Ron Panzer, President
Hospice Patients Alliance
www.hospicepatients.org
4680 Shank Street
Rockford, MI
49341
616-866-9127
Presented on December 7, 2006
To:
|
Tom Gallagher, C.F.O. State of Florida, Department of Financial Services |
Diana Evans, Director & the Board State of Florida, Division of Funeral, Cemetery & Consumer Services Tel. (850)413-3039
Fax (850)413-4087 |
Re: Why Application by Hope Hospice for Licensure
as Funeral Services Provider
Must be Denied
Thank you for the opportunity to speak before this Board
of the Florida Division of Funeral, Cemetery & Consumer Services. I am Ron Panzer, hospice and home care nurse
and founder and President of the Hospice Patients Alliance, a nonprofit
charitable patient advocacy organization serving patients, families, caregivers
and hospice staff throughout the United States. I currently provide direct nursing care to patients who are
terminally ill or to patients who are chronically ill in a home care setting,
as well as serving the public through my services at Hospice Patients
Alliance. I have written two books on
hospice and end-of-life care: The
Hospice Patients Alliance Family Guide to Hospice Care and The Heart of
End-of-Life Care as well as many articles about hospice and palliative
care.
I have been consulted about hospice and end-of-life care
issues by numerous news media outlets including the St. Petersberg Times, CNN,
ABC news, the A.P., the Washington Post, Chicago Tribune, USA Today and many
others. I have also provided
information to the Congressional Government Accountability Office. Our Vice-President, Barbara Becker has provided
testimony directly before Congress’s Senate Committee on Aging.
The Hospice Patients Alliance mission is to promote
excellence in end-of-life care whether provided in a hospice or other health
care agency. We strongly support the
original hospice mission which is to care and provide support for the dying,
relieve the symptoms of their terminal illnesses till a natural death occurs in
its own natural timing.
We provide information regarding hospice and end-of-life
care to hundreds of thousands of individuals throughout the United States each
year through our website at www.hospicepatients.org which contains the
most detailed explanation of the hospice standards of care, governmental
regulations and services, available on the internet. We assist the public in resolving difficulties encountered at the
end-of-life, whether in a hospice, nursing home or other setting. We serve as a watchdog group for the hospice
industry and have received complaints from all over the country regarding some
hospices that transgress the regulations governing the industry. We are uniquely positioned to be aware of
the realities occurring in the hospice industry.
Hospice as an industry has enjoyed unprecedented and
continuing public approval, promotion and protection. It is the “sacred cow” of health care in that nothing seriously
negative about the industry is allowed to be publicized in the major media;
this is in part due to the vast effort put forth by the federal and state
governments to promote hospice (since it saves the federal and state
governments billions of dollars on the health care budget), in part due to the
very significant and ongoing purchases by hospices of advertising in the print,
radio and television media, in part due to the predominantly charitable or
nonprofit nature of many hospice corporations and the fundraising done by many
in the business community for local hospice agencies, and because the plan put
into place by the national healthcare policymakers is that utilization of
hospice will increase each year till virtually all individuals die within
hospice.
Hospice, as an industry, is booming and enjoying
increased business and utilization in a range from 15% to 20% per year during
many of the previous years. Some who
move into hospice ownership or administration as a business undertaking
(whether nonprofit or for profit) are not dedicated personally to the original
mission of hospice; some are in the industry because they wish to seize a
business opportunity and have entered the field to make a lot of money. Top administrators in some of the larger
hospices command quite “handsome” salaries in the several hundred thousand
dollar range. In many areas, hospice is
fiercely competitive with regard to the procurement of referrals from local
physicians, hospitals, nursing homes, and other agencies.
