Ensuring the integrity of hospice care furnished under the Medicare program

(a) Mandatory temporary moratorium on enrollment (1) In general Section 1866(j) of the Social Security Act (42 U.S.C. 1395cc(j)) is amended by adding at the end the following new paragraph: (10) Mandatory temporary moratorium on enrollment of hospice programs (A) In general Except as provided in subparagraphs (B) and (C), the Secretary shall impose a nationwide temporary moratorium on the enrollment of new hospice programs under this title for the 5-year period beginning on the date of the enactment of this paragraph. (B) Exemption for certain hospices (i) In general The Secretary may exempt a hospice program seeking to enroll under this title from the moratorium described in subparagraph (A) if the Secretary determines that such program will furnish hospice care to individuals entitled to benefits under part A in an area with insufficient access to such care (as specified by the Secretary, taking into account the considerations described in clause (ii)). (ii) Considerations described For purposes of clause (i), the considerations described in this clause are, with respect to a hospice program seeking to enroll under this title, the following: (I) The specific geographic area that such program intends to serve. (II) The current availability of hospice care in such area. (III) Any evidence of unmet need for hospice care in such area (such as wait times for such care, the extent to which such area (or a population in such area) is considered underserved, and evidence that existing hospice programs are provided a substandard quality of care in such area). (IV) The program’s plan to address any identified gaps in the provision of hospice care in such area. (C) Authority to lift moratorium The Secretary may lift the moratorium imposed under subparagraph (A) within a State (or geographic region of a State) specified by the Secretary in the same manner as the Secretary may lift a temporary moratorium (as described in paragraph (7)) under section 424.570(d) of title 42, Code of Federal Regulations (or a successor regulation). (D) Application of prepayment medical review during the temporary moratorium in certain circumstances (i) In general Subject to clause (ii), the Secretary shall apply prepayment medical review to hospice care consisting of routine home care furnished during the 5-year period beginning on the date of the enactment of this paragraph by an applicable hospice program to a covered individual. (ii) Termination of application of prepayment medical review (I) In general The Secretary shall terminate the application of prepayment medical review under clause (i) with respect to hospice care furnished by an applicable hospice program to a covered individual if the Secretary determines that, during the period in which such care so furnished by such program was subject to such review, such care was subject to a low rate of denial (as specified by the Secretary) under such review. (II) Revocation of termination The Secretary may revoke any termination of prepayment medical review under subclause (I) if determined appropriate by the Secretary. (iii) Definitions For purposes of this subparagraph: (I) Applicable hospice program The term applicable hospice program means a hospice program with a history of claim submissions with respect to hospice care furnished under this title that is aberrant (such as by demonstrating that such program is an outlier with respect to live discharges) compared to such history of claim submissions of similarly situated hospice programs, as determined by the Secretary. (II) Covered individual The term covered individual means an individual receiving hospice care under this title during the second 90-day period described in section 1812(d)(1) (or during any subsequent period) applicable to such individual. (E) Revalidation of enrollment information (i) In general During the 6-month period beginning on the date of the enactment of this paragraph and notwithstanding any applicable revalidation cycle under section 424.515 of title 42, Code of Federal Regulations (or a successor regulation), the Secretary shall revalidate the enrollment information of each hospice program enrolled under this title in accordance with the requirements applicable to revalidations of such information under such section. (ii) Publication of ownership information Not later than 1 year after the date of the enactment of this paragraph, the Secretary shall publish on a public website of the Centers for Medicare & Medicaid Services ownership interest and managing control information collected pursuant to revalidations described in clause (i) for each hospice program enrolled under this title. (iii) Report Not later than January 1, 2028, the Secretary, acting through the Assistant Secretary for Planning and Evaluation, shall submit to Congress a report on hospice ownership and control trends and the role of private equity in ownership and control of hospice programs. Such report shall include— (I) validation, to the extent feasible, of the ownership and control information reported on form CMS–855A (or any successor form); (II) an analysis of hospice cost report data by ownership type; (III) recommendations on ways to improve the integrity of the ownership and control information reported by hospices during the enrollment process under this title; and (IV) to the extent practicable, recommendations on policies to promote health care competition. (F) Implementation The Secretary shall implement this paragraph through program instruction or other forms of subregulatory guidance.. (2) Authority to provide exemptions to temporary moratoria Section 