[Congressional Record Volume 157, Number 47 (Monday, April 4, 2011)]
[Senate]
[Pages S2089-S2090]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WYDEN (for himself and Mr. Roberts):
  S. 722. A bill to strengthen and protect Medicare hospice programs; 
to the Committee on Finance.
  Mr. WYDEN. Mr. President, this is far from the first time I have 
spoken in this Chamber about the importance of providing hospice 
benefits and those workers who help provide them tirelessly every day. 
Today I'm pleased to introduce legislation to strengthen the hospice 
program so that these critical benefits will continue to be available 
for those in the final stages of life.
  Hospice care provides humane and comforting support for over 744,000 
terminally ill patients and their families each year. These services 
include pain control, palliative medical care and social, emotional and 
spiritual services.
  Hospice supports the basic human needs for feeling comfortable, in a 
familiar environment, surrounded by loving caregivers and family during 
the later stages of life. Hospice care is an effective model for the 
interaction of interdisciplinary teams of health professionals, family 
members and volunteers in providing care for those needing care in our 
communities.
  Our country strives to provide exceptional support for the sick, 
elderly and terminally ill in home and hospice settings. These 
vulnerable individuals, as well as their family caregivers, are 
indebted to the many professionals and volunteers who have made it 
their life's work to serve those in greatest need. Nearly 83,000 
hospice professionals, 46,000 hospice volunteers and 1 million home 
health providers, nationally, contribute significantly to our health 
care system through their compassion and commitment.
  It is because of these professionals and volunteers that seniors 
continue to have access to this vital service. And it is with these 
committed people in mind that Senator Roberts and I introduce 
legislation that will help sustain the future of hospice care.
  Specifically, The Hospice Evaluation and Legitimate Payment Act 
creates a ``do no harm'' demonstration that evaluates proposed payment 
changes to hospices at 15 different sites before going into effect. 
With an estimated 66% of hospices looking down a road to negative 
operating margins by 2019, Congress must act to ensure hospice doors 
remain open. Testing payment changes can do that.
  The HELP Act also allows nurse practitioners and physicians 
assistants to sign-off on the required face-to-face encounter. This 
expansion ensures program integrity while also preserving access to 
services, especially in rural areas where great distances can create 
unwanted impediments.
  Finally, the HELP Act calls for increased accountability. Instead of 
a hospice submitting a survey every eight years, this legislation 
implements the recommendation of the OIG, and increases submission to 
once every 3 years.
  We need to support new ways to treat a very ill patient physically 
and emotionally, long before the last days of life. We need to make 
sure doctors are not afraid of using pain medications to make people 
comfortable and, most of all, we need to make sure people start the 
conversations with their families and doctors about having a better 
death and using hospice as early as possible. None of these options for 
changing the standards of end-of-life care delivery can occur if 
hospices cannot continue to operate. The HELP Act makes that more 
possible.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 722

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Hospice Evaluation and 
     Legitimate Payment Act''.

     SEC. 2. ENSURING TIMELY ACCESS TO HOSPICE CARE.

       (a) In General.--Section 1814(a)(7)(D)(i) of the Social 
     Security Act (42 U.S.C. 1395f(a)(7)(D)(i)) is amended to read 
     as follows:
       ``(i) a hospice physician, a nurse practitioner, a clinical 
     nurse specialist, or a physician assistant (as those terms 
     are defined in section 1861(aa)(5)), or other health 
     professional (as designated by the Secretary), has a face-to-
     face encounter with the individual to determine continued 
     eligibility of the individual for hospice care prior to the 
     first 60-day period and each subsequent recertification under 
     subparagraph (A)(ii) (or, in the case where a hospice program 
     newly admits an individual who would be entering their first 
     60-day period or a subsequent hospice benefit period or where 
     exceptional circumstances, as defined by the Secretary, may 
     prevent a face-to-face encounter prior to the beginning of 
     the hospice benefit period, not later than 7 calendar days 
     after the individual's election under section 1812(d)(1) with 
     respect to the hospice program) and attests that such visit 
     took place (in accordance with procedures established by the 
     Secretary); and''.
       (b) Effective Date.--The amendment made by subsection (a) 
     takes effect on the date of enactment of this Act and applies 
     to hospice care furnished on or after such date.

