Hospice Insights: The Law and Beyond

Hospice audits can have profound financial implications, particularly when the auditors use statistical extrapolation to identify an overpayment amount. The use of extrapolation runs across auditor types, including UPICs and the OIG, and can apply to Medicare and Medicaid. In this episode, Husch Blackwell's Meg Pekarske, Bryan Nowicki, and Emily Solum discuss recent experiences and successes in dealing with statistical extrapolations, as well as what the future of extrapolation looks like.

Husch Blackwell's Meg Pekarske is joined by colleague Kathleen Snyder, who has extensive experience in digital health and has been busy advising health care providers on how to safely implement artificial intelligence (AI) tools in their organizations. With AI holding so much promise for helping hospices gain efficiencies, reduce staff burdens, and improve the patient experience, we all need to jump into the future—but do so thoughtfully. This episode will help you with just that. We explore critical do's and don'ts for AI and key infrastructure hospices should have in place when implementing any type of AI solution. Happy listening!

For hospices, unprecedented competition, enhanced oversight, and looming payment reform create business obstacles or growth opportunities, depending on your outlook. Your growth strategy shouldn't be the same as your neighbor's. Instead of following the herd, Husch Blackwell's Meg Pekarske and Bryan Nowicki explore how to begin thinking about what should be on your strategic plan and the importance of bringing your board along with you.Additional resources:Hospice Past v. Present – Considerations

There has been a lot of buzz around psychedelics and particularly their potential usefulness in treating existential suffering at the end of life. Husch Blackwell was the first law firm in the country to establish a Psychedelics & Emerging Therapies practice group devoted to helping clinicians, researchers, and investors navigate the complex and difficult legal and regulatory issues involved in developing new therapies in this space.In this episode, host Meg Pekarske is joined by the leaders of Husch Blackwell's Psychedelics & Emerging Therapies practice group, Kimberly Chew, Karen Luong, and Natasha Sumner, who provide an overview of what psychedelics are, their legal status under federal and state laws, and liability considerations for clinicians. We also discuss the recent amicus brief they filed on behalf of nearly 30 end of life and palliative care providers in a case before the U.S. Court of Appeals for the Ninth Circuit. While there is a lot to digest here, we hope it is a helpful starting point for learning about this complex and evolving area.

Hospices that have gone through audits are familiar with certain recurring reasons why auditors deny claims. Two common reasons are the lack of support for a six-month prognosis and the insufficiency of the physician narrative. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss a new twist on these kinds of denials, and how hospices can strengthen their documentation to try to avoid them.

CMS recently expanded its Provisional Period of Enhanced Oversight, or PPEO, in Arizona, California, Nevada, and Texas, and its enforcement activities nationwide appear more aggressive. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss these enhanced oversight efforts and ways, both structurally and operationally, for hospices to mitigate these risks.

It's our first podcast of 2025 and we wanted to start the year out with some reflections. Join Husch Blackwell's Meg Pekarske and Bryan Nowicki as they each share their biggest surprises and victories of 2024 and what is on their wish list for 2025. We hope you enjoy this episode and let us know what is on your wish list of podcast topics for 2025. Wishing you a happy new year!

The United States Supreme Court recently overruled decades-old precedent that favored an administrative agency's interpretation of ambiguous statutes. This seismic shift in the role of the judiciary will affect every regulated industry, including healthcare and hospice in particular. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss the implications of this decision in the hospice space.

Hospices that have been audited have to decide how to address any alleged overpayment identified by the auditor, whether through a voluntary repayment, recoupment, or applying for an extended repayment schedule. CMS recently identified updates to the Medicare Financial Management Manual relating to these options. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss those updates which, practically speaking, do not significantly change the existing options.Additional Resources:MM 11808 - Limitation on Recoupment of Medicare OverpaymentsCR 11808 - Updating Chapter 3, Sections 200.5 - 200.8, Limitation on Recoupment; Medicare Overpayments Manual

In this episode, Husch Blackwell's Meg Pekarske is joined by long-time hospice friend and industry guru Greg Grabowski. They turned the microphone on their usually private (but always lively) discussions on what's going on in the wide world of hospice. To make it especially fun, they each prepared, but did not share prior to recording, their own list of what's working and not working in hospice right now. Listen in to see how their observations match up.

