[Federal Register Volume 73, Number 109 (Thursday, June 5, 2008)]
[Rules and Regulations]
[Pages 32088-32220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1305]
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Part II
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Part 418
Medicare and Medicaid Programs: Hospice Conditions of Participation;
Final Rule
Federal Register / Vol. 73, No. 109 / Thursday, June 5, 2008 / Rules
and Regulations
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 418
[CMS-3844-F]
RIN 0938-AH27
Medicare and Medicaid Programs: Hospice Conditions of
Participation
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule.
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SUMMARY: This final rule revises the existing conditions of
participation that hospices must meet to participate in the Medicare
and Medicaid programs. The final conditions address the comments that
we received on the proposed rule published on May 27, 2005. This final
rule focuses on the care delivered to patients and their families by
hospices and the outcome of that care. The final requirements continue
to reflect the unique interdisciplinary view of patient care and allow
hospices flexibility in meeting quality standards. These changes are an
integral part of the Administration's efforts to achieve broad based
improvements in the quality of health care and our efforts to improve
the quality of care furnished through the Medicare and Medicaid
programs.
EFFECTIVE DATE: These regulations are effective on December 2, 2008.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of December 2, 2008.
FOR FURTHER INFORMATION CONTACT: Steve Miller, (410) 786-6656; Mary
Rossi-Coajou, (410) 786-6051; Danielle Shearer, (410) 786-6617; or
Jeannie Miller, (410) 786-3164.
SUPPLEMENTARY INFORMATION:
I. Background
Hospice care is an approach to caring for the terminally ill
individual that provides palliative care rather than traditional
medical care and curative treatment. Palliative care is an approach
that improves the quality of life of patients and their families facing
the problems associated with life-threatening illness through the
prevention and relief of suffering by means of early identification,
assessment and treatment of pain and other issues. Hospice care allows
the patient to remain at home as long as possible by providing support
to the patient and family, and by keeping the patient as comfortable as
possible while maintaining his or her dignity and quality of life. A
hospice uses an interdisciplinary approach to deliver medical, social,
physical, emotional, and spiritual services through the use of a broad
spectrum of caregivers.
Section 122 of the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA), Public Law 97-248, added section 1861(dd) to the Social
Security Act (the Act) to provide coverage for hospice care to
terminally ill Medicare beneficiaries who elect to receive care from a
Medicare-participating hospice. Under the authority of section 1861(dd)
of the Act, the Secretary has established the Conditions of
Participation (CoPs) that a hospice must meet to participate in
Medicare and/or Medicaid, and these conditions are set forth at 42 CFR
part 418. The CoPs apply to a hospice as an entity as well as to the
services furnished to each individual under hospice care. Under section
1861(dd) of the Act, the Secretary is responsible for ensuring that the
CoPs, and their enforcement, are adequate to protect the health and
safety of individuals under hospice care. To implement this
requirement, State survey agencies conduct surveys of hospices to
assess their compliance with the CoPs.
The hospice CoPs were originally published on December 16, 1983 (48
FR 56008) and were amended on December 11, 1990 (55 FR 50831) largely
to implement provisions of section 6005(b) of the Omnibus Budget
Reconciliation Act of 1989 (Pub. L. 101-239). However, many of the
current CoPs have remained unchanged since their inception.
As the single largest payer for health care services in the United
States, the Federal Government assumes a critical responsibility for
the delivery and quality of care furnished under its programs.
Historically, we have adopted a quality assurance approach that has
been directed toward identifying health care providers that furnish
poor quality care or fail to meet minimum Federal standards. These
problems would either be corrected or would lead to the exclusion of
the provider from participation in the Medicare or Medicaid programs.
However, we have found that this problem-focused approach has inherent
limits. Ensuring quality through the enforcement of prescriptive health
and safety standards, rather than improving the quality of care for all
patients, has resulted in our expending much of our resources on
dealing with marginal providers, rather than on stimulating broad-based
improvements in quality of care.
In order to take advantage of continuing advances in the health
care delivery field, incorporate changes made to the Act, and
incorporate recommendations made by various government agencies we are
revising the Medicare hospice CoPs, which are also used by Medicaid.
The revised CoPs focus on a patient-centered, outcome-oriented, and
transparent process that promotes quality patient care for every
patient every time.
We have developed a set of core requirements for hospice services
that encompass the following: Patient rights, comprehensive assessment,
patient care planning and coordination by a hospice interdisciplinary
group (IDG). Overarching these requirements is a quality assessment and
performance improvement program that builds on the philosophy that a
provider's own quality management system is key to improved patient
care performance. The objective is to achieve a balanced regulatory
approach by ensuring that a hospice furnishes health care that meets
essential health and quality standards, while ensuring that it monitors
and improves its own performance.
We are revising the CoPs based on four main considerations. First,
we considered the recommendations from the Secretary's Advisory
Committee on Regulatory Reform. In an effort to make regulations more
predictable and responsive to relevant stakeholders, the Committee
heard public testimony on a variety of hospice-related topics and
developed recommendations to address key issues that were highlighted.
The Committee recommended that we clarify the relationship between
nursing facilities and hospices (found in our final rule at Sec.
418.112); change the requirements for 24-hour nursing services for
hospices providing respite care (Sec. 418.108 of the final rule); and
clarify that all qualified individuals, including nurses, are permitted
to furnish dietary counseling (Sec. 418.64(d)(2) of the final rule).
Second, we considered the Balanced Budget Act of 1997 (Pub. L. 105-
33) because it made changes to the hospice statute that must now be
incorporated into the CoPs. Specifically, the Balanced Budget Act of
1997 (BBA) permitted hospices to provide physician services, including
those of a medical director, under contract (Sec. 418.64 and Sec.
418.102 of the final rule). It also allowed hospices located in non-
urbanized areas to receive a waiver of the requirement that physical
therapy, occupational therapy, speech-language pathology, and dietary
counseling be available on a 24-hour as needed basis (Sec. 418.74 of
the final rule). Additionally, the
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legislation allowed hospices located in non-urbanized areas to receive
a waiver of the requirement that dietary therapy be provided by hospice
employees (Sec. 418.74 of the final rule).
Third, we considered section 946 of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173).
Section 946 of the MMA amended section 1861(dd) of the Act, to permit a
hospice to enter into an arrangement with another hospice to provide
core hospice services or to provide the highly specialized services of
a registered professional nurse, in certain circumstances (Sec. 418.64
of the final rule).
Finally, this revision is part of a larger effort to bring about
improvements in the quality of care furnished to hospice patients and
their families through an outcome-oriented approach to patient care.
The revised CoPs focus on the core elements of hospice care that are
necessary to achieve positive patient outcomes to meet the growing
challenges associated with the changing hospice care environment such
as increasingly diverse patient populations and care settings.
Before developing the proposed CoPs for hospices, published in the
Federal Register on May 27, 2005, we analyzed our hospice survey data,
and received advice and suggestions from the hospice industry,
professional associations, practitioner communities, consumer
advocates, and State and other governmental agencies with an interest
in, or responsibility for, hospice regulation and oversight. Based on
the data and suggestions, we developed the following principles:
Focus on the continuous, integrated health care process
that a patient/family experiences across all aspects of hospice care,
and on activities that center around patient assessment, care planning,
service delivery, and quality assessment and performance improvement;
Use a patient-centered, interdisciplinary approach that
recognizes the contributions of various skilled professionals and other
support personnel and their interaction with each other to meet the
patient's needs;
Incorporate an outcome-oriented quality assessment and
performance improvement program;
Facilitate flexibility in how a hospice meets performance
expectations;
Require that patient rights are ensured; and
Use performance measurement systems to evaluate and
improve care.
Based on these principles and the public comments that were
submitted regarding the May 2005 proposed rule, we are setting forth
this final rule.
II. Provisions of the Proposed Regulations and the Analysis and
Responses to Public Comments
On May 27, 2005, we set forth proposed rules for hospices that
choose to participate in Medicare and Medicaid. We proposed to revise
all of the existing conditions of participation (CoPs), and to add
several new CoPs to address aspects of hospice care that we believe
need attention. This section will briefly describe the content of each
CoP in the proposed rule.
We proposed no changes to Subparts B (Eligibility, Election and
Duration of Benefits), G (Payment for Hospice Care), or H (Coinsurance)
of 42 CFR part 418.
We received 205 timely items of correspondence that raised numerous
issues. These comments, detailed below, came from accrediting bodies,
consumer advocacy organizations, hospices, individuals, national health
care provider organizations, State agencies, and State health care
provider organizations.
1. Scope of the Part (Sec. 418.2)
We proposed to revise Sec. 418.2 to reflect the reorganization of
the part and to include an introductory statement describing the
purpose of the part. We did not receive any comments on this section.
Therefore, we are adopting the provisions as proposed.
2. Definitions (Sec. 418.3)
We proposed to remove, revise, and add numerous definitions to this
section in order to clarify the meaning of the proposed rule. We
proposed to move the definitions of ``physician'' and ``social worker''
from the definitions section to the personnel requirements section at
Sec. 418.114 because the definitions set forth the standards that
these individuals must meet in order to function in a hospice. In
addition, as it is not a condition of participation, and is only used
for hospice payment purposes, we proposed to maintain the existing
definition of the term ``cap period.''
We proposed to revise the definitions of the terms ``attending
physician'', ``bereavement counseling'', ``employee'', ``hospice'',
``representative'', and ``terminally ill''. Finally, we proposed to add
definitions for the following terms: ``clinical note'', ``drug
restraint'', ``hospice care'', ``licensed professional'', ``palliative
care'', ``physical restraint'', ``progress note'', ``restraint'',
``satellite location'', and ``seclusion''.
