This transcript was auto-generated using Adobe Premiere Pro.
00;00;05;01 - 00;00;26;06
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. A Very “Special” Episode: Amid Controversy, CMS Launches the Hospice Special Focus Program. Bryan, you made up the title for this one, which is it's a winner.
00;00;26;09 - 00;00;37;12
Bryan Nowicki
So, yes, I'm particularly it takes me back to my grade school days or, you know, you see the very special episode of Family Ties or whatever it might be. Yeah.
00;00;38;12 - 00;01;22;01
Meg Pekarske
This is a very special episode because we've been monitoring this issue very closely, both when it was proposed and then obviously the final rule that that just came out, which is referred to as the home health rule, but it had the hospice special focus program. And specifically, what we're going to focus on this podcast is, is really the algorithm and how people are going to get chosen for that, because there is, you know, a pretty significant outcry, Bryan, of providers and industry groups saying, you know, this algorithm, you know, has some serious deficiencies in there.
00;01;22;03 - 00;01;33;02
Meg Pekarske
And so to catch people up, what and a lot of these are in the public comments as well. What are the concerns people have about the algorithm?
00;01;34;08 - 00;01;55;24
Bryan Nowicki
Right. So so the algorithm is really taking a lot of data points and putting them into the pot. And they had to make decisions about what to weight and how to weight them, what's going to be the most important factors. And so whenever you kind of mix up that kind of a stew, you're going to have people who question whether it's really accomplishing the intended goal.
00;01;55;25 - 00;02;17;08
Bryan Nowicki
The goal here is to identify a poor performing hospices. If you look at how CMS has described it, the statute talks about trying to enhance enforcement and oversight over non-compliant hospices. Maybe that's a distinction that does have a real difference here.
00;02;18;09 - 00;02;48;17
Meg Pekarske
And maybe, maybe, Bryan, just to stop there, because you said something important, there is a statute. So Congress passed a law that said where you want to create a special focus program for hospice. And I think as we work through this discussion that we're going to come back to that because when and again, we're not training people to be lawyers, but it goes back to sort of the basic is something within the scope of the authority Congress gave.
00;02;48;17 - 00;03;04;28
Meg Pekarske
And so so just wanted to remind people that that Congress did really act to create this program. But obviously there's a lot of nuance around that. But so anyway, there's the statute and then this is the rule.
00;03;05;06 - 00;03;31;10
Bryan Nowicki
Exactly. So Congress says, hey, CMS, you do this and then CMS takes the authority granted to it and tries to do something that Congress has authorized it to do and CMS and all these agencies, they can only do what Congress authorizes them to do. And so that becomes a point to take a close look at is CMS really doing what Congress said it could do or is it going outside of that?
00;03;32;00 - 00;04;09;25
Bryan Nowicki
And that's this distinction between lets target non-compliant hospices per Congress versus CMS saying, well, let's we're going to develop an algorithm to identify poor performing hospices. And there's probably certainly some ways that non-compliant hospices can be poor performing hospices. But that really takes us to the algorithm, which includes data points that get mashed together. And then based upon a hospice score in this algorithm, they're going to rank every single hospice and take the 10% of hospices with the worst score.
00;04;10;10 - 00;04;37;02
Bryan Nowicki
And those are the ones who will be eligible for this special focused program. Some of those algorithm data inputs are, you know, somewhat, I guess, more objective than others. So, for example, condition level deficiencies in a survey. Now, even in surveys, there's always an element of subjectivity, but at least there's some boundaries around a condition level survey finding a deficiency.
00;04;37;02 - 00;04;43;24
Bryan Nowicki
There are some regulations that are implicated in that. And do you violate them or not? Are you compliant or not? That sort of.
00;04;43;24 - 00;05;12;29
Meg Pekarske
Thing. Bryan I won't digress here. My but I'm still somewhat irked that, you know, I'm like nursing homes that have a scope and severity grid about when you get, you know, what level of citation we still lack that in the hospice survey structure. So I my personal feeling is there's too much subjectivity of when a surveyor can cite something at a condition level versus a standard level.