1866(j)(7) of the Social Security Act (42 U.S.C. 1395cc(j)(7)) is amended— (A) in subparagraph (A), by adding at the end the following new sentence: The Secretary may exempt a provider of services or supplier that would otherwise be subject to a moratorium imposed under the preceding sentence from such moratorium if determined appropriate by the Secretary.; and (B) in subparagraph (C)(iii)— (i) in subclause (I), by striking and at the end; (ii) in subclause (II), by striking the period and inserting; and; and (iii) by adding at the end the following new subclause: (III) is not subject to an exemption described in such subparagraph.. (b) Extension of oversight of newly Enrolled hospice programs (1) In general Section 1866(j)(3)(A) of the Social Security Act (42 U.S.C. 1395cc(j)(3)(A)) is amended by inserting (or, in the case of a hospice program, not more than 2 years) after 1 year. (2) Mandatory application of enhanced oversight for certain hospice programs Section 1866(j)(3) of the Social Security Act (42 U.S.C. 1395cc(j)(3)) is amended— (A) by redesignating subparagraph (B) as subparagraph (C); and (B) by inserting after subparagraph (A) the following new subparagraph: (B) Mandatory application to certain hospice programs The procedures established by the Secretary under subparagraph (A) shall provide that any hospice program enrolling under this title that would, but for application of subparagraph (B) or (C) of paragraph (10), have been prohibited from so enrolling be subject to the enhanced oversight described in such subparagraph for a period of not less than 30 days.. (c) Increase in survey frequency for certain hospice programs Section 1822(a) of the Social Security Act (42 U.S.C. 1395i–6(a)) is amended— (1) in paragraph (1)— (A) by inserting, with respect to such a survey conducted with respect to a hospice program that is not included on the list established under paragraph (5), after local survey agency, or; and (B) by inserting (or, in the case of a hospice program that is included on the list established under paragraph (5), not less frequently than once every 18 months) after 36 months; (2) by redesignating paragraph (5) as paragraph (6); (3) by inserting after paragraph (4) the following new paragraph: (5) Hospice programs subject to increased survey frequency (A) In general The Secretary shall establish a list of hospice programs subject to increased survey frequency under paragraph (1) in accordance with the provisions of this paragraph. (B) Inclusion on list (i) In general The Secretary shall include a hospice program on the list established under subparagraph (A) if such program is not participating in the special focus program under subsection (b) and such hospice program meets either of the following criteria: (I) The program first submitted a claim for an item or service under this title during the 5-year period ending on the date of the enactment of this paragraph. (II) The program first submits a claim for an item or service under this title on or after such date of enactment. (ii) Discretionary inclusion The Secretary may include a hospice program on the list established under subparagraph (A)— (I) if claims data submitted by such program indicates that such program is not providing the full scope of hospice care services payable under this title; (II) if the Secretary determines that such program is an outlier with respect to live discharges; or (III) for any other reason determined appropriate by the Secretary. (C) Removal from list The Secretary shall remove a hospice program included in the list established under subparagraph (A)— (i) if— (I) such program has been subject to 2 surveys under this subsection while included on such list; and (II) neither such survey resulted in such program being cited for a deficiency for failure to comply with a condition of participation relating to quality of care; or (ii) if such program is placed in the special focus program established under subsection (b).; and (4) in paragraph (6), as so redesignated, by striking each fiscal year (beginning with fiscal year 2022) and inserting each of fiscal years 2022 through 2026, and of $15,000,000 for fiscal year 2027 and for each subsequent fiscal year,. (d) Prohibition on payment for failure To meet quality data reporting requirements Section 1814(i)(5) of the Social Security Act (42 U.S.C. 1395f(i)(5)) is amended— (1) in subparagraph (A)— (A) in the header, by striking Reduction in update for; (B) in clause (i)— (i) in the header, by striking In general and inserting Fiscal years 2014 through 2027; (ii) by inserting through fiscal year 2027 after each subsequent fiscal year; and (iii) by adding at the end the following new sentence: The application of the preceding sentence may result in the market basket percentage increase under paragraph (1)(C)(ii)(VII) or paragraph (1)(C)(iii), as applicable, being less than 0.0 for a fiscal year, and may result in payment rates under this subsection for a fiscal year being less than such payment rates for the preceding fiscal year.; and (C) by amending clause (ii) to read as follows: (ii) Subsequent fiscal years For purposes of fiscal year 2028 and each subsequent fiscal year, no payment may be made under this title to a hospice program that does not submit data to the Secretary in accordance with subparagraph (C) with respect to such fiscal year.; and (2) in subparagraph (B), by striking subparagraph (A) and inserting subparagraph (A)(i). (e) Ensuring independence of physician certifications of terminal illness Section 1814(a)(7)(A)(i) of the Social Security Act (42 U.S.C. 1395f(a)(7)(A)(i)) is amended— (1) in subclause (I), by inserting or, with respect to