UPIC activity is picking up, and the UPICs are reviving some old tactics. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki continue the discussion on these trends which include extrapolation, Medicaid nursing home room and board payments, patient interviews, and more. Meg and Bryan also describe some handouts they've developed to help hospices stay prepared for the inevitable audit.

UPIC activity is picking up, and the UPICs are reviving some old tactics. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss these trends which include extrapolation, Medicaid nursing home room and board payments, patient interviews, and more. Meg and Bryan also describe some handouts they've developed to help hospices stay prepared for the inevitable audit.

A strong and engaged Chief Medical Officer (CMO) may be a hospice CEO's most important asset. But what does a successful CEO/CMO relationship look like and how must it evolve to meet today's challenges? In this episode we get to find out, as Husch Blackwell's Meg Pekarske is joined by HopeHealth CEO Diana Franchitto and Dr. Edward Martin, CMO, whose trusted relationship has been instrumental to the organization's success and clinical expansion. Whether it be forging new community partnerships or advocating for patients, Diana and Ed bring a wonderful compliment of strengths to advancing end-of-life care in their community. Listen in…be inspired!

Until recently, deactivation of a hospice's Medicare provider number seemed like an action reserved for egregious conduct. But with law changes and an enhanced focus on enrollment, good hospices have found themselves facing a stop in their Medicare payments. Listen in as Husch Blackwell's Adam Royal and Meg Pekarske discuss what has led to recent deactivations and how hospices can avoid the same fate.

It's that time of year again when HIS and CAHPS non-compliance letters are sent out. While it can be an uphill battle, all may not be lost if you receive a notice of non-compliance. Join Husch Blackwell's Meg Pekarske as she talks with Jacob Harris, who shares insights on what matters in these appeals and how he helped so many hospices across the country over the last several years avoid detrimental rate cuts. The key takeaways are: 1. don't assume nothing can be done and 2. it's always worth exploring whether your facts may warrant pursuing an appeal.

It's never a dull moment when you are a labor and employment lawyer these days! Beyond the steady rise in union activity (a topic of a prior podcast), the administration has issued two rules that are garnering much attention, and being contested in court, involving non-competes and when an employee can be considered exempt from overtime requirements. Husch Blackwell's Tom O'Day joins host Meg Pekarske to discuss what these new rules mean for hospices and what you should be doing now to stay prepared. This is a great listen!Additional Resources:Federal Trade Commission (FTC) Non-Compete Clause RuleDepartment of Labor (DOL) Rule on Overtime ExemptionsThe Impact of the FTC's Ban on Noncompete Agreements in the Health Care Industry

Compliance gets a dust off with the new General Compliance Program Guidance released by the federal Office of the Inspector General (OIG) in November 2023. While there is a lot to digest, Husch Blackwell's Josi Wergin and Natasha Sumner join host Meg Pekarske to break it down highlighting important differences from past guidance and key implementation considerations. They also read the tea leaves on what to expect in forthcoming hospice specific compliance guidance. An important listen for everyone in hospice!

As member substitutions become an increasingly common method of affiliation for nonprofit hospices, hospices may encounter various opportunities for affiliation. Join Husch Blackwell's Meg Pekarske and Adam Royal as they discuss what has—and hasn't—worked in member substitutions, and issues to spot early in a transaction to determine its feasibility.

In this episode, Meg Pekarske is joined by Jody Rudman, the leader of Husch Blackwell's White Collar, Internal Investigations & Compliance group, where they explore the enforcement and privacy issues surrounding artificial intelligence. Jody shares insights on the most common types of cybersecurity issues and how to prevent them. A cutting-edge conversation to help ground you in this emerging area.

Recovery Audit Contractors (RACs) have played a relatively limited role in the hospice space, often overshadowed by UPICs, SMRCs, and Center for Program Integrity audits. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki talk about a recent wave of record requests issued by a RAC named Performant that focus on GIP and Continuous Home Care, and some ideas about how to respond.