00;05;12;29 - 00;05;24;15
Meg Pekarske
And especially now this is ramped up because of this weighting with this algorithm. And so we'll probably do another podcast on the IDR system and challenging all of the staff.
00;05;24;18 - 00;05;48;22
Bryan Nowicki
And that's why I said more objective because for that reason it's not it's not objective. It might be more objective objective, which, you know, kind of reading the head, you'll see how truly subjective it gets. But so on the more objective side or condition level deficiencies, if you have those, that's certainly a knock against you. If there are substantiated complaints,
00;05;48;22 - 00;06;16;19
Bryan Nowicki
So not just complaints, but substantiated complaints, that's going to tend to throw you into that 10%. The real thing that has gained attention and some concern among providers is the hospice quality reporting program data and these COPS hospice survey answers - CAHPS - CAHPS, right. COPS are conditions of participation.
00;06;17;09 - 00;06;28;20
Meg Pekarske
There's too many acronyms now with hospice. We have COPS, CAHPS, like those are the hub caps versus the cap that's chasing us. But anyway.
00;06;29;04 - 00;07;10;01
Bryan Nowicki
Exactly. So what they're getting what they're getting into is they've kind of picked out four of those survey questions. How do how does a hospice measure up in the eyes of its customers, patients and families regarding providing help for pain and symptoms, getting timely help, willingness to recommend the hospice and the overall rating of the hospice. This is quite subjective because although a patient might think, I wish this hospice would have reacted sooner to this or that, it might not say anything about whether the hospice was compliant with a regulation or with the standard of medical care.
00;07;10;27 - 00;07;40;14
Bryan Nowicki
We're kind of leaving it up to patients and their families with, I would assume, little to no knowledge of regulations or hospice medicine or anything like that. Now, those survey results, not only are they part of the algorithm, but they are weighted more heavily than the more objective side of these data points. And so to make it worse, I'm kind of the parade of horribles continues here.
00;07;40;24 - 00;08;05;25
Bryan Nowicki
There was an expert panel that reviewed some of this stuff and they thought, well, with this this subjective data, let's wait it half, half the other components of the of this algorithm. CMS got a hold of it and said, no, we're going to rate it, double the other algorithms. So they're taking the subjective the most subjective part of it and giving it outsized weight.
00;08;06;26 - 00;08;32;11
Bryan Nowicki
And so subjectivity is is certainly a concern that has been voiced by the associations, by hospice providers and taking it back to where we started. Meg, Congress is interested in non-compliant providers. What is a patient survey on subjective issues have to do with compliance or lack of compliance could be very little or nothing.
00;08;32;18 - 00;08;57;11
Meg Pekarske
Yeah, and I think, Bryan, I guess as a human experience given, you know, social media and all this other stuff, the people who are most apt to respond to something are people who are unhappy, right? Like if you're happy, you're like, Oh, you know, they did a fine job or I'm, you know, moving on. But it's oftentimes the people that are going to respond to this are people, because you have to be very committed.
00;08;57;11 - 00;09;26;09
Meg Pekarske
This is a long survey people have to complete. So you have to have a lot of probably I had a fantastic experience or I had a horrible experience. And then the vast majority in between, you know, maybe don't respond. But, you know, and I also think that the point you make is I think while taken is that this is, you know, a very difficult time in people's lives.
00;09;26;09 - 00;09;56;17
Meg Pekarske
And I think just from my personal experience, like you don't like to see your loved one suffering and like minutes can seem like hours and sort of response time and stuff and it just I think that these are delicate situations. And to your point, like someone may have wanted, you know, our nurse to be out there in 10 minutes versus 20 minutes that it took us to drive across town to do that.
00;09;56;17 - 00;10;11;12
Meg Pekarske
But this could have a bad effect either through substantiated complaints or they fill out a survey. And so anyway, I mean, I totally appreciate why, you know, folks are very concerned about this.
00;10;11;24 - 00;10;49;01
Bryan Nowicki
And we've worked on a lot of situations where a hospice is is trying to deal with an upset family. They and we have found as as you'll remember, Meg, the emotions are very raw right away, you know, immediately after a death or something that they perceive as poor care. And what's the saying? Time heals all wounds in a certain respect, that when the emotions are raw, people are not always making claims that are are taking into account the entire perspective or facts.
