HOSPICE COMPLIANCE LETTER Volume 13, Number 2 March 2012

HOSPICE COMPLIANCE LETTER
Volume 13, Number 2
March 2012
In this Issue:
Page One – How to Plan for the Blow of a Qui Tam Lawsuit
Page Seven – Hospice Compliance and Regulatory Notes from All Over
Page Nine – Deadline Passes to Voluntarily Report CMS Measures
Page Thirteen – Hospice Staff Must to Report Crimes in Nursing Home
Page Fifteen – Hospice LOS Statistics Point in Two Directions
Page Sixteen – Hospice and Palliative Care Quality Notes
How to Plan for the Blow of a Qui Tam Lawsuit
Allegations of ineligible admissions are growing; suits may be lurking
Several recent, high-profile, multi-million-dollar qui tam lawsuits
charging hospices with violations of the False Claims Act for
inappropriately admitting patients who weren’t terminally ill or eligible for
the benefit, and then billing Medicare for their care, have certainly captured
the industry’s attention. Often these cases are initiated by disgruntled ex- (or
current) employees. Because their filings are initially sealed in the courts
while the government investigates and decides if it wants to join the case,
the hospice may be blissfully unaware of the trouble that’s looming until a
large demand for patient records arrives on its doorstep.
Because of the lure of potentially large payouts to whistleblowers,
there may be many more cases out there than anyone in the field realizes.
William Athanas, an attorney with the Birmingham, Ala., office of the
Nashville firm Waller Lansden Dortch & Davis, who has represented
hospices and other health providers against such charges, says it is not
possible to know how many such cases are currently under investigation.
“But if I had to guess, I’d say the number of hospice cases sealed or in
process is closer to triple, rather than single, digits.”
“This could happen to just about any hospice,” notes another industry
expert, attorney Mary Michal of the Wisconsin firm Reinhart Boerner Van
Deuren. “All it takes is a disgruntled employee or former employee, and
allegations of improper directives from the hospice leadership, however
misinterpreted those allegations might be.”1
1
HCL also tried to contact four plaintiffs’ attorneys prominent in hospice qui tam cases to hear their side of
the story, but none responded to our messages.
What can hospice providers do to protect themselves—or at least
minimize their qui tam exposure? Experts say there are two keys to a
preventive strategy. First is an aggressive, robust, sufficiently resourced
corporate compliance program, one that follows the guidelines spelled out in
the Office of Inspector General’s 1999 guidance on hospice compliance
programs.2
Second is careful attention to human resources policies and practices,
to ensure as much as possible that an employee’s report of agency practices
not in compliance with Medicare regulations is taken very seriously—not
brushed aside, potentially creating another disgruntled ex-employee. In other
words, you want to keep whistleblowers within the agency’s compliance
policies and processes, reporting problems to you, rather than on the outside,
talking to a lawyer. And every hospice needs a solid process for
investigating compliance reports, Michal says. Give your employees a
workable mechanism for reporting their concerns.
Ronald Clark, a False Claims Act consultant who formerly litigated
on both sides of these cases for the Department of Justice and the New York
law firm Arent Fox, says a corporate compliance program “is really the only
way to protect yourself. Compliance is more important than ever, given the
government’s growing issues about hospices. If you haven’t been concerned
about it before, now you really have to be concerned about it. This is all
extremely expensive and disruptive. These are horrible situations that can
really slam a hospice, whether from the government, a disgruntled former
employee or a competitor.”
Many Hospices Will Face Qui Tam Suits
And yet, Clark adds, “it is increasingly likely that many hospices will
encounter qui tam lawsuits along the way. The important thing is not to
panic over this situation, but to prepare for it, because there are things a
hospice can do to protect itself.” He emphasizes the importance of an
experienced compliance officer for the hospice and of investing in an
effective and meaningful compliance program. “I would sit down with the
compliance officer. I would wonder if we have a response plan for when the
government shows up—a designated response officer who will take charge
2
http://oig.hhs.gov/authorities/docs/hospicx.pdf.