We proposed to add nurse practitioners to the definition of
``attending physician'' because section 408 of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (MMA)
changed the statutory definition of ``attending physician'' to include
nurse practitioners with respect to some (but not all) aspects of
hospice services.
The terms ``drug restraint'', ``physical restraint'', and
``seclusion'' were presented for the first time in the proposed rule.
Seclusion and restraint requirements were proposed because anecdotal
evidence suggested that there are occasions when hospice inpatient
facilities must use seclusion and/or restraints for patient and/or
staff safety. Moreover, Section 591 of the Public Health Service (PHS)
Act, as added by the Children's Health Act (Pub. L. 106-310), prohibits
the use of restraint and seclusion, except under specific
circumstances, in any health care facility, that receives support in
any form from any program supported in whole or in part with funds
appropriated to any Federal department or agency.
We proposed to define the term ``satellite location'' to codify
long-standing Medicare survey and certification policies that permit
hospices to operate multiple locations under a single provider number.
Multiple locations were not an issue when the hospice CoPs were
originally implemented, and, as such, were not addressed. We believed
that the proposed definition would help hospices determine when they do
or do not need to obtain Medicare approval for a new location and what
criteria would be used by Medicare in approving or denying a multiple
location application.
Comment: Many commenters requested that changes be made to the
proposed definition of ``attending physician.'' Some of these
commenters requested that, in addition to ``nurse practitioner,'' we
also add ``advanced practice nurse,'' ``clinical nurse specialist,''
and ``physician's assistant'' to the definition of ``attending
physician'' in order to broaden the category of individuals who could
receive payment in that capacity. A single commenter suggested that we
defer to the States to determine training, education and experience
requirements for nurse practitioners. Another commenter suggested that
the definition of ``attending physician'' should be divided into two
definitions, one for physicians and one for nurse practitioners. Still
another commenter requested that we delete the
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requirement that an attending physician must be legally authorized to
practice surgery by the State in which he or she performs that function
because surgery is not a specialty necessary to be considered qualified
as an attending physician. Several other commenters requested that we
specify in the definition of ``attending physician'' that a patient's
attending physician may be a hospice employee. Another commenter
suggested that we add a statement that a nurse practitioner may cover
for an attending physician in the attending physician's absence.
Response: Section 408(a) of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (Pub. L. 108-173) (MMA)
amended the term ``attending physician'' at section 1861(dd)(3)(B) of
the Act specifically for hospices to allow nurse practitioners to
function as a patient's attending physician if the patient identifies
the nurse practitioner as such. Following publication of the proposed
rule, CMS published two final rules (70 FR 45144 and 72 FR 50214) on
other matters that, among other things, modified the definition of the
term ``attending physician'' to incorporate changes made by the MMA. We
are deferring to these final rules. Furthermore, Section 1861(r)(1) of
the Act specifically defines a physician as ``a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery by the
State in which he performs such function or action.'' We believe that
this statutory definition is appropriate for hospice providers, as well
as for the many other health care providers for which it is used. We do
not have the authority to delete the term ``and surgery'' from this
definition.
We do not believe that it is necessary to state in the definition
that an attending physician may be an employee of the hospice. The
decision as to who is or is not the attending physician belongs to the
patient regardless of that individual's employment relationship (or
lack thereof) with the hospice. We do not prohibit attending physicians
from being hospice employees as long as it is the patient's choice to
decide whether or not to have an attending physician and who that
attending physician will be during the patient's hospice care. In
addition to consulting with the hospice interdisciplinary group (IDG)
regarding the patient's hospice care, the attending physician retains
responsibility for meeting the patient's needs that are not related to
the terminal illness and that terminal illness's related conditions.
The attending physician is typically someone with whom the patient had
a relationship before electing to receive hospice care. The role of the
attending physician is to provide a long term perspective on the
patient and family that takes into account their medical and personal
history. The attending physician is not typically an individual
provided by the hospice to fill this role because a patient does not
have an attending physician, although we recognize that this does occur
at times.
We also do not believe that it is necessary to state that a nurse
practitioner may act on behalf of the attending physician in the
attending physician's absence. If the attending physician is unable to
fulfill his or her duties, then the hospice physicians are responsible
for fulfilling the attending physician's duties in his or her absence
in accordance with Sec. 418.64(a)(3) of the final rule. Therefore,
there is no need for the attending physician to designate another
individual to cover his or her hospice patients. The role and function
of the nurse practitioner is also addressed in CMS hospice payment
policies (see, for example, 42 CFR 418.304(e)).
Comment: A commenter requested that we revise the definition of
``bereavement counseling'' to reflect the fact that bereavement
counseling begins before the patient dies. The commenter noted that the
proposed rule even required the initial step of bereavement counseling
to begin before the patient's death by requiring that the initial
bereavement assessment be completed at the time of the comprehensive
assessment. Another commenter questioned the qualifications of persons
providing bereavement counseling and indicated that we should consider
adding language to address this question within the definition of
``bereavement counseling.'' Another commenter requested that we
specify, in the definition of bereavement counseling, that the
counseling only applies to the patient's immediate family members as
set out in the Act.
Response: We agree that effective bereavement counseling must begin
before the patient's death and that the proposed rule and this final
rule reflect this practice by requiring a bereavement assessment early
in the patient's hospice stay. To clarify our intent, at section Sec.
418.3 of this final rule, we are revising the definition of
``bereavement counseling'' to specify that it occurs both before and
after the patient's death.
With respect to counseling immediate family members, current
practice in many hospices is expanding this activity. Many hospice
programs have extensive bereavement programs that extend beyond
immediate family members to embrace other caregivers, friends, and the
larger community. As the commenter pointed out, the statute at section
1861(dd)(2)(A)(i) of the Act mandates bereavement counseling for the
immediate family of the terminally ill individuals, but does not
explicitly limit counseling to only such family members. We believe
that limiting counseling to immediate family members would disregard
the work that many hospices do for other persons whose relationship
with the patient is important. To restrict bereavement counseling to a
select few would discourage hospices from providing this service, thus
harming the bereaved and the larger community. Therefore, we did not
insert language limiting the definition of ``bereavement counseling''
to immediate family members. Bereavement counseling is part of the
hospice's bundled daily payment rate.
In order to facilitate bereavement counseling services beginning at
an early time and being furnished to whomever the hospice assesses as
needing services, we believe that it is necessary to allow hospices
flexibility in deciding who is qualified to provide bereavement
services in accordance with their own policies, current standards of
practice, and other applicable Federal, State, and local laws and
regulations. In the proposed and final rule at Sec. 418.64(d), we
require that counseling services, including bereavement counseling, are
provided by or under the supervision of a qualified individual with
experience in grief or loss counseling. Some hospices may use a social
worker while other hospices may choose to use chaplains or volunteers
to provide this service. This flexibility allows hospices to meet the
needs of their patients and families in a manner that works best for
their needs and resources. Therefore, we are not prescribing who may or
may not furnish bereavement counseling services.
Thus, the revised definition for ``bereavement counseling'' is as
follows: ``Bereavement counseling means emotional, psychosocial, and
spiritual support and services provided before and after the death of
the patient to assist with issues related to grief, loss, and
adjustment.''
Comment: Numerous commenters indicated that the proposed
definitions for the terms ``clinical note'' and ``progress note'' were
either unnecessary or redundant. The commenters suggested that these
definitions either be deleted or further clarified to distinguish their
purpose. In addition, many commenters suggested that the terms
``psychosocial'' and ``spiritual note'' be added to the definition of
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``clinical note'' to reflect the fact that individuals who furnish
psychosocial and spiritual care such as social workers, counselors and
chaplains also write notations in the patient's clinical record.
Response: Notations in a patient's clinical record by individuals
furnishing services on behalf of a hospice are standard practice. They
are a primary and crucial means of communication between various care
providers who are in the patient's home at different times while
furnishing different services. Therefore, we believe that it is
important to acknowledge their use in the hospice environment by
requiring their presence in the patient's clinical record. At the same
time, we agree that having two separate definitions for notations is
not necessary and may even be confusing. Therefore, at Sec. 418.3, we
are using a single definition, ``clinical note,'' that addresses
notations regarding both the patient and the family. We also added the
terms ``psychosocial'' and ``spiritual'' to the definition to reflect
the need for this important information in the patient's clinical
record. The condensed and revised definition is as follows:
``Clinical note means a notation of a contact with the patient and/
or the family that is written and dated by any person providing
services and that describes signs and symptoms, treatments and
medications administered, including the patient's reaction and/or
response, and any changes in physical, emotional, psychosocial or
spiritual condition during a given period of time.''
We would like to point out that the term ``clinical note'' does not
limit the notations only to those individuals who are clinicians.
Clinical notes may be written by any individual furnishing care and
services to a patient, including volunteers, homemakers, vendors, etc.
Indeed, we would expect that clinical notes from all individuals would
be included in the clinical record because the goal of the clinical
note is to include as much information as possible to ensure that all
hospice care providers have complete and correct information to use in
making care decisions and furnishing care.
Comment: Many commenters were confused by the terms ``initial
assessment'' and ``comprehensive assessment'' as they are used in Sec.
418.54, ``Initial and Comprehensive assessment of the patient.'' The
commenters requested definitions for these terms in order to help
clarify the difference between the two assessment requirements to
ensure that the proper information was being gathered within the stated
timeframes.