certifications under this clause occurring on or after October 1, 2027, in the case such individual fails to designate such an attending physician (or in the case such attending physician is employed by the hospice program at which such individual will receive such care or otherwise has a significant ownership interest in, or a significant financial relationship with, such program (as determined by the Secretary)), by a physician, physician assistant, or nurse practitioner that does not have such a significant ownership interest in, or such a significant financial relationship with, such program (as determined by the Secretary) before, and; and (2) in the matter following subclause (II), by striking physician’s and inserting physician’s, physician assistant’s, nurse practitioner’s,. (f) Allowing additional providers To certify terminal illness (1) In general Section 1814(a)(7)(A)(i)(I) of the Social Security Act (42 U.S.C. 1395f(a)(7)(A)(i)(I)) is amended by striking (which for purposes of this subparagraph does not include a nurse practitioner or a physician assistant). (2) Effective date The amendment made by paragraph (1) shall apply with respect to certifications of terminal illnesses made on or after October 1, 2027. (g) Allowable use of supporting material in medical review of hospice care Section 1814(a) of the Social Security Act (42 U.S.C. 1395f(a)) is amended by adding at the end the following new sentence: For purposes of conducting medical review of hospice care furnished to an individual, in addition to using documentation in the medical record of such individual’s attending physician (as defined in section 1861(dd)) or of the physician, physician assistant, or nurse practitioner otherwise making the certification described in paragraph (7)(A)(i)(I) with respect to such individual, the Secretary may use documentation in the medical record of the hospice program furnishing such care as supporting material, as determined appropriate by the Secretary.. (h) Prohibition on certain changes in majority ownership With respect to any change in the majority ownership of a hospice program occurring during the 5-year period beginning on the date of the enactment of this Act, the Secretary of Health and Human Services shall apply section 424.550(b) of title 42, Code of Federal Regulations (or a successor regulation) as if the references to 36 months in paragraph (1) of such section were references to 60 months. (i) Advanced notice of changes in ownership or control Section 1822 of the Social Security Act (42 U.S.C. 1395i–6) is amended by adding at the end the following new subsection: (d) Advanced notice of changes in ownership or control (1) In general Beginning January 1, 2028, in the case a change occurs in— (A) the persons with an ownership or control interest (as defined in section 1124(a)(3)) in the hospice program; (B) the persons who are officers, directors, agents, or managing employees (as defined in section 1126(b)) of the hospice program; (C) the corporation, association, or other company responsible for the management of the hospice program; or (D) the individual who is the administrator of the hospice program, or the individual who is the medical director of the hospice program; such program shall provide notice at the time of the change (or, in the case such change is with respect to a person described in subparagraph (A), at least 90 days before the effective date of the change) to the Secretary, the appropriate State or local survey agency, or appropriate approved accreditation agency of the change and of the identity of each new person, company, or individual described in the respective subparagraph. (2) Enforcement (A) In general In the case that the Secretary determines that a hospice program has violated paragraph (1), the Secretary may— (i) impose a civil monetary penalty in an amount not to exceed $1,000,000 per violation; and (ii) if determined appropriate by the Secretary, terminate such program’s enrollment under this title. (B) Procedures The provisions of section 1128A (other than subsections (a) and (b) of such section) shall apply to a civil monetary penalty imposed under subparagraph (A) in the same manner as such provisions apply to a penalty or proceeding under such section.. (j) Required provision of addendum of noncovered services Section 1812(d)(1) of the Social Security Act (42 U.S.C. 1395d(d)(1)) is amended by adding at the end the following new sentence: With respect to such an election made on or after October 1, 2027, in the case such program determines that there are items and services being furnished to such individual that are not related to the treatment of the individual’s condition with respect to which a diagnosis of terminal illness has been made, such election shall include an addendum that specifies such items and services and includes such additional information as may be specified by the Secretary. Such program shall provide an updated addendum described in the preceding sentence to such individual if, while such election is in effect with respect to such individual, such program makes any alteration to the addendum provided to such individual at the time of such election.. (k) Medical review of hospice outliers and care unrelated to terminal condition (1) In general (A) Medical review Section 1814(a)(7) of the Social Security Act (42 U.S.C. 1395f(a)(7)) is amended— (i) in subparagraph (D), by striking and at the end; (ii) in subparagraph (E), by inserting and before the date of the enactment of subparagraph (F), after subparagraph,; and (iii) by adding at the end the following new subparagraph: (F) beginning on the date that is 5 years after the date of the