Federal Rulemaking: Selected Agencies Should Clearly Communicate How They Post Public Comments and Associated Identity Information

Federal agencies publish on average 3,700 proposed rules yearly and are generally required to provide interested persons (commenters) an opportunity to comment on these rules. In recent years, some high-profile rulemakings have received extremely large numbers of comments, raising questions about how agencies manage the identity information associated with comments. While the APA does not require the disclosure of identifying information from a commenter, agencies may choose to collect this information.

This testimony summarizes GAO's June 2019 report on public comment posting practices (GAO-19-483). In that report, GAO examined (1) the identity information collected by comment websites; (2) the guidance agencies have related to the identity of commenters; (3) how 10 selected agencies treat identity information; and (4) the extent to which the selected agencies clearly communicate their practices associated with identity information. The 10 agencies were selected on the basis of the volume of public comments they received on rulemakings. For this testimony, GAO obtained updates on the status of recommendations made to the selected agencies.

The Administrative Procedure Act (APA) governs the process by which many federal agencies develop and issue regulations, which includes the public comment process (see figure below).

In June 2019, GAO found that Regulations.gov and agency-specific comment websites collect some identity information—such as name, email, or address—from commenters who choose to provide it during the public comment process. The APA does not require commenters to disclose identity information when submitting comments. In addition, agencies have no obligation under the APA to verify the identity of such parties during the rulemaking process, and all selected agencies accept anonymous comments in practice.

GAO found in the June 2019 report that seven of 10 selected agencies have some internal guidance associated with the identity of commenters, but the substance of this guidance varies. This reflects the differences in the way that the selected agencies handle commenter identity information internally.

GAO also found that the selected agencies' practices for posting public comments to comment websites vary considerably, particularly for duplicate comments (identical or near-identical comment text but varied identity information). For example, one agency posts a single example of duplicate comments and indicates the total number of comments received, but only the example is available to public users of Regulations.gov. In contrast, other agencies post all comments individually. As a result, identity information submitted with comments is inconsistently presented on public websites.

The APA allows agencies discretion in how they post comments, but GAO found that some of the selected agencies do not clearly communicate their practices for how comments and identity information are posted. GAO's key practices for transparently reporting government data state that federal government websites should disclose data sources and limitations to help public users make informed decisions about how to use the data. If not, public users of the comment websites could reach inaccurate conclusions about who submitted a particular comment, or how many individuals commented on an issue.

In June 2019, GAO made recommendations to eight of the selected agencies regarding implementing and communicating public comment posting policies. The agencies generally agreed with the recommendations and identified actions they planned to take in response. Since the June 2019 report, one agency has implemented GAO's recommendation and seven agencies have identified additional planned actions.

Thank you for the opportunity to discuss our work on identity information  in the public comment portion of the rulemaking process. The  Administrative Procedure Act (APA) establishes procedures for  rulemaking, which is the process agencies follow to develop and issue  regulations. Agencies use regulations to carry out statutory directives to  achieve public policy goals, such as protecting the health and safety of  the public. Under the APA, agencies engage in three basic phases of the  rulemaking process: (1) initiate rulemaking actions, (2) develop proposed  rulemaking actions, known as Notices of Proposed Rulemaking (NPRM),  and (3) develop final rulemaking actions. Built into agencies’ rulemaking  processes are opportunities for internal and external deliberations,  reviews, and public comments.

Federal agencies publish an average of 3,700 NPRMs each year. Most  agencies utilize Regulations.gov to receive public comments on proposed  rules, but some agencies have their own agency-specific websites.  Although the number of public comments submitted on NPRMs can vary  widely, in recent years, some high-profile rulemakings have received  extremely large numbers of comments. For example, during the public  comment period for the Federal Communications Commission’s (FCC)  2017 Restoring Internet Freedom NPRM, FCC received more than 22  million comments through its public comment website. Subsequently,  media and others reported that some of the comments submitted to FCC  were suspected to have been submitted using false identity information.

The APA requires agencies to allow comments on NPRMs to be  submitted by any interested party (commenters). The APA does not  require the disclosure of identity information from commenters, such as  name, email, or address. Agencies therefore have no obligation under the  APA to verify the identity of such parties during the rulemaking process.  Agencies must give consideration to any significant comments submitted  during the comment period when drafting the final rule. However, courts  have held that agencies are not required to respond to every comment  individually. Agencies routinely offer a single response to multiple  identical or similar comments, because the comment process is not a  vote. As explained by Regulations.gov’s Tips for Submitting Effective  Comments, “…agencies make determinations for a proposed action  based on sound reasoning and scientific evidence rather than a majority  of votes. A single, well-supported comment may carry more weight than a  thousand form letters.”

Additionally, the E-Government Act of 2002 requires agencies, to the  extent practical, to accept comments “by electronic means” and to make  available online the public comments and other materials included in the  official rulemaking docket. Executive Order 13563 further states that  regulations should be based, to the extent feasible, on the open  exchange of information and perspectives. To promote this open  exchange, to the extent feasible and permitted by law, most agencies are  required to provide the public with a meaningful opportunity to participate  in the regulatory process through the internet, to include timely online  access to the rulemaking docket in an open format that can be easily  searched and downloaded.

Most agencies meet these responsibilities through Regulations.gov, a  rulemaking website where users can find rulemaking materials and  submit their comments, but all agencies are not required to use that  platform. In October 2002, the eRulemaking Program was established as  a cross-agency E-Government initiative and is currently based within the  General Services Administration. The eRulemaking Program  Management Office (PMO) leads the eRulemaking Program and is  responsible for developing and implementing Regulations.gov, the public- facing comment website, and the Federal Docket Management System  (FDMS), which is the agency-facing side of the comment system used by  participating agencies.

My remarks today are based on our report issued in June 2019.  Specifically, this testimony discusses (1) the identity information selected  agencies collect through Regulations.gov and agency-specific comment  websites, (2) the internal guidance selected agencies have related to the  identity of commenters, (3) how selected agencies treat identity  information collected during the public comment process, (4) the extent to  which selected agencies clearly communicate their practices associated  with posting identity information collected during the public comment  process, and (5) the status of our recommendations to these agencies.

For our report, we selected a nongeneralizable sample of 10 agencies  (selected agencies) that received a high volume of public comments for  rulemaking proceedings that accepted comments from January 1, 2013  through December 31, 2017. These selected agencies included eight  agencies that use Regulations.gov as their agency’s comment website  (“participating agencies”) and two agencies that operate agency-specific  comment websites (“nonparticipating agencies”). We surveyed 52  program offices within these agencies about their comment process and  reviewed comment websites, agency guidance, and comment data. We  also interviewed relevant agency officials. Additional information about  our scope and methodology is available in our June 2019 report. Since  the issuance of that report, we have received and reviewed additional  information from selected agencies related to the actions they have taken  in response to the report’s recommendations.

We conducted the work on which this statement is based in accordance  with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.

