Hospice Survey Enforcement Penalties: Are you Ready?

On November 9, 2021, pursuant to the Consolidated Appropriations Act of 2021, the Centers for Medicare and Medicaid Services (“CMS”) issued a Final Rule establishing new survey and enforcement regulations for Medicare-certified hospice programs. The spotlight on hospice survey enforcement comes as no surprise given reports issued in recent years by the Department of Health and Human Services’ Office of Inspector General (“OIG”) highlighting quality of care issues among Medicare-certified hospices.  According to CMS, the purpose of these new regulations is to increase and improve transparency, oversight, and enforcement of hospice programs and to ensure that survey processes are effective in driving quality of care hospice programs. The following is a summary of the new regulations:

Survey Process

Enforcement Remedies

Currently, the only remedy that CMS can impose upon hospice providers that are noncompliant with the Medicare conditions of participation is termination. Effective January 1, 2022, these new regulations will allow CMS to impose a range of enforcement penalties for each condition-level deficiency identified during the survey, similar to CMS’s enforcement authority with respect to skilled nursing facilities and home health care agencies. Regardless of the enforcement remedy, and even if no CMS enforcement remedy is imposed, hospices must still submit a plan of correction for each deficiency cited. 

Note that CMS decided not to proceed with its original plan to implement a Special Focus Program for poor-performing hospices, as set forth in its Proposed Rule and per the Consolidated Appropriations Act of 2021. CMS will instead address the Special Focus Program in future rulemaking.

Becoming familiar with these new survey processes and enforcement remedies is essential to ensure that hospices can minimize the consequences of any survey deficiencies and take advantage of any appeal rights. For example, it is critical to ensure that plans of correction are implemented as soon as any deficiencies are discovered, even if the hospice may disagree with the alleged misconduct and even prior to the end of the survey. By implementing an effective plan of correction as soon as possible, the number of days of noncompliance – and hence the potential per day penalties – can be minimized.

Those in the health care industry know that an ounce of prevention is worth a pound of cure. Hospice providers should take steps now to ensure that they are survey-ready in time for the January 1, 2022 effective date. Reviewing the Medicare conditions of participation and the current guidance to surveyors set forth in the CMS State Operations Manual is critical to improving survey outcomes. Also, when selecting remedies and the amount of civil monetary penalties, CMS may consider factors such as the hospice’s compliance history as well as evidence that the hospice program has a “built-in, self-regulating quality assessment and performance improvement system to provide proper care, prevent poor outcomes, control patient injury, enhance quality, promote safety, and avoid risks to patients on a sustainable basis that indicates the ability to meet the conditions of participation and to ensure patient health and safety.” Investing in a robust compliance and quality improvement program now can help in the event of survey deficiencies later.

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National Law Review, Volumess XI, Number 319