Response: We agree that adding definitions of these two terms will
help ensure that patients are being assessed in a timely fashion. We
are clarifying that the initial assessment is to determine the
patient's immediate care needs. Hospices must complete this abbreviated
assessment in 48 hours. The comprehensive assessment must assess in-
depth all of the patient's areas of need and will ensure that hospices
are fully aware of the patient's current status. Hospices will be able
to use these assessments to establish an individualized hospice plan of
care that meets the patient's needs. We did not, as some commenters
suggested, specify which disciplines must complete the comprehensive
assessment. Hospices provide many different services and not every
patient will require an assessment by a provider of each of those
services. If, upon completion of the initial assessment, it is
determined that a patient may benefit from physical therapy services,
then we would expect a physical therapist to complete a physical
therapy assessment as part of the comprehensive assessment. However, if
there is no indication that the therapy services may benefit the
patient, then a therapy assessment by a therapist would be unnecessary.
The new definitions for ``initial assessment'' and ``comprehensive
assessment'' are added at Sec. 418.3 as follows:
``Initial assessment means an evaluation of the patient's physical,
psychosocial and emotional status related to the terminal illness and
related conditions to determine the patient's immediate care and
support needs.''
``Comprehensive assessment means a thorough evaluation of the
patient's physical, psychosocial, emotional and spiritual status
related to the terminal illness and related conditions. This includes a
thorough evaluation of the caregiver's and family's willingness and
capability to care for the patient.''
Comment: A number of commenters asked us to define the terms
``dietary counseling'' and/or ``dietitian'' to help clarify what type
of counseling hospices are required to provide to their patients, and
who may furnish this service. A few commenters further suggested that
we should differentiate between dietary counseling furnished by a
dietitian and dietary counseling furnished by a qualified individual
such as a nurse or nutritionist.
Response: Section 1861(dd)(1)(H) of the Social Security Act (the
Act) requires hospice facilities to provide ``counseling (including
dietary counseling) with respect to care of the terminally ill
individual and adjustment to his death.'' However, the term ``dietary
counseling'' has never been defined for hospices, and there is a great
deal of confusion in the hospice industry regarding exactly what
constitutes ``dietary counseling.'' Therefore, we agree that a
definition of ``dietary counseling'' is necessary. The definition at
Sec. 418.3 reads as follows:
``Dietary counseling means education and interventions provided to
the patient and family regarding appropriate nutritional intake as the
patient's condition progresses. Dietary counseling is provided by
qualified individuals, which may include a registered nurse, dietitian
or nutritionist, when identified in the patient's plan of care.''
We do not agree that we should prescribe what type of counseling
must be provided by a dietitian. We would expect that, based on an
assessment of the patient's dietary needs, a hospice would furnish
dietary counseling services through an individual whose skills best
meet the patient's identified needs. We believe that the needs of the
individual patient, rather than preset rules, should be the determining
factor relative to services and staff. We do not believe it is
appropriate to define the term ``dietitian'' or establish personnel
requirements for dietitians because we believe that hospices should
have the flexibility to employ an individual that would meet the needs
of their patients in accordance with all other applicable Federal,
State, and local laws and regulations.
Comment: A few commenters submitted suggestions for the proposed
definition of the term ``employee.'' A single commenter asked that we
replace the definition of the term ``employee'' with a definition of
the term ``staff.'' Another commenter suggested that, through the
definition of the term, hospice employees should be required to be
appropriately trained in death and dying.
Response: The term ``employee'' is singular and is used throughout
the regulation to refer to the direct relationship between the hospice
and the individual in terms of furnishing services (that is, a direct
employee), supervision, and lines of authority and responsibility. The
term ``staff,'' on the other hand, is plural and may include
individuals who are contracted through an outside entity, supervised by
that outside entity, and primarily responsible to that outside entity.
``Staff,'' as a broader term, is not an appropriate substitution for
the term ``employee'' in these definitions.
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Additionally, it is not appropriate to require in the definition of
the term ``employee'' that an employee must be trained in issues
related to death and dying. We agree that thorough training in issues
related to death and dying is necessary for all individuals furnishing
patient care services, including clinicians and patient care
volunteers. In final Sec. 418.100(g)(1) we now require hospices to
educate all hospice employees who have patient contact in the hospice
philosophy. Education in the hospice philosophy would, we believe,
encompass issues related to death and dying, as the commenter
suggested. It is not necessary for office employees with no patient
contact to be trained in issues relating to death and dying. To require
the training for all employees, regardless of their role within the
hospice organization, would unnecessarily burden hospices and divert
resources from more critical patient care activities. Therefore, we are
not requiring all hospice employees to receive such training.
Comment: A commenter suggested that, in the definition of ``hospice
care,'' we should specify that hospice care may be provided in the
home, the community, or a facility.
Response: Hospice care is currently being furnished in a variety of
settings, and we do not believe that it is necessary or appropriate to
specify in this rule where hospice care may be provided. To do so may
unintentionally preclude hospices from providing services in settings
that are appropriate but that are outside of an established definition.
Comment: Numerous commenters requested changes to the definition of
``licensed professional.'' Many of those commenters suggested that
dietary therapy should be added to the list of examples of services
that should be furnished by a licensed professional. Another commenter
suggested deleting the list of examples because the examples may
inadvertently limit the types of services that should be provided by
licensed professionals. Yet another commenter suggested that medical
social services should be deleted from the list of examples because not
all States license social workers. Therefore, in those States where no
State licensure for social workers exists, medical social services, CMS
presumes, that the commenter is advocating that such services be
furnished by a professional without a license.
Response: We agree that the proposed definition needs to be
clarified. While the commenters are correct in suggesting that dietary
therapy should be provided by a licensed professional, whether a nurse,
dietitian or nutritionist, we agree with the commenter who suggested
that the mere presence of the list of services is limiting. Therefore,
while we agree that dietary therapy should be provided by a licensed
professional, we are not adding dietary therapy to the list of
examples. Rather, at Sec. 418.3, we are deleting the entire list of
examples because they are unnecessary and may be confusing. Deleting
the list of examples also addresses the commenter's concern regarding
the licensure status of social workers. We recognize that some States
may not license social workers or other health care disciplines, and we
do not intend to imply that States must provide licensure for all
health care disciplines furnishing hospice services. Rather, our
intent, as proposed at Sec. 418.116(a) and finalized at Sec.
418.114(a) is that if a State licenses a particular health care
discipline, then any individual working within that discipline in the
hospice environment must obtain and maintain that State license. If no
State license exists for a particular discipline, and if that
individual meets all other personnel and training requirements as
required by this rule and any other applicable Federal, State, or local
laws, regulations, policies, and requirements, then it is acceptable
for that individual to furnish services to hospice patients absent a
State license.
Comment: Numerous commenters requested clarification on the
definition of the term ``satellite location.'' Specifically, hospices
requested that the definition include: Concrete criteria that hospices
must meet in order to be considered satellite locations, information
about the approval and survey process, and information about the type
of services furnished by satellite locations.
Response: The term ``satellite location'' is now referred to as
``multiple locations,'' and Sec. 418.3 has been modified to reflect
this change. We believe that this new terminology more accurately
describes those entities that furnish a full array of services from two
or more locations. We have also clarified our intent by stating that
multiple locations are those locations ``from which the hospice
provides the same full range of hospice care and services that is
required of the hospice issued the certification number.'' We note that
the term ``certification number'' is now used in place of the term
``provider number.'' This change reflects a change in the terminology
used by CMS to describe the number issued to a hospice to identify it
in certain Medicare systems.
We believe that clarifying that a multiple location provides the
same full array of services as the hospice location originally issued
the certification number will alleviate commenter concerns that
convenience sites where staff stop in to complete paperwork or check
messages, or warehouse sites where equipment is stored would need to be
approved by Medicare as multiple locations. We note that although we do
not require hospices to obtain approval for warehouse and other single
function sites, States may still require hospices to receive approval
from State or local authorities. The requirement that multiple
locations must share administration, supervision, and services with the
hospice that was issued the certification number is relocated from the
definition of the term at Sec. 418.3 to the paragraph addressing
multiple locations at Sec. 418.100(f)(1)(ii). We continue to believe
that it is the level of control and supervision exercised by the
hospice that was issued the certification number over the multiple
location, rather than mileage limitations or staffing levels, which
determines whether or not a site is a multiple location of an existing
hospice or a completely separate hospice.
We do not believe that it is appropriate to add specific criteria
or procedures for the approval of multiple locations in the regulatory
definition because this level of specificity may reduce our ability to
adapt to rapid changes in the hospice industry related to the use of
multiple locations. Rather, we will continue to address specific
criteria and procedures for multiple locations in sub-regulatory
guidance such as the State Operations Manual.
Comment: A commenter requested clarification about the definition
of ``palliative care'' and its relationship to the requirement that, in
order for a Medicare beneficiary to qualify for the Medicare hospice
benefit, the beneficiary must be certified as being terminally ill.
Specifically, the commenter asked if palliative care could be provided
by a hospice to individuals who are not terminally ill or who have not
elected the Medicare hospice benefit.
Response: Hospice care is a very specific type of care provided
within a defined timeframe at the end of life. Palliative care, on the
other hand, can be provided at any time of life when there is a need to
anticipate, prevent and treat suffering to optimize a patient's quality
of life. Hospices have a long history of providing palliative care and
are often in a position to provide
[[Page 32093]]
the care either on a direct or contract basis to patients who either do
not qualify for the Medicare hospice benefit (or another health care
insurer's hospice benefit) or who do not choose to forgo curative
treatment in order to elect the Medicare hospice benefit. We do not
prohibit hospices from providing these palliative care services to
patients that do not elect or qualify for hospice care, as long as the
hospices are primarily engaged in furnishing hospice care as required
by section 1861(dd) of the Act.
Comment: A few commenters requested that we define the term
``physician designee'' as it was proposed in Sec. 418.102, ``Medical
director.'' The commenters believed that a definition would help to
clarify this individual's role.