Selected Agencies Collect Some Information from Commenters and Accept Anonymous Comments through Regulations.gov and Agency-Specific Websites

Consistent with the discretion afforded by the APA, Regulations.gov and  agency-specific comment websites use required and optional fields on  comment forms to collect some identity information from commenters. In  addition to the text of the comment, agencies may choose to collect  identity information by requiring commenters to fill in other fields, such as  name, address, and email address before they are able to submit a  comment. Regardless of the fields required by the comment form, the  selected agencies all accept anonymous comments in practice.  Specifically, in the comment forms on Regulations.gov and agency- specific comment websites, a commenter can submit under a fictitious  name, such as “Anonymous Anonymous,” enter a single letter in each  required field, or provide a fabricated address. In each of these scenarios,  as long as a character or characters are entered into the required fields,  the comment will be accepted. Further, because the APA does not  require agencies to authenticate submitted identity information, neither  Regulations.gov nor the agency-specific comment websites contain  mechanisms to check the validity of identity information that commenters  submit through comment forms.

Regulations.gov and agency-specific comment websites also collect  some information about public users’ interaction with their websites  through application event logs and proxy server logs, though the APA  does not require agencies to collect or verify it as part of the rulemaking  process. This information, which can include a public user’s Internet  Protocol (IP) address, browser type and operating system, and the time  and date of webpage visits, is collected separately from the comment  submission process as part of routine information technology  management for system security and performance, and cannot be reliably  connected to specific comments.

Most Selected Agencies Have Some Internal Guidance Related to Commenter Identity

Seven of the 10 selected agencies have documented some internal  guidance associated with the identity of commenters during the three  phases of the public comment process: intake, analysis, and response to  comments. However, the focus and substance of this guidance varies  by agency and phase of the comment process. As shown in Table 1, for  selected agencies that have guidance associated with the identity of  commenters, it most frequently relates to the comment intake or response  to comment phases of the public comment process.

The guidance for these phases addresses activities such as managing  duplicate comments (those with identical or near-identical comment text  but varied identity information) or referring to commenters in a final rule.  Agencies are not required by the APA to develop internal guidance  associated with the public comment process generally, or identity  information specifically.

Selected Agencies’ Treatment of Identity Information Collected during the Public Comment Process Varies

Within the discretion afforded by the APA, the 10 selected agencies’  treatment of identity information varies during the three phases of the  public comment process. Selected agencies differ in how they treat  identity information during the comment intake phase, particularly in terms  of how they post duplicate comments, which can lead to identity  information being inconsistently presented to public users of comment  systems.

Generally, officials told us that their agencies either (1) maintain all  comments within the comment system, or (2) maintain some duplicate  comment records outside of the comment system, for instance, in email  file archives. When an agency chooses to post a sample of duplicate  comments, the identity information and unique comment contents for all  duplicate comments may not be present on the public website. For  example, for all duplicate comments received, Securities and Exchange  Commission (SEC) posts a single example for each set of duplicate  comments and indicates the total number of comments received. As a  result, the identity information and any unique comment content beyond  the first example are not present on the public website. (See fig. 1.)

Selected agencies’ treatment of identity information during the comment  analysis phase also varies. Specifically, program offices with the  responsibility for analyzing comments place varied importance on identity  information during the analysis phase. Finally, all agencies draft a  response to comments with their final rule, but the extent to which the  agencies identify commenters or commenter types in their response also  varies across the selected agencies.

Selected Agencies’ Practices Associated with Posting Identity Information Are Not Clearly Communicated to Public Users of Comment Websites

Our analysis of Regulations.gov and agency-specific comment websites  shows that the varied comment posting practices of the 10 selected  agencies are not always documented or clearly communicated to public  users of the websites. The E-Government Act of 2002 requires that all  public comments and other materials associated with a given rulemaking  should be made “publicly available online to the extent practicable.” In  addition to the requirements of the E-Government Act, key practices for  transparently reporting open government data state that federal  government websites—like those used to facilitate the public comment  process—should fully describe the data that are made available to the  public, including by disclosing data sources and limitations. We found  that the selected agencies we reviewed do not effectively communicate  the limitations and inconsistencies in how they post identity information  associated with public comments. As a result, public users of the  comment websites lack information related to data availability and  limitations that could affect their ability to use and make informed  decisions about the comment data and effectively participate in the  rulemaking process themselves.

Regulations.gov and Participating Agency Websites

Public users of Regulations.gov seeking to submit a comment are  provided with a blanket disclosure statement related to how their identity  information may be disclosed, and are generally directed to individual  agency websites for additional detail about submitting comments. While  additional information is provided in the Privacy Notice, User Notice, and  Privacy Impact Assessment for Regulations.gov, public users are not  provided any further detail on Regulations.gov regarding what  information, including identity information, they should expect to find in  the comment data. Additionally, there is not enough information to help  public users determine whether all of the individual comments and  associated identity information are posted.

Available resources on Regulations.gov direct public users to participating  agencies’ websites for additional information about agency-specific  review and posting policies. Seven of the eight participating agencies’  websites direct public users back to Regulations.gov and the Federal  Register, either on webpages that are about the public comment process  in general, or on pages containing information about specific NPRMs.  Three of these participating agencies – the Environmental Protection  Agency (EPA), the Fish and Wildlife Service (FWS), and the Food and  Drug Administration (FDA) – do provide public users with information  beyond directing them back to Regulations.gov or the Federal Register,  but only FDA provides users with details about posting practices that are  not also made available on Regulations.gov.

The eighth participating agency – the Employee Benefits Security  Administration (EBSA) – does not direct public users back to  Regulations.gov, and instead recreates all rulemaking materials for each  NPRM on its own website, including individual links to each submitted  comment. However, these links go directly to comment files, and do not  link to Regulations.gov. While EBSA follows departmental guidance  associated with posting duplicate comments, which allows some  discretion in posting practices, the agency does not have a policy for how  comments are posted to Regulations.gov or its own website. Further, in  the examples we reviewed, the content of the NPRM-specific pages on  EBSA’s website does not always match what is posted to  Regulations.gov.

Because participating agencies are not required to adhere to  standardized posting practices, Regulations.gov directs public users to  participating agency websites for additional information about posting  practices and potential data limitations. However, these websites do not  describe the limitations associated with the identity information contained  in publicly posted comments. As allowed for under the APA, all of the  participating agencies in our review vary in the way in which they post  identity information associated with comments—particularly duplicate  comments. However, the lack of accompanying disclosures may potentially lead users to assume, for example, that only one entity has  weighed in on an issue when, actually, that comment represents 500  comments. Without better information about the posting process, the  inconsistency in the way in which duplicate comments are presented to  public users of Regulations.gov limits public users’ ability to explore and  use the data and could lead users to draw inaccurate conclusions about  the public comments that were submitted and how agencies considered  them during the rulemaking process.

Both nonparticipating agencies use comment systems other than  Regulations.gov and follow standardized posting processes associated  with public comments submitted to their respective comment systems, but  SEC has not clearly communicated these practices to the public.  Although it appears to users of the SEC website that the agency follows a  consistent process for posting duplicate comments, at the time of our  June 2019 report, this practice had not been documented or  communicated to public users of its website. In contrast, FCC identifies its  policies for posting comments and their associated identity information in  a number of places on the FCC.gov website, and on its Electronic  Comment Filing System (ECFS) web page within the general website.  Regarding comments submitted to rulemaking proceedings through  ECFS, public users are informed that all information submitted with  comments, including identity information, will be made public. Our review  of ECFS comment data did not identify discrepancies with this practice.

