Understanding CMS' Special Focus Program: The Latest in Hospice Oversight and Compliance

• August 16, 2024

• Rachel Hold-Weiss , Benesch, Friedlander, Coplan and Aronoff LLP

The Special Focus Program (SFP) is a new tool in the arsenal of the Centers for Medicare and Medicaid Services (CMS) for monitoring and enforcing hospice standards. The SFP is used to identify poor-performing hospices based on certain established quality indicators, subjecting them to enhanced oversight for a set time period until they either improve and emerge from the SFP or are terminated from participation in the Medicare program.

History of the Hospice SFP

The hospice industry has been under growing scrutiny, with increasing government concerns that poor-performing hospices were continuing to operate without proper patient care.

The SFP was first mandated under the Consolidations Appropriations Act 2021.[1] Initially proposed in the CY 2022 Home Health Prospective Payment System Proposed Rule,[2] CMS ultimately did not finalize the SFP in the CY 2022 Home Health Prospective Payment System Final Rule (Final Rule).[3] In the Final Rule, CMS said it would gather a Technical Expert Panel (TEP) comprised of various stakeholders in the hospice industry to provide insight and assist with the development of the SFP.

In July 2023, after evaluating the input from the TEP,[4] the CY 2024 Home Health Prospective Payment System Proposed Rule was published.[5] Additional comments were provided to CMS, and on November 13, 2023, CMS published the CY 2024 Home Health Prospective Payment System final rule, which contained the finalized SFP requirements.[6] The SFP became effective as of January 1, 2024, and is scheduled to become fully operational in the third quarter of 2024.

Criteria for Hospice Eligibility in the SFP

A hospice is eligible for the SFP if it is an active provider, has billed a Medicare fee-for-service claim within the past 12 months, has hospice survey data or Medicare Quality Reporting Program data, and has a score based on the following criteria that is inputted into an algorithm:[7]

1. Condition-level deficiencies for a standard survey. This component utilizes the three previous years of surveys and is based on 11 specific conditions of participation that are directly related to quality of care;[8]
2. Substantiated complaints on a complaint survey for the past three years. This includes follow-up surveys;
3. Hospice Care Index (HCI) Score: This score, which includes ten indicators, is based on Medicare claims data and represents care throughout the hospice stay;[9] [10]and
4. Consumer Assessment of Healthcare Providers and Systems (CAHPS) Hospice Survey: Comprised of four measures—including Help for Pain and Symptoms, Getting Timely Help, Willing to Recommend the Hospice, and Overall Rating of the Hospice—this data incorporates feedback from family and caregivers.

Hospices that are missing HCI or survey data are assigned a value of zero for those indicators. For hospices that are exempt from CAHPS Hospice Survey Data (about half of hospices due to newness or small size) the hospice will only be evaluated on the first three factors. Data sources are weighted based on their relative importance to hospice quality, and the CAHPS Hospice Survey Data is weighted twice as heavily as other data sources. After all the weights are applied, each hospice is given a final score.

The claims-based quality measure data utilized is not available until November of each calendar year. When that data becomes available, CMS will utilize the SFP algorithm to determine the number of hospices in the SFP in the first quarter of the following calendar year. Hospices with higher algorithm scores are considered hospices with poorer quality of care. The hospices included in the SFP will be chosen from the top 10% of the poor scoring hospices, or stated another way, the bottom 10% of hospices. The first group of hospices subject to the SFP is expected to be announced in the fourth quarter of 2024.

CMS will create a publicly available webpage specific to the SFP program. The webpage will be updated at least annually and will include general information about the SFP, SFP program guidance, the complete list of the 10% poor-performing hospices, the hospices that are subject to the SFP that were pulled from the list of 10%, and the SFP status for each one of the hospices.

Hospices subject to the SFP will be identified with an SFP status of:

1. Level 1 – in progress;

2. Level 2-completed successfully; or

3. Level 3-terminated from the Medicare program.

What the SFP Means for Hospices

Hospices selected for the SFP will be under heightened scrutiny for 18 months. Each hospice under the SFP:

1. Will be surveyed at least every six months. If a hospice has deemed status with one of the approved accrediting organizations,[11] the hospice will no longer be able to retain its deemed status and will be monitored by CMS or the state survey agency until the hospice is removed from the SFP or is terminated from the Medicare program.

2. Are, at CMS’ discretion, subject to one or more enforcement remedies, which includes:

   1. Civil monetary penalties (CMPs)

   2. Suspension of Payment for all new admissions

   3. Temporary management of the hospice program

   4. Directed plan of correction or

   5. Directed in-service training

Graduation or Termination from the SFP Program

Hospices will graduate from the SFP Program if:

1. Within an 18-month time frame, the hospice has not had any condition-level deficiencies or immediate jeopardy citations for any two six-month SFP surveys;

2. There are no pending complaint surveys that are at a condition-level or immediate jeopardy, or the hospice has returned to substantial compliance with all requirements.

Hospices may remain under the SFP after the initial 18 months if the hospice has complaint investigations or a 36-month recertification survey.

If a hospice cannot correct the deficiencies for which the hospice was subject to the SFP originally and the hospice cannot meet the criteria of not having condition-level deficiencies cited on any two surveys within an 18-month period, the hospice would be placed on a track for termination from the Medicare program.

Final Thoughts: Preparing for the SFP

The introduction of the SFP for hospices marks a significant shift in how CMS oversees hospice care. Hospices that have had a challenging survey history or have not been submitting or paying close attention to the CAHPS survey and the HQRP data are at high risk of being included in the first round of SFP designations. Hospices are encouraged to proactively review the data that is currently available and to make any necessary changes to ensure that if chosen for the SFP, the hospice has the greatest chance at successful graduation from the SFP.

Rachel Hold-Weiss PA-C, JD, is a partner in the Healthcare+ group at Benesch, Friedlander, Coplan and Aronoff LLP. Rachel can be reached at [email protected] or 646-777-0024.

*This article was shared with members of AHLA's Post-Acute and Long Term Services Practice Group.

ARTICLE TAGS

• Post-Acute and Long Term Services Practice Group
• Compliance Hub
• Long Term Care