This transcript was auto-generated using Adobe Premiere Pro.
00;00;05;01 - 00;00;30;08
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. Year in Review. Key Regulatory Updates in 2023. Andrew, Adam, see, now I can use either name and then I will respond as I think I've done on both podcasts called you by each others names.
00;00;30;08 - 00;00;58;25
Meg Pekarske
So here you both are. So, so this has been a really, really interesting year. We've had an maybe a month or two ago, we put our heads together about actually counting up how many changes have. Because I was starting to lose track and getting confused and I think everyone else was. So we put pen to paper, not literally or figuratively fat, and came up with a list.
00;00;58;25 - 00;01;24;08
Meg Pekarske
So and we're going to sort of bounce through them fairly quickly. But we're just for all of our listeners, we're going to have a handout that highlights these two. So you can have that. And this is now like old reference, right hand draw tool and of because people don't even have a draw on their dogs because they're, you know, working from the islands or something.
00;01;24;08 - 00;01;41;01
Meg Pekarske
But anyway, we were going to have a handout that's going to summarize this too. So this is just sort of the quick had to run down. But Adam maybe before we delve into the detail so how many when we do our little handout are there ten. Is that how many there are.
00;01;41;04 - 00;01;45;06
Adam Royal
Yes, there should be about ten in total.
00;01;45;08 - 00;01;45;21
Meg Pekarske
Okay.
00;01;45;26 - 00;01;46;28
Adam Royal
Updates that we have.
00;01;47;03 - 00;02;07;03
Meg Pekarske
Is a lot to keep track of. And I think this is aside from all of the audit and other enforcement stuff, this is all like new stuff that we're going to be talking about. Some of these things we have done independent podcasts and so, you know, we're not going to delve into some of those, but in great detail.
00;02;07;03 - 00;02;39;29
Meg Pekarske
But the enrollment issues which we're going to touch on, we had a whole you and I, Adam, had a riveting conversation on enrollment, which I'm still going to beat this drum that I think people need to spend more attention to because like half the changes that came out in 2023 involve enrollment starts. It just shows that the government is very interested in what you're reporting and how you're reporting it and creating greater transparency.
00;02;40;08 - 00;03;05;27
Meg Pekarske
All right. Now we're in this lightning round, so we're going to try to do all of this and in about 20 minutes. So that's a begin, Adam, with you talking about this enhanced in four enforcement and these four states of Arizona, California, Nevada. So what is that? Did it start? What's going on? What's the news?
00;03;05;27 - 00;03;36;03
Adam Royal
Yeah, this was an announcement of enhanced oversight and it came out earlier this summer was effective July 13. And this was, at least from my perspective, the first kind of the first in a sequence of regulatory provider enrollment updates that that came out this year that were all sort of geared toward ownership. But this is targeted at four states Arizona, California, Nevada and Texas.
00;03;36;03 - 00;04;13;01
Adam Royal
And it subjects newly enrolled providers, providers undergoing a change of ownership and providers undergoing 100% change of equity to prepayment review upon the effective date of enrollment or the change of ownership. And so CMS will select claims, some or all of the claims from providers and subject them to review. And there's a range at time range that the CMS will implement this advanced oversight.
00;04;13;01 - 00;04;22;15
Adam Royal
And it's between 30 days to a year. So a broad spectrum of how long a provider could be subject to that.
00;04;22;18 - 00;04;45;21
Meg Pekarske
So this and Adam, you and I have worked on some projects that I think folks have. It's had a chilling effect, I think already, like, because that's an immediate cash flow issue. I mean, there is new provider, TPI, you know, in the past, but this is sort of an across the board like for sure you're going to get on this.
00;04;45;21 - 00;05;20;06
Meg Pekarske
That could be 100%. And so this whole, you know, getting into hospice is not a cash intensive business like now you need cash flow for, what, six months or eight months are. You know, you're going to need to be essentially having to pay not by your claims made by money that that you're investing into the business. So and I think importantly, what you said is it's not just the change of ownership.
00;05;20;06 - 00;05;31;17
Meg Pekarske
It's even if something qualifies as a change of information from an age 55 perspective, if it's a 100% change, that also. Right. Is is catching people.
00;05;31;26 - 00;05;54;14
Adam Royal
Yep, yep. That's right. So a little broader than traditional Chao like an asset deal. So yeah, that's definitely had a big effect on transactions for those four states. And we expect it to be expanded in the coming year. So CMS has already indicated that they're going to expand this program. So could have a more far reaching effect this coming year.