00;10;49;01 - 00;11;34;12
Bryan Nowicki
And then over time, they come to realize that that was an emotional response. And so, you know, we help clients, our hospice clients, through that process of patience and let them express their anger. Ultimately, it's going to resolve, and that's typically 90 plus percent of the time how these things go. So you're right, these survey responses, who knows what the frame of mind is or what agenda people might have, or whether they're really thinking like an A compliance person would or a government enforcer would about whether these are truly problems or just kind of subjective reactions to a real tough situation, having a family member in hospice.
00;11;34;16 - 00;12;08;02
Meg Pekarske
Well, and, you know, I think people could argue about, well, you shouldn't discount what the consumer thinks entirely. But I mean, I think that we're beyond that. Right, because it's the weighting factor that you're talking about, Bryan Right. So on this algorithm, this the CAHPS survey results are how much are they waited? And then I think the important point about how many hospices in the country actually report scores, I mean, less than half.
00;12;08;24 - 00;12;43;05
Bryan Nowicki
That's right. If you're a smaller hospice or a new hospice, you don't have to report the scores. So it is it's like only it's 49% or so of hospices even report the scores. And this, that and other criticisms were were identified in the comments to the proposed rules. So the way the process works is Congress says CMS make a rule when CMS says, okay, here's our proposed rule and they published it, you know, a number of weeks ago and the public can comment.
00;12;43;05 - 00;13;06;00
Bryan Nowicki
And that's how we're aware that these national associations, other providers and so on, and just through our connections in the industry, we knew there was a lot of interest in this issue. And so, you know, anybody can go ahead and read those comments, but they're taught there are concerns about the subjectivity, the number of hospices that actually provide the data that they departed.
00;13;06;00 - 00;13;34;01
Bryan Nowicki
From. What the expert panel said, there were some concerns about whether those kinds of subjective factors would portray hospices who are serving underserved populations are going to bear through some bias. The brunt of negative reviews, perhaps, and seems responded to all of those. They tried to respond to all of those some some of their explanations, you know, perhaps could make sense.
00;13;34;01 - 00;14;01;00
Bryan Nowicki
Others kind of left me scratching my head at a little bit. But but what CMS needs to try to do is justify its regulations because if it doesn't have a kind of a rational basis to enact these regulations, then it really jeopardizes the validity of this kind of a rule. And that goes for it goes for any kind of federal agency that's out there.
00;14;01;00 - 00;14;05;29
Bryan Nowicki
They need to make sure that there is some rationality behind what they're trying to do.
00;14;06;11 - 00;14;35;18
Meg Pekarske
Well, as you said, Bryan, we've been closely following this because of the concerns of so many and so we have been digging into this and thinking about, you know, what can be done. Obviously waiting for the final rule, which is now here, which has no changes. But I guess from a legal perspective for our listeners, when a rule is final, that's not like open and shut.
00;14;35;18 - 00;14;48;20
Meg Pekarske
And so from a legal perspective, what are the kinds of things that we've been sort of floating around in our heads about? Is this really all that can be done right?
00;14;48;20 - 00;15;12;24
Bryan Nowicki
Yeah, I think, of course, all the people who provided public comments to CMS were hoping CMS would understand the problems and come out with a final rule that was different from the proposed rule and address all of these criticisms. But as you said, they really changed nothing from the proposed rule to the final rule and just tried to further justify that it's not the end of the story.
00;15;12;24 - 00;15;41;05
Bryan Nowicki
The rule takes effect January 1st, 2024, and there are ways to challenge rules in court, to try to force it in a certain kind of interpretation or even to invalidate them. It goes back to, you know, one of the theories could be the scope of authority that CMS adhere to the congressional mandate to focus on non-compliant hospices, or are they going too far to too far afield?
00;15;41;17 - 00;16;15;05
Bryan Nowicki
Also, rules cannot be arbitrary and capricious. That's that whole rationale for the rule. What's the connection between the goal of identifying non compliant hospices and relying on subjective data in the way that they are relying on it? Is there really a a logic behind that or not? And I think there's a lot of information in the rule itself and the commentary that can be analyzed and you can begin to build those arguments.