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of the situation.” Clark also recommends establishing a working relationship
with a good health care lawyer, “perhaps the same individual who helps to
draft your corporate compliance plan. Periodically, have that lawyer review
how the compliance plan is working. Be prepared to show the government
how a ‘culture of compliance’ prevails at your agency and how the hospice
is working hard to be a responsible health care provider. The government
knows no compliance plan is 100 percent effective; what is important is
what the hospice does when it discovers a problem,” he explains.
“When I was in the Department of Justice, visiting health care
agencies, I’d often ask staff at random: Do you have a compliance plan?
Who’s your compliance officer? When was the last time you received
compliance training?” Answers to these questions could have a big impact
on future government investigations. “I have talked to any number of
disgruntled ex- or current employees. They all say, ‘I didn’t do it for the
money.’ A lot of situations arise where the employee thinks something
wrong is going on. They report it to the company, nothing happens, and they
get frustrated. Had there been an effective compliance plan, so they could
see a positive response, maybe there would not have been a qui tam
lawsuit.”
Part of a good compliance plan is a whistleblower policy spelling out
protections for staff who raise compliance concerns, Athanas says. A
whistleblower policy could describe the responsibilities and obligations of
both the company and the whistleblower—principally, to take the complaint
seriously and to only make complaints in good faith, supported by facts.
“Keep track of compliance trainings—who attended or did not. Have an
internal reward program for compliance concerns that prove to be accurate.
Document your system successes. Celebrate when the compliance plan
works. And specify factors that would trigger the need for outside counsel’s
involvement,” Athanas says.
Connie Raffa, an attorney with Arent Fox who has represented
hospices in such cases, underscores the importance of the compliance
program. If someone from billing or finance comes to the compliance officer
with a concern, “take that person and their information seriously. Do an
internal investigation within 60 days. If substantiated, contact a health care
attorney, make a disclosure to the government, and pay back what is owed.
The worst thing you can do is not to treat these things seriously.”
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What Is a Qui Tam Suit?
Hospices should realize that qui tam is both similar to but different
from the types of scrutiny and litigation they are used to, Athanas says. “It
starts with the whistleblower—a person who has information about what
they believe is a violation of the law.” Qui tam provisions allow that
individual, who is called a relator in legal parlance, to sue others on the
government’s behalf under the False Claims Act, and recover up to 25 or 30
percent of the settlement, which can add up to a lot of money.
Qui tam suits are filed in secret—under seal by the court—and
because usually only the first filer for a given allegation can benefit from the
recovery, there may be some urgency to file a case, even without a full
understanding of the facts. The government has 60 days to decide if it
believes the case has merits and whether it wants to join the case, although it
typically asks for one or more extensions for further review, Athanas says. If
the government decides to intervene, it takes on primary responsibility for
prosecuting the case. But if the government decides not to intervene, that
doesn’t necessarily mean the end of the case.
“During this process, the hospice provider hasn’t been served with a
complaint, and has no idea what’s going on. One clue might be if
government agents start interviewing former employees. The hospice may
also get a formal order requiring the production of documents, known as a
Civil Investigative Demand, which often represents the clearest indication
that it is the target of a qui tam lawsuit.”
Basically, the whole process puts the provider on the defensive,
Athanas says. “These cases can create a perfect storm for the hospice. High
staff turnover, because of the nature of the work, increases the number of
potential whistleblowers. The amount of money billed and received by a
hospice can be substantial, often attracting the attention of lawyers and
government regulators. Hospice admission and recertification decisions are
rarely black and white. Even well-intentioned providers can have patients on
service whose eligibility might be questioned.”
The growing number of fraud cases has caused the government to
view hospices with skepticism, he says. Are there hospices out there
engaged in fraudulent activity? Probably. Yet Athanas argues, and most
observers would agree, the much larger portion of the bell curve is genuinely
committed to complying with Medicare regulations.
