According to a statement released on the Center for Medicare and Medicaid Services (“CMS”) website, effective February 14, 2025, implementation of the Hospice Special Focus Program for calendar year 2025 has ceased so that CMS may further evaluate the program.
Hospice Special Focus Facility Program (“SFP”)
The Consolidated Appropriations Act of 2021 called for CMS to create and implement a SFP for poor-performing hospices that includes using a data-driven algorithm to identify indicators of poor hospice performance, the criteria for selection and completion of the SFP, hospice termination from Medicare and public reporting of the SFP.
The Final Rule added 42 CFR § 488.1135 and created the SFP for hospice providers. Selected hospices either successfully complete the SFP program or are terminated from the Medicare program.
Selection Approach
In establishing the SFP, CMS examined the Special Focus Facility Program for nursing homes and its methodology for facility selection.
CMS adopted a process to identify a subset of 10% of hospice programs based on the highest aggregate scores determined by the algorithm and select that group for the SFP.
To identify poor hospice performance, CMS has identified several indicators:
- Survey reports with Condition-Level Deficiencies (“CLDs”) in any of the 11 quality-of-care conditions. CMS specifically chose not to include all 23 Conditions of Participation because it would “dilute the methodology’s ability to identify quality concerns”; and
- Complaints with substantiated allegations and CMS Medicare data sources from the Hospice Quality Reporting Program. However, CMS noted that for one data source, only 49.3% of hospice providers reported data. These indicators have been integrated into the SFP algorithm to assist in identifying potential hospice providers for the SFP.
The compilation of these data sources illustrates areas of CMS concern:
- Validated/identified issues based on in-person/on-site review of a hospice to meet Medicare requirements;
- Caregiver and public complaints about hospices not providing quality care or not meeting Medicare requirements; and
- Quality measures that inform the public of whether a hospice is providing expected care processes or outcomes.
CMS added 42 CFR § 488.1135(b), which provides that hospices with an Accrediting Organization deemed status that are placed in the SFP would not retain deemed status and would be placed under CMS or, as needed, state survey agency oversight jurisdiction until completion of the SFP or termination. The number of hospices selected to participate in the SFP would be determined in the first quarter of each calendar year.
Graduation from SFP
CMS added 42 CFR § 488.1135(d), which provides that a hospice will have completed the SFP if it has in an 18-month timeframe, no CLDs cited or immediate jeopardies for any two six-month SFP surveys and has no pending complaint survey triaged at an immediate jeopardy or condition level or has returned to substantial compliance with all requirements. If there are any complaint investigations or a 36-month recertification survey for a hospice while in the SFP, the SFP timeline may extend beyond the 18-month timeframe.
After completing the SFP, hospice programs would receive a one-year post-SFP survey and then would start a new standard 36-month survey cycle.
Termination
A hospice in the SFP that fails any two SFP surveys, by having any CLDs on the two surveys, in an 18-month period, or pending complaint investigations triaged at IJ or condition-level, would be considered for termination from the Medicare program under 42 CFR § 488.1135(e).
Public Reporting
CMS added 42 CFR § 488.1135(f) to call for it to publicly report, at least on an annual basis, the hospice programs selected for the SFP. Initially, this information would be posted on a CMS public-facing website or a successor website.
2025 Lawsuit
In January 2025, several state associations and hospice providers sued the Department of Health and Human Services (“HHS”) and Secretary Xavier Becerra to block the hospice SFP from taking effect. The plaintiffs charged HHS with violating the Administrative Procedure Act for finalizing the SFP without addressing serious flaws identified in the comments to the SFP proposed rule when the regulations and program were proposed, including questioning the algorithm CMS is using to identify the list of the lowest performing hospices.
Practical Takeaways
- The pause of the SFP is intended to provide an opportunity for CMS to reevaluate the program.
- Hospice providers should monitor the next step CMS takes and continue to determine the potential impact on their operations.
If you have any questions, would like assistance preparing public comments, or would like additional information about this topic, please contact:
- Sean Fahey at sfahey@hallrender.comor (317) 977-1472;
- Brian Jent at bjent@hallrender.com or (317) 977-1402;
- Todd Selby at tselby@hallrender.com or (317) 977-1440; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