00;05;54;14 - 00;06;23;19
Meg Pekarske
Yeah, well, I think we've already seen that deal work. Well in the not for profit sector. We're working on many consolidations. I think on the for profit side, we've seen a, you know, a bit of a downturn in some of those transactions. And I think as there's I mean, there's still transactions going on, but, you know, the you know, who needs or who wants to to buy is changing and things like that.
00;06;23;19 - 00;06;37;04
Meg Pekarske
And, you know, that the sort of random person that says, I want to buy a hospice, you know, and obviously CMS wanted to have a chilling effect. Right. So, yeah.
00;06;37;05 - 00;06;42;26
Adam Royal
So anyone who who has a problem with cash flow disruptions is going to have a problem with this role.
00;06;43;04 - 00;07;27;23
Meg Pekarske
Yeah, exactly. So they have a lot in the bank, so. Yeah. So Andrew, now turning to sort of a bread and butter hospice regulatory staff this current the wage index for all its 2024 but it was 2023 this came out unlike other years which your very first podcast you ever did whatever year that was. Yeah you got assigned to talk about a new rule update other years, there's been a lot of media stuff in the rules here or not so much, and some of it's actually a bit more favorable to hospice providing greater flexibility.
00;07;27;23 - 00;07;48;04
Meg Pekarske
But let's start with the one that operates really is probably going to be, you know, the most difficult. And I put that in air quotes because it's I think you just need to develop the system to do that. But this is about the certifiers for hospice need to be enrolled in Medicare or validly opt out.
00;07;48;15 - 00;08;22;16
Andrew Brenton
Exactly. Yeah, yeah. So this requirement actually goes into effect in May of 2024. So we get a little bit of breathing room here. But just like you said, hospice certifiers now must be Medicare enrolled or validly opted out of Medicare. So this would apply to, again, every physician that certifies a hospice patient is terminally ill. So not just for hospice positions, but also for talking about the first benefit period and the patient chosen attending those attending physicians to would have to meet this requirement.
00;08;22;16 - 00;08;59;14
Andrew Brenton
And you know, what does it mean to validly opt out of Medicare? Essentially, it just means that you file this affidavit with the Mac that essentially says, I'm not going to bill Medicare. You know, there's a bunch of required terms in that affidavit. But the the submission process for that is fairly simple. You essentially send in that affidavit and then you are you are not in Medicare for a two year period that automatically renews for an additional two year period unless you, I guess, opt out of that opt out 90 days prior to the next two year opt out period.
00;08;59;14 - 00;09;22;15
Meg Pekarske
And I think that word to the wise here is get the paperwork that get what they filed with Medicare. I assume you would get some letter in response to your affidavit saying, yes, your validly opted out. I want to just take people's word for that, because this probably could become a payment issue, because someone's going to say you don't have a valid certification if they weren't validly opted out.
00;09;22;26 - 00;09;32;14
Meg Pekarske
And given all of the various enrollment challenges we've dealt with over the years, you know, you don't want to risk that. So and then I.
00;09;32;14 - 00;09;53;19
Andrew Brenton
Would also say this be careful about physician services, too, because, you know, the sort of apart from the certification, just like you said, but if the physician that isn't in Medicare, but they're validly opted out, if they're providing, you know, physician visits that the hospitals would otherwise want a bill to a medicare patient, you cannot bill Medicare for that.
00;09;53;27 - 00;10;11;26
Andrew Brenton
In fact, the physician actually has a requirement to privately contract with the hospice patient in that case. So essentially, you're going to run into some kind of billing hurdles and burdens. I would say, related to physician billing. So definitely watch out for that.
00;10;12;10 - 00;10;26;10
Meg Pekarske
Well, I think with the rise of concierge medicine and other people being frustrated by the red tape of Medicare, you know, depending on where you live and you had the most listen to podcast this year.
00;10;26;10 - 00;10;28;22
Andrew Brenton
Andrew I'm a podcast star guy.
00;10;29;01 - 00;10;53;11
Meg Pekarske
I know because I remember it's like déja vu talking about this when the rule came out. But in certain parts of the country, I expect there is going to be more physicians that opt out of Medicare. And so that's a valid opt out. My be something more common in certain parts of the country but anyway. All right, on to the next.
00;10;53;11 - 00;11;05;07
Meg Pekarske
Right. Anything else to cover on certifying physicians? Now we get to the flexibility part of the wage index, which is a kindness that CMS bestowed on hospice.
00;11;05;07 - 00;11;26;15
Andrew Brenton
Yes. Yes, exactly. So as we all know, there are or I guess were four required, you know, members of the idea we have to have a physician. We have to have a nurse, we have to have a social worker, and we have to have a pastoral or other counselor. So I see them as is doing here is, like you said, giving hospices a little more flexibility.