enactment of this subparagraph, in the case of hospice care provided an individual for more than 90 days by a hospice program with aberrant billing patterns (as determined by the Secretary), the hospice care provided to such individual is subject to prepayment medical review (in accordance with procedures established by the Secretary); and. (B) Technical expert panel (i) In general The Secretary of Health and Human Services shall establish a technical expert panel for purposes of establishing standards for identifying a hospice program with a history of aberrant billing patterns under section 1814(a)(7)(F) of the Social Security Act, as added by subparagraph (A). In making recommendations with respect to such standards, such panel shall take into account the results of prepayment medical reviews conducted under section 1866(j)(10)(D) of such Act, as added by subsection (a). (ii) FACA waiver The provisions of chapter 10 of title 5, United States Code, shall not apply to the panel established under clause (i). (2) Prepayment medical review requirement Section 1812(d)(2) of the Social Security Act (42 U.S.C. 1395d(d)(2)) is amended by adding at the end the following new subparagraph: (E) Notwithstanding any other provision of this title, in the case of items and services (other than items and services described in the matter following clause (ii)(II) of subparagraph (A)) furnished on or after October 1, 2027, to an individual with an election in effect under paragraph (1) by a provider of services or supplier, if such provider of services or supplier indicates that such items and services are unrelated to the individual’s condition with respect to which a diagnosis of terminal illness has been made, no payment may be made under this title for such items and services before the Secretary has conducted a medical review of such items and services to determine whether such items and services are unrelated to such condition. Such review shall include a review of any addendum described in paragraph (1) included in such election.. (3) Funding The Secretary of Health and Human Services shall provide for the transfer, from the Federal Hospital Insurance Trust Fund established under section 1817 of the Social Security Act (42 U.S.C. 1395i) to the Centers for Medicare & Medicaid Services Program Management Account, of $20,000,000 for fiscal year 2027, to remain available until expended, for purposes of carrying out the amendments made by this subsection. (l) Provision of explanation of benefits upon hospice election (1) In general Section 1806 of the Social Security Act (42 U.S.C. 1395b–7) is amended by adding at the end the following new subsection: (d) Provision of explanation of benefits upon hospice election The Secretary shall furnish to each individual who makes an election described in section 1812(d)(1), not later than 15 days after such individual makes such election, a notice that— (1) specifies— (A) the effective date of such election; (B) the hospice program that will be furnishing hospice care to such individual; (C) the telephone number and address of such program; (D) the physician, physician assistant, or nurse practitioner who made the certification described in section 1814(a)(7)(A)(i)(I) with respect to such individual; (E) the toll-free telephone number of the medicare administrative contractor responsible for processing claims for such care; (2) informs such individual of the waiver of rights described in section 1812(d)(2)(A); (3) includes a statement which indicates that, because errors do occur and because Medicare waste, fraud, and abuse is a significant problem, such individual should carefully check the individual’s hospice election information and if such individual suspects Medicare waste, fraud, or abuse with respect to the provision of such care, the individual should contact the toll-free phone number 1–800–MEDICARE and a toll-free phone number maintained by the Inspector General of the Department of Health and Human Services for the receipt of complaints and information about waste, fraud, and abuse in the provision or billing of services under this title; and (4) includes any other information determined appropriate by the Secretary.. (2) Funding The Secretary of Health and Human Services shall provide for the transfer from the Federal Hospital Insurance Trust Fund established under section 1817 of the Social Security Act (42 U.S.C. 1395i) to the Centers for Medicare & Medicaid Services Program Management Account of $10,000,000 for fiscal year 2027, to remain available until expended, for purposes of carrying out the amendment made by paragraph (1). (3) Effective date The amendment made by paragraph (1) shall apply to individuals making elections described in section 1812(d)(1) of the Social Security Act (42 U.S.C. 1395d(d)(1)) on or after the date that is 1 year after the date of the enactment of this Act. (m) Medical review of hospice care contractor requirements (1) In general The Secretary of Health and Human Services (in this subsection referred to as the Secretary) shall require any entity performing medical review under contract with the Secretary of hospice care furnished under part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et seq.) to, with respect to such reviews performed on or after January 1, 2028, utilize only individuals who have received specialized instruction on the philosophy behind hospice care and medical prognostication (as specified by the Secretary) in performing such reviews. In so specifying such instruction and in updating such instruction, the Secretary shall consult with hospice programs as to the content of such instruction. (2) Publication The Secretary