Response: We agree that defining this term will help clarify what
responsibilities this individual has as well as when those
responsibilities are assumed. The purpose of the physician designee
role is to ensure that, if the medical director is unavailable, there
is a predetermined, qualified individual who can assume all of the
medical director's responsibilities. Having a predetermined individual
who is ready and able to assume the medical director responsibilities
will help to ensure that patients receive high quality hospice care
even when the usual medical director is not available to perform his or
her duties. With this in mind, we are adding a definition for
``physician designee'' at Sec. 418.3 to read as follows:
``Physician designee means a doctor of medicine or osteopathy
designated by the hospice who assumes the same responsibilities and
obligations as the medical director when the medical director is not
available.''
Comment: Several commenters asked us to clarify the definition of
the term ``representative'' by recognizing case law, common law, and
health care powers of attorney in determining whether or not an
individual is a patient's representative.
Response: The proposed definition of ``representative'' states that
a representative is an individual who has the authority under State law
to authorize or terminate care on the patient's behalf. In the context
of this definition, we are deferring to State law in its entirety,
including statutes, agency regulations, and binding court rulings.
Since designations of health care powers of attorney are deemed to
appoint legal representatives by most, if not all states, our proposed
definition would include individuals granted health care powers of
attorney. Thus, case law, common law, and health care powers of
attorney are subsumed within the definition of the term
``representative'', and there is no need to amend it.
Comment: A majority of commenters requested that we revise the
proposed definition of ``drug restraint'' to remove the stigma
associated with the term ``drug.'' A minority of commenters requested
that we delete the definition of ``drug restraint'' completely, and
suggested that the hospice industry at large or hospices individually
should be allowed to determine a definition.
Response: Drugs have long played a prevalent role in hospice care.
They are used to relieve pain, calm anxiety, improve breathing and
support the patient. However, the idea of drugs used as restraints is
relatively new in hospice care and has provoked much anxiety in the
hospice industry. We understand that hospices are concerned about an
overly restrictive definition of the term ``drug restraint.'' We also
understand that hospices are concerned about State surveyors applying
the drug restraint regulations applicable to other health care
providers to hospices. We believe that these regulations clearly apply
only to hospice inpatient facilities (hospice programs do not have
outpatient facilities). Deleting the definition of ``drug restraint''
will not resolve providers' uncertainty, and will only leave hospices
and patients in the untenable position of not knowing what is and is
not a drug restraint; and simply renaming the definition as ``chemical
restraint'' will not resolve the ambiguity either. While we acknowledge
that the term ``drug'' may have a negative connotation among patients,
we are not requiring hospices to use this term when discussing
medications or chemicals with patients. Hospices are free to refer to
drugs used for any purpose within the hospice in a manner that suits
their patients and their representatives, families, other caregivers,
and the hospice. Moreover, section 591(d)(1)(B) of the PHS Act
prohibits the use of drugs ``used as a restraint to control behavior or
restrict the resident's freedom of movement that is not a standard
treatment for the resident's medical or psychiatric condition.'' This
provision of the Act applies to any health care facility that receives
any financial support from any program receiving Federal dollars.
Comment: Many commenters suggested that we narrow the definition of
``drug restraint'' to tailor it to the hospice environment.
Specifically, commenters requested that we indicate, in the definition,
that a drug is only considered a restraint if it is not an accepted
treatment within a hospice program. The commenters expressed concern
that drugs that may be considered restraints in other health care
settings (for example, long term care facilities) are not restraints in
hospice care because those drugs are used to treat distressing symptoms
(for example, terminal restlessness). A single commenter requested that
we not consider a drug to be a restraint if that drug is requested by
the patient or the patient's representative while another commenter
suggested that drugs should only be considered restraints if they are
used inappropriately.
Response: Narrowing the definition of ``drug restraint'' by
specifying that a drug is not a restraint if it is a ``standard
treatment within a hospice program'' may hinder hospices from adopting
new symptom management drugs in the future because they may have not
yet met the ``standard treatment within a hospice program'' criteria.
Our final language states that drugs used as a restraint are drugs that
are not standard treatment or dosage for the patient's condition, and
we believe that this will afford adequate protection to the hospice
patient population. Therefore, we are not adding this additional
limitation to the definition.
Similarly, narrowing the definition by adding a provision that a
drug is not a restraint if it is requested is not appropriate.
Requesting a drug does not alter its status as a restraint. In fact,
there are times when a patient, representative or family member may
request that a drug be administered to protect a patient from his or
her own behavior. The requestor would, in essence, be asking for a
restraint. Once the drug is administered, the patient would require the
increased level of supervision required by this rule in order to ensure
the patient's safety and well being at all times. Therefore, we are not
adding a provision to exclude drugs from the definition of ``drug
restraint'' if those drugs are requested by the patient or family.
Furthermore, narrowing the definition of ``drug restraint'' to
those drugs that are used inappropriately is not suitable. There are
drugs commonly used in the hospice environment for symptom management
that can also be used appropriately as drug restraints under limited
circumstances when warranted by the patient's condition and needs as
documented in the patient's clinical record.
Comment: A few commenters suggested that we should use the same
definition of ``chemical restraint'' for hospices as we do for other
provider types.
Response: We agree that using the same definition will help to
ensure that
[[Page 32094]]
hospice patients receive the same level of care and protection
regardless of where they receive health care services. In addition, we
agree that using the same definition will help to ensure that employees
moving from another provider type to the hospice setting will more
likely be familiar with the regulatory requirements. Therefore, at
Sec. 418.3, we are adopting the same definition and definitional
format for drug restraints as is used in the Hospital Conditions of
Participation. We are deleting the definitions of ``drug restraint''
and ``physical restraint'' in favor of a more expansive definition of
``restraint'' that encompasses both drug and physical restraints. We
believe that having a single definition, rather than three separate
definitions, will simplify the regulation and increase the public's
understanding of the requirements. The specific section of the new
``restraint'' definition that applies to drug restraints is as follows:
``A drug or medication when it is used as a restraint to manage the
patient's behavior or restrict the patient's freedom of movement and is
not a standard treatment or dosage for the patient's condition.''
Comment: Many commenters suggested changes for the definition of
``physical restraint'' ranging from a suggestion to delete the
definition to a suggestion that devices adjacent to the patient's body
also be considered physical restraints.
Response: As with ``drug restraints,'' we understand that there is
a great deal of apprehension and uncertainty regarding physical
restraints. In the preamble to the proposed rule we asked for public
comments regarding instances when physical restraints may or may not be
appropriate and necessary. We heard from a few commenters that bedrails
and positional devices are used for patient safety, and for assisting
patients in functioning independently. No commenters described a single
instance where physical restraints have been, or to their knowledge,
are now used, whether appropriately or inappropriately, for patient
safety, behavior management or any other purpose. The lack of specific
comments leads us to conclude that this is an issue that most hospices
choose not to discuss. Without this input, we are unable to gauge the
level of physical restraint utilization in the hospice industry or the
purposes of that utilization.
The Children's Health Act (CHA) requires us to promulgate
regulations concerning the use of restraints in hospices. Deleting the
definition of ``physical restraint'' would be in conflict with the
requirements of the CHA and will not alleviate the concern about the
safe and proper use of physical restraints. Indeed, deleting the
definition will only leave hospices wondering whether their practices
constitute physical restraint and what precautions should be taken to
ensure patient safety and well being. We do not believe that this is in
the best interest of patients or hospices; therefore we are including a
definition to address physical restraints. Moreover, section 591 of the
PHS Act sets forth a statutory definition, which is the basis for
enforcing regulations on the use of restraints.
At the same time, however, we are sensitive to commenters' concerns
that the definition of ``physical restraint,'' as was proposed, could
include bedrails and positional devices. Bedrails and positional
devices may have the effect of restraining one patient but not another,
depending on the individual patient's condition and circumstances. For
example, a partial bedrail may assist one patient to enter and exit the
bed independently while acting as a restraint for another patient.
Patients who attempt to exit a bed through, between, over, or around
bedrails are at risk of injury or death. The potential for serious
injury is more likely from a fall from a bed with raised bedrails than
from a fall from a bed where bedrails are not used. Bedrails also
potentially increase the likelihood that the patient will spend more
time in bed and fall when attempting to transfer from the bed. To
address these potential hazards, many long term care facilities have
replaced the use of bedrails with lower beds, perimeter mattresses,
alarms, and sitters for restless individuals. We encourage hospices to
have a dialogue with their long term care facility colleagues about the
safe and appropriate use of bedrails for hospice patients, as we
believe that both parties can learn from their successes. To reflect
the fact that it is the function and effect of a device, rather than a
device itself, that determines whether or not the device is a physical
restraint, we have revised the definition at Sec. 418.3 as follows:
``Restraint means: (a) Any manual method, physical or mechanical
device, material, or equipment that immobilizes or reduces the ability
of a patient to move his or her arms, legs, body, or head freely, not
including devices, such as orthopedically prescribed devices, surgical
dressings or bandages, protective helmets, or other methods that
involve the physical holding of a patient for the purpose of conducting
routine physical examinations or tests, or to protect the patient from
falling out of bed, or to permit the patient to participate in
activities without the risk of physical harm (this does not include a
physical escort).''
This language almost precisely tracks 591(d)(1)(A) of the PHS Act,
and matches the definition in the Hospital Conditions of Participation.
