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00;00;05;01 - 00;00;57;11
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. Quick Takeaways From the 2024 Proposed Hospice Wage Index Rule. So, Andrew it’s happy to have you. You know, I feel like we are the wage index people. And so I feel like we've talked about other wage indexes on the podcast. But thanks for joining me for today. I mean, while this rule I think has less in than maybe rules passed it, I mean, there were some some interesting things in it. I mean, obviously nice to get a proposed wage increase of 2.8%. But I guess any thoughts on the wage increase before we get to, you know, some of the more substantive things in the rule?
00;00;57;22 - 00;01;02;06
Andrew Brenton
Well, yeah, very happy to be here. And actually my first ever podcast episode appearance...
00;01;02;07 - 00;01;03;03
Meg Pekarske
Oh yes.
00;01;03;06 - 00;01;08;10
Andrew Brenton
...was on a hospice wage index rule...
00;01;09;00 - 00;01;09;13
Meg Pekarske
Yeah.
00;01;09;28 - 00;01;10;09
Andrew Brenton
Yeah.
00;01;11;05 - 00;01;13;15
Meg Pekarske
You jumped right in...
00;01;13;20 - 00;01;52;08
Andrew Brenton
Yeah. We did see a 2.8% increase to the different per diem rates. I was reading that somewhere, maybe expecting a bit of a higher rate increase, but 2.8% is what we got. I will say to that CMS that it did indicate which isn't a policy change, this is a statutory requirement. But CMS did sort of remind everyone that beginning this year the penalty for not getting your hospice quality reporting program data and is now 4% rather than 2%. So again, that was expected. But, you know, CMS wanted to remind us of that.
00;01;52;18 - 00;02;53;13
Meg Pekarske
Yeah, well, I think that in recent years during COVID, we did a lot of HIS appeals because COVID wreaked havoc on people's ability to get that in. And, you know, I don't expect those types of issues moving forward most likely. But but obviously, that penalty for not being able to comply, I mean, 4% to us is definitely a hefty penalty for folks because I think budgets are really tight with staffing costs and everything like that. But so let’s get into...speaking of COVID, some of the COVID flexibilities, I think most importantly is the telehealth face to face allowance that you could do the face to face via telehealth during the pandemic. Obviously, the pandemic is coming to an end here. Why don't you tell us a little bit about what the rule does related to extending that as an option?
00;02;53;24 - 00;04;02;01
Andrew Brenton
CMS and the proposed rule. You know, they would update the regulation now to say that hospices can continue using telehealth for the recertification face to face visit through the end of next year, So through the end of 2024. As just a brief bit of background because this actually isn't a policy change. So originally hospices could only do the telehealth face to face visit through the end of the public health emergency, which I think everyone now knows it does. And the last day is May 11, 2023. So that was the original policy, the Consolidated Appropriations Act of 2021. Actually extended that to the end of 2024, and CMS was saying regulatory guidance like the various publications already are referencing that end date. So this is really just, you know, even actually in the rules, you must also say conforming change. So again, not a policy change, but just updating the regulations to reflect that current policy, which is we can use telehealth for the face to face visit through the end of next year.
00;04;02;04 - 00;05;28;24
Meg Pekarske
But I think that the hope is that that will become a permanent change. But I think that, you know, Congress needs to make that statutory change permanent. But the fact that they're extended to 2024, you know, and it's not tied to the pandemic, seems like they're indicating that this meets their regulatory purpose of why they wanted to do face to face visits. And that and and really can you put the the cat back in the bag, so to speak, because I think telehealth was used so much during the public health emergency that I think it's hard to say that we can't use that effectively, and especially the more limited goals of the face to face visit. Obviously, they're still going to be the practical challenges, right, of do our patients have that technology to use those and can they use that technology? Do they have a family member to help that? I mean, there's a lot of, you know, the underlying practical issues. But so that's a that's a definitely welcome change that hopefully in the future will become permanent. What about the virtual visit? So that's something that was also made clear during the pandemic that you could do visits virtually. So nursing visits could be done virtually, but you weren't supposed to put those on the claim form. What are they saying about that and the rule?
