good relationship with surveyors. So again, on the good news, bad news side of things that now even though CMS doesn't just have termination available to it, we might be seeing more, more deficiencies se more remedies being imposed than you had in the past because termination was the only option previously. But now that they have alternatives available, they may be exercising that a lot more often than they previously had.

00;07;53;09 - 00;10;00;10
Meg Pekarske
Yeah, I completely agree, which is why I think, you know, I used to say when I moved to doing just hospice work, it's like, wow, it's a trade off, right? You get these payment audits, but we don't have like the kind of really significant civil monetary penalties on the survey side. Well, now we have tons of audit scrutiny and now we have, you know, it's looking like nursing home survey process in terms of where we're building. So I think it's you know, it's just the reality of where we are. And I think it's the maturity of our industry, right? I mean, there's a lot of things related to The New Yorker article that came out and other things, but I think this would have been in the works for some time just because I mean, they have been making changes to the survey process and the frequency of surveys and stuff. And so this is a sort of natural, I think, evolution and something that in turning to some of the new things that are coming out, like, I don't think this is all bad because I think something that's been real frustrating for for me dealing with hospice survey issues is there is no informal dispute resolution process. So both home health and nursing homes have what is called an IDR process. So when you get a survey citation and you disagree with something, you're out of luck. All you can do is maybe try to dispute some of the citations in your plan of correction. But in some states they'll take your plan of correction if you're too argumentative in your plan of correction. But you know, you had no way to say I disagree with any of this stuff. So so, Emily, the the new rule is talking about now get an IDR process that's very similar. So why don't you walk us through what what that's like And this is in the proposed 2024 home health rule.

00;10;00;25 - 00;12;57;03
Emily Solum
So back in 2021, as we mentioned, the regulations were changed to give CMS more remedies. And by remedies we mean essentially penalties that they can impose on hospices in lieu of termination. Whenever there is a deficiency. And when those rules came out, we were all very surprised that there wasn't a corresponding and formal dispute resolution process. And that was something that was available to skilled nursing facilities. It was available to home health agencies. So there had been some advocacy to get that added for hospices because that is a process in which the hospice can go before and a person who is considered an impartial reviewer and essentially it's like a mediation with the state surveyors. The state surveyors, you're usually in attendance or some representative from the state survey agency is in attendance to talk about why they cited that. But then the hospice is there with whatever individuals they want to bring with them. Maybe that's the clinicians, maybe it's just the administrator. You know, it just depends on the case. But it's an opportunity to actually have a conversation about what the hospice perceives as an inaccuracy within the survey, or even going so far as to argue that the that the level at which this deficiency was cited was incorrect. So maybe a condition level was cited. And the argument is that it should have been a standard level deficiency. And that puts it in front of someone who is, again, presumably impartial. Now, there are some states that maybe that's not 100% true, but it just gives you an opportunity to talk this over with everyone in the room. And you know that that process, it can have some impact to the survey in the end. So it's not necessarily something that's just always going to be against the hospice. So that's the good news. We can talk more about the actual appeal process before the Departmental Appeals board because that is separate. The ADR process is completely separate from your appeal rights that you may have if a remedy is imposed against you as a result of the survey and it's something that you have to request, keep this in mind. You have to request it within ten days of getting your statement of deficiencies. It's on the same timeline as your plan of correction. And so if you feel like there are inaccuracies and the statement of deficiencies, it's something you need to request right away. And that doesn't put your appeal rights on hold. So you might have this ADR process ongoing and still need to file an actual appeal with a departmental appeals board. If you want to challenge a survey in that way as well.

00;12;57;14 - 00;14;40;11
Meg Pekarske
And I think that the idea, our process, I mean, it's imperfect, right? But it is something I do think that having a guide and that can be, you know, a lawyer can be helpful. I did tons of ideas. I know you've done a ton of ideas, too, Emily, because you've got to pick your battle and you got to focus on things that actually matter instead of like getting sucked in the weeds because it's not going to have a meaningful impact. But I think really important for hospices to understand their rights and utilize them when it makes sense because we know survey findings that are public, right? All of this stuff becomes public. And the next thing we're going to talk about is special focus facilities. So these survey findings are turning up in a lot of different things. I think it's part of nursing home or hospice compared to and I mean, there's just a lot of ways survey findings are going to be used. So it is important to go on the record and just so you know, it's not just a conversation. I mean, you got to be prepared. And usually sending in documents, I mean, it is a heavy lift, I think, to do a good job. And as you said, Emily, it's a real compressed time period to do it. And so it is very stressful. But I think, you know, brushing up on what the process is, you is going to be important. And I think more to come on this because as this gets rolled out which is one thing effective days Erin. Emily and when this goes into effect.

00;14;40;20 - 00;14;56;05
Erin Burns
These are just proposed rule at the moment. So then the final rule will hopefully be, I think they're expecting comments back by the end of August and then the final rule would be released and the effective date is potentially January 1st or 2024. So pretty quick.