Although the public comment process allows interested parties to state  their views about prospective rules, the lack of communication with the  public about the way in which agencies treat identity information during  the posting process, particularly for duplicate comments, may inhibit  users’ meaningful participation in the rulemaking process. While the APA  does not include requirements for commenters to provide identity  information, or for agency officials to include commenters identity as part  of their consideration of comments, key practices for transparently  reporting open government data state that federal government websites— like those used to facilitate the public comment process—should fully  describe the data that are made available to the public, including by  disclosing data sources and limitations.

Selected Agencies Are in the Process of Implementing GAO Recommendations

As shown in Table 2, we recommended in our June 2019 report that five  of the selected agencies establish a policy for posting comments, and that  eight selected agencies take action to more clearly communicate their  policies for posting comments, particularly with regard to identity  information and duplicate comments. These agencies generally agreed  with our recommendations and identified actions they planned to take in  response, such as developing policies for posting duplicate comments  and communicating those in various ways to public users. Since issuing  our June 2019 report, all of the agencies to which we made  recommendations have provided us with additional updates.

Specifically, SEC completed actions that are responsive to the  recommendation we made to it. In this regard, in September 2019, SEC  issued a memorandum that reflects SEC’s internal policies for posting  duplicate comments and associated identity information. SEC has also  communicated these policies to public users on the SEC.gov website by  adding a disclaimer on the main comment posting page that describes  how the agency posts comments. These measures will help public users  better determine whether and how they can use the data associated with  public comments.

The other seven agencies have provided updates, but have not yet  implemented the recommendations. In December 2019 and January  2020, the Bureau of Land Management (BLM), Consumer Financial  Protection Bureau (CFPB), EPA, and FWS notified us that they are in the  process of developing or updating policies for posting public comments as  well as statements for their websites to communicate these policies to the  public. Similarly, in January 2020, the Department of Health and Human  Services (HHS) stated that the Centers for Medicare and Medicaid  Services (CMS) would update its comment posting policy and  communicate it on the CMS website. However, the excerpt of the policy  language provided does not include information about how the agency  posts duplicate comments. Further, CMS did not provide us with the  finalized policy, and our review of the website does not indicate any  changes have been made. HHS officials stated they would provide  additional follow up actions by July 2020.

In September 2019, EBSA also stated that it will develop a written policy  regarding posting of comments, including duplicate comments, which will  be available on its website. However, the agency did not provide  evidence that a formal evaluation of its current practice of replicating  rulemaking dockets had been conducted, and did not identify plans to do  so. The Wage and Hour Division (WHD) indicated that it will add text to  each webpage for any rulemaking that invites public comments that  states any personal information included in the comments (including  duplicate) will be posted to Regulations.gov without change. However, the  preliminary text provided by officials in August 2019 does not explain  WHD’s policy of posting duplicate comments as a group under a single  document ID, and therefore does not clearly communicate the agency’s  posting practices to the public.

Chairman Green, Ranking Member Barr, and Members of the  Subcommittee, this concludes my prepared remarks. I would be happy to  answer any questions you may have at this time.

For further information regarding this testimony, please contact Seto J.  Bagdoyan, (202) 512-6722 or bagdoyans@gao.gov. In addition, contact  points for our Offices of Congressional Relations and Public Affairs may  be found on the last page of this statement. Individuals who made key  contributions to this testimony are David Bruno (Assistant Director),  Allison Gunn (Analyst in Charge), Elizabeth Kowalewski, and Roger  Gildersleeve. Individuals who contributed to the report on which this  testimony is based include Enyinnaya David Aja, Gretel Clarke, Lauren  Kirkpatrick, James Murphy, Alexandria Palmer, Carl Ramirez, Shana  Wallace, and April Yeaney.

This is a work of the U.S. government and is not subject to copyright protection in the  United States. The published product may be reproduced and distributed in its entirety  without further permission from GAO. However, because this work may contain  copyrighted images or other material, permission from the copyright holder may be  necessary if you wish to reproduce this material separately.

When federal agencies propose new rules, they usually provide an opportunity for public comment, but agencies aren't required to collect or verify commenters' identity information.

Mass mailing campaigns can result in thousands of duplicate comments. Agencies can post them individually, as attachments to a single comment, or as a count of duplicates received. Agency practices vary.

The variation in how agencies post comments could create an inaccurate view of who submitted public comments. We testified about this issue and how agencies responded to our earlier recommendations to develop and clearly communicate their comment policies.


Medicare Hospice Care: Opportunities Exist to Strengthen CMS Oversight of Hospice Providers

Since 2000, there has been substantial growth in Medicare payments for hospice services and the number of Medicare beneficiaries using hospice. This growth has been accompanied by an increase in the number of providers (primarily an increase in for-profit providers), reaching approximately 4,500 providers by 2017.

GAO was asked to review aspects of Medicare's hospice program. This report, among other things, (1) compares quality scores and other potential indicators of quality for for-profit and non-profit hospices; and (2) examines opportunities for strengthening CMS's oversight of hospice providers.

GAO analyzed CMS data on hospice care for 2014 through 2017—the latest years for which full-year data were available at the time of GAO's analysis—and reviewed research on hospice care. GAO interviewed CMS officials, researchers, provider associations, a survey agency association, and a non-generalizable sample of hospice providers selected in part through referrals from other stakeholders. GAO also reviewed relevant statutes, regulations, documents, and enforcement data.

Medicare's hospice benefit provides palliative care to beneficiaries with terminal illnesses and a life expectancy of 6 months or less. GAO's review of 2017 data from the Centers for Medicare & Medicaid Services (CMS) found that for-profit and non-profit hospices had, on average, similar scores on CMS's current quality measures that indicate hospice performance in areas such as pain assessment and discussion of beneficiary treatment preferences. However, for-profits were more often among the subset of providers with the lowest scores on certain quality measures GAO reviewed. In addition to analyzing providers' scores on CMS quality measures, GAO analyzed provider performance on other indicators, identified by researchers, that could signal quality issues and found performance varied among for-profit and non-profit hospices. One of the other quality indicators GAO analyzed was the rate of beneficiaries discharged from hospice prior to death, which in some cases could indicate dissatisfaction with care leading to the beneficiary's decision to leave the hospice provider. In addition, GAO examined the number of provider visits to give medical and emotional support within the last few days of a beneficiary's life. With regard to these indicators, for 2017, GAO found the following, among other things:

472 hospice providers (462 for-profits and 10 non-profits) had a high rate of discharging beneficiaries prior to death (50 percent or more were discharged). According to research, a high discharge rate could, in some cases, be an indicator of poor quality of care or of provider misuse of the benefit, in that the hospice may be enrolling beneficiares who are not eligible for hospice care.