Hospice Targeted Probe and Educate reviews (TPEs) continue to be initiated all over the country. That means it's time to check in with Husch Blackwell's Hospice team on the latest developments. In this episode, Meg Pekarske and Bryan Nowicki discuss a new TPE topic and describe both the time-tested and emerging strategies hospices can use to respond to these reviews.

It came as a surprise to our team when we learned that the Centers for Medicare & Medicaid Services (CMS) was ending the hospice component of Value-Based Insurance Design (VBID) on December 31, 2024. Upon learning this, Husch Blackwell's Meg Pekarske contacted Chris Comeaux, the president and CEO of Teleios Collaborative Network, to see if he wanted to share his thoughts on this unexpected turn of events and what may be on the horizon. This is a forward-looking conversation where we explore how the lessons learned can galvanize new advocacy on the best ways to care for patients with advanced illnesses.

Five years ago, the U.S. Department of Health and Human Services Office of Inspector General (OIG) initiated audits of 13 hospices and published its findings in 13 separate reports. It appears that the OIG is at it again, as multiple hospices recently have received “engagement letters” from the OIG with directions to produce medical records for 100 randomly selected claims. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss these OIG audits, strategies for responding, and their implications for the hospice community.

The owner of a Louisiana hospice was indicted and then convicted of healthcare fraud. How did that happen? In this episode, Husch Blackwell's Meg Pekarske and Jonathan Porter talk about how a routine audit led to a whistleblower complaint by a hospice employee, which then led to the hospice owner's criminal conviction following trial in November 2023. Most importantly, the pair discuss how other hospices can avoid that fate.Additional resource:Jury Convicts Hospice Owner for Defrauding Medicare

In this episode, Husch Blackwell's Meg Pekarske is joined by friend and industry veteran Kim Skehan. In this wide-ranging conversation, they explore not only the recent survey reforms but the ways in which Kim's decades of work as a survey consultant to hospices and home health agencies shape how she approaches her new role leading accreditation at CHAP. Kim's perspective is truly unique. This is a must listen for everyone looking to successfully navigate the survey process.

The hospice industry saw many regulatory changes in 2023. In this episode, Husch Blackwell's Meg Pekarske, Andrew Brenton, and Adam Royal discuss some of the main regulatory changes from 2023 and what hospices should expect in 2024. 

Traditional hospice transactions are receiving increased regulatory scrutiny and headwinds. Amidst these challenges, many hospices are considering management services organizations as an alternative to traditional transactions. In this episode, Husch Blackwell's Meg Pekarske and Adam Royal discuss how management services organizations can help hospices achieve economies of scale while minimizing regulatory scrutiny.

An effective compliance program is the bedrock of any successful healthcare organization and behind every successful compliance program is a trusted relationship between the Compliance Officer and CEO. In this episode, Husch Blackwell's Meg Pekarske is joined by Avow Hospice's CEO, Jaysen Roa, and its Compliance Officer, Kerri Ervin, who share how they built their relationship and how it has evolved over time. Jaysen and Kerri provide insights on what it means to have a collaborative relationship, how they see the big picture and ways to navigate different perspectives. There are so many good nuggets in this conversation like “relentless reliability” that remind us trust is earned, leadership is action, and success is a reflection of the quality of our relationships.

Centers for Medicare & Medicaid Services (CMS) devised a “Special Focus Program” to identify poor performing hospices and help them improve through more frequent surveys and technical assistance. CMS would also impose enforcement remedies and fines to further incentivize improvement. How to identify poor performing hospices, however, has sparked concern among the hospice community. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss the Hospice Special Focus Program and what hospices can expect from that program as it rolls out in 2024.

For a variety of unfortunate reasons, some hospices found themselves facing a 4% rate reduction for non-compliance with either Hospice Item Set (HIS) or Consumer Assessment of Healthcare Providers & Systems (CAHPS) requirements. For the third year in a row, the Husch Blackwell hospice team successfully advocated that the penalty not be imposed on its clients and CMS agreed! In this episode, Husch Blackwell's Meg Pekarske and Jacob Harris share more about how they achieved these thrilling results. This is a good listen and reminder for all of us that good advocacy can make a difference and CMS does keep an open mind.

