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This Bandwagon Has a Broken Wheel: OIG Joins the Inconsistent Approach to Hospice GIP Claims



CMS has criticized hospices for underutilizing general inpatient care (GIP) but has also specifically targeted GIP claims for audit and medical review. In addition to CMS’s standard tools for reviewing GIP claims, such as UPIC audits and TPEs, the OIG is now getting involved with a GIP audit of its own. In this episode, Husch Blackwell’s Meg Pekarske and Bryan Nowicki discuss the divergent approaches to GIP care and what this may mean for the hospice benefit.

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This transcript was auto-generated using Adobe Premiere Pro.

00;00;05;01 - 00;01;23;24
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. This Bandwagon Has a Broken Wheel: OIG Joins the Inconsistent Approach to Hospice GIP Claims. Brian. Man, I was not happy to see that news headline that OIG is joining in to look at GIP talk about mike over the utilization to play on how they always focus on us. I mean, everyone's auditing GIP right now and I, I because we have smart audits for GAAP. We have tpy per GAAP and now OIG is joining in on that. And to me it's real frustrating because GAAP I think is still under utilized. And so this is really I think having a chilling effects for folks. And when you think the alternative is people might revoke and go to the hospital or whatever, I mean we are still saving money here. So anyway, I I'll let you get a word in edgewise, Brian, but I was just like, are you kidding me?

00;01;24;08 - 00;02;46;12
Bryan Nowicki
It's kind of a piling on here on a pretty, you know, unstable foundation. On the one hand, all all the enforcement seems geared toward JIP by CMS and these and DHHS that they they recognize, though, that it's under-utilized. It's like they want more people to use it, but they want people only to use it for six days. And they're inflexible about that. And I've I'm going through a number of GAAP related hearings this time emanating from a TPI. But just to hear the experts I'm working with talk about how the government reviews GAAP claims and what I would expect to be how the OIG is going to do it through its auditors. They're rather aggressive and and there are cases where it does seem they're looking at the time frame and and they're denying based on that. Fortunately, we're getting a lot of victories once we go through the appeal process and up to the ALJ. So we're winning a lot of them ultimately. But even this initial pressure, it's it's mixed messages from the government. You're not utilizing it. But if you do utilize it and step over this line in any way, we're going to come down on you.

00;02;47;10 - 00;04;30;00
Meg Pekarske
Yeah, well, and to that end, it's really frustrated me because, you know, the government does publish reports where they say the percentage of hospices who do no GAAP or no continuous care, what happens to those folks? Absolutely nothing. Right. Because essentially in my response, when clients, you know, wring their hands at me and say this is really frustrating because obviously folks who are hit with this disproportionately, those who have their own inpatient unit, are hit with these kinds of audits. But so you contrast, I've invested in this community service and having this facility for my community. But then, you know, folks who don't make that investment and they don't do that level of care, nothing happens to them, you know, And because if you don't build a government for it, they're not going they can't audit you for it. Right. And so so I think it's it's you know, there's just a real disconnect there. And I think I'm more concerned about me personally doing this work for so long, more concerned about the people who don't do anything but routine home care and the people who are providing all four levels of care and a balance where you know that you're not sort of off the charts, but which is I think a lot of folks who are getting these VIP, various audits. I expect the OIG one, too, they're not really outliers in terms of overall length of stay or something like that. But anyway.

00;04;30;13 - 00;05;38;23
Bryan Nowicki
And even and not even with regard to GAAP, we have found. So, you know, when we do these GAAP reviews or I'm doing these hearings, a lot of you know, they are targeting people who are on GAAP for ten days or 15 days or more days. But but you dig into the picture and what we bring out in the hearings is that the average length of stay at hospice is four. JIP is really two days. And so yeah, even if you looked at a your percentages for are you an outlier in the aggregate for your gap length of stays, the answer is no. But you do have some outlier patients who have those extended stays and they pick on you. So yeah, you offer gap, you're going to have some people who die within two days and just by making the offering and doing what you're supposed to do with with those services, you're going to have some that live longer than six days or stay longer than six or seven days on GAAP, but they're going to hammer you for it. Unfortunately for those longer go, they'll cherry pick out those longer stay patients and that's what the audits will be about.