00;16;15;22 - 00;16;48;05
Bryan Nowicki
And those are arguments that are available to individual hospices, groups of hospices, even associations of hospices, all have the potential to go to court and try to seek relief from the rule individually. Or, you know, if you if you follow the court action with a lot of the kind of high profile political stuff you might be hearing about, well, a nationwide injunction against this or that rule, it happens with a lot of federal rules across a lot of agencies.
00;16;48;05 - 00;17;03;25
Bryan Nowicki
It can happen in this kind of rule to where you find a judge, you make the arguments to the judge and the judge can say, I'm enjoining the enforcement of this rule. CMS overreached. And you got to go back to the drawing board.
00;17;04;05 - 00;17;34;03
Meg Pekarske
When we were talking about this yesterday, Bryan, it was like back in law school. There is a reference to strict scrutiny and you threw in some Latin and, you know, we're off to the races with, you know, playing real lawyer again as opposed to all of this. You know, all the other stuff we do that's feels, you know, very significant when we because it's all about administrative procedure and all this other other stuff.
00;17;34;03 - 00;18;02;28
Meg Pekarske
So obviously our audience is into bunch of lawyers, so we won't wig out on our legal specifics. But I think just important for people to know and understand and because I think it's just very disappointing for everyone that there were no changes being being made. And is this really meeting the intended purpose? So I guess stay tuned. This might not be the last time we talk about this.
00;18;02;28 - 00;18;34;07
Meg Pekarske
And, you know, even if the rule, you know, you know, come January 2024 is in effect, I mean, I know they said that they would continue to evaluate this. Obviously, rulemaking is is difficult. And I think given all the concerns in the industry, I really hope that this, even if it's not changed, really does address what are the concerns and and not essentially loop in people who really shouldn't be looped in here.
00;18;34;07 - 00;18;56;24
Meg Pekarske
Because earlier on in my career I did a lot of nursing home work and work with folks who are on special focus programs, which I talked about in an earlier podcast when we talked about this rule. And that is brutal. It's brutal to be on this list and the level of of scrutiny. And it's with surveys every six months.
00;18;56;24 - 00;19;00;11
Meg Pekarske
And I mean, it just it's a lot to bear.
00;19;00;11 - 00;19;26;28
Bryan Nowicki
And yeah, I think I mean, that's that's worth noting at least kind of what are we talking about this special focus program. It is surveys every every six months instead of every three years. And if you don't successfully complete the special focus program, meaning you achieve a certain level of the lack of citations in a survey, the result is termination from the Medicare program.
00;19;26;29 - 00;19;47;29
Bryan Nowicki
I mean, it is a big consequence that's out there. And I don't think we've heard the last on this issue either legally or politically. There's a lot of ways to to try to push back and effect change. And I think this is a rule that's still going to be be a hot topic for months to come down.
00;19;48;18 - 00;19;55;29
Meg Pekarske
Well, the saga continues. Bryan, thanks for for joining. This is so fun to talk to you.
00;19;56;17 - 00;19;57;24
Bryan Nowicki
Yeah, thanks.
00;19;57;24 - 00;20;05;01
Meg Pekarske
I won’t say that you're my favorite guest, but I do love the podcast with Bryan, so.
00;20;05;01 - 00;20;06;16
Bryan Nowicki
This is my favorite podcast, so.
00;20;06;24 - 00;20;10;09
Meg Pekarske
It’s the only one. You don't even listen to it.
00;20;10;09 - 00;20;13;09
Bryan Nowicki
You just contribute to it. I love it, I love it.
00;20;13;11 - 00;20;21;28
Meg Pekarske
I love it. I love the podcast. So but anyway, I really appreciate your time, Bryan, and more to come.
00;20;22;12 - 00;20;25;00
Bryan Nowicki
Yes, very good.
00;20;26;21 - 00;20;44;06
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 www.huschblackwell.com or sign up wherever you get your podcasts. Till next time, may the wind be at your back.