CMS has criticized hospices for underutilizing general inpatient care (GIP) but has also specifically targeted GIP claims for audit and medical review. In addition to CMS's standard tools for reviewing GIP claims, such as UPIC audits and TPEs, the OIG is now getting involved with a GIP audit of its own. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki discuss the divergent approaches to GIP care and what this may mean for the hospice benefit.

Join Husch Blackwell's Meg Pekarske and Wendy Arends as they explore the new draft Merger Guidelines and what enforcement may look like in the future. Given the number of hospices looking to consolidate through mergers, joint ventures, and other types of affiliations, you won't want to miss this episode. 

While not new, the number and scope of Targeted Probe and Educate (TPE) reviews have soared to new heights. At the same time, more hospices are facing the uncomfortable position of moving to a second and sometimes third round of review. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki share how they have successfully navigated clients through the TPE process. In addition, they offer tools and tips for staying organized while advocating for your organization throughout the process. 

In the midst of consolidation and restructuring among hospices, the Centers for Medicare & Medicaid Services (CMS) is scrutinizing initial enrollments and changes in ownership and management. In this episode, Husch Blackwell's Meg Pekarske and Adam Royal discuss new and proposed changes to CMS's provider enrollment screening and why it matters to hospices.

It's been hard to keep track of all the new changes related to government oversight of hospices. This growing list now includes an expansion of the 36-month rule to hospices, which will limit the frequency that hospices can change ownership. There are important exceptions to the rule that all hospices will need to closely consider when evaluating all types of organizational changes, including traditional acquisitions and other types of consolidations. Listen in as Husch Blackwell's Meg Pekarske and Ragini Acharya share their insights. 

Hospices have been the target of increased government scrutiny in 2023, and the Centers for Medicare and Medicaid Services (CMS) is planning to take further aim in 2024 through surveys. Join Husch Blackwell's Meg Pekarske, Emily Solum, and Erin Burns as they talk about a cautionary survey tale and proposed changes to the hospice survey process, including the introduction of an informal dispute resolution (IDR) process, and a special focus program for poor performing hospices.

Hospices are increasingly looking to buy, consolidate, or merge to achieve administrative efficiencies and expand operations for growth. A common approach among nonprofit hospices is to combine through a member substitution. In today's episode, Husch Blackwell's Meg Pekarske and Adam Royal discuss key considerations and strategies for hospice member substitutions.

A study published by NORC at the University of Chicago, a nonpartisan research organization, concluded that the Hospice Benefit saved Medicare $3.5 billion in 2019. The data behind that figure, and the study's related findings, show that the value of the Medicare Hospice Benefit appears to be at odds with CMS's regulatory priorities. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki dig into the numbers, talk about the NORC study, and its potential impact on hospices and the Hospice Benefit.

In the five-step audit appeals process, hospices often stop their appeal efforts after finding success at the third step, a hearing before an administrative law judge (ALJ). However, if an ALJ issues an unfavorable decision, the hospice still has recourse. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki talk about dealing with an unfavorable ALJ decision, including how to evaluate the strengths, weaknesses, costs, and benefits of pursuing the remaining steps of the appeal process.

In this episode, Husch Blackwell's Meg Pekarske and Jonathan Porter, a former federal prosecutor, discuss takeaways from the recent American Bar Association's Annual National Institute on Health Care Fraud. Most importantly, they will explore what the hospice industry can expect after hearing the remarks of Lisa Miller, the Department of Justice's (DOJ) Deputy Assistant Attorney General who oversees the Criminal Fraud Section. According to Miller, data has shown an increase in costs to the Medicare program resulting from claims for hospice care. Therefore, combating health care fraud is going to be a top priority for the DOJ. Be sure to tune in for this important episode. You won't want to miss it.

Hospice professionals are often left wondering how the Centers for Medicare and Medicaid Services (CMS) and other government entities identify enforcement priorities. They also seek understanding about the subsequent steps taken for audits and False Claims Act investigations. In this episode, Husch Blackwell's Meg Pekarske, Bryan Nowicki, and the hospice team's newest member, former federal prosecutor Jonathan Porter, talk about the reasons and methods behind government enforcement efforts, and how hospices should respond to them.