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Volume 13, Number 2
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He adds that it is important for hospices to thoroughly document their
medical decision-making process to support the enrollment decisions that are
made. A couple of years down the road, when memories of a particular case
may have faded, it will be critical to have memorialized in the medical
record the decision-making process and the particular set of circumstances
that justified this patient’s terminal prognosis and admission or
recertification. “If it’s not captured up front, it may be lost forever. There’s
an additional administrative burden to capture the key information at the
time the decision is made, but doing it right will pay off down the line.”
Don’t Create More Disgruntled Ex-Employees
One of the major dilemmas of qui tam law is the need to develop an
appropriate and proportional disciplinary process, Athanas says. “The
government expects companies to enforce disciplinary measures against
those who run afoul of established guidelines, in order to demonstrate a
genuine commitment to compliance and to enforcing a culture of
compliance.” In fact, if a hospice is later investigated under the False Claims
Act, the government will want to see evidence of consistent disciplinary
measures taken against employees. They may even question why no
employee has ever been fired for compliance violations.
If discipline is not applied consistently, or if the company has trouble
demonstrating how it enforced disciplinary measures, the government will
become skeptical that compliance is a genuine concern, Athanas says. “The
government wants to be convinced that disciplinary actions against violators
have practical impact—and are not just slaps on the wrist. But application of
disciplinary measures comes with its own risks.” Terminated employees
may seek redress in the courts, suing the hospice for wrongful termination.
“The punishment for compliance violators must fit the crime. This is what
providers often find most challenging about compliance programs, and
where the government doesn’t fully appreciate the dilemmas they face.”
Among his recommendations are developing a manual with a written
description of the disciplinary system, laying out in writing penalties for first
and subsequent violations. He urges principled decision-making,
consistently applied. Incremental disciplinary measures could include
increased reporting obligations by the staff member, increased supervision
or probationary periods.
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Athanas also recommends holding an exit interview with departing
employees. “Ask them if they are aware of compliance violations, making it
clear that the company seeks such information to understand how and where
it can improve.” A note signed by a departing employee saying they are not
aware of compliance violations could become compelling evidence down the
road. Other experts urge caution, to avoid planting explicit seeds in the
employee’s mind, although a more open-ended exit interview still could be
valuable.
Qui Tam Resources
Contact William Athanas at: Bill.Athanas@wallerlaw.com, 1901
Sixth Avenue N., Suite 1400, Birmingham, AL 35203, phone: 205/2265703. Among other resources, his website
(http://www.wallerlaw.com/attorneys/2009/10/08/athanas-william-c.106342)
contains two articles on how to balance corporate compliance with employee
relations.3
False Claims Act expert Ronald Clark has a website at
http://fcaexpert.com, which includes a number of articles and other
resources. Email him at: fca.expert@gmail.com.
Meg S.L. Pekarske, Mary Michal at Reinhart Boerner Van Deuren s.c.
22 East Mifflin Street, Suite 600 | Madison, WI 53703 PH: 608-229-2216 |
Connie A. Raffa at Arent Fox; New York, NY 212.484.3926
The American Health Lawyers Association, with 10,000 members
devoted to legal issues in health care, including health providers, offers a
number of resources include a False Claims Act manual, at:
www.healthlawyers.org/.
OIG has produced a series of provider compliance training videos and
podcasts, accessible at:
http://www.oig.hhs.gov/newsroom/video/2011/heat_modules.asp and on
YouTube.
3
http://www.corporatecomplianceinsights.com/navigating-between-scylla-and-charybdis-effectivelyenforcing-corporate-compliance-programs-without-turning-violators-into-whistleblowers-%E2%80%93part-1/ and http://www.corporatecomplianceinsights.com/navigating-between-scylla-and-charybdiseffectively-enforcing-corporate-compliance-programs-without-turning-violators-into-whistleblowers%E2%80%93-part-2/.
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Hospice Compliance & Regulatory Notes from All Over
Atlanta-based Gentiva’s multistate Odyssey hospice has agreed to pay
$25 million to the U.S. Department of Justice to settle investigations of its
continuous care claims to Medicare between January 2006 and June 2009.