00;05;29;03 - 00;06;36;01
Andrew Brenton
They are actually removing that provision from the regulations. So that proposal did originally extend through the end of the public health emergency. That is continue continuing to be the case. So in the proposal of all CMS, you know, and these would go into effect October 1, 2023. So, you know, let's see them as finalized, is that they'll actually remove that regulatory allowance from the regulation because by that point it would already have been expired. So that yeah, you're right. So this is the this is that current flexibility only for routine home care patients. But we can provide care remotely, not even through the higher telehealth standard, but through any remote communications technologies as long as a care plan, you know, references the need for that. It has to be a patient's specific needs. So it can't be kind of a blanket policy. But yeah, unfortunately that allowance is ending here in about a month or so as of this recording date. Unlike for the telehealth face to face visit, which again extends for another year and a half or so after the end of the public health emergency.
00;06;36;06 - 00;07;24;20
Meg Pekarske
Andrew, this was a sort of out of left field for for me was this new enrollment, which just as a side note, I mean, the amount of enrollment things that are happening based on that ProPublica New Yorker article, there's a lot of recommendation turns about focusing more on enrollment issues and activations of provider numbers that are being used and all that. And we're actually seeing that come up very quickly, even though these are more recent recommendations. While this is a little bit different spin on that issue, I was surprised to see enrollment come up specifically in the proposed rule. So tell me what they're doing with enrollment here as it relates to physicians.
00;07;24;21 - 00;08;03;18
Andrew Brenton
Yeah, I agree with you. Kind of out of left field for me too, about what they're proposing is that any physician who certifies a hospice patient must be enrolled in Medicare or have a valid opt out from enrollment and that that is a condition of payment for Medicare hospice services. So CMS actually is going to be if they move forward, there's going to be revising the regulations to explicitly require, you know, hospice physicians, attending physicians, anyone who is certifying a hospice patient to be enrolled in Medicare or have a valid opt out.
00;08;03;24 - 00;11;18;27
Meg Pekarske
And when you and I saw that and have been talking about that any time, you know, CMS is saying this is a condition of payment, obviously in terms of priority from a compliance perspective, you know, high priority. And then how do you operationalize this? So I don't think that many folks out there probably have volunteer medical directors anymore, like retired physicians that are performing medical director services for you. But, you know, in the olden days, like that was the case and those people would not have been enrolled in Medicare. Right? And it wasn't really an issue. They didn't do any billable physician visits. It just wasn't an issue. And that was okay. Right? And so now now I think there's whole valid opt out. I mean, there's a way to to do that and a process to do that. But, I mean, you know, there's going to be some red tape around that. But I think the more pressing issue for folks is someone lists on their election form and attending physician. You need to find out is that attending physician actually enrolled in Medicare. And as we see the rise of concierge medicine and other things, especially different pockets of the country, where that's a bigger thing, where we have physicians who don't want to participate in Medicare, you know, how you need to have a system like straight away that looks to make sure that this person is enrolled in Medicare. And also if they're not like, how are you going to deal with that? So there was some musings on this with proposed DEA rule about, you know, how like people who are going to be ordering narcotics, like looking at their do they have a current DEA number and and things like that, if they're referring physician and you're relying on their in-person visit to qualify for, you know why? I mean, this is a whole nother rule that was very complicated that just came out. But it was that same sort of practical issues. Am I checking everyone's DEA number that it's active if you're a referring physician to me or something? And here's this list of, you know, is is this person actually enrolled in Medicare and, you know, not insurmountable issue, but just from a processing standpoint and the press period of time, we have to do stuff. Right. Like I was just talking to a client earlier today and like they're, you know, median length of stay is like six days or something. I mean, so I mean, you don't have a lot obviously, you have to get a verbal, which then two days. But like you have an admission on Friday like you know there's just a lot of, I think, operational challenges thinking through. If this is not part of your current process, how do you do that? And so so anyway, I'm concerned about.
00;11;20;05 - 00;11;50;08
Andrew Brenton
Yeah no, I share your concern. I mean, of course under the regulations of a attending physician is unavailable or, you know, a chosen attending physician is unavailable, then essentially there isn't a attending physician and the hospice physicians managed care. So, you know, CMS doesn't get into this. And the rule and I think it does create some confusion, but right, like, you know what, if a patient selects an attending who isn't Medicare certified, do we treat that attending as unavailable, you know...