     SEC. 3. RESTORING AND PROTECTING THE MEDICARE HOSPICE 
                   BENEFIT.

       (a) In General.--Section 1814(i) of the Social Security Act 
     (42 U.S.C. 1395f(i)) is amended--
       (1) in subparagraph (1)(C)--
       (A) in clause (ii)--
       (i) in the matter preceding subclause (I), by striking 
     ``(6)(D)'' and inserting ``(6)(E)''; and
       (ii) in subclause (VII), by striking ``(6)(D)'' and 
     inserting ``(6)(E)'';
       (B) in clause (iii), by moving such clause 6 ems to the 
     left and striking ``(6)(D)'' and inserting ``(6)(E)'';
       (2) in paragraph (6)--
       (A) in subparagraph (A), by striking ``subparagraph (D)'' 
     and inserting ``subparagraph (E)'';
       (B) by redesignating subparagraphs (D) and (E) as 
     subparagraphs (E) and (F), respectively, and inserting after 
     subparagraph (C) the following new subparagraph:
       ``(D) Hospice payment reform demonstration program.--
       ``(i) Establishment of demonstration program.--

       ``(I) In general.--Prior to implementing any revisions to 
     the methodology for determining the payment rates for routine 
     home care and other services included in hospice care under 
     subparagraph (E), the Secretary shall establish a Medicare 
     Hospice Payment Reform demonstration program to test such 
     proposed revisions.
       ``(II) Duration.--The demonstration program shall be 
     conducted for a 2-year period beginning on or after October 
     1, 2013.
       ``(III) Scope.--The Secretary shall select not more than 15 
     hospice programs at which the demonstration program under 
     this subparagraph shall be conducted.
       ``(IV) Representative participation.--Hospice programs 
     selected under subclause (III) to participate in the 
     demonstration program shall include a representative cross-
     section of such programs throughout the United States, 
     including programs located in urban and rural areas.
       ``(V) Voluntary participation.--Hospice program 
     participation in the demonstration program shall be on a 
     voluntary basis.

       ``(ii) Evaluation and report.--

       ``(I) Evaluation.--The Secretary shall conduct an 
     evaluation of the demonstration program under this 
     subparagraph. Such evaluation shall include an analysis of 
     whether the use of the revised payment methodology under the 
     demonstration program has improved the quality of patient 
     care and access to hospice services for beneficiaries under 
     this title and the impact of such payment revisions on 
     hospice care providers, including the impact, if any, on the 
     ability of hospice

[[Page S2090]]

     programs to furnish quality care to beneficiaries under this 
     title.
       ``(II) Report.--Not later than 1 year after the completion 
     of the demonstration program, the Secretary shall submit to 
     Congress a report containing the results of the evaluation 
     conducted under subclause (I), together with recommendations 
     for such legislation and administrative action as the 
     Secretary determines appropriate.

       ``(iii) Budget neutrality.--With respect to the 2-year 
     period of the demonstration program under this subparagraph, 
     the Secretary shall ensure that the estimated amount of 
     aggregate payments under this title to each hospice program 
     participating in the demonstration program for such period 
     shall not be more than 5 percent higher or 5 percent lower 
     than the estimated amount of aggregate payments that would 
     have been made under this title to each such hospice program 
     during such period had they not participated in the 
     demonstration program under this subparagraph.''.
       (C) in subparagraph (E), as redesignated by subparagraph 
     (B)--
       (i) in clause (i)--

       (I) in the first sentence, by striking ``October 1, 2013, 
     the Secretary shall, by regulation'' and inserting ``subject 
     to clause (iii), the later of 2 years after the demonstration 
     program under subparagraph (D) is completed or October 1, 
     2017, the Secretary shall, by regulation, preceded by notice 
     of the proposed regulation in the Federal Register and a 
     period for public comment in accordance with section 
     1871(b)(1),''; and
       (II) in the second sentence, by inserting ``, and shall 
     take into account the results of the evaluation conducted 
     under subparagraph (D)(ii)'' before the period; and

       (ii) by adding at the end the following new clause:
       ``(iii) In no case may the Secretary implement any 
     revisions in payment pursuant to clause (i) unless the 
     Secretary determines that the demonstration program under 
     subparagraph (D) demonstrated that such revisions would not 
     adversely affect access to quality hospice care by 
     beneficiaries under this title.''.
       (D) in subparagraph (F), as redesignated by subparagraph 
     (B), by striking ``subparagraph (D)'' and inserting 
     ``subparagraph (E)''.