Dallas-based Odyssey committed in a corporate integrity agreement with
HHS to pay the one-time cash settlement, provide special education on
compliance for its employees, and submit audits to the government for the
next five years. According to the Department of Justice, allegations that
Odyssey improperly billed for continuous care services were originally
raised in three lawsuits filed against Odyssey under the qui tam, or
whistleblower, provisions of the False Claims Act. As a part of the
resolution, the whistleblowers, all former employees of Odyssey, will
receive payments totaling more than $4.6 million. “Gentiva cooperated fully
with this investigation, which covered a period prior to our acquisition of
Odyssey [in August 2010], and the settlement is consistent with our efforts
to instill Gentiva’s culture of compliance throughout the company,” general
counsel and chief compliance officer John Camperlengo said in prepared
statement.4
*
*
*
The former operator of Good Samaritan Hospice USA, Inc., a nowdefunct for-profit company in Muscle Shoals, Ala., was sentenced February
1st to 28 months in prison for his part in health care fraud totaling $3 million
in connection with hospice programs he operated. Jackie Randolph Gist,
aged 65, pled guilty in September to three counts of health care fraud. Good
Samaritan filed for bankruptcy in 2009 because of $5 million in hospice
aggregate per patient cap overrun liabilities. The fraud charges are for
submitting bills to Medicare for general inpatient-level care for patients
receiving routine care.5 This case was the work of President Obama’s
Financial Fraud Enforcement Task Force.
4
http://www.prnewswire.com/news-releases/odyssey-hospice-announces-agreements-with-department-ofjustice-and-office-of-inspector-general-139545938.html.
5
http://blog.al.com/breaking/2012/02/former_shoals_hospice_operator.html.
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*
*
*
HHS Secretary Kathleen Sebelius announced February 16 that the
government will postpone implementation of ICD-10 (the latest revision of
the International Statistical Classification of Diseases medical coding
system) from its previously announced October 2013 start date. No new date
was given. The American Medical Association had campaigned to delay the
transition because physicians are already dealing with numerous other
regulatory, technological and coding changes related to health care reform.
ICD-10 greatly increases the total number of billing codes to 68,000. “We
have heard from many in the provider community who have concerns about
the administrative burdens they face in the years ahead,” Sebelius said. “We
are committing to work with the provider community to reexamine the rate
at which HHS and the nation implement these important improvements to
our health care system.”
*
*
*
Another recent report on hospice providers by Peter Waldman of the
Bloomberg business news service (see HCL, January 2012, p. 1) says that
the office of a hospice medical director in Pittsburg, Pa., was raided by
federal and state agents in February. Dr. Oliver W. Herndon, corporate
medical director for Horizons Hospice of Pittsburgh, was not arrested or
charged, but DEA assistant special agent Gary Davis said agents executed a
search warrant and seized boxes of documents.
*
*
*
Good News from Medicare Regulators? Eli Research’s Medicare
Compliance and Reimbursement newsletter recently6 reported that the RACs
(Recovery Adult Contractors) returned $16.9 million in Medicare underpayments to medical practices in fiscal year 2010, at the same time it
recouped $75 million from overpaid practices. RACs receive a contingency
fee for their audits of providers but Eli points out they get the contingency
whether the reimbursement correction is an overpayment recouped or an
underpayment disbursed. The same publication urges providers to follow up
on all unpaid and denied claims and appeals. “Almost every practice has
6
Vol. 37; #20; 2011; p. 157.
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hidden money waiting to be discovered, from sources such as unpaid claims,
claims paid incorrectly, denials not appealed or appealed incorrectly, and
denials appealed with no follow-up.” Eli recommends continually reviewing
and monitoring the agency’s explanations of benefits.
*
*
*
The tragic consequences of a gravely ill patient outliving her
eligibility for the hospice benefit is described in the journal Health Affairs
by Dr. Hunter Groninger, a onetime hospice medical director who now
works for NIH’s Clinical Center in Bethesda, Md.7 He portrays a visit to the
patient, who had spent a year on service and was emotionally ready for her
death, but her COPD had stabilized. When his hospice team broke the news
of her hospice discharge, she started to cry. Six weeks later she was taken by
ambulance to a hospital and put on a ventilator but was dead within an hour.