00;11;50;12 - 00;11;51;25
Meg Pekarske
Or they don't have one like...
00;11;52;05 - 00;11;52;23
Andrew Brenton
Or yeah, that they don’t have one, right.
00;11;53;07 - 00;13;24;16
Meg Pekarske
...to pose for a purpose because essentially they're saying for you to be a certified physician and hospice, which you know, only you know, when you step it back like you're an attending physician, if you're certifying them. And hospice. Right? Because that's the person we have to get the certification from. It's like if you're not enrolled in Medicare, you can't really continue to be their attending physician. And in the Medicare context, right? I mean, because they're not qualified. So it's sort of like you pick a physician who's on licensed, right? Like you can't just say, okay, well, sure, they can be your attending physician. So so anyway, I just I think that you and I had some ideas about both how this should be clarified, but also perhaps we don't need to get into it on this podcast about how you deal with that operationally, because if people are if you're in an area where there's a lot of concierge medicine because I just think that that's probably where this is going to come up most often because obviously most people are enrolled in Medicare, but there are situations where obviously parts of the country where, you know, you have people that can afford to use physicians that are not in Medicare and want to do that. And then how do you how do you deal with that?
00;13;24;18 - 00;13;53;26
Andrew Brenton
Yeah, I mean, off the top of my head, I can think of a few ways that CMS could have, you know, even if they wanted to move forward, this idea that there are some ways that they could have kind of set this forth in the rule that would have, you know, avoided some of these concerns that we're talking about here. So overall disappointing proposal. And the way in which it kind of came out, I think could have been better. So, yeah, that that was a bit of some bad news, I guess that came out of this proposed rule.
00;13;53;26 - 00;18;48;05
Meg Pekarske
Commenters hopefully will focus on that, about what are you trying to get at? I mean, I think their purpose of, of doing this is probably getting at folks, you know, who might be fraudulent or doing something improper, right? People then excluded or not enrolled or, you know, whatever. But you know I think the broadness perhaps, again, I do think there's just in certain parts of the country, people, physicians who just choose not to be enrolled in Medicare. And so that is also the case with Medicaid. And we've seen this issue on Medicaid audits where they're saying this person wasn't specifically enrolled in Medicaid, but they're certifying patients. So so anyway, I think that reading the tea leaves here, I mean, we're just going to focus, see, within hospice, but also more generally just focus on enrollment issues, right? I mean, we have the affiliations rule that's now a lot, lot of years old that CMS finalized about trying to get at, you know, who really owns companies and stuff and keeping bad actors out and trying to sort of understand people's relationships to, you know, various organizations and that that rule hasn't been fully implemented. But but clearly, this has been going on for a while that we need to do more than like pay and chase. We need to to have people be more transparent in terms of reporting enrollment and using enrollment, I think more as an active tool. So I guess word to the wise in general, everyone should be keeping up to date on their 855s, like just because even this in the last two weeks we've had four enrollment issues. Some of them are there different variations, but it is very clear that the max are starting to focus on and this is happening even in nonprofits like what's your ownership information that you report on this provider number versus this provider number? But they're sort of owned by the same thing. They're looking for variability. And so I think there is clearly a push that the max are going to be looking at enrollment in general. So so anyway, I think that that has not been on folks’ radar screen as much, keeping their 855s up to date. But even the smallest of changes and I think it's it's going to be more resources in that area is going to be important. And if this change really goes into effect, you know, having a system at the get go of who is enrolled in Medicare to now, most people can run a report out of their EMR that says here are all day attending physicians that served in the last five years. I'd say if you can run those numbers, are all those people Medicare certified like then this might not really be an issue. I mean, that doesn't mean they're going to stay Medicare certified and you don't need to look at it. But like even to get a sense, because this is not something most folks have been sensitive to, obviously, from a hospice physician standpoint, most of our physicians, because they may bill, I mean, they are enrolled in Medicare and because we're not typically using volunteer retired physicians. So I really think it's the attending community attendings that's going to be sort of the operational issue. But probably your compliance folks can be doing some looking right now to say how much of an issue is this really for me? Because are there anyone that has in the past certified patients that are not enrolled in Medicare? But I think good point. When I was talking about this with some other folks of when you're dealing with fellows or residents or something who are licensed doctors but aren't yet enrolled, like how do you deal with that? And I haven't thought that much about that. So I'm now I'm just throwing it out like possible issues to to consider. But you know, even that hopefully that would pop up too when you if you ran something from your EMR about who are my certifying physicians too just to get a sense of, you know what could be the issues if this is really finalized in this way with no further clarity. So anything else, I guess, Andrew, in the rule? There is a lot of stuff about data analytics and quality reporting, and I think it just shows like greater sophistication that CMS wants to have in and showing value as we move to value based care. Like how can I measure this and what outcomes are you really achieving and things like that. But, but other thoughts on the rule before we wrap up here?