00;05;39;09 - 00;06;41;05
Meg Pekarske
Yeah, So I really don't know why the OIG felt like it needed to jump in here and look at this again. I mean, it just we're getting into this level of I can't win. I mean, I know we've we've said audits are just a cost of doing business and stuff, but I am concerned that at some point people are going to be like throwing up their hands. I mean, it's like this doesn't make any sense to me because, you know, it is something that in terms of the big health care system, saves money, keeps people out of the hospital. It is recognized that people coming from the hospital may very well need this level of care because if you had serious decline in the hospital, being able to jump home and whatever is sort of unlikely. But but I mean, it is what it is. I mean.

00;06;41;07 - 00;07;44;26
Bryan Nowicki
Yeah, I mean, it might be I mean, it could be going in a couple of directions, you know, if this kind of pressure of which the OIG gap review is one part of. But if this kind of overall pressure continues, it's either going to change the kinds of hospices that are out there. It's going to change the profile. Is it going to change, you know, the number of nonprofit versus for profit? Is it going to change the hospices that are part of health systems versus independent? You keep the pressure up. And I think there's going to be some evolution in who makes up the hospices the other direction it could go, and it's going to change the benefit. And so certain parts of the benefit just are not going to be sustainable and allow hospices to survive. So does that mean the six month life expectancy standard is modified? Does that mean GAAP standards are modified? It just doesn't seem sustainable that you're going to have the current profile of hospices continue to exist with the current enforcement of pressures that are being imposed.

00;07;45;09 - 00;09;06;12
Meg Pekarske
And again, I sound like I'm on a rant here, but the real frustrating thing is if you're going to change the benefit, then change it. Make a law, go to Congress, do something different, but don't essentially try to have the effect of changing the law through how you audit. Right. And that's, I think what we're seeing sort of very big picture across the board is, as you said, between whether it's six month prognosis level of care. You know, it just we're in this trap right now, frankly, where it's there's these broad sort of standard. Six months is based on physician judgment. You have qualified board certified hospice physicians doing the stuff, making their best judgment. And then it's like, well, no, you're wrong. And it's like, well, there's a statutory waiver of liability that was that is in the statute that Congress passed that said, hey, if there's no reason the hospice should have known, they shouldn't be held liable. And, you know, when you think about GAAP and the level of care and we work with lots of, you know, hospice physicians and these hospice physicians are seeing these patients in GAAP, not just reviewing medical records and they feel like.

00;09;06;14 - 00;09;09;27
Bryan Nowicki
Daily they're often daily in there with the patient's family.

00;09;09;27 - 00;10;53;07
Meg Pekarske
They it would be malpractice to not provide this higher level of care. I mean, it's that clinically essential to just go say, oh, go, go home, you know, with your elderly caregiver and like, you know, you need IV medications and you need this. You need that. And like all the staff, I mean, it just it gets to the level of, you know, absurdity. And so, you know, even though that the rate increased from a couple of years ago, I think helped, I think the profit margin on GAAP, it's really expensive to be able to do that right. And have that service available because. Right. Your your pot, your sentence is going to fluctuate. Fluctuate. I mean, you have a 12 bed unit that every day you have 12 people there, but you need a staff at that level. Right. And so you're really making a real commitment to this level of service because it is a facility you have to staff the same way, regardless of, you know, those those vacillations. So anyway, it's a really hard level of care to provide. And, you know, it is not maybe quite as hard as continuous care is in terms of staffing, but but really, you know, a commitment to do this. And it's just really unfortunate that I feel like people are going to second guess themselves and then, you know, ultimately, what effect does that have on patients and families? So.

00;10;53;29 - 00;11;28;24
Bryan Nowicki
Yeah, I mean, there's a reason it's a required offering from hospices because patients need this. And like you mentioned earlier, Meg, we're not seeing the enforcement effort on the underutilization side of this, which could just be more challenging to enforce that. I mean, how do you enforce that? People aren't providing it. It's just easier to deal with it as a payment issue for those who are providing that. So taking the easier path there. But but it's it's it's a bit of a paradox or a contradiction that puts some unfair pressure on hospices.