The United States Justice Department, Office of Inspector
General, has repeatedly warned the public about unfair and fraudulent business
practices that have occurred in some hospice agencies. An attachment from the US OIG about
unethical and illegal hospice practices and “Fraud & Abuse in Nursing Home
arrangements with Hospices,” along with a notice about Odyssey Hospice paying
$12.9 million to the government in July, 2006 to settle the hospice fraud case
it was involved in, are presented to demonstrate that hospices may, in fact,
and do engage in business practices that are unethical and illegal for
financial gain. This does not mean that
all hospices are engaging in such practices, but clearly it is certain that
some will do so; the point being that hospice as an industry is not immune to
the problems of unethical business practices that are well-known to impact
every other industry in society.
Any hospice agency is a health care provider, and
patients in a hospice are extremely vulnerable, physically, emotionally,
psychologically as well as economically.
This board needs to be vigilant with regard to the potential for harm to
the public that will certainly arise as a result of any hospice becoming dually
licensed as a funeral services provider.
Hospice agencies are administered and staffed by human
beings, just like any other industry, and are therefore subject to the same
temptations to violate standards of care or laws as any other industry, and
they have done so in some cases. It is
disingenuous for any hospice administrator to express dismay that the public
would express serious reservations and outrage about a hospice becoming dually
licensed as a funeral home and that the public is deeply concerned about the
glaring conflicts of interest which would of necessity provide incentives for
the hospice to steer business into its own funeral home while exerting undue
influence and intimidation upon the patients and their families, simply because
it is the agency caring for the patients and has a “captive audience” with the
patients and family under their control, and the lives of the patient literally
in their hands!
The funeral, cemetery and memorial services industry
provides a vital service to the public and is regulated by the State of Florida
in order to promote public health, welfare and safety.
This Board is not only vested with the authority to
approve or deny an application for licensure as a funeral services provider,
this Board is obligated to approve or deny such applications based upon the
criteria set forth in the Florida Statutes, especially Title XXXIII, chapter
497.103 and the Florida Administrative Code Rule 69K.
There are rare instances where members of a State Board,
acting in their usual and customary role, have the opportunity to drastically
alter the balance in society and to potentially completely change the industry
being regulated. This application by a
hospice (to become dually licensed as a funeral services provider as well) is
such an instance.
An independent funeral services industry is vital to the
welfare of the residents of the State of Florida. An independent funeral home industry serves as an important
protective link among others that provide a “check,” or oversight, to the
health care industry. The health care
industry and the funeral services industry are closely related since the dying
are served by the health care industry and then transferred upon death to the
funeral services industry. The two
industries must be kept separate in order to retain the integrity of both
industries. To join the two, with the
capability of dually licensing any health care agency as a funeral services
provider as well, would certainly taint the integrity of the agency eventually,
would destroy the sense of trust that the public has in either, and would be
the direct cause of serious harm to the public.
A health care agency or hospice that is licensed both as
a health care agency and a funeral services provider (a “dually licensed
hospice”) will be placed into a position where a conflict of interest certainly
exists and cannot be avoided, no matter how ethical or idealistic its CEO or
administrators are at the current time.
Whether nonprofit or for profit, a dually licensed
hospice (and its staff) would have a monetary incentive to act in ways that
increase its revenue in the funeral services business which would very likely
alter the usual decision-making within the health care agency.
Health care agencies and their staff physicians, nurses,
social workers, counselors (and other staff) literally hold the lives and
well-being of the patients in their hands, and the patients place great trust
in those who serve them in a health care setting.
Patients in a hospice are among the most vulnerable of
all patients, physically, emotionally, psychologically, spiritually and
economically and, in a majority of hospice cases, are elderly and/or disabled
as well as suffering from their terminal illness.
Hospice exists to relieve the symptoms experienced by
patients as they approach the end-of-life and it exists to allow a natural
death in its own timing. Hospice agency
staff have for decades stated that hospice neither prolongs life nor attempts to
hasten death. Having a dually licensed
hospice would tip the scales in favor of hastening death at a point in the
patients’ stay at a hospice, for financial reasons.