83 providers (80 for-profits and 3 non-profits) did not have hospice staff (such as nurses, physicians, or nurse practitioners) visit beneficiaries within the last 3 days of their life—a critical time in providing quality care, according to researchers GAO interviewed.

CMS's oversight of the quality of care provided by hospice providers consists primarily of inspections—called surveys—of hospice providers. GAO found that, while CMS instructs surveyors to review previous survey findings and complaints, CMS does not instruct surveyors to use information on providers' performance on quality measures or other potential indicators of quality as part of the survey process. For example, CMS does not instruct surveyors to consider whether a hospice provided staff visits during beneficiaries' last week of life. According to research, this information could be used to enhance the survey process. GAO also found that CMS is limited to one enforcement option—termination of the Medicare provider agreement—which CMS uses rarely and generally only when providers fail to correct within the required time frame the most serious violations of federal health and safety requirements. According to two researchers, additional remedies, such as civil monetary penalties, could enhance CMS's oversight by addressing performance problems that do not merit termination and incentivize agencies to improve quality of care. CMS uses a range of remedies for other provider types, such as home health agencies and nursing homes, but lacks authority to impose such additional sanctions on hospices.

CMS should incorporate the use of additional information that could be used to identify quality of care issues into its survey process for hospice oversight. Congress should consider giving CMS authority to establish additional enforcement remedies for hospices that do not meet federal health and safety requirements. The Department of Health and Human Services concurred with GAO's recommendation.

Medicare began offering the hospice benefit in 1983 as a means of  providing palliative care, or pain and symptom management, to  beneficiaries with a life expectancy of 6 months or less. According to the  Centers for Medicare & Medicaid Services (CMS), the goal of hospice  care is to help terminally ill Medicare beneficiaries live as normal lives as  possible while remaining primarily in their home environment. Enrolling in  the hospice benefit is a beneficiary’s choice and, when doing so, the  beneficiary is choosing to forego curative treatment of their terminal  illness and related conditions. Medicare will, however, continue to pay for  curative treatment of conditions that are not related to the terminal illness.

Since 2000, there has been a substantial increase in both Medicare  spending for hospice services and the number of Medicare beneficiaries  using these services. According to CMS, Medicare payments to hospices  increased from $2.8 billion in fiscal year 2000 to approximately $17.7  billion in fiscal year 2017, while the number of Medicare hospice  beneficiaries nearly tripled, from 513,000 to nearly 1.5 million. CMS  projects total Medicare hospice payments will continue to increase at a  rate of 8.5 percent annually. This is greater than the projected 7.4  percent annual increase for Medicare spending overall based on CMS’s  projections. According to CMS, these increases reflect an increase in the  number of Medicare beneficiaries overall, greater beneficiary awareness  of the Medicare hospice benefit, and beneficiaries’ growing preference for  receiving end-of-life care in their home or community-based settings.

The increases in Medicare hospice expenditures and beneficiaries have  been accompanied by an increase in the number of hospice providers.  According to the Medicare Payment Advisory Commission (MedPAC), the  number of hospices doubled from about 2,300 to nearly 4,500 from 2000  through 2017, and for-profit hospices accounted for the entirety of the net  increase during that time period. As a result, for-profit hospices in 2017  made up about two-thirds of all hospices compared to less than a third in  2000.

Given this change in the makeup of the universe of hospice providers,  you asked us to examine key characteristics of hospice beneficiaries and  providers, including any differences by hospice ownership type (e.g., for- profit and non-profit providers).  1.  compares the number of Medicare hospice beneficiaries, beneficiary  characteristics, and Medicare payments of for-profit and non-profit  hospices;  2.  compares hospice providers’ scores on CMS’s quality measures and  other potential indicators of quality for for-profit and non-profit  hospices; and  3.  examines opportunities for strengthening CMS’s oversight of hospice  providers.

To compare the number of Medicare hospice beneficiaries, beneficiary  characteristics, and Medicare payments of for-profit and non-profit  hospices, we analyzed CMS data on hospice providers, beneficiaries, and  services for 2014 through 2017, the latest years for which full-year data  were available during the period we conducted our analysis. We used these data to identify unique hospice providers and their ownership  types. There were some instances where the information about the  provider’s ownership type was missing or differed across data sources; in  those instances, we supplemented the information with hospice  ownership type determinations made by MedPAC. We excluded  government-owned hospices from the findings section of this report, as  they accounted for less than 5 percent of all hospice providers and  generally less than 2 percent of all Medicare hospice beneficiaries during  our study period. However, we have included this information in tables in  appendix I. We interviewed a non-generalizable sample of hospice  providers, provider associations, and researchers who have conducted  research on hospice care to obtain information on providing hospice care  and possible factors that might explain ownership type differences in  beneficiary and provider characteristics. We selected hospices to  interview that represented different ownership types, sizes, and  geographic areas.

To compare providers’ scores on CMS’s quality measures and other  potential indicators of quality for for-profit and non-profit hospices, we  analyzed CMS quality measures data (based on provider-reported quality  data and caregivers’ experience surveys) as well as the CMS data  sources described in the previous paragraph. The provider-reported  quality data are referred to as the Hospice Item Set data, which are  submitted by hospice providers as they provide ongoing care to hospice  beneficiaries. The caregivers’ experience survey data are obtained  using the Consumer Assessment of Healthcare Providers and Systems  (CAHPS®) Hospice Survey, which is completed by hospice beneficiaries’  caregivers after the beneficiary has died. To identify potential indicators of  quality of care, we interviewed the same non-generalizable sample of  researchers described above and reviewed relevant research studies.

To identify and examine opportunities for strengthening CMS’s oversight  of hospice providers, we interviewed CMS officials, an association  representing survey agencies, and the same researchers described  above who have studied various aspects of hospice care and oversight,  and we reviewed studies on Medicare hospice care as noted above. We  reviewed Medicare statutes and regulations, CMS policy manuals and  other documents, and CMS summary data for calendar years 2014  through 2017 on hospice enforcement actions. We also examined CMS’s  oversight and available enforcement remedies for other types of health  care providers by interviewing CMS officials and an association  representing survey agencies and by reviewing Medicare statutes and  regulations and CMS policy manuals. Finally, we compared CMS’s  oversight to federal standards for internal control.

We assessed the reliability of the CMS data we used for this report by  reviewing relevant documentation about the data and the systems that  produced them, performing electronic data checks, and interviewing CMS  officials. Based on these steps, we determined the data were sufficiently  reliable for the purposes of our reporting objectives.

We conducted this performance audit from May 2018 to October 2019 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

Medicare Hospice Benefit Eligibility and Coverage

To be eligible for the Medicare hospice benefit, an individual must be  eligible for Medicare Part A (which covers inpatient care) and be  medically certified as having a terminal illness with a life expectancy of 6  months or less if the illness runs it normal course. For individuals to  receive care from a Medicare-approved hospice program, they must elect  the hospice benefit by signing a statement indicating they are waiving  their rights to Medicare payment for services related to curative treatment  of their terminal illness.

