Hospice Insights: The Law and Beyond
Aug 5, 2026 · 34 min · 10 segments
CMS’s efforts to crush fraud in the hospice space have commanded the headlines and the attention of many. Less publicized efforts on behalf of hospices in the federal courts, however, have resulted in…
Bryan NowickiHost
Joe DiedrichGuest
Zaina NilesGuest
So what we're gonna talk about today is maybe a bright spot in this landscape of CMS trying to crush fraud.
Uh, we can all agree, I think, that crushing fraud sounds like a very noble and worthwhile goal.
Uh, I think, uh, in my experience, uh, Zaina, you and I representing hospices all over the country on the front lines of enforcement issues, what we've seen is they're certainly crushing fraud, but, uh, they also seem to be stepping on some providers that are high-quality providers.
It's the old casting a wide net, uh, and inevitably some of the good guys get caught up in it.
Uh, so definitely frost- fraudsters are getting caught, but, but Zaina, you and I are helping the good guys continue to be able to serve these vulnerable patients.
Uh, and that's been a real challenge, uh, and I think over the past six months, definitely.
Uh, Zaina, the kind of increased enforcement have you-- that you've seen, I know you've been on the hospice team for a number of years, but what's your, uh, perspective on, like, the last six, eight months of hospice enforcement efforts?
Um, I think we've referred to it as a, a sledgehammer approach as opposed to the scalpel approach that we think is warranted to, to root out these fraudsters.
But we have certainly seen an increase in audit activity, audits of all kinds, and then also an escalation in, um, some of the, the consequences that are being imposed based on, quote-unquote, "poor audit performance," so things like payment suspensions, revocations of billing privileges, huge extrapolated overpayments and the like.
And, and really one of the bread-and-butter areas of our hospice team is audits, uh, our audits.
And so what, what I mean by that is you have all sorts of CMS contractors auditing hospices, looking at their medical records and determining whether those medical records support a terminal prognosis, whether all the documentation that's required dots all the I's, crosses all the T's, like election statements.
And so, Zaina, I don't think a week goes by when somebody on our team isn't doing an ALJ hearing or other kind of administrative appeal where we have our experts, expert physicians lined up trying to advocate and persuade an administrative law judge that a medical record in fact does support a terminal illness, even though CMS contractors would think otherwise.
And, and that really brings us to the heart of this episode, where over the past few years, we've seen a number of ALJs get more aggressive in taking on the role of, uh...
I- in our view, we think they may be playing doctor a little bit, uh, where they're reviewing a medical record and coming to their own, uh, layperson conclusion about terminality, even when it is directly contrary to physician testimony, and it's undisputed physician testimony.
So that's one area where we're, we're going to federal court, we have gone in a number of cases, go to federal court to say these ALJs are overstepping the boundaries of what they're authorized or competent to do.
And another area is, uh, what is called a limitation of liability, um, uh, aspect of the Medicare hospice benefit.
Uh, and what that means is, in essence, uh, Congress enacted a law that, uh, says that if a hospice had a reasonable belief that it would get paid for a service it provided, uh, based upon, uh, an interpretation of a medical record that to the hospice supported a terminal condition, that the hospice should get paid for that.
Even if other, even if an ALJ might disagree, uh, on whether the record actually supports terminality, as long as the hospice was reasonable in its interpretation of the record that's supporting that, then, then it ought to get paid.
So what we're gonna talk about today is maybe a bright spot in this landscape of CMS trying to crush fraud.
Uh, we can all agree, I think, that crushing fraud sounds like a very noble and worthwhile goal.
Uh, I think, uh, in my experience, uh, Zaina, you and I representing hospices all over the country on the front lines of enforcement issues, what we've seen is they're certainly crushing fraud, but, uh, they also seem to be stepping on some providers that are high-quality providers.
It's the old casting a wide net, uh, and inevitably some of the good guys get caught up in it.
Uh, so definitely frost- fraudsters are getting caught, but, but Zaina, you and I are helping the good guys continue to be able to serve these vulnerable patients.
Uh, and that's been a real challenge, uh, and I think over the past six months, definitely.
Uh, Zaina, the kind of increased enforcement have you-- that you've seen, I know you've been on the hospice team for a number of years, but what's your, uh, perspective on, like, the last six, eight months of hospice enforcement efforts?
Um, I think we've referred to it as a, a sledgehammer approach as opposed to the scalpel approach that we think is warranted to, to root out these fraudsters.
But we have certainly seen an increase in audit activity, audits of all kinds, and then also an escalation in, um, some of the, the consequences that are being imposed based on, quote-unquote, "poor audit performance," so things like payment suspensions, revocations of billing privileges, huge extrapolated overpayments and the like.
And, and really one of the bread-and-butter areas of our hospice team is audits, uh, our audits.
And so what, what I mean by that is you have all sorts of CMS contractors auditing hospices, looking at their medical records and determining whether those medical records support a terminal prognosis, whether all the documentation that's required dots all the I's, crosses all the T's, like election statements.
And so, Zaina, I don't think a week goes by when somebody on our team isn't doing an ALJ hearing or other kind of administrative appeal where we have our experts, expert physicians lined up trying to advocate and persuade an administrative law judge that a medical record in fact does support a terminal illness, even though CMS contractors would think otherwise.
And, and that really brings us to the heart of this episode, where over the past few years, we've seen a number of ALJs get more aggressive in taking on the role of, uh...
I- in our view, we think they may be playing doctor a little bit, uh, where they're reviewing a medical record and coming to their own, uh, layperson conclusion about terminality, even when it is directly contrary to physician testimony, and it's undisputed physician testimony.
So that's one area where we're, we're going to federal court, we have gone in a number of cases, go to federal court to say these ALJs are overstepping the boundaries of what they're authorized or competent to do.
And another area is, uh, what is called a limitation of liability, um, uh, aspect of the Medicare hospice benefit.
Uh, and what that means is, in essence, uh, Congress enacted a law that, uh, says that if a hospice had a reasonable belief that it would get paid for a service it provided, uh, based upon, uh, an interpretation of a medical record that to the hospice supported a terminal condition, that the hospice should get paid for that.
Even if other, even if an ALJ might disagree, uh, on whether the record actually supports terminality, as long as the hospice was reasonable in its interpretation of the record that's supporting that, then, then it ought to get paid.
The rest of this transcript — segmented and speaker-labeled, so you land on the exact moment something was said
Search every transcript — by keyword, by phrase, or by meaning, across every show Radar indexes
Trends — what is surging across podcasts, measured against its own baseline
Alerts — when a name you follow appears in a newly indexed episode
No account is needed to search Radar.