While quite unknown to the public, and perhaps to this Board, hospice is an industry
experiencing fiercely competitive business practices, some of which are
unethical, anticompetitive and damaging to other hospice agencies. Some of the larger hospice agencies (whether
nonprofit or for profit) have worked to squeeze out smaller hospices, working
to corner the market on referrals to hospice from physicians, hospitals and
nursing homes (especially) in the community they serve. Kickbacks, mentioned by the US Dept of
Justice OIG, serve the purpose of assuring referrals to the hospice, to the detriment
of the other smaller hospices in the community.
Hospice is being promoted by the state and federal
governments as well as private insurance carriers, as a way to save billions of
dollars formerly spent on futile treatment and stays at the acute care
hospitals where attempts were made to cure the incurable terminal illness. The federal Medicare hospice benefit was
created in the early 1980s with the express purpose of saving billions of
dollars compared to acute hospital care and would never have been created if
there were no budgetary savings. The
state Medicaid hospice benefits were also created for the same reasons. The huge financial benefits to the budgetary
process, at both the state and federal levels, serve as an overwhelming force
in the push to increase utilization of hospice by the terminally ill.
Because national and state policymakers have irrevocably
chosen to steadily increase utilization of hospice services, the pressures
exerted upon the terminally ill to enter hospice is extremely strong, coming
from physicians, nurses, hospital discharge workers, social workers, counselors
and many others. The plan is that all
patients (or nearly all) enter hospice at the end-of-life.
Because of the increasing role of hospice in society, the
integrity of the hospice industry is vital to the welfare of the society. If a hospice were to become dually licensed,
the hospice would enjoy an unfair competitive advantage over any independent
funeral home, because the patients would be subject to the control or influence
of the hospice and its staff. Simply
being a patient in a health care facility makes a patient subject to
intimidation or undue influence with regard to decisions suggested by the
health care facility staff, should those suggested decisions involve the use of
the health care facility’s other business: funeral services. The dually licensed hospice would
necessarily and inescapably exert an undue influence that would in many cases
coerce the patient and family to choose to purchase services from the hospice’s
own funeral home business.
The dually licensed hospice would necessarily and
inescapably be engaged continuously and unceasingly in a solicitation to sell
its funeral services to the patient and/or family. Patients and family would, upon admission to the dually licensed
hospice (and quite likely even before admission) be made aware of the funeral
services available at the hospice (through the hospice’s literature as well as
verbal representations to that effect), and would be encouraged to use such
funeral services under many pretexts, whether the “convenience,” staff
recommendations, or simple physical proximity.
Hospices have been known to pay commissions to its staff for the
procurement of hospice patients. See
the attached Washington Post article, "Hospices Big Business, Thanks to
Medicare, "Exploitation of Some Patients is Alleged.” Why would some unethical hospices even
hesitate to pay commissions to its staff to induce funeral services contract
sales?
The promises made (by a financially-interested hospice
applicant for a funeral services license) that it would allow “freedom of
choice” in funeral services for all patients, ring hollow, as a dually licensed
hospice would of necessity be interested in promoting its own “other business,”
the funeral services. The plaintive
declarations of such hospice owners and CEOs as to the professed ethical
unassailability approach the ridiculous in a fantastic, Polyannish evaluation
of the realities of human nature, business, and hospice in particular.
This Board has already promulgated Rules regarding the
residential solicitation to a person or family, Florida Administrative Code
Rule 69K-9.002 which states, in part (3):
“No licensee or preneed licensee, officer, director,
employee, or agent shall knowingly initiate, conduct, or attempt to conduct
pre-need residential solicitation, for the purpose of selling or other transfer
of burial rights, merchandise, or services, of any person, or of any family of
any person, who is suffering ill health except upon the prior express request
of the person solicited.”
A dually licensed hospice would, of necessity, be
continually (if only subliminally at some times and overtly at other times)
soliciting persons who “suffer from ill health” and that is forbidden by this
Rule (unless expressly requested beforehand by the person solicited). How would a dually licensed hospice avoid
soliciting an ailing person when their very literature would mention their
funeral services business and staff would likely mention it with an
intimidating and undue influence simply because they were caring for the
patient.
