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CMS does shed more light on a confusing area in the proposed rule 鈥� which hospices from the 10 percent it will enroll in the SFP. 鈥淲e will select the poorest performing hospices, from the 10 percent selectee list based on the finalized SFP algorithm score, in sequential value,鈥� the agency explains. 鈥淎s the focus of the SFP is to encourage improvement through increased oversight, not on hospices already on an enforcement path, hospices under an active enforcement action, for which they are already on a 6-month termination track or subject to other remedies, would not be considered for selection into the SFP for that designated period,鈥� it adds.

CMS Dismisses Survey Backlog Concerns

In comment letters on the rule, hospices and their representatives found many faults with the proposed program, ranging from lack of consistent surveys to CAHPS data shortfalls to unwarranted fraud associations (see HHHW by AAPC, Vol. XXXII, No. 35).

But CMS sticks to its guns in the final rule. For example, the program鈥檚 鈥渁pproach provides no incentive for providers to opt out of reporting because it is unlikely that suppressing CAHPS data would help providers avoid SFP eligibility,鈥� the agency maintains in the rule.

And 鈥渨e acknowledge the potential limitations of HCI data, but the benefits of using the HCI score, including that it is based on claims data, that it captures care processes occurring at a hospice, and that it has no additional data reporting burden, outweigh the concerns,鈥� CMS notes.

Regarding suggestions to scale or prorate survey complaints based on size, 鈥渢he current evidence does not suggest that CLD citations increase as providers take on more beneficiaries,鈥� CMS responds in the rule.

In response to the many concerns about surveyor competency and consistency, CMS merely says 鈥渁ll active SA and AO surveyors have completed 鈥� training, updated in early 2023, to ensure consistent skills and knowledge鈥� and pledges to monitor the SFP process.

On the topic of survey backlogs, CMS says it expects 鈥渢hat backlog 鈥� to clear over the next year as state survey agencies (SAs) and accreditation organizations (AOs) prioritize surveys of hospices that have not had a survey in 36 months.鈥�

Responding to one of the most common suggestions, to delay SFP while CMS works out the kinks and perhaps pilot tests it, CMS says, 鈥渨e believe further delay would likely impact patient and family health and safety. Hospices are aware of their status for each element used in the algorithm and had opportunities to preview these elements prior to the use in the algorithm.鈥�

Up in the air: CMS says it still hasn鈥檛 decided whether to use a third party to administer the SFP, which is supposed to begin in 2024.

Trade Groups Voice Strong Opposition

As expected, CMS鈥� complete refusal to heed any suggestions for SFP improvement doesn鈥檛 sit well with hospices and their representatives.

鈥淐MS鈥� decision to progress using a flawed methodology for the SFP algorithm will threaten the ability of millions of older adults and other hospice beneficiaries to access quality hospice care,鈥� say four hospice trade groups in a joint statement. 鈥淎s a community, we are profoundly disappointed with this decision,鈥� say NAHC, the National Hospice and Palliative Care Organization, LeadingAge, and the National Partnership for Healthcare and Hospice Innovation.

The groups 鈥渟trongly oppose the final design of the hospice special focus program,鈥� they say. 鈥淭he implementation of the poorly designed algorithm, which has been widely criticized by congressional leaders, technical expert panel participants, and hospice community and association leaders, will hinder a widely shared goal of improving sector quality.鈥�

Bottom line: 鈥淥ur associations support the spirit and intent of the SFP, which 鈥� aims to improve poor performing hospices. CMS鈥� approach is not aligned with congressional intent, nor does it effectively identify the lowest quality performing providers, and does not achieve the goals set forth in the HOSPICE Act,鈥� the groups say.

NAHC provides more specific criticism in its rule summary. 鈥淣AHC is deeply concerned that CMS has decided to push ahead with its proposed structure and implementation timeline for the hospice special focus program (SFP), ignoring all the commonsense suggested changes NAHC and others requested throughout our engagement with the agency,鈥� the trade group says. 鈥淏y implementing the SFP using a flawed algorithm, CMS will fail in its efforts to identify hospices most appropriate for additional oversight and support, and risk reducing access to higher-quality care by directing patients and families to hospices that perform most poorly relative to health and safety requirements,鈥� it says.

鈥淚t is unfortunate to see CMS apparently prioritizing speed to implementation over actually getting the SFP structure right,鈥� NAHC adds.

鈥淪adly, the SFP CMS is finalizing with today鈥檚 rule falls far short and will likely result in hospices that should be in the program being able to stay under its radar, while at the same time unfairly creating bias against hospices that serve more patients and invest the resources to report full quality data,鈥� NAHC blasts.

鈥淐MS鈥� refusal to listen to those concerns is unfortunate,鈥� says attorney Robert Markette Jr. with Hall Render in Indianapolis. 鈥淗owever, given recent events in the hospice industry, I don鈥檛 think anyone is surprised,鈥� Markette tells AAPC.

鈥淚 have been warning providers for several years that if the SNF industry鈥檚 experience is our example, SFP for hospice will be difficult for hospices that end up in the program,鈥� Markette adds. 鈥淧roviders need to be really focusing on survey prep and trying to avoid the program entirely,鈥� he advises.

Related to the survey changes, CMS also finalizes its proposal to implement a Hospice Informal Dispute Resolution process. 鈥淭he IDR for hospice programs would allow hospice providers an informal opportunity to refute one or more condition-level deficiencies cited in the Statement of Deficiencies survey report, which would align with the established IDR for Home Health Agencies,鈥� CMS notes in its rule fact sheet.

Note: Rule details are at .