Audits that employ statistical extrapolation can turn a handful of claim denials into a liability of hundreds of thousands or millions of dollars. After years of relative quiet, the statisticians are back. The Centers for Medicare and Medicaid Services (CMS) also modified the rules relating to extrapolation in audits. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki review the latest in extrapolation and how the new rules will affect audits going forward.

Earlier this spring, as part of its annual rulemaking process for hospices, the Centers for Medicare and Medicaid Services (CMS) issued several important regulatory proposals. In addition to the yearly update in hospice per diem rates, the proposed rule clarifies the end dates for hospices to use telehealth and other technologies to provide remote care. The rule also contains a rather unpleasant surprise: CMS's proposal to require, as a condition of payment, that all certifying physicians be enrolled in or validly opted-out of Medicare. Listen in as Husch Blackwell's Meg Pekarske and Andrew Brenton offer their quick takeaways and insights into the latest of CMS's rulemaking efforts.

The HIPAA regulations require that covered entities enter into agreements with business associates who provide certain services for the covered entity involving the receipt, use, or disclosure of protected health information. In working with hospices throughout the years, we have found that many hospices have business associate agreements with nursing homes, vendors, and other providers where a business associate agreement is not required because neither party is actually a business associate of the other. In this episode, Husch Blackwell's Meg Pekarske and Andrew Brenton discuss when a business associate agreement is and is not required, so that hospices can confidently comply with the law while focusing on what matters most: delivering high-quality end-of-life care.

The U.S. Department of Health and Human Services' Office of Inspector General (OIG) reported in November 2022 that many providers are not complying with Medicare's billing rules for advance care planning services. In large part, the OIG's findings centered around providers failing to document separately for time spent on advance care planning versus time spent on concurrent services provided during the same patient visit. In this episode, Husch Blackwell's Meg Pekarske, Andrew Brenton, and Zaina Niles break down the OIG report and what the key takeaways are for hospices.

Payment suspension and overpayment extrapolation are among the most extreme and effective enforcement tools available to the Centers for Medicare and Medicaid Services (CMS) and its auditors. However, even these measures can be overcome. In this episode, Husch Blackwell's Meg Pekarske, Bryan Nowicki, and Emily Solum talk about our hospice team's latest encounter with payment suspension and extrapolation. Spoiler alert—it has a happy ending!

The Centers for Medicare and Medicaid Services (CMS) unexpectedly proposed a rule change that could have a significant impact on how hospices investigate compliance issues and take remedial action. The rule change directly affects potential liability under the federal False Claims Act. Therefore, it is critical that hospices understand this change so they can take steps to mitigate risk and financial exposure. In this episode, Husch Blackwell's Meg Pekarske and Bryan Nowicki talk about this proposed rule change and how hospices may need to change their approach to compliance investigations and activities.

The Home Care 100 Leadership Conference is an annual gathering of top leaders and innovators in the hospice and home health community. Presentations and informal discussions address the current state of the industry and what will drive future survival and success. In this episode, Husch Blackwell's Meg Pekarske, Bryan Nowicki and Emily Solum talk about their participation in this year's conference, what the future holds for hospices, and how to avoid getting left behind in the continually evolving hospice community.

While direct patient billing may be less common for hospice patients than for patients receiving hospital or other types of care, there are aspects of the No Surprises Act and its implementing regulations that are important for hospices to understand. In this episode, Husch Blackwell's Meg Pekarske, Noreen Vergara and Andrew Brenton break down how the No Surprises Act applies to hospices. They also share key tips for hospice compliance with these new federal rules prohibiting surprise medical bills.

Recently, there has been an uptick in contractor participation at the administrative law judge (ALJ) stage of hospice audit appeals. This development poses unique challenges and new advocacy opportunities for providers. In this episode, Husch Blackwell's Meg Pekarske talks with Bryan Nowicki, Emily Solum and Zaina Niles about how hospices can prepare for and get the most out of contractor appearances at ALJ hearings.

The Department of Health and Human Services Office of the Inspector General (OIG) recently released a report detailing its evaluation of CMS's primary fraud, abuse and waste investigators—the Unified Program Integrity Contractors (UPIC). In this episode, Husch Blackwell's Meg Pekarske talks with Bryan Nowicki about the OIG's report, what it reveals about UPIC activities, and what it means for the future of UPIC audits.