00;11;26;28 - 00;11;55;17
Andrew Brenton
So for that third age member, the social worker, now you're not required to have a social worker, but you can instead have a marriage and family therapist or a mental health counselor. So one of those three types of practitioners, you don't have to be slotted into that third role, which had been just the social worker. None of the other requirements related to the assessment related to core services have changed.
00;11;55;17 - 00;12;08;12
Andrew Brenton
But again, just with respect to who must sit on the idea, you know, to establish and periodically review the plan of care just in that regard, we have a little more flexibility starting in January of this year.
00;12;08;17 - 00;12;40;24
Meg Pekarske
All right. We should have started by saying we're drinking eggnog, sitting by a fire, talking about these riveting changes. Now. Unfortunately not. All right. Now to you, Adam, on the 36 month rule. So we're going to buzz through this because Rogan and I did a podcast on this when the rule came out. And I feel like you and I had mentioned this on podcasts to Adam, but but what's the skinny on the 36 month rule?
00;12;40;24 - 00;12;55;26
Meg Pekarske
Because in effect, it's already in effect because if your transaction has not already been approved before January one, 2024, it applies to you. So why don't you tell us what's the skinny on this?
00;12;56;17 - 00;13;32;09
Adam Royal
Yeah. So this was a big deal for hospices this year, effective January one, 2024. Auspices are going to be subject to the 36 month rule, which has already been affecting home health agencies for years. And essentially it prohibits any change in majority ownership. So 51% of stock or equity or more within 36 months from an initial enrollment or the most recent change of majority ownership.
00;13;32;26 - 00;14;14;01
Adam Royal
And a caveat that change of majority ownership is direct ownership, not indirect ownership. But effectively, CMS is adding hospice to the existing home health regulations. So the regulation and terms of it will otherwise remain the same. The key takeaway for a lot of clients recently, which you've already alluded to, Meg, is that based on commentary in the home health rule, which was just released years ago, any hospice that has a pending change of ownership or change of majority control will be subject to the 36 month rule on January 1st.
00;14;14;01 - 00;14;25;07
Adam Royal
So it's not like you can sort of cram all of your restructuring in in December file your applications with Medicare for a December effective date, and get around the 36 month rule.
00;14;25;17 - 00;14;52;07
Meg Pekarske
While I am still expecting phone calls of people surprised that because it can take six months or more to get your paperwork approved. And so I wonder if there are some folks who thought they bought something and had a provider number that then, you know, yeah, now you have to essentially get a new provider number. I mean, it's not that you don't, quote, own the asset or whatever, but I mean, you don't have a provider number.
00;14;52;07 - 00;15;09;25
Meg Pekarske
So again, cash flow problems going back to point one, cash flow problems, but so then the next couple of things all relate to provider enrollment kind of things. Why do we have going on here.
00;15;10;04 - 00;15;45;05
Adam Royal
A few new items. One is that hospice has been moved to the high risk screening category. It was moderate before that. The practical effect is not major, but anyone with a 5% or greater direct or indirect ownership in the hospice is now are subject to fingerprinting and background checks, significant and sort of where it signals CMS is headed and what they're thinking about, hospices practically not going to have a major impact or chilling effect on hospices.
00;15;45;17 - 00;16;21;23
Adam Royal
And then there there's been a new age 55 released and this is the form that hospices and all providers use to update enrollment information systems released a new form and they've made a couple of changes to that. One is a requirement to identify if you're owned by private equity or a real estate investment trust. And so, again, looking at what teams is interested in and we've kind of harped on this before, but they really want to know who the owners of hospices are, sort of all the way up the chain.
00;16;22;06 - 00;16;54;05
Adam Royal
And then we've seen an expanded definition of the term managing employee, or rather a clarification of that definition. It now expressly includes medical directors where it didn't before. And so I think it was fairly common practice not to report medical directors for hospices and CMS has modified the definition just to include medical director. To clarify that they do need to be disclosed as a managing employee.
00;16;54;16 - 00;17;21;17
Meg Pekarske
So a nurse probably doesn't mean all of your physicians. It's just, you know, every hospice has one medical director, as someone could say, the physician designate who. So who's the medical director in the medical director's absence? But but it shouldn't be all of your hospice physicians who do it or whatever. So that's something that's going to affect every single hospice in the country.
00;17;21;17 - 00;17;46;19
Meg Pekarske
Right? Everyone has a medical director. Everyone has to file an 855. And so, you know, when to do that would be probably if you're making other updates as you should be tried to keep your age 55 updated. You got a new board member, you know, someone leaves, you know, all that stuff, you know, make a reminder to to update or if you're in the middle of a revalidation added, then.