00;18;48;09 - 00;19;32;26
Andrew Brenton
I guess I'll point out in passing here that CMS continues to focus on the Medicare hospice bleed out. You know that the amount of money that's spent on hospice patients outside of the hospice benefit. So that's been a kind of a priority for the government, as we all know in recent years. I think it continues to be so. It's discussed in here as well. And then I guess lastly, I'll just say comments are due on May 30th, 2023. So yeah, I mean, people are encouraged to comment whether it be on that enrollment piece that we talked about or other areas of interest. That's always welcome. But yeah, that's sort of the the rundown, I guess of the proposed rule.
00;19;32;28 - 00;19;36;23
Meg Pekarske
All right. Well, I guess it could be worse, right? So...
00;19;37;10 - 00;19;38;24
Andrew Brenton
Well, that's always true.
00;19;40;02 - 00;20;44;06
Meg Pekarske
Right? We're lawyers. We need to be a pessimist, well, it always could be worse, so it wasn't nothing. But, you know, obviously when we had all of the election changes and stuff, I mean, those were really, really and that whole addendum, I mean, those are much more fundamental changes and just I got to get new forms printed. I got I mean, this obviously the enrollment piece is going to have some operational details and, you know, the quality reporting, you know, future stuff. I mean, that's which we don't get involved in as much. But but anyway, I just think especially when home health got a huge rate decrease and the fact that we're still getting an increase is helpful, but it's probably, as you said, still not enough. So anyway, that's how lawyers and things, could be worse sometimes. Well, I don't know if I can if I've ever said no, this is the worst I could get. So I'm trying to think in like 23 years...
00;20;44;08 - 00;21;05;11
Andrew Brenton
Maybe one piece of optimism, CMS, I think they did propose not just for hospices, but for kind of a bunch of provider types, this kind of Medicare enrollment requirement a few years ago and they ended up not finalizing it. So I guess it isn't a foregone conclusion that CMS finalizes this hospice piece, but...
00;21;05;27 - 00;22;14;10
Meg Pekarske
You're so bright-sided and you're just a breath of fresh air. So no, I well, but going back to your point is this is why it's important, you know, for association, you know, to be involved in associations who write comment letters. I mean, individual providers, as you said, can write comment letters. I think oftentimes people don't go ahead and do that. But I think getting your voice out there, because this is the whole reason why there is a rulemaking process, right? CMS, the government does want feedback if they're going to make a substantive change, they got to propose it and they got to, you know, hear what the people who they're regulating have to say about this. And I think, you know, that process itself demonstrates that, you know, as the government, they don't know all of the operational hurdles or concerns that go along with their recommendations. Right? And so you can have positive influence and not everything they proposed gets pulled through, so, love it. That's a great place to end.
00;22;14;23 - 00;22;15;04
Andrew Brenton
Yeah.
00;22;15;19 - 00;22;26;27
Meg Pekarske
I'm now going to become the optimistic lawyer, that's going to be my new tag line is terrific. So well thanks for for sharing your wisdom here, Andrew, and until next time.
00;22;27;08 - 00;22;31;24
Andrew Brenton
Thanks everyone for listening.
00;22;31;24 - 00;22;48;09
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 huschblackwel.com or sign up wherever you get your podcasts. Till next time, may the wind be at your back.