House Approves BENES Act, NAHC Seeking Changes as Bill Advances in Senate

WASHINGTON, D.C. (December 11, 2020)—As part of the year-end legislative push, the U.S. House of Representatives approved the Beneficiary Enrollment Notification and Eligibility Simplification Act of 2019 (BENES Act) to address negative findings by the Department of Health and Human Services’ Office of the Inspector General (OIG) regarding survey performance by Medicare-certified hospice providers.

The BENES Act incorporates the text of the Helping Our Senior Population in Comfort Environments Act (Hospice Act) and other measures that leadership are seeking to get enacted prior to adjournment of the 116th Congress. In development of the Hospice Act, approved earlier this year by the House Ways & Means Committee, the legislation’s authors drew heavily from existing survey requirements applicable to home health agencies and nursing homes.

The National Association for Home Care & Hospice (NAHC) worked alongside other hospice stakeholder groups to advocate for legislation that addressed the concerns raised by the OIG by:

• Addressing weaknesses in the survey process through comprehensive, uniform surveyor training and testing and through creation of a process to ensure greater consistency of surveyor findings;
• Targeting problem and at-risk providers for enhanced oversight/interventions;
• Increasing the availability of resources (information and education) to support continuous quality improvement for all hospices; and
• Increasing transparency of hospice survey findings that support informed consumer choice.

NAHC appreciates efforts by members of the House to address the OIG’s concerns and particularly supportive of inclusion of NAHC-advocated provisions requiring the Centers for Medicare & Medicaid Services (CMS) to conduct training and testing of all surveyors and instructing CMS and states to develop processes to measure and reduce inconsistency in the application of survey results.

However, NAHC expressed continuing concerns that certain provisions of the legislation are ill-advised in a recent press release. For example, while the OIG found that a small proportion of hospice providers are “poor performers” based on the level of survey deficiencies and/or complaints they received, the House-passed legislation will burden all hospice providers by requiring they undergo surveys at least once every two years rather than every three years as under current law. 

The association believes survey changes should be targeted to focus on problem providers rather than across-the-board. Further, the House included as part of its legislation expanded sanctions or “remedies” that CMS can utilize; these remedies include civil money penalties (CMP). CMS has a history of inconsistent application of CMPs with other provider types; given the other remedies that CMS is granted in the legislation, NAHC believes authorization of use of CMPs in hospice is not necessary at this time. 

NAHC also continues to have concerns about other provisions, including the requirement for development of a hospice “Special Focus” program and a new requirement that would increase the penalty for failure to meet Hospice Quality Reporting Program (HQRP) requirements from 2% to 4%.

NAHC is continuing efforts to seek changes to the legislation when it is considered by in the Senate.

Following is a summary of key provisions of the legislation as approved by the House:

Survey Frequency

• Makes routine hospice surveys permanent
• Eff. 10/2021, routine survey frequency increases to no less than once every 24 months

Transparency

• States/Accrediting Organizations (AOs) must submit timely survey/certification information in form specified by HHS
• Information shall include any inspection reports and other information as determined by HHS; For AO surveys conducted on/after 10/2021, form 2567 must be part of information submitted
• Beginning not later than 10/2022, HHS shall publish survey/certification information online in a manner that is “prominent, easily accessible, readily understandable, and searchable” ; info shall be updated in a timely manner

Survey Consistency

• Each state and HHS shall implement programs to measure and reduce inconsistency in the application of survey results among surveyors

Survey Teams

• For surveys conducted on/after 10/2021 by more than one person must be conducted by a multi-disciplinary team (including RN)

Conflicts of Interest

• State surveyors may not survey programs by which they have been employed/acted as consultant in previous 2 years (or in which surveyor has personal or familial financial interest)

Surveyor Training

• No later than 10/2021, HHS shall provide for comprehensive training for state, Federal, and AO surveyors
• No one may serve as a member of a survey team unless they have completed a training and testing program approved by HHS

Special Focus Program 

• HHS shall conduct a special focus program for enforcement of requirements for those hospices that have substantially failed to meet requirements; special focus surveys shall be conducted not less than once every 6 months

Enforcement

• Instances of IJ: HHS must take immediate action to remove the jeopardy and correct deficiencies using temporary management or terminate the program. HHS may also provide for one or more of the other remedies (payment suspension, CMPs, temporary management)
• Instances of Non-IJ: In such cases in lieu of termination, HHS may impose additional remedies for a period not to exceed 6 months; if program is still not in compliance, HHS shall terminate

Penalty for previous non-compliance:

• If HHS determines a hospice is in compliance but had been out of compliance for a previous period, HHS may impose CMP for the days for which the program was not in compliance

Option to continue payments for an out of compliance hospice for a period of not longer than 6 months if

• Survey agency finds it more appropriate to take alternative action to termination
• Hospice has submitted plan and timetable for corrective action that is approved by HHS
• Program agrees to repay Federal payments during such period if corrective action is not taken in accordance with the agreed-upon plan of correction
• HHS shall establish guidelines for approval of corrective action

Remedies:

• Not later than 10/2021, HHS shall develop and implement a range of remedies to address circumstances of concern identified for enforcement (see above) along with procedures for appealing determinations relating to imposition of such remedies
• Not later than 10/2021, HHS shall develop and implement specific procedures and conditions for applying new remedies (including amounts of fines and severity of each remedy). Procedures must reflect incrementally more severe fines for repeated or uncorrected deficiencies.
• Specific remedies (these are in addition to State/Federal sanctions and shall not limit other available remedies):
  • CMPs not to exceed $10,000 per day
    • Any portion of CMPs collected may be used to support activities that benefit individuals receiving hospice care, including education and training programs for hospices to ensure compliance
  • Prospective payment suspension
    • Suspension of payment shall terminate upon findings of substantial compliance with all requirements
  • Temporary management
    • Shall not be terminated until HHS determines program has management capability to ensure continued compliance

Funds for Hospice Program Improvements

• HHS may provide for use collected CMPs to support activities that benefit hospice patients, including education and training to ensure hospice compliance

Funding

• Transfers from Trust Fund (to conduct hospice surveys (and continues IMPACT Act funding)

Quality Reporting

• Increase penalty for failure to meet HQRP requirements beginning with FY2023 payment year (from 2% to 4%)

GAO Report

• Not later than 36 months following enactment, GAO shall submit to key congressional committees an analysis of the effects of the new remedies, including the frequency of application of such remedies and the impact on access to, and quality of, hospice care

A link to the Ways & Means Committee report that was developed following passage of the legislation is available here.