In The News

The Uncertain Future of Hospice Certificates of Need

Hospice News / By Holly Vessel

While their merits are hotly debated, the substance of certificate of need laws often exist in a state of flux.

Certificate of need (CON) laws have a huge influence on hospices’ ability to expand patients’ access to care, as well as impact the competitive landscape and quality of care in a given market.  

A myriad of factors play into states’ decisions to keep these laws on the books, according to Judi Lund Person, vice president of regulatory and compliance for the National Hospice and Palliative Care Organization (NHPCO). 

“It really depends on the current culture of the state,” Lund Person told Hospice News. “It’s the atmosphere, beliefs about free-market economy and all those bigger things that play a role in whether a state even remotely considers a CON or not.”

As of December, 35 states and the District of Columbia had some type of CON program in place, reported the National Conference of State Legislatures (NCSL).

Wide variation exists in these laws from state to state in terms of requirements and applicability. Currently, 14 states have CON laws that include hospices.

Though New York enacted the first of these laws in 1964, they began to pick up steam due to federal requirements implemented during the 1970s. These federal rules were eventually repealed, and since then states have been left to make up their own minds about CON.

Will CON laws last?

To date, 12 states have rescinded their CON laws or allowed them to expire, according to NCSL. New Hampshire, which scrapped CON in 2016, was the most recent.

According to some, the prevalence of these laws may continue to dwindle.

“In this day and age, we’ll see how long CONs last,” Freeman Smith, north region president for Traditions Health told Hospice News at the VALUE Conference in Chicago. “There’s a real push to get rid of the CON state. It was a process to control the cost 20 years ago, but right now the market place determines that.”

Regulators and legislators in at least 18 states began reassessing their CON laws during the past three years.

Lawmakers introduced bills to remove all or most CON requirements in Alabama, Alaska, Kentucky, Maine, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina and West Virginia.

Several states also enacted or considered CON reform bills, some of which removed requirements for certain settings, including Michigan, Tennessee, Washington, Montana and Virginia. Montana removed CONs for all settings except nursing homes as of last October.

Additionally, three states — Connecticut, Delaware and Massachusetts —appointed commissions to study the issue…

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Colorado Health Facilities Interaction


Last week Colorado Department of Public Health and Environment (CDPHE) announced that it, “does not intend to seek another set of emergency rules, nor does it intend to seek to make the current Chapter 2 regulations permanent. As such, the Chapter 2 COVID-19 Vaccine Requirements shall expire July 14, 2022.”

The Board of Health indicated that they have decided to change the policy due to the following:

First, the vaccination rate, as well as medical and religious exemption numbers, have remained steady for the past 3+ months.

“Second, HB22-1401 was signed into law by Governor Polis on May 18, 2022. While the bulk of this bill pertains to licensed Hospitals, there is language directing the Department to enact requirements for all licensed facilities and agencies related to infection prevention and control. While the Department has not yet determined what these requirements will be, the statute requires that they include provisions related to testing, vaccination, and treatment for COVID-19 in accordance with applicable recommendations and guidance. While the specifics will be worked out with stakeholders in the future, the Department envisions COVID-19 vaccination will be part of this conversation.

“Third, while the Department intends to let its state licensure vaccination requirement expire in July, it is important to note that the federal requirement for staff to be vaccinated or obtain a valid medical or religious exemption, through the Centers for Medicare and Medicaid Services (CMS), will still apply to any licensed facility that is certified by CMS to receive federal reimbursement. Approximately one-third of all licensed facilities are certified by CMS, and therefore their staff will still be subject to a vaccination requirement.

“Key takeaways for licensed facilities and agencies:

  • Effective July 14, 2022, current obligations under Part 12 of 6 CCR 1011-1, Chapter 2 related to COVID-19 vaccination expire. 
    • This includes the associated obligation to report into Colorado Health Facilities Interactive (COHFI) on a twice-monthly basis. 
  • The requirements of Part 11 of Chapter 2 regarding vaccination against influenza are still in effect and not impacted by the expiration of these emergency rules. 
  • Despite the expiration of these rules, facilities and agencies may maintain any mandatory vaccination policies they have adopted to date. 
  • Long-term and residential care facilities (Skilled Nursing Facilities, Assisted Living Residences, Intermediate Care Facilities, and Group Homes) are still subject to the requirements of Public Health Order 20-20 and the Comprehensive Mitigation Guidance document. 
  • Facilities certified by CMS are still subject to the federal government’s vaccine mandate. 
  • CDPHE’s Health Facilities and EMS divisions will engage in conversations with stakeholders later regarding the implementation of HB22-1401, which will likely include some requirements around vaccination and vaccination policies."

Home Health Industry Pushes Back on CMS Budget-Neutrality Methodology for PDGM

Home Health Care News

Since the release of the U.S. Centers for Medicare & Medicaid Services’ (CMS) proposed payment rule, home health stakeholders have been sitting in their respective “war rooms” trying to navigate the proposal.