00;11;28;24 - 00;12;46;01
Meg Pekarske
Yeah, I guess my closing thought here is let's just have a real conversation about the benefits. 40 years old, what should it look like instead of doing this back door enforcement where you pay people and then you like take it all away? I mean, it's not a sustainable model. It's not good for patients and families. And, you know, I think we could have better end of life care if we actually took another look at this and not just sort of pick at the edges. Right. But really do a much more holistic review of the switch. I mean, it's beyond GAAP because, yeah, you know, I'm so sick of fighting about six month prognosis too, which is, you know, somewhat of a very arbitrary, you know, time frame. But I just think more and more it's so apparent to me that there just needs to be a conversation and law change in terms of what should this benefit look like because I think it's just being eroded through enforcement as opposed through thoughtful analysis. And that just does it does it make for a good, good benefit? And nor is it transparent, right?

00;12;46;19 - 00;14;06;21
Bryan Nowicki
Oh, right. Yeah. We always wonder. And hospices wonder why me? We always say you're going to get audited. It's it's not if but when. But the reason behind it is still often a mystery. Hey, I'm fine on my pepper reports, but why am I getting audited? I'm in the I do just what my peers do with regard to GAAP, but I'm getting audited and there's still a lot of a black box. You're right. You know, as a way to develop policy through such a nontransparent way where we don't know why they're making the decisions. It's it's just prone to all sorts of errors and unfair outcomes. Yeah I think your, your broad view is right on. It'd be great if the government took that approach to balance that with kind of the details of this OIG IP. This is going to be going on for a while. They're not expecting a report until 2025. If you do get something from the OIG about GAAP, take it very seriously. It might be a limited sample that they're looking at, but we suspect they may be aiming to have an impact that is community wide nationwide. So the results of this review could affect the direction that OIG recommends or some of their recommendations on into the future.

00;14;07;03 - 00;16;37;01
Meg Pekarske
Yeah, I mean, these are not an audit that's going to generate high dollar repayments for individual providers. But as you said, Brian, it is really going to be right. What does the OIG do? It issues reports, which may then be used to inform policy changes and other things. And so I mean, I just feel like we're getting report after report like this isn't this isn't right or they're not doing this right. And it's like, well, but we have lots of people who are trying to follow the rules, right? And these rules are somewhat arbitrary. And you have clinicians using their, you know, best judgment. So, yeah, I think it's maybe this report will say, wow, all those GP being provided is really essential. But, you know, if it doesn't shake out that way, it just feels like it is then added to the laundry list of reports. But, but again, I think we should invite as an industry a conversation and should be pushing a larger conversation about what should this benefit really be looking like and retools for the future. Because this just erosion of something, it just it doesn't make sense. And and again, ultimately I think about and I think all of our listeners are in this for patients and families. And you know what this does to patients and families when people feel as though they can't, you know, provide care in accordance with their clinical judgment about how the benefit should be provided. Right. I mean, that's what we're people are running into is like, okay, I guess I authorize another day of gap. If I'm the physician saying, I think this person's still too unstable and then you get audited again for that. And so I think physicians are really sort of beside themselves at this point about how do I how do I practice medicine in a way that also conforms with these payment requirements? I mean, and there is I think folks are feeling more of a gap between that, which is troubling.

00;16;37;17 - 00;16;41;00
Bryan Nowicki
It's definitely becoming more challenging, that's for sure.

00;16;41;00 - 00;17;08;12
Meg Pekarske
All right. Well, there's no happy note to end on here, Brian, other than I'm frustrated and I think everyone's frustrated about about all this review activity. But but you're the bright side. Anyone in the group? Yeah, we just did our strength assessment and our group positivity is high. So like your top five or something, right? So I'll leave it to you to have the the last note.

00;17;08;25 - 00;17;40;04
Bryan Nowicki
All right. Well, I mentioned this before, but we're we're appealing. These were getting good results on GAAP. So we have a very good success rate, which is a tribute to the physicians we're working with. But but but I guess don't don't let the fact that you're being audited or even denials get you down because ultimately we found a lot of success when we get to the right people and hopefully that won't get shut down because that that is the ray of hope through all of this.

00;17;40;26 - 00;17;56;27
Meg Pekarske
Brian, you brought it home with a lot of positivity and positivity. Yeah, we balance each other out. I'm going to be pragmatic, right? And you're just going to have to bring me up from the doldrums of despair. So thanks for doing that, Brian.

00;17;57;05 - 00;18;02;25
Bryan Nowicki
Oh, you're welcome, as always. Thank you, Meg.

00;18;02;25 - 00;18;24;23
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. Till next time, may the wind be at your back.