shall make any instruction specified for purposes of paragraph (1) publicly available on the website of the Centers for Medicare & Medicaid Services. (3) Report Not later than October 1, 2028, the Secretary shall submit to Congress a report on activities relating to the medical review of hospice care furnished under part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et seq.). Such report shall include— (A) with respect to the medical review of hospice care performed during the period beginning on January 1, 2020, and ending on December 31, 2025, the accuracy rates of such reviews when performed by— (i) medicare administrative contractors; (ii) recovery audit contractors; (iii) supplemental medical review contractors; and (iv) uniform program integrity contractors; (B) the total number of hospice claims submitted during the period described in subparagraph (A) subject to medical review; (C) the percentage of such claims that were denied and appealed and the percentage of such claims so appealed that were overturned on appeal, broken down by the type of contractor conducting review of such claims and by each level of appeal; (D) a list of medical review projects relating to hospice care undertaken by contractors described in subparagraph (A); and (E) actions the Secretary will take to reduce the audit burden on hospice programs with claims selected for medical review under multiple projects described in subparagraph (D) and to minimize the number of denials of claims for hospice care that are overturned on appeal. (n) Requiring face-to-Face encounters before recertifications of terminal illness Section 1814(a)(7) of the Social Security Act (42 U.S.C. 1395f(a)(7)) is amended— (1) in subparagraph (D)— (A) in the matter preceding clause (i), by inserting, and before October 1, 2027 after 2011; and (B) by striking and at the end; and (2) by adding at the end the following new subparagraph: (F) on and after October 1, 2027, not more than 30 days before each recertification described in subparagraph (A)(ii) is made with respect to an individual, a hospice physician, hospice nurse practitioner, or hospice physician assistant has a face-to-face encounter (which may, with respect to any such recertification made for a 60-day period described in such subparagraph, be conducted via telehealth, but only if a registered nurse, licensed practical nurse, or home health aide employed by the hospice program furnishing hospice care to such individual is physically present with such individual during such encounter) with such individual to gather clinical findings to determine such individual’s continued eligibility for hospice care; and. (o) Ensuring medical director and physician availability (1) In general Section 1861(dd) of the Social Security Act (42 U.S.C. 1395x(dd)) is amended— (A) in paragraph (2)— (i) in subparagraph (F), by striking and at the end; (ii) by redesignating subparagraph (G) as subparagraph (I); and (iii) by inserting after subparagraph (F) the following new subparagraphs: (G) has a medical director responsible for the medical component of hospice care provided by such program who— (i) is a doctor of medicine or osteopathy licensed to practice in the State in which such program is located; and (ii) subject to paragraph (6), is not the medical director of more than 1 other hospice program; (H) ensures that the medical director described in subparagraph (G) or a physician member of the group described in subparagraph (B) is available for immediate consultation (which may be through telehealth) when hospice care is provided in an individual’s home; and; and (B) by adding at the end the following new paragraph: (6) The Secretary may waive the requirement described in paragraph (2)(G)(ii) with respect to the medical director of a hospice program if determined appropriate by the Secretary on a case-by-case basis. In determining whether to grant a waiver under the preceding sentence, the Secretary shall take into consideration— (A) the average daily census for each hospice program with respect to which such director is medical director; (B) the geographic areas served by such programs; and (C) any other information determined appropriate by the Secretary.. (2) Effective date The amendments made by paragraph (1) shall apply beginning January 1, 2029. (p) Report on hospice accrediting organizations Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the Secretary of Health and Human Services’ (in this subsection referred to as the Secretary) oversight of hospice program accrediting organizations. Such report shall include the following: (1) An analysis of deficiencies relating to quality of care found pursuant to surveys conducted under section 1822(a) of the Social Security Act (42 U.S.C. 1395i–6(a)) following complaints when such surveys were of hospice programs accredited by such an organization and such surveys were conducted by such an organization compared to such deficiencies so found following such complaints when such surveys were of hospice programs certified by State or local survey agencies and such surveys were conducted by such agencies. (2) A list of hospice programs determined by the Secretary not to be in compliance with all requirements applicable to such programs, along with a list of the accrediting organization of each such program. (3) A list of hospice programs that have been deactivated, terminated, or investigated due to concerns relating to waste, fraud, or abuse, along with a list of the accrediting organization of each such program. (4) An analysis of any conflicts of interest of hospice program accrediting organizations. (5) Performance data for hospice program accrediting organizations.