This Board has already promulgated Rules regarding the
solicitation to residents or patients in health care facilities: Florida
Administrative Code Rule 69K-9.003 part (3), which states:
“The Board finds that the uninvited solicitation of sales
for burial rights, funeral merchandise or funeral services of persons who are
residents of or patients in healthcare facilities is not in the public interest
and constitutes intimidating, overreaching and vexatious conduct. Such
solicitation constitutes an uninvited invasion of personal privacy.”
How would a dually licensed hospice avoid soliciting
patients when its literature would be designed to promote and market such
services, and its staff would be encouraged to promote the sale of the funeral
services at the hospice? It could
not! A dually licensed hospice would,
of necessity, be soliciting patients in a health care facility, and this is
expressly forbidden by this Rule.
Common sense informs us that any patient in a health care
facility (a hospice) when solicited for funeral services would be subject to
intimidating, overreaching and vexatious conduct, and would, in fact be an
“uninvited invasion of personal privacy,” as this Board has already determined
in this rule!
Florida Statute Title XXXIII, chapter 497.152 enumerates
grounds for discipline and termination of a funeral services provider’s
license. In particular, Subsection
(9)(a) forbids:
“Soliciting by the licensee, or by her or his agent,
assistant, or employee, through the use of fraud, undue influence,
intimidation, overreaching, or other means that takes advantage of a customer's
ignorance or emotional vulnerability.”
A dually licensed hospice would, of necessity, exert
undue influence on vulnerable terminally ill patients, some of whom might fear
not receiving proper hospice care should they refuse the hospice’s own funeral
services. The patients would, of necessity,
be intimidated, and the hospice would, unavoidably, be placed in a position to
take advantage of the patients’ emotional (and other) vulnerabilities.
Subsection (9)(b) forbids:
“Exercising undue influence on a client for the purpose
of financial gain of the licensee or a third party in connection with any
transaction regulated by this chapter.”
The dually licensed hospice would, of necessity and
unavoidably, exercise undue influence and would do so, of course, for its own
financial gain in connection with sales transactions for its funeral services.
Subsection (15)(c) forbids:
“Paying to or receiving from any organization, agency, or
person, either directly or indirectly, any commission, bonus, kickback, or
rebate in any form whatsoever for any business regulated under this chapter,
whether such payments are made or received by the licensee, or her or his
agent, assistant, or employee; however, this provision shall not prohibit the
payment of commissions by a funeral director, funeral establishment, cemetery,
or monument establishment to its preneed agents licensed pursuant to this
chapter or to licensees under this chapter.”
The dually licensed hospice would be engaged (by its very
nature as duallyl licensed) in the equivalent of these very forbidden
practices, as funds received as the result of solicitation and sales of its
funeral services would, of necessity, be enjoyed by the hospice agency as
hospice agency, and the hospice as funeral services provider would enjoy the
benefit of the equivalent of these forbidden practices.
Dually licensing a hospice agency would enshrine the
practices of kickbacks, rebates, bonuses (or any other forms of forbidden
financial incentives) into the very corporate and legal, licensed structure of
the dually licensed hospice. Dually
licensing a hospice agency would contradict the very principles which form the
basis of most of the Florida Statutes and Rules which serve to protect the
public with regard to the funeral services industry!
The Florida Legislature has determined, in Title XXXIII,
chapter 497.164(2), that this Board:
“shall regulate such solicitation to protect the public
from solicitation which is intimidating, overreaching, fraudulent, or
misleading; which utilizes undue influence; or which takes undue advantage of a
person's ignorance or emotional vulnerability.
The dually licensed hospice would, of necessity, engage
in such forbidden practices and therefore, this Board is statutorily required
to deny the hospice’s application for licensure as a funeral services provider.