“This ‘how long?’ uncertainty has led many physicians to refer
eligible patients to hospice care too late in life to truly benefit from it,”
Groninger writes. “As a result, patients and families often miss the
opportunity to create a more stable and comfortable environment in which to
support and be with the dying person.” He cites possible solutions such as a
more well-balanced hospice benefit based on demonstrated need for
supportive services, rather than prognosis; a graduated per-diem payment
based on care intensity; or replacing the hospice benefit with home-based
palliative care.
Deadline Passes to Voluntarily Report CMS Measures
Where does hospice fit in the evolving quality data landscape?
January 31 was the deadline for hospices to voluntarily report to the
government which patient care-related measures they are tracking under
their QAPI (quality assurance and performance improvement) programs.
CMS asked hospices to report whether they had a QAPI program with at
least three patient care-related quality measures, to say how many such
measures they were using, and then to list the measures. This may seem like
the most tentative of baby steps for an industry that has been grappling with
the challenge of quantifying and reporting its quality for more than a decade.
7
http://content.healthaffairs.org/content/31/2/452.abstract.
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But this initial voluntary reporting opportunity will be followed by phased-in
mandated reporting requirements, starting with required reporting of the
same structural measures in January of 2013 and then submission of
“comfortable dying” patient data starting next April.
Deyta LLC, a hospice and home health quality measurement and
benchmarking service in Louisville, Ky., in order to encourage its
subscribers and other hospices to participate in voluntary reporting,
implemented the Voluntary Structural Measures Reporting Program. “We
took a list of the standardized quality measures from sources like AIM,
PEACE, NHPCO and our own Quality Navigator product, about 300
measures in all, and compiled their names, categories, numerators and
denominators, based on actual protocol definitions,” explains Martha Tecca,
Deyta’s chief strategy officer. Deyta tried to make it easier for hospices to
report their information to the government and more than 250 hospices took
advantage of it—a significant proportion of total hospice voluntary response,
she says.
“We strongly believe that CMS should get as much information as
possible from hospices about what they’re now doing for QAPI. It is
absolutely in hospices’ best interest for CMS to know what we’re tracking—
the measures we are choosing,” Tecca says. “We believe that CMS is
sincerely interested in coming up with measures that will be meaningful to
hospices and patients, yet of relatively low burden.”
“You don’t have to use a vendor for voluntary reporting, but we can
make it a little easier,” Barbara Rosenblum of Strategic Healthcare Programs
of Santa Barbara, Calif., said during a webinar on the topic in January. “You
need to do something today or tomorrow, in order to find out what’s
working and not working,” if the hospice is serious about being ready for the
quality reporting mandates that are coming. She also pointed out that QAPI
and reporting to CMS can be profitably and efficiently combined into a
single process.
Adds Tecca: “Based on my time working with hospices to implement
QAPI, it is a substantial administrative burden to get organizations on the
same page. Even if they are using the same indicators, they may not use the
same words to describe the numerator and denominator when they report
their structural measure to CMS.” People in key leadership positions in
hospices may not know the details of what their own agencies are measuring
through their QAPI programs, she says. “You need to be clear on what
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you’re measuring, how, why, and how it relates to your mission of
improving your care and services. Preparing to report the structural measure
is a valuable step, consistent with the intentions of QAPI and effective
organizational management.”
Hospices should also pay attention to the new National Quality Forum
(NQF) measures, since CMS is mandated to use quality reporting measures
that have gone through an endorsement process by a recognized national
quality standards entity like NQF. Hospice’s future quality reporting
measures are likely to have through this review and endorsement process. A
new rule from CMS is expected in April, and it may add to the list of quality
measures the government proposes to require for hospice data reporting.
NQF Leads the Way; Other Constituencies Emerge
On February 14, NQF released its endorsement of 14 quality measures
in palliative and end-of-life care, following a public comment period and
evaluation. A total of 22 measures were evaluated against NQF endorsement
criteria, and decisions not to endorse measures were primarily based on lack
of evidence, says Dr. Helen Burstin, NQF’s senior vice president for
performance measures. In 2008, NQF endorsed nine voluntary consensus
standards for symptom management and end-of-life care for cancer patients,
following the eight domains of quality palliative and hospice care
established by the National Consensus Project for Quality Palliative Care.