As a commenter suggested, physical restraint applies to any device that
has a restrictive effect, regardless of whether the device is attached
to or adjacent to a patient's body. It is the effect of the device,
rather than its location, that makes it a restraint. Using the same
definition for hospices as is used for other provider types will help
ensure that patients are consistently provided the same quality of care
and supervision when restraints are used, regardless of whether those
patients are in a hospital or a hospice inpatient facility. At the same
time, using the same definition will make staff transitions between
different provider types easier because the same set of restraint rules
will apply to some other provider types. This may be particularly
helpful to hospices that have occasion to furnish services under
contract where a nurse or other practitioner may be more familiar with
the rules governing restraints in hospitals. Having the same definition
will help to ensure that there is no conflict between the
practitioner's previous background and training and the applicable
hospice rules.
Comment: Several commenters noted that the proposed definition of
the term ``seclusion'' implies that any placement of patients in
private rooms would constitute seclusion. One commenter suggested that
the term should be completely removed.
Response: While it was not our intent, we agree that the proposed
definition of ``seclusion'' could embrace private rooms. Therefore, at
Sec. 418.3, we have revised the definition of ``seclusion'' by adding
the term ``involuntary.'' Patients who request private rooms do so
voluntarily, and therefore would not be in seclusion. However, if a
patient is placed alone in a private room against his or her will and
is not permitted visitors or egress from that room, then the patient
would be considered to be in seclusion. We also believe that it is
essential for the term ``seclusion'' to remain in this rule. Seclusion,
as defined in section 591(d)(2) of the PHS Act, may only be used under
circumstances described at 591(b). Deleting the term ``seclusion'' will
not assist hospices in complying with the statutory requirement, and
will only leave hospice facilities and patients in the untenable
position of not knowing
[[Page 32095]]
what situations do and do not qualify as ``seclusion'' and whether they
may be in violation of the Children's Health Act. We do not believe
that this is in the best interest of hospices or their patients.
Comment: A few commenters requested that we delete the definition
of the term ``terminally ill'' because it is a term that may discourage
patients from accepting hospice care.
Response: Section 1861(dd) of the Act establishes the Medicare
hospice benefit for beneficiaries who are terminally ill with a
prognosis of 6 months or less if the illness runs its normal course.
The definition that we proposed is the same definition that is used in
the Act. We believe that this is necessary to maintain the definition
in this rule because this term is used in the hospice payment rules.
Comment: A number of commenters requested that we define the term
``family'' using a very broad, patient-directed approach that allows
the patient to identify those who are considered to be his or her
``family.''
Response: We do not believe that a single definition of the term
``family'' would benefit beneficiaries or hospices. The meaning of
``family'' can change depending on circumstances and availability of
persons close to the patient. While allowing the patient to identify
his or her ``family'' would be ideal, this may not be possible for
patients who cannot communicate and who do not have written information
available for the hospice. We have decided that it would be most
appropriate to allow each hospice to establish its own policy on what
``family'' means in its community and with its own patients.
Comment: A single commenter requested that we add a definition for
the term ``unnecessary drugs'' to include drugs used in excessive
dosages, for excessive durations, without adequate monitoring, without
adequate indications for use, or in the presence of adverse events.
Response: The term ``unnecessary drugs'' did not appear within the
proposed rule. The concept is very interesting and may be useful to
hospices when assessing a patient's drug therapy regimen as required by
Sec. 418.54(c), Content of the comprehensive assessment. We have
incorporated some of the commenter's concerns in our final rule at
section 418.54(c)(6). This section requires hospices to review a
patient's prescription and over-the-counter drugs in use at the time of
the assessment, including, but not limited to, an identification of the
effectiveness of the drug therapy regimen, any potential or existing
drug side effects, any potential or existing drug interactions, any
duplicate drug therapies, and any drug therapy requiring laboratory
monitoring. Excessive dosages or durations, or inadequate monitoring
would likely lead to effectiveness and side effect issues that will be
assessed during the comprehensive assessment and subsequent updates.
The IDG, in conference with an individual who has specialized education
and training in drug management, such as a pharmacist, will be required
to address these issues in the patient's individualized hospice plan of
care.
Comment: A commenter suggested that we should define the term
``adverse event'' using the Joint Commission patient safety event
taxonomy. Another commenter suggested that we should define the term as
an, ``unanticipated, non-therapeutic response or injury''.
Response: While we agree that using the Joint Commission patient
safety taxonomy or suggested definition may be helpful for some
hospices, we do not believe that a single definition of ``adverse
event'' would meet the needs of all hospices at this time. In general,
an adverse event would be any action or inaction by a hospice that
causes harm to a hospice patient. We believe that hospices are capable
of determining what is or is not an adverse event based on the
characteristics and needs of their patient populations and staff. We
recognize that hospices are seeking further guidance on this issue, and
we plan to provide such guidance in future sub-regulatory guidance,
such as the State Operations Manual and Interpretive Guidelines.
Comment: A few commenters requested that we define the term
``homemaker services'' with specific references to the Medicaid
personal care benefit that many states offer to Medicaid beneficiaries.
Commenters asked for clarification about the role of homemakers in
hospice care, their relationship to Medicaid personal care aides, and
the qualifications for individuals who furnish homemaker services.
Response: Section 418.202(g) in subpart F of the current hospice
regulations states, ``[h]omemaker services may include assistance in
maintenance of a safe and healthy environment and services to enable
the individual to carry out the treatment plan.'' We believe that this
language adequately describes the role that homemakers play in hospice
care, and we are making no changes to it in this final rule.
Each State establishes its own Medicaid personal care aide benefit,
pursuant to our regulations at 42 CFR 440.167, including its own
eligibility criteria, scope of services to be provided, and personnel
qualifications. Medicaid regulations impose only minimal restrictions
on the state's discretion regarding these services. Hospice care is
meant to supplement the care provided by the patient's caregiver. If
the individual(s) furnishing Medicaid personal care services is
functioning as the patient's caregiver, then the hospice would not be
expected to replace the Medicaid personal care providers with its own
homemaker services on a round-the-clock basis. The Medicare hospice
benefit is not meant to be a caregiver benefit and should not be
expected to function as such. Hospices should work with their
respective State Medicaid agencies if they have questions about who
pays for services provided to patients eligible for both Medicare and
Medicaid.
With regard to who is qualified to furnish homemaker services on
behalf of a hospice, we proposed in Sec. 418.76(j) that a homemaker
must have either completed home health aide training requirements or
must have successfully completed a hospice's orientation addressing the
needs and concerns of patients and families coping with a terminal
illness. We continue to believe that either home health aide (now
referred to as a hospice aide) training or hospice orientation provides
sufficient knowledge for an individual to function as a homemaker under
the supervision of the IDG, and our final requirements at Sec.
418.76(j) and Sec. 418.76(k) reflect this.
Comment: Several commenters requested that we define the term
``nursing services.'' Most of these commenters defined the term to
include those services furnished by a registered nurse, licensed
practical nurse (LPN), licensed vocational nurse (LVN), nurse
practitioner or other advanced practice nurse. However, the commenters
were divided on whether or not services should be allowed to be
delegated by a nurse to a hospice aide and whether these delegated
services should be considered nursing services.
Response: The intent of section 1861(dd) of the Act has always been
to require hospices to furnish nursing services to their patients as
part of the Medicare hospice benefit. Hospices have complied with this
requirement for the past two decades using the services of a variety of
different categories of nurses ranging from nurse practitioners to
licensed vocational nurses to registered nurses. Hospices have not, to
our knowledge, had any difficulty in determining what constitutes
nursing services and we see no reason to
[[Page 32096]]
establish a definition for the term at this time.
It is important to point out that if we had included delegated
services in the definition of the term ``nursing services,'' then the
inclusion would effectively prohibit hospices from contracting for
hospice aide services. We believe that this de facto prohibition would
occur because those contracted hospice aides would routinely be
furnishing delegated nursing services, and section 1861(dd) of the Act
requires that substantially all nursing services should be furnished by
direct hospice employees. We do not think that the commenters intended
to establish this de facto prohibition on contracting for hospice aide
services.
Comment: A commenter asked us to define the term ``covering
physician'' as a physician acting on behalf of the attending physician.
Response: The term ``covering physician'' did not appear in the
proposed rule. If the patient's attending physician is not available to
care for his or her patients, then a hospice physician would assume
care responsibilities. In accordance with the proposed and final rule
at Sec. 418.64(a)(3), a hospice is responsible for providing an
alternate physician to meet the medical needs of the patient in the
attending physician's absence.
Comment: A few commenters asked us to add a definition for the term
``social worker.'' Some commenters proposed maintaining the current
definition as an individual with a Bachelors degree in Social Work from
an accredited university. Others suggested raising the requirement to a
Masters degree in Social Work from an accredited university.
Response: We believe that the commenters raise important issues,
which are discussed in a subsequent portion of the preamble. We are
relocating the credential requirements for social workers from the
definitions section to the new personnel requirements section (Sec.
418.114). We believe that this new, central location for all
credentialing requirements is the appropriate location for the social
work credentialing requirements as well. Therefore, we are addressing
these suggestions in the personnel qualifications section of this rule.
Comment: Several commenters asked us to add definitions for the
four levels of care provided in hospice (routine home care, continuous
home care, respite care, and general inpatient care). A few commenters
even provided their own definitions for these levels of care.
Response: These ``levels of care'' are payment rather than health
and safety issues, and therefore we are not addressing them in this
rule. These terms are used specifically in reference to our hospice
payment rules found at 42 CFR 418 Subpart F ``Covered Services'' and
Subpart G ``Payment for Hospice Care.'' In these two subparts, specific
criteria for these payment levels are detailed, and these criteria
constitute the definitions for these payment terms.
Comment: Some commenters asked us to define the term ``plan of
care,'' and suggested the plan of care should be defined as a written
document that addresses the patient and family needs identified in the
comprehensive assessment and is updated as needed.