When enrolling in Medicare hospice care, beneficiaries can receive  several different types of services in various settings. Most hospice  beneficiaries receive hospice care in their own home, but they can also  receive care in other settings, such as a nursing home, assisted living  facility, hospice facility, or hospital. The Medicare hospice benefit covers  a variety of services and supplies for the palliation and management of  the terminal illness, including physician and nursing services, medical  equipment and supplies including drugs for pain and symptom  management, hospice aide and homemaker services, physical and  occupational therapy, and spiritual and grief and loss counseling. A  hospice interdisciplinary team (in collaboration with the beneficiary’s  primary care provider, if any) works with the beneficiary, family, and  caregiver(s) to develop a plan of care that addresses the physical,  psychosocial, spiritual, and emotional needs of the beneficiary, family  members, and caregiver(s). The hospice provider must make all services  under the Medicare hospice benefit available to beneficiaries as needed,  24 hours a day, 7 days a week.

Although hospice care is designed for beneficiaries with a life expectancy  of 6 months or less, beneficiaries can receive hospice care beyond 6  months if they continue to meet hospice eligibility requirements. In  addition, beneficiaries can disenroll from the hospice benefit at any time  and re-enroll in hospice care at a later time.

CMS pays hospices based on the level of hospice care provided to  beneficiaries on a given day. There are four levels of hospice care, which  are paid at either a daily rate or an hourly rate depending on the location  and intensity of services provided. (See table 1.) Each care level has a  payment rate that is adjusted for geographic differences in wages, and  CMS updates these payment rates annually. The most common level of  care is called routine home care (accounting for 98 percent of all  Medicare hospice care in 2017), and hospices receive the routine home  care payment daily rate regardless of whether beneficiaries receive any  services on a given day. In addition, CMS imposes two payment  limitations (referred to as caps) on Medicare payment for hospice  services—one that limits a hospice’s number of inpatient days and one  that limits a hospice’s total Medicare payments in a given year.

In response to requirements in the Patient Protection and Affordable Care  Act, CMS established the Hospice Quality Reporting Program, which  currently includes two sets of data to assess the quality of hospice  providers’ care; CMS publishes these data on its Hospice Compare  website. Medicare hospice providers are required to submit these data  to CMS for all patients regardless of payer source (e.g., Medicare,  Medicaid, or private insurance). The two data sets are the following:  Provider-reported quality measure data. This set of data (which CMS  refers to as the Hospice Item Set) is used to calculate a hospice  provider’s performance on quality measures, which include seven  measures that reflect the percentage of all hospice patients’ stays where  the provider completed various key care processes, such as screening  patients for pain and shortness of breath. CMS also recently implemented  an eighth measure, called the composite measure, which calculates the  percentage of patients’ hospice stays in which the hospice provider  completed all seven care process quality measures.

Caregivers’ experience survey data. This set of data (referred to as the  Consumer Assessment of Healthcare Providers and Systems (CAHPS®)  Hospice Survey) is a national survey that captures, from the caregiver’s  (family member or friend) perspective, the patient’s experience with  hospice care. The survey includes questions that are used to calculate  eight quality measures based on survey responses. For example, one  measure scores how well the hospice communicated with the patient’s  family.

CMS oversees the quality of Medicare hospice care primarily through  inspections—referred to as surveys—which are conducted by state  survey agencies contracted by CMS or CMS-approved national private  accrediting organizations. These surveys are used to determine whether  the hospice is in compliance with federal health and safety requirements  detailed in Medicare’s hospice conditions of participation. A hospice  must be in compliance with these conditions to participate in the Medicare  program. Medicare’s hospice conditions of participation include  requirements related to patient care and organizational environment (e.g.,  the hospice must organize, manage, and administer its resources to  provide necessary care). Each condition of participation is composed of  standards associated with the condition, and a standard may have  associated sub-components. For example, the “patient’s rights” condition  includes standards such as “notice of rights and responsibilities” and  “rights of the patient.” The “rights of the patient” standard includes sub- components, such as the patient has the right to receive effective pain  management and symptom control.

There are three main types of survey inspections—an initial certification  survey when a provider first seeks to participate in Medicare; a re- certification survey to ensure ongoing compliance; and surveys to  investigate complaints or incidents related to federal requirements.

If a hospice is found to be out of compliance with hospice health and  safety requirements during a survey, CMS cites the provider for non- compliance—referred to as a deficiency. These deficiencies are  categorized at one of two levels:  Condition-level deficiencies. These deficiencies are the most serious. A  condition-level deficiency is one in which the provider violates one or  more standards and the deficiencies are of such character as to  substantially limit the provider’s capacity to furnish adequate care or  which adversely affect the health and safety of patients. When a  hospice provider is cited for a condition-level deficiency, CMS places the  provider on a 90-day termination track (or 23 days if the situation is  determined to pose “immediate jeopardy” to beneficiaries) within which  the provider must correct the issue(s) and the correction must be  confirmed via a follow-up survey visit. If this does not happen within 90  days of the survey date, CMS terminates the hospice’s Medicare provider  agreement; termination is an enforcement remedy CMS uses to ensure  compliance.

Standard-level deficiencies. These deficiencies are less serious. A  hospice provider that has a standard-level deficiency can be certified or  re-certified only if the provider has submitted an acceptable plan of  correction for achieving compliance within a reasonable period of time.  According to CMS officials, standard-level deficiencies must also have  follow-up to ensure correction, although the type of follow-up depends on  the nature of the deficiency. If a standard-level deficiency is very minor  and does not place any beneficiaries at risk, the follow-up may be  handled through email or telephone instead of a follow-up visit. According  to CMS officials, if a provider fails to submit or implement an acceptable  plan of correction within a reasonable period of time acceptable to CMS,  the provider is placed on the 90-day termination track noted above.

Despite Treating a Similar Number of Beneficiaries as Non- profits, For-profit Providers Received Larger Share of Hospice Payments, Reflecting Differences in Lengths of Stay

For-profit and non-profit hospices served roughly the same percentage of  the approximately 1.5 million Medicare hospice beneficiaries in 2017,  even though for-profit hospices make up about two-thirds of all hospice  providers. According to our analysis of CMS data, for-profit providers  treated about 50 percent of those beneficiaries and non-profit providers  treated about 48 percent in 2017. This distribution has been about the  same in each year from 2014 through 2017. For example, for these years,  the percentages of beneficiaries treated by for-profit providers ranged  from 48.7 percent to 50.2 percent (see additional details in app. I, table  7).

When comparing the beneficiary populations treated by for-profit and non- profit hospice providers, we found that they generally had similar  demographic characteristics. We identified two primary exceptions to this  general finding: (1) non-profit hospices had slightly higher percentages of  white beneficiaries, and (2) for-profit hospices had a greater proportion of  patients enrolled in both Medicare and Medicaid. See table 2 (for more  detailed data, see app. I, table 8).

While beneficiary demographic characteristics were generally similar, we  found differences in beneficiary diagnoses between for-profit and non- profit hospices. Specifically, for-profit hospices had, on average, a  greater percentage of patients with non-cancer diagnoses—77 percent of  for-profit hospice beneficiaries compared to 69 percent of non-profit  hospice beneficiaries in 2017.