“We get a great deal of expert and public input,” Burstin tells HCL.
“We hope the measures that come out of our processes are ready for prime
time—both for the government and for use in quality improvement by
providers.” Several of the new end-of-life measures try to incorporate the
voices of patients and families, she adds. “Hospices should feel comfortable
that they’re looking at a good set of tools to improve quality and safety, and
to benchmark and compare outcomes with their peers. We hope these
measures will allow them to continue on their quality journey with good
tools in hand.”
Melanie Merriman, a Florida-based hospice consultant and quality
expert, notes that the measures endorsed by NQF tend to be process
measures, rather than outcomes measures—which NQF’s Palliative Care and
End-of-Life Care Endorsement Maintenance Steering Committee
acknowledged in its review process as a gap. “The developers noted that this
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is where we are at today with the current science of hospice quality
measurement. Everyone is calling for better measures, including outcomes
measures, but if you haven’t been measuring quality outcomes for very long,
you won’t have the data to validate outcomes measures.” Hospitals have
been collecting quality data longer than most hospices, she adds, yet most of
their measures are process measures, too.
The NQF process might seem rather cumbersome to providers,
Merriman acknowledges. “But this is how the world works. CMS has just
been given more measures to choose from by NQF. What does that mean to
hospices? You would be wise to start including some of these measures in
your own QAPI programs—if they make sense for your hospice.” Merriman
recommends that hospices develop a spread sheet listing and defining every
quality measure being tracked in their QAPI program. “I also think this is
useful for outreach to your referral sources. You may not be able yet to show
them graphs demonstrating your outcomes. But you can say: This is what we
are measuring, tracking and trending—all in order to improve the quality of
our care.”
Tecca observes that CMS seems to be moving slowly on
implementing quality reporting for hospices, “perhaps because they are
concerned that this will be too hard for hospices. But are hospices missing
the boat if they only take their quality cues from CMS mandates?”
Meanwhile, the rest of the health care industry is moving very fast.
“At the National Association for Home Care’s Strategic Planning
Congress and Home Care 100 last month, there was a lot of emphasis on
how home health and hospice need to be demonstrating their value—
showing how their partners in the continuum can do a better job on their
quality numbers with our help. If we think about decisions being made
regarding accountable care organizations, value-based purchasing, bundled
payments and incentives to reduce hospital readmission and mortality rates,
hospices could play a real role in helping with these issues. The urgency for
quality reporting capacity for hospices is obvious.”
It is often commented how far hospice lags behind other providers in
terms of measuring quality, but Tecca is not sure that she agrees with that
assessment. “This industry has a group of leaders who are committed to
making their care better, and they’re smart. They know that in order to make
a difference, they have to measure things consistently. Over a third of
hospices are voluntarily benchmarking with a single satisfaction survey tool,
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NHPCO’s Family Evaluation of Hospice Care. That hasn’t happened in
other sectors. Now, do I think many hospices have a lot to do in order to be
able to report quality data in ways that the government is going to require
them to report it? Yes. Do they need to attend to their information systems
and stay in front of CMS demands? Yes. Hospices have tons more to do but
some may prefer to wait until CMS demands specific reporting. However,
there is a huge opportunity for hospices to realize greater potential in the
evolving health care system, if they can get the data together to prove their
value.”
Hospice Staff Must Report Crimes in Nursing Home
A recent memo from CMS reminds hospice providers that their staffs
are required to promptly report suspicion of any crime against the resident of
a nursing facility to local law enforcement agencies and the state survey
agency. Failure to do so can result in huge fines of up to $300,000 and
exclusion from participation in federal health care programs, says Jennifer
Hilliard, JD, public policy attorney with the long-term care professional
association LeadingAge.
