Foley Represents Hospice Coalition in Lawsuit Against CMS Special Focus Program

Foley & Lardner LLP is representing a multi-state coalition of hospices and hospice associations in challenging the Centers for Medicare & Medicaid Services’ (CMS) Hospice Special Focus Program (SFP) Final Rule and List. On behalf of the Texas Association for Home Care & Hospice, Indiana Association for Home & Hospice Care, and Houston Hospice, and along with co-plaintiffs and co-counsel, the suit is seeking a preliminary injunction to halt the SFP, contending that the program is unlawful and arbitrary, undermines patient safety, misrepresents hospice compliance records, and jeopardizes access to high-quality, end-of-life care.

The SFP was established to enhance enforcement for a subset of underperforming hospices that CMS identified as failing to meet Medicare requirements with the intent to protect patients by focusing on significant compliance issues. The lawsuit argues that the SFP Final Rule’s methodology for selecting hospices exceeds CMS’ statutory authority and relies on indicators unrelated to Medicare compliance. The lawsuit also argues that the SFP Final Rule’s methodology and implementation are arbitrary and use flawed data, resulting in CMS failing to address low-quality providers while unreasonably targeting high-quality hospice care.

The plaintiffs aim to ensure proper implementation of the program – including revising the regulation to align with Congress’ mandate and prioritizing patient safety and fair assessments of hospice providers – and ask for the withdrawal of the SFP Final Rule and list of selected providers, along with underlying data.

The case is Texas Association for Home Care & Hospice, et al. v. Xavier Becerra, et al. in the U.S. District Court for the Southern District of Texas. The Foley team representing the coalition is led by partner Matthew Krueger and includes partners Lawrence Vernaglia, Lori Garber, and James Munisteri with associates Gerald Kerska, Megan Chester, David Wenthold, Cassandra Georgantas, and Sheridan Organ as well as special counsel John Strom.