00;17;47;04 - 00;18;16;18
Adam Royal
Yeah, but and yeah and we've seen the max already enforcing this new definition for updates to provider enrollment that we've been in the middle of not having anything to do with updating medical directors that we've seen analysts come back and sort of proactively request disclosure of medical directors. Now, even after the the pertinent changes that we filing are unrelated to medical directors.
00;18;16;27 - 00;18;41;11
Meg Pekarske
All right. Drum roll, Andrew. Da da da da da net. So last last issue before we go into brighter news, which is deactivation so if you're not billing Medicare, you know, you could get deactivated. That was generally like 12 months or something. So what's this change?
00;18;41;11 - 00;19;05;28
Andrew Brenton
Essentially they shortened that period of time from 12 months to six months for for non billing to result in deactivation. Essentially providers really kind of need to be aware that they are billing even if you know we're talking about an entity that they don't use too much. I mean, it does you do need to show that it's active and Bill, at least every once in a while.
00;19;05;28 - 00;19;33;06
Andrew Brenton
Otherwise you're going to lose the ability to continue using that into the future. And I think we're here kind of most focus on maybe if you have like a Part B enrollment because you have a non hospice palliative care business line, you know, that's obviously maybe secondary to your, you know, part a hospice kind of business. You know, if you're not using it that much, you know, again, this kind of b, be aware that essentially, you know, use it or lose it here.
00;19;33;06 - 00;19;44;08
Andrew Brenton
You got to, you know, be active with billing. Otherwise, CMS isn't going to allow you just to kind of be out there and not Bill. You know, they want to see that their enrolled providers are active.
00;19;44;27 - 00;20;10;10
Meg Pekarske
But I think this was really targeted at the buying and selling of provider numbers, people having a backup number just in case that they never really used. And, you know, having this market of people who got provider numbers with no intention to ever use it, but then be a plug and play for someone who thought this was, you know, going to be a great business that I'm going to make a lot of money immediately.
00;20;10;10 - 00;20;37;14
Meg Pekarske
And now you can see the writing on the wall here, which is that is not going to happen, because if someone wasn't using your number, even if you bought it and, you know, we've seen this happen, it's deactivated. And now again, all this cash flow problems comes up again. And then when you do have your number, then you're going to probably get, you know, the TPI for, you know, new provider enrollment that we started talking about.
00;20;37;14 - 00;21;03;09
Meg Pekarske
And so it is not for the faint of heart. So anyway, it was an exhaustive list of new things and I think while, you know, it's been a year ago since The New Yorker article came out and a lot of this is, you know, an outgrowth of that, I think people can see how some of the staff does impact.
00;21;03;09 - 00;21;30;18
Meg Pekarske
I've been a hospice for 40 years. This does impact you to some of the staff. So, you know, it's it's important to be mindful. So I don't think anyone can really tune out of of all the things you just talked about. But now reading the tea leaves or, you know, making our our predictions for 2024 or so, what do we think is going to happen in 2024?
00;21;31;09 - 00;21;42;19
Andrew Brenton
I predict that CMS will allow nurse practitioners to certify hospice patients. So I totally get it. Okay. That's not happening. Well, you.
00;21;42;19 - 00;21;56;00
Meg Pekarske
Do have, you know, a large audience for your highest, you know, listening to podcasts. So maybe CMS will listen to and say, yes. Andrew, that is very wise. That would promote access.
00;21;56;00 - 00;22;21;06
Andrew Brenton
Exactly. Exactly. And you know, there's to the extent there's a practitioner shortage, you know, more flexibility, though. I actually don't think that's going to happen. I think that CMS probably is going to double down on some of these provider enrollment initiatives. And really, I think just kind of make it a little bit harder to participate successfully in the Medicare program.
00;22;21;20 - 00;22;44;15
Andrew Brenton
I also think CMS is probably going to have its hands full with the special focus program and kind of getting that, you know, ramped up and implemented. So yeah, I was thinking about this question of mag and I'm not I don't have any like I think real good predictions here other than I kind of just cannot stay in the course on some of what what they have been doing and 2023.
00;22;45;03 - 00;22;46;02
Meg Pekarske
That add on.
00;22;46;19 - 00;23;27;24
Adam Royal
But I'm kind of feeling the same thing Andrew is there is pick ups 2.0 is anticipated to be rolled out early 2024. And so as part of that, the the pro is it should be a lot easier to make all of these updates that providers are required to make. But from what I've heard about Picos 2.0 and how CMS is kind of developing that is to provide more coordination with state Secretary of States and the corporate filings.