Our analysis found that for-profit providers received a higher proportion of  Medicare hospice payments than did non-profit providers. For 2017,  about $10.4 billion (58 percent) of the $17.9 billion dollars in Medicare  payments were made to for-profit providers and $7.2 billion (40 percent)  of payments were to non-profit providers. Our analysis found this same  pattern in each year from 2014 through 2017.

One reason for-profit hospices received a higher portion of Medicare  hospice payments for the period we reviewed is because (as previously  noted) they had, on average, a greater percentage of beneficiaries with  non-cancer diagnoses, and we found non-cancer beneficiaries, on  average, had longer lengths of stay. (See table 3.) Since hospices are  typically paid a set amount per day of a hospice stay, longer stays  generally result in higher payments. Beneficiaries with non-cancer  diagnoses can often have longer lengths of stay compared to other  beneficiaries because the progression of these diseases (such as  dementia) can be harder to predict; this may result in beneficiaries being  enrolled in hospice earlier than appropriate (meaning that their projected  life expectancy may actually be longer than 6 months). For instance, one  study noted that dementia beneficiaries’ decline may include periods of  stabilization where their health stays the same or even improves, which  differs from a constant and predictable decline in most beneficiaries with  terminal cancer.

There are likely other factors beyond a greater percentage of  beneficiaries with non-cancer diagnoses that contributed to for-profit  providers’ higher portion of Medicare hospice payments. We found that  for-profit providers had, on average, longer lengths of stay for both cancer  and non-cancer beneficiaries compared to non-profit providers. (See table  3.) For example, non-cancer beneficiaries at for-profit providers had an  average length of stay of 108 days, while non-cancer beneficiaries at non- profit providers had an average length of stay of 67 days. This suggests  other factors besides beneficiary diagnosis contributed to longer average  length of stay for for-profit providers. (For more detailed beneficiary  diagnosis data from 2014 to 2017, see app. I, table 9.)

For-profit and Non- profit Providers Scored Similarly on CMS’s Quality Measures, though Performance Varied on Other Indicators of Quality

For-profit and non-profit hospice providers had similar scores on CMS’s  current quality measures (provider-reported measures and caregivers’  experience measures assessed through a survey of the beneficiaries’  caregiver). CMS uses these measures to assess the quality of care  provided by hospices. In addition to CMS’s current quality measures,  researchers we interviewed noted that there are other care indicators that  can also be used to assess the quality of care provided by hospices.  According to CMS documents, CMS is working to account for other care  indicators by developing additional quality measures. We assessed  hospice providers’ performance on these indicators and found that  performance varied between for-profit and non-profit hospices.

For-profit and Non-profit Hospices Had Similar Scores on CMS’s Current Quality Measures, Though For-Profits Were More Often Among Subset with Lowest Scores on Certain Measures

Our review of CMS data found that for 2017, both for-profit and non-profit  hospices, on average, had similar scores on the seven quality measures  that are provider-reported and that CMS currently uses to assess the  quality of hospice care. (See table 4.) For six of the seven measures,  for-profit and non-profit hospices had average scores of 94.7 percent or  better.

We also found that for-profits and non-profits had similar scores (83.6  percent and 87.0 percent, respectively) on a new composite measure that  CMS implemented in 2017. This composite measure was designed to  provide a more comprehensive evaluation of the hospice’s care by  determining whether the hospice provider completed all of the applicable  parts of hospice care that are measured by the seven quality measures.  When looking at the subset of providers with the lowest scores on the  composite quality measure, we found that for-profit hospices were more  often in this subset, even when accounting for differences in the number  of for-profit and non-profit providers:

For the composite measure, there were 329 providers (261 for-profits  and 68 non-profits) in the 10th percentile of scores or lower, meaning  that the providers had a composite measure score of 64.3 percent or  lower. Among these providers, we found that for-profits were more  likely to be within this grouping, with about 12 percent of all for-profit  providers having scores in the 10th percentile or lower compared to 6  percent of all non-profit providers.

We also assessed the subset of these 329 providers that had  composite measure scores below 50 percent, meaning that they only  completed all of CMS’s seven quality measures for half or fewer of the  beneficiaries they treated. We found that 130 providers (112 for-profits  and 18 non-profits) had scores below 50 percent on this measure.  These providers treated over 24,000 beneficiaries.

In addition to the provider-reported quality measures, CMS also uses the  caregivers’ experience survey to assess quality of care. We analyzed  CMS data on caregivers’ experience surveys for 2016 to 2017 and found  that caregivers’ reported experience with hospice care was generally  similar for both for-profits and non-profits. The survey assesses care in  a number of areas, such as communication, training, and help with pain  and symptoms. See table 5 (for more detailed data, see app. I, table 10).

Although for-profit and non-profit providers’ average scores on the  caregivers’ experience survey were generally similar, we found that for- profit providers were more often among those providers with the lowest  scores on certain caregivers’ experience measures than were non-profit  providers. For example, on the rating measure that asks caregivers to give an overall rating of the hospice, 290 providers (248 for-profit  providers and 42 non-profits) had scores at the 10th percentile or lower,  meaning that their score was 72 percent or lower. For this measure, lower  scores mean that fewer caregivers provided a rating of 9 or 10 on a 10- point scale, with 10 being the highest possible rating. We found that 15  percent of for-profit providers were among providers with scores in the  10th percentile or lower compared to 4 percent of non-profit providers.

Performance Varied between For-profit and Non-profit Hospices for Other Indicators of Quality Identified by Researchers

We used Medicare claims data to calculate certain measures researchers  told us could be indicators of quality of care in hospice settings. (As noted  previously, CMS is working to account for other care indicators by  developing additional quality measures.) These indicators fall into two  categories: (1) the number of beneficiaries discharged prior to death  (often referred to as the live discharge rate) and (2) provider visits to  provide medical and emotional support to the beneficiary and caregivers  near the end of a beneficiary’s life. Researchers told us that such  measures can fill gaps in assessing the quality of care provided by  hospices, and show greater variability across hospices than CMS’s  current quality measures; as previously noted, our data analysis found  that providers’ quality measure scores were generally very high.

According to researchers we interviewed and studies we reviewed, some  discharges from hospice care prior to death should be expected because,  for example, patients change their mind about receiving hospice care or  their condition improves and they are no longer eligible for hospice care.  However, a high live discharge rate could in some cases be an indicator  of poor quality of care provided or of provider misuse of the benefit, in that  they may be enrolling beneficiaries who are not eligible for hospice. See  text box.

Live Discharges  In some cases, a beneficiary may be discharged alive from hospice care prior to their  death. This could be for reasons unrelated to the quality of care provided. For example,  beneficiaries may reconsider their decision to start palliative treatment, and therefore  leave hospice care to re-start curative treatments.  In other instances, a live discharge may indicate quality of care issues. For example, a  beneficiary may be unhappy with the quality of care she is receiving from her hospice  provider and therefore she leaves that hospice provider to seek treatment from a different  hospice provider. Given the various reasons for live discharges, we expect that hospices  will have some live discharges, but interpret a high rate of live discharges as potentially  suggestive of quality of care issues.

