The Consolidated Appropriations Act, 2021 (the “Act”) was signed into law on December 27, 2020 and recasts the Medicare hospice survey requirements and establishes new Medicare enforcement options and procedures. The Act’s hospice provisions generally track those contained in the Helping our Senior Population in Comfort Environments, also known as the HOSPICE Act, which was passed by the House in 2020.

There are eight key elements to the Act:

  1. Survey Frequency

The Act provides that any entity that is certified as a hospice will be subject to a standard survey by an appropriate state or local survey agency, or an approved accreditation agency, as determined by the Department of Health and Human Services (“HHS”) not less frequently than once every 36 months.

  1. Surveyor Consistency

The Act also mandates that each state and HHS implement programs to measure and reduce inconsistency in the application of survey results among surveyors.

  1. Surveyor Training

HHS is required, under the Act, to provide for the comprehensive training of state and federal surveyors, and any surveyor employed by a national accreditation body, in the conduct of surveys, including training with respect to the review of written plans for providing hospice. This requirement needs to be in place no later than October 1, 2021. No individual shall serve as a member of a survey team with respect to a survey conducted on or after such date unless the individual has successfully completed a training and testing program in survey and certification techniques that has been approved by HHS.

  1. Surveyor Staffing and Possible Conflicts of Interest

In the case of a survey conducted on or after October 1, 2021, by more than one individual, the survey shall be conducted by a multidisciplinary team of professionals that include a registered professional nurse. Also, beginning October 1, 2021, a state may not use as a member of a survey team an individual who is serving (or has served within the previous two years) as a member of the staff of, or as a consultant to the hospice being surveyed or who has a personal or familial financial interest in the hospice being surveyed.

  1. Survey Public Disclosure of Information.

By October 1, 2022, HHS must publish the hospice survey results on the public website of the Centers for Medicare & Medicaid Services in a manner that is prominent, easily accessible, readily understandable, and searchable. HHS shall provide for the timely update of such information.

  1. Extra Surveys for Hospice Providers in Special Focus Program

The Act calls for HHS to conduct a special focus program for the enforcement of requirements for hospices that HHS has identified as having substantially failed to meet applicable requirements of the Act. Under the special focus program, HHS will conduct surveys of each hospice in the special focus program at least every six months.

  1. Enforcement – Immediate Jeopardy

Under the Act, if HHS determines on the basis of a standard survey or otherwise that a hospice is no longer in compliance with the laws and determines that the deficiencies involved immediately jeopardize the health and safety of the hospice’s patients, HHS shall take immediate action to ensure the removal of the jeopardy and correction of the deficiencies or terminate the hospice’s certification.

If HHS determines the deficiencies involved do not immediately jeopardize the health and safety of the individuals to whom the hospice furnishes items and services, HHS may, for a period not to exceed six months, impose remedies including civil money penalties, discontinuing all or some payments, and the appointment of a temporary manager. If, after a period of time, the hospice is still no longer in compliance with such requirements, HHS shall terminate the certification of the hospice.

  1. Remedies for Noncompliance

By October 1, 2022, HHS will create a range of remedies to apply to hospices that are noncompliant. The range of remedies to apply to those hospices shall include appropriate procedures for appealing determinations.

Next Actions

  • Hospice providers should monitor and track guidance the HHS issues as it develops is enforcement procedures.
  • Hospice providers should prepare for heightened scrutiny of its operations as HHS ramps up and implements the requirements of the Act.