Response: We agree with the commenters that the plan of care must
be a written document and that it must address the status of the
patient and family as identified in the comprehensive and updated
assessments. We also agree that the plan of care should be updated as
frequently as necessary based on changing status and needs. We do not
believe that it is necessary to define ``plan of care'' because
pertinent issues are being specified in this final rule at Sec.
418.56, ``Interdisciplinary group, care planning, and coordination of
services.'' Section 418.56 requires that a hospice IDG ``prepare a
written plan of care for each patient. The plan of care must specify
the hospice care and services necessary to meet the patient and family-
specific needs identified in the comprehensive assessment as such needs
relate to the terminal illness and related conditions.'' In addition,
Sec. 418.56(d) will require that the plan of care be updated by the
IDG ``as frequently as the patient's condition requires, but no less
frequently than every 15 calendar days.'' We believe that these
requirements adequately address the commenters' concerns.
Comment: A commenter requested that we define the term ``spiritual
assessment'' to ensure that these assessments address more than a
person's religious affiliation.
Response: Our inclusion of ``spiritual assessments'' in hospices
should not be solely related to religious affiliation (or lack
thereof). These assessments might focus on a patient's sense of peace,
purpose, beliefs, etc., but may not be warranted for all patients,
particularly if they already have an available spiritual/emotional
support system. Therefore, we do not believe that it is in the best
interest of hospice patients and hospice providers to prescribe exactly
what constitutes a spiritual assessment. A definition may
unintentionally interfere with the individualized, patient-centered
hospice care that we require hospices to furnish. We do not intend for
this regulation to suggest that any spiritual counseling or services be
provided to a hospice patient or family against their wishes.
Comment: Many commenters asked us to define the phrase ``patient's
home'' or ``patient's residence'' as a house, apartment, SNF/NF, ICF/
MR, assisted living facility, adult home, shelter, foster home or any
other place where a patient lives.
Response: We are unable to develop a single definition of the terms
``home'' or ``residence'' at this time. We will consider these
suggestions for future rulemaking.
Comment: Many commenters requested a definition of the term
``facility'' as it is used in proposed and final Sec. 418.112.
Response: The general term ``facility'' has been removed from this
condition of participation (CoP) in favor of a more specific list of
the facility types to which Sec. 418.112 applies. As the general term
no longer appears in the rule in the context of Sec. 418.112, it is no
longer necessary to define it.
Comment: A commenter suggested that we define the term ``hospice
patient'' as a patient who has been certified as being terminally ill
and who has accepted the care of a hospice agency.
Response: There is no single definition of ``hospice patient'' that
can encompass all types of patients treated by a hospice and all
eligibility criteria for all payment sources. Certifying a patient's
terminally ill status is a Medicare and Medicaid payment requirement
that does not necessarily apply to other health insurance or private
pay patients. To say that un-certified patients are not ``hospice
patients'' by excluding them from the definition would be
inappropriate. However, ``hospice patients'' for Medicare payment
purposes are those Medicare beneficiaries certified under Sec. 418.22
and electing hospice services under Sec. 418.24. Furthermore, we note
that the term ``hospice patient'' does not appear in statute or
regulation, and, as such, we do not believe that it requires a
definition in this rule.
3. Condition of Participation: Patient's Rights (Proposed Sec. 418.52)
We proposed to replace the existing CoP, Informed consent, at Sec.
418.62, with a new patient rights CoP. The proposed patient rights CoP
was divided into five standards. The first standard, ``(a) Notice of
rights,'' would have required hospices to develop a notice of rights,
including information about advance directives and the hospice's
controlled
[[Page 32097]]
drug policies. Under the proposed requirement, hospices would have been
required to present the notice of rights verbally (meaning spoken) and
in writing to patients and families in a language and manner that they
are able to understand. This would have occurred before the hospice
furnished care to a patient and family. Hospices would also have been
required to document the patient's or representative's understanding of
the notice of rights.
In standard (b), ``Exercise of rights and respect for property and
person,'' we proposed that the patient would be able to exercise his or
her rights, be respected, voice grievances, and not be subjected to
discrimination or reprisal. We also proposed that hospices would
investigate and report all alleged violations of patient rights, and
take appropriate corrective action where necessary.
The third standard, ``(c) Pain management and symptom control,''
proposed that patients would have the right to receive effective pain
management and symptom control from the hospice.
Standard (d), ``Confidentiality of clinical records,'' proposed
that hospices would be required to maintain the confidentiality of
clinical records in accordance with the Privacy Rule published in the
Federal Register on December 28, 2000 (65 FR 82461) as amended on
August 14, 2002 (67 FR 53182) and set out at 45 CFR parts 160 and 164.
Finally, the fifth standard, ``(e) Patient liability,'' proposed
that patients would be informed about the extent to which payment may
be expected from the patient, Medicare or Medicaid, third-party payers,
or other sources, verbally and in writing in a language that the
patient was able to understand. This standard proposed that this
information would be provided to patients before care was furnished.
The intent of this standard was to ensure that patients were aware of
their potential out-of-pocket costs for hospice care, such as co-
payments, so that they would not be surprised by financial concerns at
this stressful time.
Comment: A majority of commenters on this issue expressed concern
about the proposed requirement that hospices provide a notice of the
patient's rights and responsibilities verbally, as well as in writing,
in a language and manner that the patient would understand. Many of
these commenters requested that hospices not be required to furnish
written notices in obscure or otherwise uncommon languages. Other
commenters requested that the choice of language(s) used to communicate
be left to the discretion of each hospice or that the communication be
done in accordance with guidance issued by the Department of Health and
Human Services (HHS) related to Title VI of the Civil Rights Act of
1964, Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons. Still other commenters requested
that we specifically recognize in the regulation that interpreters,
family or otherwise, be permitted to facilitate communication of the
notice of rights to patients and families.
Response: We recognize that this is an area of concern for
hospices, as it may be challenging for hospices to communicate with
patients who speak languages other than English. However, ensuring that
patients are aware of their rights and how to exercise them are vital
components of improving overall hospice quality and patient
satisfaction. If patients are unaware of their rights or the methods
and protections available for exercising those rights, then hospices
cannot expect to receive valid feedback from patients on ways to
improve their services. Without the valid feedback, true quality
measurement and improvement cannot exist. Therefore, we believe it is
in the interest of patients and hospices to ensure that all patients,
regardless of their communication needs, are informed of their patient
rights.
Even so, we are sensitive to the concerns of hospice providers. The
HHS guidance on Title VI (August 8, 2003, 68 FR 47311) applies to those
entities that receive federal financial assistance from HHS, including
hospices. This guidance presents four areas for hospices to consider
when developing and implementing strategies to meet the needs of
limited English proficient persons. The guidance recognizes the role of
professional translation services, as well as family and friends of the
patient, in communicating important information to patients, including
the notice of rights. Hospices are already expected to comply with the
HHS guidance, and doing so will enable them to comply with the
requirements of the proposed rule.
Using family and friends as translators should not be the
communication plan of choice for the hospice for its patients who do
not speak English, unless the patient specifically requests this
approach. Hospices should make all reasonable efforts to secure a
professional, objective translator for hospice-patient communications,
including those involving the notice of patient rights. Furthermore,
hospices should make all reasonable efforts to have written copies of
the notice of rights available in the language(s) that are commonly
spoken in the hospice's service area. For those patients who speak
uncommon languages in areas where professional translators for those
languages are not readily available, using family and friends of the
patient is an acceptable option.
Comment: A commenter asked that we explicitly specify in Sec.
418.52(a)(2) that patients have the right to refuse to formulate
advance directives.
Response: Under this final rule, hospices are required to comply
with 42 CFR part 489 Subpart I, ``Advance directives.'' Patients may
choose to develop advance directives in accordance with applicable
State requirements. Likewise, they may choose to not formulate advance
directives. We believe that 42 CFR part 489 adequately addresses all
aspects of advance directives, including patient choice. Therefore, we
are not adding the commenter's suggestion.
Comment: Some commenters asked that we clarify what type of
documentation would be necessary to demonstrate that the hospice
provided patients with a notice of rights and that the patient or
representative demonstrated an understanding of the rights. A majority
of commenters noted that language in the proposed rule, ``demonstrated
an understanding of,'' was imprecise and difficult to measure.
Additional commenters suggested that language from the home health
agency CoPs at 42 CFR 484.10 should be used in the hospice CoPs.
Section 484.10 states that ``the HHA must maintain documentation that
it has complied with the requirements of this section.'' This language,
commenters noted, would allow hospices to determine in their own
policies how the documentation would be handled. Several other
commenters suggested that hospices be required to obtain the patient's
or family's signature, confirming that they received the notice of
rights.
Response: We agree that a more precise requirement will help
hospices ensure that patients and families are fully informed about the
notice of rights. Furthermore, we agree that more precise language will
help hospices ensure that they are in compliance with our documentation
requirements. Therefore, this final rule at Sec. 418.52(a)(3) states,
``The hospice must obtain the patient's or representative's signature
confirming that he or she has received a copy of the notice of rights
and responsibilities.''
Comment: Some commenters noted that State practices and laws may
[[Page 32098]]
govern a legal representative's exercise of a patient's rights as
described in Sec. 418.52(b)(3). The commenters requested that we add
the phrase ``and practice'' at the end of this requirement so it would
read: ``If a State court has not adjudged a patient incompetent, any
legal representative designated by the patient in accordance with State
law may exercise the patient's rights to the extent allowed by State
law and practice.''
Response: Without more specific information from the commenters
regarding what practices states may unofficially have in place, we do
not believe that it is appropriate for us to add the phrase ``and
practice'' to the requirement at this time. If more specific
information is made available at a future time, we will reconsider this
suggestion.