We found that for-profits had higher rates of live discharges than non- profits, with 22.1 percent of beneficiaries served by for-profits being  discharged alive compared to 12.0 percent of beneficiaries served by  non-profits in 2017. This disparity remained true after accounting for  whether beneficiaries had a cancer or non-cancer diagnosis. (See table 6;  for more detailed data from 2014 to 2017, see app. I, table 11.) We found  that 472 hospice providers (462 for-profit and 10 non-profit providers) had  live discharge rates of 50 percent or more in 2017, meaning that half or  more of their beneficiaries were discharged from hospice care prior to  death. These providers provided care to about 6 percent of all  beneficiaries discharged alive in 2017.

According to researchers we interviewed and one of the studies we  reviewed, provider visits near the end of a hospice beneficiary’s life are  critical to providing quality care, including for emotional support and for  training the beneficiary’s family members or other caregivers on the signs  and process of dying. Assessing the number of visits near the end of life  may provide insight into the quality of a hospice provider’s care; fewer  visits in that time period could indicate poor quality of hospice care. CMS  is currently developing a quality measure that assesses the frequency of  provider visits at the beneficiary’s end of life.

When analyzing CMS claims data, we found that for-profit and non-profit  hospices, on average, provided a similar number of provider visits (such  as nurse, doctor, social worker, or hospice aide visits) within the last 7  days of a beneficiary’s life. Specifically, in 2017, for-profits and non-profits  both averaged about 6 provider visits within the last 7 days of life. We  also looked at the average percentage of hospice beneficiaries who  received different types of provider visits either within the last 3 days of  life or last 7 days of life (consistent with CMS’s new quality measure) and  found performance varied among for-profit and non-profit providers:

77 percent of for-profit beneficiaries and 85 percent of non-profit  beneficiaries received at least one visit from registered nurses,  physicians, or nurse practitioners in the last 3 days of life.

68 percent of for-profit beneficiaries and 57 percent of non-profit  beneficiaries received at least two visits from medical social workers,  chaplains or spiritual counselors, licensed practical nurses, or hospice  aides in the last 7 days of life.

We also found more for-profits than non-profits among a subset of  hospices that did not provide any visits during the last 3 or 7 days of life in  2017. Specifically, our analysis shows that 83 hospice providers (80 for- profits and 3 non-profits) did not provide any visits in 2017 from registered  nurses, physicians, or nurse practitioners in the beneficiaries’ last 3 days  of life. This means that all of the 800 hospice beneficiaries treated by  these providers did not receive these types of provider visits at the end of  life. In addition, we found that 58 providers (55 for-profits and 3 non- profits) did not provide any visits from medical social workers, chaplains  or spiritual counselors, licensed practical nurses, or hospice aides in the  last 7 days of life in 2017; all of the 613 beneficiaries treated by these  providers did not receive these specific provider visits at the end of life.

Opportunities Exist to Strengthen CMS Oversight through Increased Use of Information in Survey Process and Expanded Statutory Authority for Enforcement

CMS Could Strengthen Oversight of Hospice Providers by Using Additional Information to Enhance the Survey Process

In our review of CMS’s oversight of hospice providers, we found CMS  does not instruct surveyors to review, prior to surveying hospice  providers, providers’ performance on CMS quality measures (those based  on provider-reported quality data or caregivers’ experience surveys) or  other indicators of quality that could identify potential areas of concern.  CMS issues guidance that surveyors use when conducting surveys to  assess a hospice provider’s compliance with federal health and safety  requirements. According to this guidance, surveyors are to prepare for  hospice surveys by reviewing documents of record including licensure  records, previous survey findings and complaints, media reports, and  other publicly available information about the provider. A representative  for an association representing state surveyors confirmed that this is the  type of information surveyors typically review prior to a hospice provider  survey. However, according to CMS officials and the surveyor  association, CMS does not instruct surveyors to review other information  such as providers’ performance on CMS quality measures or other  indicators of quality that surveyors could use to identify potential areas of  concern that they could focus on more closely during a survey. For  example, it might be helpful for surveyors to know if a hospice provided  no visits during beneficiaries’ last days of life. According to CMS officials,  CMS does not use such information to target hospices for additional  survey review.

Several studies we reviewed and researchers we interviewed noted CMS  could strengthen its survey process by incorporating additional  information into the survey process, such as information on how hospice  providers perform on CMS quality measures or other potential indicators  of quality. For example, one study suggested that hospices with poor  reported beneficiary experiences based on caregivers’ experience survey  data could be identified for more frequent surveys and that such  information could be used to identify care processes for closer review  during surveys. Another study we reviewed concluded that claims- based measures could help guide surveyors to more closely review key  processes of care to ensure Medicare beneficiaries receive high quality  hospice care. In addition, a researcher we interviewed suggested when  claims data show no visits during the last 2 days of life, the survey team  could interview the deceased patients’ families to see if there was any  harm done by the lack of visits at the end of life. And, in July 2019, the  Department of Health and Human Services’ Office of the Inspector  General (HHS OIG) reiterated recommendations from prior HHS OIG  work that CMS analyze claims and deficiency data to identify specific  patterns identified by the HHS OIG that could indicate potential issues— such as hospices that infrequently provide physician services—and that  CMS instruct surveyors to pay special attention to these areas during  surveys.

In contrast to hospice surveys, home health agency surveyors utilize  information in addition to survey findings and complaints to identify  potential areas of concern. According to CMS officials and the surveyor  association we interviewed, home health surveyors review certain CMS  quality measures to focus the survey on specific areas of concern or to  identify beneficiaries who experienced potential care issues for a more  detailed survey review.

According to CMS officials, the agency is considering making changes to  the survey process but has not yet made any decisions. CMS officials told  us they last updated the survey process in 2010, and since then, they  have implemented quality measures for hospice providers (provider- reported measures in 2014 and caregivers’ experience survey measures  in 2015). They also said that CMS is “currently monitoring the  implementation of these programs and considering the potential benefit of  incorporating review of the data into the survey process.” According to  federal standards of internal control, agencies must identify, analyze, and  respond to risks related to achieving objectives. By not utilizing  additional information in the survey process that would allow it to identify  providers and areas where risk of noncompliance is greatest, CMS is  missing an opportunity to strengthen its ability to identify and respond to  such risks and ensure the quality of care that hospice beneficiaries  receive.

CMS Has Limited Enforcement Remedies Due to Lack of Statutory Authority, Which Could Restrict Its Ability to Ensure Compliance

CMS is limited to one hospice enforcement remedy—termination of the  Medicare provider agreement. By law, to qualify for payment under the  Medicare program, hospice providers must meet the program’s conditions  of participation. If the agency finds a provider is not complying with the  program’s conditions of participation, CMS may terminate the provider’s  participation in the program. In the Medicare program, termination of a  provider is the most significant action CMS can take to address provider  non-compliance. As a result, CMS generally only terminates a hospice  provider on the basis of a deficiency when the provider fails to correct a  condition-level deficiency (the most severe) within the required time  frame. Our review of CMS hospice survey data found termination  happens rarely. Specifically, 19 hospices were involuntarily terminated  from 2014 through 2017. This is less than half of 1 percent of the total  number of hospices operating during this time period.

