PPSV Client the American Academy of Hospice and Palliative Medicine Files Amicus Brief in Suit Against CMS to Delay Implementation of New Hospice Wage Index Rule
Lawsuit and Medicare Hospice Protection Act of 2009 seek one year delay
October 6, 2008
On behalf of our client the American Academy of Hospice and Palliative Medicine (AAHPM), Powers Pyles Sutter & Verville filed a “friend of the court” brief in the National Hospice and Palliative Care Organization (NHPCO)’s suit against the Centers for Medicare and Medicaid Services (CMS). A copy of our brief is below. In a two pronged approach incorporating both a lawsuit as well as legislative action, we are asking Congress and CMS to delay the implementation of scheduled hospice and palliative care rate cuts that took effect on October 1st.
AAHPM argues that reductions in Medicare reimbursement for hospice care will force many hospices to either significantly scale back care or shut their doors altogether. The CMS rule alters the wage index adjustment by phasing out the budget neutrality adjustment factor (BNAF) that was applied to the hospice wage index in 1997 to minimize the disruption in beneficiary access to hospice services. If implemented, this rule will cut hospice reimbursement by almost $2.2 billion and reduce average hospice reimbursement by more than 4 percent. The final rule, published in The Federal Register, is effective October 1, 2008.
In the amicus brief, AAHPM argues (a) CMS's reliance on the purportedly “transitional" nature of the budget neutrality adjustment factor lacks any factual basis, (b) CMS's reliance on the growth of the hospice industry and an increase in total Medicare payments to support the elimination of' the BNAF lacks any rational basis, and (c) the public interest favors enjoining the elimination of the BNAF.
AAHPM further argues that the final days of life are unique, limited and crucially important to both patients and their families. A patient who desires hospice care but is unable to receive that care because a local hospice has closed or cut services has irreparably lost an opportunity to die without appropriate or desired end-of-life care.
The government responded to the initial filing, claiming (a) jurisdictional issues, (b) the underlying ability of CMS to cut rates by regulation, and (c) their rulemaking was undertaken in a reasonable manner. NHPCO plans to respond to the government’s specific arguments on October 6th and expects a decision from the court by November 1, 2008.
AAHPM is the professional organization for physicians specializing in hospice and palliative medicine. AAHPM has more than 3400 members, including physicians, nurses, social workers and others interested in advancing hospice and palliative medicine and improving the care of patients with life-threatening or serious conditions.
“AAHPM is dedicated to expanding access of patients and families to high quality palliative care and advancing the discipline of Hospice and Palliative Medicine through professional education and training, development of a specialist workforce, support for clinical practice standards, research and public policy. The core purpose is to improve the care of patients with life-threatening or serious conditions through advancement of hospice and palliative medicine.” For more information, see www.aahpm.org.
Powers Pyles Sutter & Verville is a Washington, DC-based law firm that focuses on healthcare, education and the law of tax-exempt organizations. For more information, please contact Judi Buckalew or Rob Lavet at 202.466.6550 or e-mail judi.buckalew@ppsv.com or rob.lavet@ppsv.com.