The Florida Legislature has determined, in Title XXXIII,
chapter 497.164(5), that:
“At-need solicitation of sales of burial rights,
merchandise, or services is prohibited. No person may contact the family or
next of kin of a deceased person to sell services or merchandise unless the
person has been initially called or contacted by the family or next of kin of
such person or persons and requested to provide services or merchandise.”
A dually licensed hospice would, of necessity, engage in
such forbidden practices and therefore this Board is statutorily required to
deny the hospice’s application for licensure as a funeral services provider.
The intent of the Florida Statutes regarding the
licensure of funeral service providers is (see Title XXXIII, chapter
497.103(4)(a)(1) among other statutes) to:
“Protect… the public from any significant and discernible
harm or damage.”
A dually licensed hospice would be placed in a position
to significantly and discernibly harm or damage the patients and the families
being served, whether financially through undue influence, intimidation or
unfair solicitations, or through actual medical killing of the patient to
eliminate expenditure for services rendered past the cap placed on
reimbursement for hospice services.
Federal and state reimbursements to a hospice agency (as
well as reimbursements from private insurers) are not unending. There are specific monetary “caps” placed on
reimbursement to a hospice. See the Hospice
Patients Alliance webpage at:
http://www.hospicepatients.org/hospreimburse.html
for more information.
Hospice is reimbursed on a per-diem basis for each day the patient is
enrolled to receive hospice services, however a cap is placed on the total
reimbursement received per patient by the patient in any one year. Plain and simply put, the patient might be
killed to eliminate expenditures on the patient for needed services, once no
further reimbursement could be obtained from Medicare, Medicaid or a private
insurer. A dually licensed hospice
would have the additional monetary incentive of receiving payment for funeral
services rendered.
We at Hospice Patients Alliance have received reports
from families all across the United States that their loved ones were medically
killed (through various means) in a hospice, quite often after the terminally
ill patient failed to die within the six month or one year period. When hospices enroll the terminally ill as
patients, the patient is normally expected to die within six months or less,
given the usual course of the terminal illness. This is what is meant when the physician “certifies” the patient
as being “terminal,” though some patients live much less than six months and
some live much longer.
As you have already seen, the US Dept. of Justice, OIG, is focused on preventing Medicare fraud. Any hospice that retains a patient past a year or so, is sending out “red flags” to the Medicare fiscal intermediaries that transact the business of hospice and Medicare reimbursements. Having many patients live “too long” in hospice invites an intense OIG federal investigation of the hospice’s business practices, something no hospice would wish to entertain. Therefore, killing the patient who lives too long serves the purpose of minimizing the likelihood of a federal investigation, and also would benefit the dually licensed hospice with added revenue through its funeral services business. An endless supply of the dying removes any concern (some might imagine existing) about the elimination of the patient. Reimbursement for “X” number of patients continues, whether one patient or another, so long as the patients are enrolled in the hospice.
The intent of the Florida Statutes regarding the
licensure of funeral service providers is (see Title XXXIII, chapter
497.103(4)(a)(2) among other statutes) to:
“Preventing the unreasonable restriction of competition
or the availability of professional services in the state or in a significant
part of the state.”
At this time, the approval of a hospice’s application for
licensure as a funeral services provider might seem to increase the competition
in the funeral services industry, however the Board needs to keep in mind the
long-range implications of such a potential licensure approval. As we have seen, national and state
policymakers intend that hospice as an industry expand so that utilization
increases steadily, yielding huge budgetary savings to the state and federal
governments.
If hospices are allowed to become dually licensed, more and
more hospices will join in this practice of being dually licensed (why would
they not if this Board allows it?). It
is likely that over a period of years (ten or twenty perhaps) all, or virtually
all, hospices would become dually licensed, since any hospice that was dually
licensed would enjoy a financial advantage over other non-dually licensed
hospices and would stand a higher chance of surviving in the fiercely
competitive hospice industry environment.
If most, or many, hospices become dually licensed (which
will certainly occur should this Board approve this unfortunate and misguided
hospice’s application for licensure as a funeral services provider), then the
hospices throughout Florida will enjoy an unfair advantage in obtaining
referrals for funeral business, as they have a “captive audience” of dying
patients, ready to be plundered for any and all funeral services that could be
sold to the vulnerable patients and families.