In contrast to hospice care, where CMS’s enforcement authority is limited  to termination, Congress has given the agency authority to impose  additional enforcement remedies for other provider types. Additional  statutory and regulatory penalties for home health agencies and nursing  homes include civil money penalties, denial of payment for all new  Medicare and Medicaid admissions, and imposition of training  requirements for situations where it is determined that education will likely  lead to provider compliance (referred to as directed in-service training).  Such remedies, if available, could enable the agency to more effectively  address a broader range of hospice risks. For example, additional  remedies could be used in situations that warrant a remedy other than  termination or that could further incentivize providers to comply with  health and safety requirements or improve their quality of care. According  to federal standards of internal control, agencies must identify, analyze,  and respond to risks related to achieving objectives. Because CMS  lacks the authority to establish such additional remedies, the agency’s  ability to respond to risks and ensure quality of care for beneficiaries is  limited.

The HHS OIG and one researcher we interviewed have recommended  CMS seek statutory authority to establish additional enforcement  remedies for hospices, explaining that less severe remedies could help  address performance problems that may not merit termination and  incentivize agencies to improve quality of care. CMS agreed with this  recommendation in March 2016 and stated it would consider submitting a  request that would seek legislative authority to establish additional  enforcement remedies through the President’s annual budget proposal to  Congress. In a July 2018 HHS OIG report, the HHS OIG again  recommended CMS seek this authority. CMS neither agreed nor  disagreed with this recommendation and stated again that it would  consider this recommendation when developing the agency’s proposals  for the President’s annual budget. However, a request for such legislative  authority was not included in the President’s fiscal year 2017, 2018, or  2019 budget proposals. The HHS OIG reiterated this recommendation in  two July 2019 reports.

Since 2000, the number of Medicare hospice beneficiaries has almost  tripled to nearly 1.5 million in fiscal year 2017. In addition, the number of  hospice providers has doubled. Given this growth, it is imperative that  CMS’s oversight of the quality of Medicare hospice care keeps pace with  changes so that the agency can ensure the health and safety of these  terminally ill beneficiaries. While recent steps have been taken to  strengthen CMS’s hospice quality oversight, including the requirement  that hospices be re-certified every 3 years and CMS’s ongoing  development of new quality measures, we identified additional  opportunities to strengthen CMS’s oversight. Specifically, our review  found that CMS could strengthen oversight by using additional  information—based on currently available data—to identify potential  quality issues that could focus and enhance the survey process. We also  found that CMS’s lack of authority to establish additional enforcement  remedies before termination, which CMS rarely uses, limits its ability to  ensure hospice providers’ compliance with health and safety  requirements and quality of care for beneficiaries.

Congress should consider giving CMS authority to establish additional  enforcement remedies for hospices that do not meet federal health and  safety requirements. (Matter for Consideration 1)

The Administrator of CMS should incorporate the use of additional  information, such as quality measures or other information that could  identify potential quality of care issues, into its survey process for  overseeing hospice providers. (Recommendation 1)

We provided a draft of this report to HHS for review and comment. HHS  provided written comments, which are reprinted in appendix II. HHS  concurred with our recommendation. HHS stated that it recognizes that  meaningful quality measures can also serve as key indicators of provider  quality and it will look into ways to incorporate the use of these data into  the hospice survey process. In its comment letter, HHS also noted the  importance of monitoring patient safety and quality of care to HHS’s  hospice oversight efforts and the agency provided an overview of the key  efforts it has in place to perform such monitoring. For example, in addition  to survey and quality measure requirements, HHS requires hospices to  implement a data-driven quality assessment and performance  improvement program, intended to have hospices take a proactive  approach in improving their performance using objective data.  HHS also  provided technical comments, which we incorporated into the report as  appropriate.

As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Secretary of Health  and Human Services, the CMS administrator, and other interested  parties. In addition, the report will be available at no charge on the GAO  website at http://www.gao.gov.

If you or your staffs have any questions about this report, please contact  me at (202) 512-7114 or cosgrovej@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix III.

Appendix I: Additional Data on Medicare Hospice Beneficiaries, Providers, and Payments

Hospice team treated patient with respect  Amount of emotional and religious support provided by the  hospice team  The patient got the help they needed for pain and symptoms  Caregiver received the training they needed  Caregiver rating of hospice agency on 10-point scale with 10  being the best hospice care possible  Caregiver would recommend the hospice  Non-profit hospice providers’ average scores  Hospice team treated patient with respect  Amount of emotional and religious support provided by the  hospice team  The patient got the help they needed for pain and symptoms  Caregiver received the training they needed  Caregiver rating of hospice agency on 10-point scale with 10  being the best hospice care possible   Caregiver would recommend the hospice  Government-owned hospice providers’ average scores  Hospice team treated patient with respect  Amount of emotional and religious support provided by the  hospice team  The patient got the help they needed for pain and symptoms  Caregiver received the training they needed  Caregiver rating of hospice agency on 10-point scale with 10  being the best hospice care possible   Caregiver would recommend the hospice  2.5  survey within three categories (top scores, middle scores, and bottom scores). These data were not  available for all hospice providers; our analysis of CMS caregivers’ experience survey quality  measure data was for the 2,832 hospice providers that had data for the caregivers’ survey.  In general, the top-box scores represent the percentage of caregivers that selected the response of  “always” for the particular measure. For the rating measure, the top-box score represents caregivers  that rated the hospice provider as a 9 or 10 on a 10-point scale with 10 being the highest rating. For  the recommendation measure, the top-box score represents caregivers that responded that they  “would definitely recommend the hospice provider.”  In general, the middle-box scores represent the percentage of caregivers that selected the response  of “usually” for the particular measure. For the rating measure, the middle-box score represents  caregivers that rated the hospice provider as a 7 or 8 on a 10-point scale with 10 being the highest  rating. For the recommendation measure, the middle-box score represents caregivers that responded  that they “would probably recommend the hospice provider.”

Percentage of beneficiaries discharged prior to death

Appendix II: Comments from the Department of Health and Human Services

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Gregory Giusto, Assistant  Director; Christie Enders, Analyst-in-Charge; Todd Anderson, Leia  Dickerson, Rob Dougherty, Krister Friday, Barbara Hansen, Jennifer  Whitworth, and Chris Wickham made key contributions to this report.

Medicare pays for hospice care—pain and symptom management—for beneficiaries with terminal illness and a life expectancy of 6 months or less.

The Centers for Medicare & Medicaid Services works with surveyors to inspect hospices to ensure compliance with federal health and safety standards. CMS also collects data on the quality of hospice care—like the number of hospice staff visits in the last days of life—but surveyors aren’t required to use that data to inform their inspections.

We recommend that CMS require surveyors to use information, such as hospices’ quality of care data, to help better identify potential care issues.