Hospice agencies are not on the hook for failure to report under these
provisions, but they have a significant responsibility to ensure that their
employees are informed of their obligations under the Elder Justice Act
provisions in the 2010 Affordable Care Act. It requires “specific individuals
in applicable long-term care facilities to report any reasonable suspicion of
crimes committed against a resident of that facility to at least one law
enforcement agency and the state survey agency,” according to a June 17,
2011, memo from CMS to State Survey Agency Directors.8
The requirements went into effect March 23, 2010, although there are
still no implementing regulations. They apply to nursing homes and hospices
that receive $10,000 per year in Medicare reimbursement, but not to assisted
living facilities. Covered individuals include owners, operators, employees,
managers, agents and contractors, but Hilliard doesn’t believe volunteers are
included under these provisions.
8
http://www.ncdhhs.gov/dhsr/memo/cms_070611.pdf.
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Hospices should first ascertain the act’s applicability to their agency,
then notify each covered individual annually of their duty to report such
crimes, and post conspicuous notices of the rules. They may also want to
coordinate with local law enforcement representatives in developing
policies, procedures and recommended reporting contacts for meeting the
Elder Justice Act requirements. Reporting needs to be done within two hours
if serious bodily injury is present, but at least within 24 hours of having a
suspicion that a crime took place.
“I’d want to make hospices aware of the law and encourage them to
run through some possible scenarios,” Hilliard says. “It’s crazy, given the
kinds of things that go on in nursing homes. Mrs. Smith loses her dentures or
hearing aid and accuses her roommate of stealing them. It’s very
conceivable that this could constitute a reportable crime, and the penalties
are such that it’s best to err on the side of reporting.” Retaliating against staff
for lawfully reporting a reasonable suspicion of a crime is forbidden, and
facilities face stiff fines if they do so.
Hilliard doesn’t recommend that staff depend on their supervisors to
file the report, given the gravity of the penalties. “I’d rather make a report
than be subject to finding out that a reportable crime took place and I didn’t
report it—even though the fallout from a police raid at the nursing home
might be significant. Some homes report that they have trouble getting the
police to take them seriously when they file these reports.” Nursing homes
have to separately report these incidents, pursuant to other regulations. For
more information, contact Jennifer Hilliard at LeadingAge in Washington,
DC, 202/508-9444, jhilliard@leadingage.org.
Hospice LOS Statistics Point in Two Directions
NHPCO’s recently released report, “Facts and Figures: Hospice Care
in America,” shows that patient lengths of stay in hospice fell slightly in
2010, from 69.0 in the year before to 67.4 days. Current median length of
stay is 19.7 days, with 35.3 percent of patients on service for seven days or
less and 12 percent on service for 180 days or more. NHPCO tallied 5,150
hospices in operation in 2010, with nearly a third each having an average
daily census of more than 100 or less than 26.
Nearly 60 percent of U.S. hospices are now for-profits. A total of 1.58
million patients received services from hospices in 2010; 65 percent of them
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died on hospice care, 19 percent carried over to 2011 and 16 percent were
discharged live. The proportion of cancer patients and the proportion of
white patients both continued to drop (to 35.6 percent and 77.3 percent,
respectively).
A postscript to these hospice data findings comes from
Bloomberg.com, the business and financial news service that recently has
undertaken a major, multi-part investigation of hospice care in America. In
October, Bloomberg reports, Sojourn Care, Inc., of Tulsa, Okla., closed its
doors with debts of $27 million for hospice aggregate per-patient cap
recoupments owed to Medicare.9 Bloomberg journalist Peter Waldman
reports that after Sojourn was closed, “they opened a new hospice, with new
owners,” called RoseRock Healthcare. Waldman writes that RoseRock,
operated through a separate Tulsa management company called Solstice
Healthcare, enrolled about 100 hand-picked patients from Sojourn’s
previous caseload.
Sojourn’s average length of stay at the time of closure was just under
180 days. Waldman reports that at least seven hospices owing millions in
cap repayments, have sought bankruptcy protection since 2008.