     SEC. 4. HOSPICE SURVEY REQUIREMENT.

       (a) In General.--Section 1861(dd)(4) of the Social Security 
     Act (42 U.S.C. 1395x(dd)(4)) is amended by adding at the end 
     the following new subparagraph:
       ``(C) Any entity seeking certification as a hospice program 
     shall be subject to an initial survey by an appropriate State 
     or local survey agency, or an approved accreditation agency, 
     as determined by the Secretary, not later than 6 months after 
     beginning operations, and any entity which is certified as a 
     hospice program shall be subject to a standard survey not 
     less frequently than every 36 months.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     takes effect on the date that is 180 days after the date of 
     enactment of this Act and applies to hospice programs on or 
     after such date.

  Mr. ROBERTS. Mr. President, I rise today in support of the 
legislation introduced by Senator Wyden, of which I am an original 
cosponsor, the `Hospice Evaluation and Legitimate Payment Act.' The 
HELP Act.
  The HELP Act does what the title says it does and takes initial steps 
in helping our hospices in Kansas and across the Nation continue to 
give the valuable care that patients and families need.
  It is impossible to describe the value of hospice services to the 
patients and families for whom they provide selfless and compassionate 
care. Over the next 10 years hospice is facing drastic reductions in 
their reimbursements, negatively impacting at least 1.3 million 
patients and families, which is the number served by hospice programs 
in recent years.
  The HELP Act sets realistic requirements for a face-to-face 
encounter. The Accountable Care Act included a requirement that a 
hospice physician or nurse practitioner should have a face-to-face 
encounter with hospice patients before their 180-day recertification 
and for each 60-day recertification period after that date, has caused 
a significant burden on our hospice communities, especially those in 
rural areas. The limits on who can conduct the face-to-face encounter 
and the timeline for compliance do not reflect the operational 
realities of hospice programs, especially for small and rural hospices. 
The HELP Act would allow Nurse Practitioners, Clinical Nurse 
Specialists and Physician's Assistants to conduct the face-to-face 
encounter, and that hospice programs be afforded 7 days after the 
election of services to fulfill the requirement.
  The HELP Act would require the Secretary to establish a payment 
reform demonstration program to test any prospective payment revisions 
to hospice, and would include an evaluation period for data analysis; 
increase the frequency of hospice surveys to every 3 years; and would 
amend the new face-to-face encounter statutory framework to reflect 
operational realities for hospice programs, and the needs of the 
patients and families they serve.
  Under this legislation the new payment methodologies for hospice must 
first be piloted through a 2-year, 15-site demonstration program to 
allow for any recommended payment reform schemes to be tested across a 
representative sample of the hospice community and to assess their 
impact on beneficiary access to hospice services.
  The HELP Act also requires more frequent hospice surveys. A recent 
Office of the Inspector General's, OIG, report noted that CMS was 
remiss in its supervisory responsibilities by not regularly reviewing 
the operational and clinical delivery processes of the hospice 
community. OIG has recommended on numerous occasions that ``CMS should 
conduct more frequent certification surveys of hospices as a way to 
enforce the requirements.'' Accrediting organizations, such as the 
Joint Commission for the Accreditation of Healthcare Organizations, 
JCAHO, have set an industry standard of certification every 3 years for 
hospices. The HELP Act requires an initial survey for those seeking 
certification to be followed by a standard survey every 3 years.
  While there is more work that needs to be done to address payment 
reductions for hospice providers, the HELP Act takes some initial steps 
to addressing these problems. I am grateful to my colleague Senator 
Wyden for introducing this legislation and I am happy to lend my 
support. I encourage all of my colleagues on both sides of the aisle to 
review and consider supporting this very important piece of 
legislation.

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