The independent funeral homes in the State of Florida will be devastated
should this Board approve hospices as funeral service providers as well, and
such a move by the Board would be contrary to the afore-mentioned Florida
statute: Title XXXIII, chapter 497.103(4)(a)(2).
Approving a hospice agency as a funeral services provider
would encourage higher prices in the industry (without a benefit to the public)
since the hospice could successfully sell its services at higher prices. The hospice could sell its funeral services
at higher prices because patients and their families are subject to
intimidation, undue influence and even coercion due to the circumstances of
being a patient served by a health care provider that also is licensed as a
funeral services provider.
I have received reports from funeral home directors of
hospices manipulating families to use a specific funeral home, where prices
charged for funeral services are higher than usual, and kickbacks to the
hospice for such referrals are likely.
Such funeral home directors report sharp decreases in their business, as
hospice increasingly manages the dying and the transfer of the deceased to the
funeral homes.
In addition to all the aforementioned reasons for denying
the hospice’s application for licensure as a funeral services provider, this
Board must be aware of the societal currents flowing unseen beneath the “radar”
of the media. Hospice as an industry
was started in modern times by Dame Cicely Saunders in the United Kingdom. She was a prolife, Christian nurse and
physician who saw hospice as the ideal way to care for the dying. She strongly
opposed assisted suicide and euthanasia.
See:
http://news.bbc.co.uk/1/hi/uk/4254255.stm
In the United States, however, hospice was promoted by
Florence Wald, RN, a Professor Nursing at Yale University and who founded the
first hospice in the United States, the Connecticut Hospice. Florence Wald strongly supports euthanasia
and assisted suicide and stated that these should be available to a patient for
“physical, emotional, psychological, spiritual and economic reasons.” Whose economic reasons? Certainly not the patient’s! The family’s? Society’s economic reasons?
Where does that line of reasoning take us: directly to euthanizing
(medically killing) the patient for the economic benefit of the family and/or
society.
Some studies suggest that up to 50% of physicians and
nurses in the United States approve of assisted suicide while the rest oppose
it. Hospice as an industry is engaged
in a civil war, a struggle between those who support and respect the sanctity
of life, those who would never give a lethal agent to cause death, and between
those who support ending life if the quality of life is judged (subjectively I
might add) to be “inadequate.” This is
the line of thinking taken by the Nazis in Germany who determined that some
were “unworthy of life,” and were considered “useless eaters.” A hospice that is dually licensed as a
funeral services provider (should it not respect the sanctity of life and not
pledge itself to never administer lethal agents to cause death) would stand in
a position to involuntarily euthanized (medically kill) patients and then cover
up evidence of such crimes by destroying the body of the patient. In addition, it would stand to financially
benefit from such crimes by receiving payment as a result of its crimes.
The elderly and disabled and the terminally ill are
subject to abuse, neglect and worse within some health care settings, as
demonstrated by the Congressional research findings of Representative Henry A
Waxman. See http://www.democrats.reform.house.gov/story.asp?ID=588&Issue=Nursing+Homes
“In the last two years, nearly one out of every three
nursing homes in the United States has been cited for violating federal standards
established to prevent abuse of nursing home residents. In over 1,600 of the nursing homes cited for
abuse violations, the violations caused actual harm to residents or placed
residents in immediate jeopardy of death or serious injury."
Hospices regularly work with nursing home patients as
well as patients in their own homes. A
dually licensed hospice would be placed in a position to cover up any crimes of
abuse, neglect or medical killing, through the use of its funeral services, and
the oversight role of an independent funeral services industry would be
circumvented. For this and the
aforementioned reasons, Hospice Patients Alliance strongly urges this Board to
deny the hospice’s application for licensure as a funeral services provider.
________________________________
Ron Panzer, President
for Hospice Patients Alliance