Comment: Many commenters had concerns about the scope of the
responsibilities of hospices when investigating and reporting
violations of patient rights by hospice staff. In addition, the
commenters had concerns about the proposed timeframes for investigating
and reporting alleged violations to local authorities and State survey
agencies. Specifically, the commenters noted that it would not be
necessary to notify State and local bodies having jurisdiction about
unverified violations. The commenters also noted that alleged
violations may occur several days before the hospice becomes aware of
them, and indicated that the reporting timeframe should not begin
before a hospice even becomes aware of the alleged violation. Numerous
commenters suggested that the patient rights requirement in the home
health agency regulations at Sec. 484.10 might be more appropriate,
while others suggested that the investigation and reporting
requirements be deleted in their entirety.
Response: Requiring hospices to investigate potential violations of
patient rights by hospice staff (including contracted or arranged
services) will protect patients and their families. Reporting
violations (when verified in accordance with hospice policies and
procedures and any applicable State and local laws and regulation) is
an integral part of improving the quality of hospice care provided to
Medicare beneficiaries. At the same time, adopting regulations more in
line with those currently in the home health agency rules would not, we
believe, be appropriate for the hospice industry because hospices
typically care for more fragile patients and families in a wider
variety of patient care settings, such as private homes, long term care
facilities, and hospice inpatient units. The home health agency
requirements are narrower than what we are requiring. We believe that a
broader framework in these hospice regulations, coupled with a
hospice's own policies and procedures, will allow hospices to adapt the
requirements to the particular needs and concerns of their patient
populations now and in the future.
However, we agree that further clarifications are warranted to
ensure that a hospice assumes full responsibility for its staff, while
not overwhelming the hospice with responsibilities beyond its control.
To that end, we are requiring hospice staff that discover alleged
violations to immediately report such allegations involving anyone
furnishing services on behalf of the hospice, including contracted and
arranged services, to the hospice's administrator. The hospice
administrator must investigate violations involving anyone furnishing
services on behalf of the hospice and, if verified, the hospice must
report the violation to State and local bodies having jurisdiction
within 5 working days of any member of the hospice staff (including
those furnishing contracted or arranged services) becoming aware of the
violation in accordance with the hospice's own policies and procedures.
We would expect that significant violations, such as illegal actions by
hospice staff, would be reported to State and local bodies. We believe
that these modifications will ensure that violations are fully
addressed while not overburdening hospices.
Comment: A single commenter requested that we defer to State
requirements for violation reporting.
Response: If State requirements for reporting violations are
stricter than our Federal requirements, then those stricter State
requirements would take precedence. Stricter State requirements may be
those that require violations to be reported regardless of whether they
are verified or not, or requirements that verified violations be
reported in less than 5 days. However, if State requirements are less
stringent than Federal requirements, then the Federal requirements will
take precedence. We believe that the scope and timeframes contained in
this final rule are the minimum health and safety requirements with
which facilities could reasonably be expected to comply.
Comment: Several commenters specifically focused their concerns on
the implementation of proposed Sec. 418.52(b)(4) in the context of the
dual and possibly overlapping responsibilities of hospices that provide
services to residents of long term care facilities. In particular,
commenters suggested that hospices should only be held responsible for
those individuals functioning on behalf of the hospice and that
concerns pertaining to individuals functioning on behalf of the long
term care facility should be the responsibility of that facility.
Response: We agree that hospices should only be held responsible
for investigating and reporting violations pertaining to their own
employees and contractors. To address this comment, at Sec.
418.112(c)(8), we are setting forth a requirement that the written
agreement between the hospice and the SNF/NF or ICF/MR must contain a
provision whereby the hospice must report all alleged violations
involving mistreatment, neglect, or verbal, mental, sexual, and
physical abuse, including injuries of unknown source, and
misappropriation of patient property by anyone unrelated to the hospice
to the facility administrator within 24 hours of the hospice becoming
aware of the alleged violation.
This requirement will assure that the SNF/NF or ICF/MR is made
aware of the alleged violation in a timely manner so that it can begin
its own investigation and implement its own intervention(s). A hospice
may also want to consider incorporating a provision in the contract to
require a SNF/NF or ICF/MR to notify the hospice if any of its staff
become aware of a potential patient rights violation involving hospice
staff. Such a provision may enhance hospice-facility communication and
cooperation. In addition, we will consider this issue when developing
complementary regulations for long term care facilities.
Comment: A few commenters asked that we define the term
``immediately'' as it applies to the timeframe for reporting alleged
violations to the hospice's administrator. The commenter recommended
that the timeframe for reporting alleged violations be based on an
assessment of the patient's needs.
Response: It is in the patient's best interest to involve the
hospice administrator at the time that the potential violation is noted
to assure that the situation is adequately and expeditiously dealt
with. Once notified, it is up to the hospice's policies and procedures
and the hospice administrator's judgment, in accordance with this rule,
to handle the allegation. The hospice administrator is the designated
leader of the hospice and assumes responsibility for the care and
services furnished by the hospice, whether directly or under contract.
This is a 24-hour a day responsibility, and it
[[Page 32099]]
applies to incidences of alleged violations.
Comment: Some of commenters expressed concern regarding the manner
in which the terms ``mistreatment'' and ``injury'' are used in the
proposed patient's rights CoP. They believe the terms to be vague and
too difficult to judge objectively.
Response: The terms ``mistreatment'' and ``injury'' encompass two
important areas that affect patient safety and satisfaction. While
other terms such as ``abuse'' and ``neglect'' imply actual harm to a
patient, ``mistreatment'' is a broader term that encompasses quality of
life issues that are crucial as patients and families cope with death
and dying. We understand that the broad nature of the term makes it
difficult to judge. This judgment difficulty is exactly why we are
requiring hospices to conduct their own internal investigation into the
potential patient rights violation. We are leaving these terms mostly
undefined so that hospices may determine whether ``mistreatment'' or
``injury'' have occurred on a case-by-case basis. State tort liability
laws may serve as a guide for hospices in determining whether
``mistreatment'' or ``injury'' have occurred. Through a thorough
investigation, hospices can determine, in accordance with their own
policies and procedures, whether mistreatment occurred and what steps
need to be taken to resolve the mistreatment and prevent future
occurrences.
The presence of the term ``injury'' is also important in this
standard because it addresses other issues that may not constitute
``abuse'' or ``neglect'' but that nonetheless impact a patient's well-
being. We understand that some relatively minor injuries such as skin
tears may be perceived as injuries. By maintaining the term ``injury''
in this standard, hospices are required to fully investigate incidents
of minor injuries (like skin tears) to determine if they constitute a
violation of a patient's rights. If the internal investigation reveals
that all appropriate steps were taken to prevent the minor injury, then
the hospice may determine that the injury is not a violation of a
patient's rights. However, if the investigation reveals that reasonable
precautions were not taken, then the hospice may determine that the
injury is a violation of patient rights. In setting forth a standard in
the final rule that requires hospices to report patient injuries to the
hospice administrator, hospices have the opportunity to conduct a self
assessment to determine if care processes need to be changed to improve
the consistent delivery of quality care.
Comment: Some commenters asked for clarification regarding proposed
Sec. 418.52(c), which reads, ``The patient has a right to receive
effective pain management and symptom control from the hospice.'' While
the commenters supported the intent of this standard, they questioned
its scope. One commenter wanted to know whether this standard would
require hospices to furnish continuous home care, while another
questioned if hospices were supposed to be responsible for pain and
symptom management unrelated to the terminal and related conditions.
Still another commenter suggested that hospices should be allowed to
refer patients to other providers for pain and symptom management.
Response: Effective pain and symptom management have long been the
hallmark of hospice care, and we appreciate that the commenters
recognized the importance of this patient right. We agree that hospices
are required to furnish pain and symptom management for the terminal
illness for which the patient is receiving hospice care and conditions
related to the terminal illness. We have revised this standard and
clarified this point at Sec. 418.52(c)(1). The continuous home care
level of care described in the payment and coverage sections at 42 CFR
418.204 and 418.302 may or may not be the most effective way to provide
effective pain management and symptom control while maintaining a
patient at home.
It is acceptable for hospices to refer pain and symptom control
issues unrelated to the terminal illness and related conditions to
other providers. If a hospice were to make a referral, we would expect
the hospice to coordinate its efforts with the other provider to avoid
duplicative or contradictory therapies in accordance with final Sec.
418.56(e)(5). The goal of this coordination is to ensure that the
patient's hospice plan of care is implemented, and that the hospice
care is furnished in concert with other care sources to ensure that all
patient needs are met. In accordance with Sec. 418.100(c) hospices are
responsible for pain and symptom management related to the terminal
illness and related conditions and should not refer patients to other
providers for these issues. If a hospice does not have the expertise to
handle pain and symptom management issues related to the terminal and
related conditions, it is responsible for procuring the expertise for
the patient as part of its regular hospice services.
Comment: Many commenters suggested that we should add provisions
stating that patients have the right to refuse treatment and the right
to be involved in developing their plans of care.
Response: We agree that these are important patient rights that
should be included in this final rule. We believe that including these
rights, at new Sec. 418.52(c)(2) and Sec. 418.52(c)(3) respectively,
will help to ensure that the patient's goals and needs are consistently
reflected in the hospice's plan of care and actions.
Comment: A few commenters requested that we add a provision
requiring hospices to provide patients with a written statement of the
scope of care and services that will and will not be provided. One
commenter requested that we add a provision stating that patients have
the right to receive information about the services covered under the
hospice benefit.
Response: We agree that providing a patient with general
information about his or her hospice benefit is an important step in
ensuring that hospice patients are educated about their rights.
Therefore, we are establishing section 418.52(c)(7), which requires
hospices to provide this general benefit information.