00;23;29;00 - 00;23;51;15
Adam Royal
So I think in 2024, we'll see CMS kind of going outside of the 55, probably a little bit more looking at state filings to see if what you've reported to Medicare matches, what you've reported at the corporate level for the state. So could be a little more granular review than we've seen so far.
00;23;51;26 - 00;24;17;10
Meg Pekarske
Yeah, well, my vote is with all of you to I think that CMS was switched and made more changes than they've made. I mean, since like 2008 when they rewrote the caps. I mean, there is there was really I've not seen CMS move so quickly in so many different ways that I think we're really targeted at some of these problems.
00;24;17;10 - 00;24;45;01
Meg Pekarske
So maybe that dust settles a bit on this. And as they see what effect these regulatory changes have had, I guess one one thought I had and this isn't a rule change, but with the Affordable Care Act, the government had this authority to review claims for four people on service over 180 days. And I can't remember if it's like 100% review or something anyway.
00;24;45;01 - 00;25;17;12
Meg Pekarske
It's never really been implemented. And so it's sort of on the books, but it's never been implemented. And I think, you know, that sort of gets into the the audit and enforcement realm. But I just wonder if we're going to see less of these kinds of changes and more pushed into just the enforcement side of this, because I think they want to show the rapid growth and sort of the unscrupulous players.
00;25;17;24 - 00;25;48;12
Meg Pekarske
But then I think that everything is not hunky dory. There are still concerns about who's receiving hospices and stuff. If I were going to have my holiday miracle here, so I'm going to go into like Miracle Realm now, and maybe I should ask you guys this question too. But like that, we would rewrite the whole hospice benefit in 2024 because I think it is so broken and doesn't make any sense and really doesn't provide the best end of life care for folks.
00;25;48;29 - 00;26;16;22
Meg Pekarske
And so I really you know, I've harped on this for now, a long time. The six month prognosis standards are just so arbitrary and doesn't really make sense. And but it's like the core of everything. I think, like that core just needs we need to rework this. So that would be my miracle of 2024 would be that we would rewrite the whole thing, which I'm sure look at the standards can move quickly when they want to.
00;26;16;22 - 00;26;18;26
Meg Pekarske
Right. We could just redo all of this.
00;26;19;15 - 00;26;24;15
Andrew Brenton
It's funny that your miracle is that, but your actual prediction is this more audits? Oh.
00;26;25;24 - 00;26;41;25
Meg Pekarske
I know, but see, it's both my pessimism. Yeah. Married together. The yin and the yang. So. But any any other miracles people want to. To wish for the season.
00;26;42;05 - 00;26;45;11
Andrew Brenton
Man, you're putting us on the spot. Yeah. Yeah.
00;26;45;17 - 00;26;46;10
Meg Pekarske
While mine was.
00;26;46;19 - 00;26;47;03
Andrew Brenton
Harmony.
00;26;47;08 - 00;26;49;27
Meg Pekarske
And why mine? But did you say peace and harmony?
00;26;49;27 - 00;26;50;18
Andrew Brenton
Peace and harmony.
00;26;50;27 - 00;26;55;25
Meg Pekarske
Oh, I love that, too. So I'll give the last word, Adam.
00;26;56;15 - 00;27;25;00
Adam Royal
Yeah, I think. I mean, I think the rewriting the regulations or changes to the benefit would be a huge wish for 2024. But we've been doing a lot of yeah, a lot of palliative care stuff and it would be nice to see that area of the industry gain more traction and kind of formal recognition from CMS on how to regulate it, how to pay for it.
00;27;26;11 - 00;28;02;27
Meg Pekarske
That that's a great wish to oh, we should change the title of this podcast to wish lists. Yeah, I wish the last. But no I think, you know, really launching that community based palliative care benefit demonstration would be great. And yeah, actually making that a viable model of care. So well this has been fabulous as always. And look for for listeners, again, there's a handout that goes through all of the things that we talked about.
00;28;02;27 - 00;28;18;19
Meg Pekarske
So you have a short, quick list of what is it that we said? Because it is it is truly a laundry list. So and as always, thanks for thanks for listening. And thank you, Andrew and Adam. It was riveting.
00;28;19;14 - 00;28;20;19
Andrew Brenton
Thank you for having us.
00;28;21;27 - 00;28;23;02
Meg Pekarske
Yeah.
00;28;23;02 - 00;28;25;23
Adam Royal
On.
00;28;25;23 - 00;28;47;25
Meg Pekarske
All right. Take care. 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 huschblackwell.com or sign up wherever you get your podcasts. Until next time, may the wind be at your back.