00;14;56;27 - 00;16;49;12
Meg Pekarske
Yeah, which I think given the urgency CMS feels under two, if there's hospice rules coming out and a whole bunch of different rules and not just our own, the wage indexes of caught me by surprise that it was in the home health for all of us hospice staff. And then there's even hospice stuff in the physician fee schedule proposed rules for hospice staff as it's coming everywhere. And it's because CMS then, you know, has a call to action to take care of or address a lot of the concerns that were raised in that New Yorker article. And but as you point out, Emily, this has been in the works for a while. I think it just sort of ends up colliding with, you know, other things going on. But the last thing I want to touch on and, you know, few people are going to be in this category, but again, it just as an indication like we're ten years behind everyone else, which is the special focus program. And in my career I work with special focus facilities and that was a hard road. I think there are some improvements in this process about who gets selected. Then I think there were initially a nurse in the nursing home special focus, the way that was run, but I know the Erin the special focus program, the way the proposal was written, it was a result of input from various stakeholders in this. And so one thing that I think came through loud and clear and I was very happy to see is there wasn't a quota by day, like everyone has talked to people and decided to do something much more equitable than the switch. Why don't you talk about how you get selected for special focus?

00;16;49;25 - 00;17;47;29
Erin Burns
So they're going to select those hospices that will participate in the special focus program through the algorithm. It's kind of a ubiquitous term for how they're going to select this 10%, and it is going to be a subset of the lowest 10% of performers based on data sources. And those data sources are going to include survey findings. So condition level deficiencies as well as substantiated complaints from complaint surveys. The others relate to the Hospice Quality Reporting program. So Care Index composite scores, your CAP survey results. And again, I don't know necessarily how they're selecting from the if they select 10% what that subset is, I don't know. I think it might be interested in the final rule if they kind of flush that out or whether there are comments asking about that. But ultimately find out in the final rule.

00;17;48;07 - 00;19;49;00
Meg Pekarske
Yeah, I thought it was interesting. And again, lots to be seen about how this shakes out was the integration of the cap score and just direct to consumer and and valuing that which I mean makes sense to do that. But I think more and more we're seeing, you know, caps play a bigger and bigger role. This is the first year we now if you don't report, you have a 4% haircut. We actually have a couple of clients that we're working on appeals for that because there were some issues. But but anyway, Cap, the you know, that consumer survey is becoming more and more important and we could do a whole nother podcast about, you know, how do you improve cap scores and all that other stuff. And but it is just they're putting in a high value on what our customers think about the care we give. So you can be perfect on paper, but if your customers are saying you never come when I'm called and waiting forever like and they're not having a good experience, which I think when we consider all of the staffing challenges that exist in health care, I mean, this is, you know, why how we do what we do. And it just that that direct patient care is really, I think, critical. And so so anyway, it is it is that we knew this was coming. I think there was some good news here in that it's not a quote by state. And so you could have many providers in a single state be on this and some states have no one on it. So I think that's a much more equitable result. But stay tuned. We may come August 20, 24, we might have different views on how this is working. That's true.

00;19;49;15 - 00;20;27;27
Erin Burns
So but I'll just note before we wrap before we wrap up on that, that because we're talking about the proposed rule, one will be final. They could start this program in quarter one of 2024. So the first round of hospices will be likely selected in early 2024. And so August of 2024, meg is probably a good time to revisit. I think the other thing to confirm for people, because we did just talk about the ADR process that'll be available related to surveys, that's not going to be available to those in the special focus program. So surveys that take place in the program, you don't get the ADR process.

00;20;28;05 - 00;20;42;22
Meg Pekarske
Yeah, that's really interesting that they did that, so forth. Oh, it's very busy these days trying to keep up with all of the things that are going on. But but, Emily, any closing thoughts?

00;20;43;01 - 00;21;15;06
Emily Solum
Yeah, one final comment is just to comparing the process that we've just discussed with what the process is for appealing an audit. It's very different. So it's important for hospices to understand that there are significant differences. It's not the same administrative law judges and it's not the same rate for results or a favorable results that hospices may be used to. So it's important to understand that there is a this is a very different appeal process than what hospices are traditionally used to seeing.

00;21;15;11 - 00;21;57;10
Meg Pekarske
Right before we started recording messages got like a total victory almost for our client, and now they're getting almost $1,000,000 back. And that's fantastic and really exciting. But I agree with you, Emily. The results that can be extracted by challenging surveys are not. Those can be few and far between those wins, but so what we're here and unfortunately I've been here before and spent a lot of my career doing stuff like this. So it all comes full circle, right? All about stuff I learned 20 years ago that I was becoming useful in the hospice context now. So just.

00;21;57;10 - 00;21;58;12
Erin Burns
Like fashion.

00;21;58;12 - 00;22;52;18
Meg Pekarske
Yeah, just like fashion. Shoulder pads or back pleated jeans. I'm not for the acid wash, though. So anyway, well, great conversation and really timely. Thanks for for sharing your insights here and will be fine to see how things shake out and you know, we can read stuff, but it's not until clients start calling in and seeing who's getting caught up in this that. But I think I'll have my my views shaped. So anyway, until next time. 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 or sign up wherever you get your podcasts. Till next time. May the wind be at your back.


Emily M. Solum


Erin E. Burns

Senior Associate