As providers geared up for the unveiling of the proposal, many knew that CMS’ analysis of whether the Patient-Driven Groupings Model (PDGM) led to higher, lower or equal spending compared to the old payment model would be a major factor, according to William A. Dombi, the president of the National Association for Home Care & Hospice (NAHC).

Many are pushing back against CMS’ methodology for assessing budget neutrality, with organizations such as NAHC expressing their concerns even prior to the release of the proposed rule.

“When we found out on Friday that CMS chose to use the same methodology which had been roundly condemned by anybody who had evaluated it, we had to conclude the CMS had effectively declared war against home health,” Dombi said. “I don’t mean that in an emotional sense, but in a practical sense, where the outcome of this proposal could be extraordinarily — not just disruptive — but devastating to the home health care community.”

He made these comments during NAHC’s latest webinar on Thursday.

Overall, the proposed rule comes with a decrease to payment rates by 4.2%, or $810 million less compared to 2022 rates.

“CMS only gets to that [$810 million] by adding in the inflation update, so the inflation update for 2023 is a meager 2.9%,” Dombi said.

The proposed rule also includes a 7.69% PDGM budget-neutrality adjustment.

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Summary of the CMS Open Door Forum on June 29

From NAHC (Redacted by HHAC)

The Centers for Medicare and Medicaid Services (CMS) held a Home Health, Hospice, and DME Open Door Forum on June 29, 2022. The summary of the Forum applicable to home health and hospice providers is below.

Home Health

CMS provided a high-level summary of the CY 2023 Home Health PPS Rule.  (See the NAHC Report article here for a detailed summary and here for a link to the recording of the webinar conducted by NAHC’s Bill Dombi and Mary Carr where the proposals are discussed.)

The draft OASIS-E Guidance Manual was released in May as were OASIS-E Q&As.

Also recently posted was the June Expanded Home Health Value Based Purchasing Model newsletter and FAQs. CMS indicated they intend to have a sample interim report and sample performance report  for the expanded model available in iQIES soon, and there will be a webinar in August that walks through these sample reports.

Those providers that believe they are exempt from the home health CAHPS because they have had 59 or fewer patients from the period of April 2021 through March 2022, need to complete the Participation Exemption Request Form for the annual payment update for calendar year 2024. Additional exemption information is found here.


CMS reminded hospices that the August refresh of Care Compare will include the two new claims-based measures – Hospice Visits in Last Days of Life and Hospice Care Index.  These measures were slated to be publicly reported with the May refresh of Care Compare but this was pushed back to August due to errors in the Provider Preview Reports for these measures issued in March. Therefore, hospices are to disregard the preview reports for March.  Corrected preview reports are available now.

The reconsideration period for the FY2023 annual payment update (APU) hospice quality reporting program (HQRP) requirements is coming up.  Hospice providers will receive notification from their Medicare Administrative Contractor (MAC) if they are subject to the APU penalty, and they will also receive notification in their CASPER folder.

There was some concern expressed by hospice participants in the ODF that the Care Compare website currently reflects that data for the HCI and HVLDL is suppressed upon request from the agency. This is not accurate as CMS suppressed the data due to an error in the preview reports, as stated above. CMS indicated that there is an additional update to the footnotes that will be pushed out soon and should provide some additional clarity on this situation for the public.

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Surveys for Compliance with Omnibus COVID-19 Health Care Staff Vaccination Requirements

This is an update to a NAHC Report article published on June 15, 2022.

Previously, NAHC reported that the Centers for Medicare & Medicaid Services (CMS) posted memo QSO-22-17-ALL containing new instructions for surveys for compliance with Omnibus COVID-19 Health Care Staff Vaccination Requirements. CMS previously issued guidance and survey procedures to survey entities for assessing and maintaining compliance with the regulatory requirements for vaccination.

Under the previous guidance, federal, state and Accreditation Organization (AO) surveyors were to assess for compliance with the vaccination requirements at surveys for initial certification, standard recertification or reaccreditation, and complaint surveys.

Effective immediately, surveyors will continue to survey for compliance with the vaccination requirements during initial and recertification surveys, but will now only survey for compliance in response to complaints alleging non-compliance with this requirement (not all complaint surveys). NAHC received clarification from CMS that any complaint survey addressing infection control and not just the COVID-19 vaccination requirements specifically, will include a review of the provider’s compliance with the vaccination requirements.  Since these requirements became effective earlier this year, 95% of the nearly 12,000 providers that have been surveyed by states are in compliance with the requirements.

This most recent memo also instructs state survey agencies to reach out to their CMS Location if they are considering citing vaccine requirements at immediate jeopardy, Condition or actual harm levels. CMS is reviewing its previous interpretive guidance describing Immediate Jeopardy, Condition-level and actual harm determinations to ensure that deficiency citations recognize good faith efforts by providers/suppliers and to more fully evaluate harm or potential harm to patients/residents by considering trends in COVID-19 rates in the community.  Stay tuned to NAHC Report for more information on these updates as they become available.

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