Hospice and Palliative Care Quality Notes
• Mary Labyak, president and CEO of Suncoast Hospice in Clearwater
Fla., and a true giant of hospice care in America, died February 4 at
her Clearwater home under the care of the hospice she led for nearly
three decades. Labyak spearheaded Suncoast’s growth into the
country’s largest non-profit hospice provider, with an ADC of 1,800
patients, as well as a national model of diversified, community-wide
hospice and palliative care services. A forceful advocate for hospice
care, she led the organization that operated Woodside Hospice, the
facility where Terri Schiavo died on March 31, 2005, with right-tolifers picketing out front, and she led the hospice industry’s response
to the OIG’s Operation Restore Trust in the mid-1990s, which was the
first major government initiative targeting hospice compliance and
admission practices. OIG, in its final report on ORT, noted certain
9
http://mobile.bloomberg.com/news/2012-02-03/hospices-dump-patients-while-escaping-multimilliondollar-taxpayer-refunds.html
- 15 Hospice Compliance Letter
Volume 13, Number 2
March 2012
concerns related to hospice care provided in the nursing home, but
otherwise found: “Overall, the Medicare hospice program seems to be
working as intended.” A social worker by training, Labyak started as
a volunteer with Suncoast Hospice in 1977....
• Another pioneer of hospice care in America, William Lamers, Jr.,
MD, who in 1975 founded Hospice of Marin County, Calif.,
considered the second oldest hospice in America and today called
Hospice by the Bay, died February 2 at his home in Malibu, Calif. A
physician trained in psychiatry, Dr. Lamers helped to pioneer the use
of morphine to manage the pain of cancer patients. He was the
onetime president of the International Work Group on Death, Dying
and Bereavement and medical director of the Hospice Foundation of
America….
• A special report in the San Jose Calif. Mercury News by April
Dembosky, a MetLife Foundation Journalists on Aging Fellow,
reports that “freshly minted physicians” are flocking to the growing
medical specialty of palliative medicine. “The cohort of doctors
spearheading palliative care departments across the country are
increasingly in their early- to mid-30s,” with potential consequences
for the provision of palliative care. They often lack the grounding in
life experience of older doctors, and elderly patients may feel
reluctant to disclose important information about sensitive conditions
to such young doctors. Says one physician, Dr. Kavitha Ramchandran
of Stanford University, aged 34, “We acknowledge that we are young,
and we only have the wisdom that comes with our 30-something
years…. I think there’s a steep learning curve in this”….
• The next subspecialty medical board examination in hospice and
palliative medicine will be given on October 4, 2012, through the
American Board of Medical Specialties and ten of its constituent
subspecialty boards. This is the last year that physicians can sit for
their HPM boards based on work experience, without having
completed a 12-month ACGME-accredited fellowship in the field.
But if they haven’t started documenting their experience working with
palliative care teams in order to meet ABMS application
- 16 Hospice Compliance Letter
Volume 13, Number 2
March 2012
requirements, it is probably too late to start. HPM leaders have begun
asking if there could be alternative ways to bring more mid-career
physicians into this field.
HOSPICE COMPLIANCE LETTER
The Hospice Compliance Letter is published by the Hospice Compliance Network (a service of
Summit Business Group, LLC), Jay Mahoney, Founder and Executive Editor; Larry Beresford,
Editor. For information about subscriptions/memberships, please call 866/229-0132 or write PO Box
130, Penfield, NY 14526. To make comments and/or suggestions about the Letter or to submit an
article for publication, please contact the editor at 510/536-3048 or larryberesford@hotmail.com
Copyright 2012. Hospice Compliance Network. All rights reserved. Subscribing hospices are
permitted to reproduce this newsletter for their internal use only. Other than that encouraged
exception, no part of this publication may be reproduced, in any form or by any means, without
prior written consent.
This newsletter strives to provide timely and accurate information related to hospice care, corporate
compliance issues and other selected matters. Items in the newsletter are brought to our readers
from a variety of sources, all of which are thought to be accurate and reliable. Nevertheless, it is
specifically understood that the publication is not intended to provide legal or other professional
services, counsel or advice. Readers requiring such services are encouraged to contact appropriate
professionals.
- 17 Hospice Compliance Letter
Volume 13, Number 2
March 2012