We also agree that providing a patient with general information
about the scope of services that the hospice provides, as well as any
limitations on those services, will further empower hospice patients
and their caregivers to take an active role in hospice care planning.
Providing the patient and family a list of services that the hospice
may provide gives the patient and family an opportunity to request
specific services that the IDG had not considered. Simply knowing that
help is available may lead patients and families to reach out for it.
For this reason, we are establishing section Sec. 418.52(c)(8), which
requires hospices to provide information about the scope of services
that the hospice will provide to its patients, and specific limitations
on those services.
Comment: A single commenter requested that we add a specific
provision stating that patients have the right to continue to maintain
a relationship with their attending physician once they elect the
hospice benefit.
Response: It is understood and widely accepted throughout the
health care community, including in the hospice industry, that patients
should be allowed, even encouraged, to continue to work with their
attending physicians as they transition from one health care provider
or setting to another. The goal of this practice is to enhance
continuity and quality of care by actively including the attending
physician, who knows
[[Page 32100]]
that patient's medical and family history, in planning and delivering
the patient's hospice care. We believe that this is in the best
interest of patients and providers. Explicitly identifying a patient's
right to choose his or her attending physician without undue influence
from a hospice will help ensure that hospices and patients continue to
benefit from the knowledge of attending physicians. Therefore, we have
added this patient right at Sec. 418.52(c)(4).
Comment: A commenter requested that we add a provision stating that
patients have the right to access, request amendments to, and receive
an accounting of disclosures regarding their health information.
Response: Patient rights regarding their health information are
explicitly addressed in the HIPAA regulations at 45 CFR
164.502(a)(2)(i) and 164.524. Hospices are already required to comply
with these extensive regulations, and we see no need to duplicate the
HIPAA patient rights requirements in this rule. Therefore, we are not
adding this suggested provision.
Comment: Many commenters expressed confusion and concern about our
proposed requirement that hospices notify patients of the extent to
which payment may be expected from the patient before care is
initiated. Commenters sought clarification on how this requirement
would dovetail with the Advanced Beneficiary Notice (ABN), long term
care facility payments, and private health insurance payment rules. In
addition, commenters wanted to know if, before care is initiated,
hospices would be required to advise patients of those services that
would not be covered by the hospice because those items would not be in
the plan of care, even though the plan of care had not yet been
formulated. Some commenters suggested that, rather than providing exact
dollar amounts for patient liability, we should require a more general
description about co-pays, Medicaid spend down requirements, etc. Other
commenters requested that this notice not be in writing or that it be
provided at the time of the initial assessment rather than before any
care is provided. A single commenter requested that the requirement be
phased in over a period of time.
Response: The original intent of this proposed standard was to
educate patients and families about their potential liability in
consideration of all available payment sources. Patients and families
often come to hospice after long illnesses with pressing financial
concerns. In requiring hospices to provide information when services
are first provided (particularly on Medicare's comprehensive benefit
with minimal co-pays) we sought to alleviate some of those financial
worries. However, as many commenters noted, hospices regularly provide
this payment overview as part of their patient intake process when
patients are choosing whether or not to elect the hospice benefit. We
encourage hospices to continue this practice. Furthermore, commenters
noted that financial liability for long term care facility residents
becomes very complicated and uncertain because of the patient's
residential status. Information provided before the start of care is
likely to be inaccurate because hospices do not control the resident's
long term care facility liability. The proposed timing of the
notification and its all-encompassing nature make it impractical for
hospices to implement and would likely not increase the benefit of
hospice services to patients and families. Therefore, we are deleting
this requirement. We believe that the existing ABN requirements at 42
CFR 411.404, which require hospices to notify patients should a
particular service or item potentially not be covered by Medicare,
provide the most timely and accurate information to patients and
families. The ABN should be delivered far enough in advance that the
patient or representative has time to consider the options and make an
informed choice. The ABN should be verbally reviewed with the patient
or representative and any questions raised during that review should be
answered before it is signed.
Comment: A commenter requested that we add a provision to the
patient's rights CoP stating that patients have the right to refuse to
participate in experimental research.
Response: Ethical research practices dictate that patients must
choose to participate in experimental research and that their
participation or lack thereof may not negatively impact their well-
being. In addition, although we acknowledge that it may occur at times,
experimental research in palliative care is not, to our knowledge, a
common occurrence. We believe that the existing patient opt-in research
standard, combined with the rarity of the situation, does not warrant
us issuing a new standard within this CoP.
Comment: A few commenters suggested that we should add a provision,
either in the ``Patient's rights'' requirement or other requirements,
that ensures that long term care facility residents are provided a
choice of which hospice furnishes their care.
Response: We are aware of concern within the hospice industry about
long term care facilities that choose to not contract with hospice
providers, or to only contract with a single hospice provider to
furnish hospice services to residents. However, authority to govern
long term care facilities' actions is not contained in the hospice
regulations found in 42 CFR part 418. Therefore, we are not adding the
suggested requirement. We will however, take these comments into
consideration as we review the long term care CoPs for possible future
revisions that would address this aspect of long term care facility
responsibility relative to the care of residents.
Comment: Some commenters requested that we require hospices to
recognize board-certified chaplains as advocates for patient rights in
hospices.
Response: We expect that all hospice employees and contractors
should be patient rights advocates with the best interest of the
patients in mind at all times. We are not requiring that hospices use
patient advocates. However, if hospices choose to designate specific
patient rights advocates, they are free to do so, and are free to
select those individuals who are best suited for the task. Board-
certified chaplains may serve well in the patient rights advocate
capacity, and hospices are free to explore this option.
Comment: Another commenter requested that we add a provision
stating that patients should not be denied hospice care based on the
cost of their reasonable and necessary palliative care.
Response: Decisions about admission to hospice fall outside of the
purview of this rule, which focuses on ensuring the safe and effective
provision of quality care to patients and their families once the
patient is admitted to a hospice. Although we take this issue very
seriously, we are not incorporating the suggested provision in this
rule. We note that providers, in general, cannot be required to provide
services to Medicare patients (see Section 1802(a) of the Social
Security Act).
Comment: A single commenter suggested that patients should be
required to demonstrate their willingness to comply with the plan of
care.
Response: We understand that patient noncompliance is occasionally
an obstacle for hospices in providing safe and effective hospice care.
However, we have no authority to mandate patient compliance. It is the
hospice's responsibility to fully educate the patient and family
regarding hospice care, as well as hospice policies and
[[Page 32101]]
procedures for handling plan of care disagreements, emergencies and
other situations that may prompt patient noncompliance. For these
reasons we are not adding a patient compliance provision.
Comment: A single commenter suggested that hospices be required to
comply with any additional State reporting requirements for elder
abuse.
Response: We agree that hospices should be required to comply with
all health and safety related Federal, State and local laws and
regulations, which would include reporting requirements for elder
abuse. This rule finalizes Sec. 418.116, ``Compliance with Federal,
State and local laws and regulations related to the health and safety
of patients,'' which requires hospices to comply with State elder abuse
reporting requirements.
4. Condition of Participation: Initial and Comprehensive Assessment of
the Patient (Proposed Sec. 418.54)
The proposed assessment requirement identified the general areas
that would be included in a patient assessment and the timeframes for
completing the assessments to help hospices ensure that they were
identifying needs in all areas in a timely fashion.
The proposed comprehensive assessment requirement was divided into
five standards. The first standard, (a), ``Initial assessment,'' would
require a registered nurse to make an initial assessment visit within
24 hours of receiving a physician's admission order for care, unless
ordered otherwise by the physician. The purpose of this initial
assessment was to determine the patient's immediate care and support
needs. In the proposed rule we differentiated this initial assessment
from the hospice's evaluation of a patient's appropriateness for
hospice care. We stated that visiting a patient to determine his or her
appropriateness for hospice care does not constitute an initial
assessment.
The second standard, (b), ``Timeframe for the completion of the
comprehensive assessment,'' proposed that the hospice IDG and the
patient's attending physician complete the comprehensive assessment no
later than four calendar days after the patient elected the hospice
benefit. The four day timeframe was proposed because many hospice
patients are admitted to hospice late in their terminal illness and
often require intensive hospice services at the beginning of their
hospice stay. A hospice must assess a patient to identify his or her
needs before it can develop and implement a plan of care to meet those
needs. Therefore, a timely assessment is necessary to properly care for
a patient.
In the third standard, (c), ``Content of the comprehensive
assessment,'' we proposed that hospices identify the physical,
psychosocial, emotional, and spiritual needs of the patient related to
the terminal illness and related conditions. As proposed, the
comprehensive assessment would include information about the terminal
condition, complications and risk factors, an initial bereavement
assessment, a drug profile review, and any further referrals or
evaluations, as appropriate. We did not propose that hospices use a
specific assessment form or tool.
Under proposed standard (d), ``Update of the comprehensive
assessment,'' the hospice IDG would be required to update each
patient's comprehensive assessment no less frequently than every 14
days and at the time of each recertification. The proposed
comprehensive assessment update would document changes that had
occurred since the last assessment, including the patient's progress
toward desired outcomes and the patient's response to the care
furnished by the hospice. We proposed these update timeframes because
the condition of a hospice patient is expected to change over the
course of hospice care, and often does so quite rapidly, considering
that the median length of a hospice stay is about 26 days.
The final standard in this proposed CoP, (e), ``Patient outcome
measures,'' would require hospices to include, as part of the
information gathered by the comprehensive assessment, data elements to
allow hospices to measure patient outcomes. This standard proposed that
the data elements would be collected and documented in the same manner
for all patients in order to ensure the accuracy and consistency of the
data. Hospices would be required to use the data in individual care
planning and the quality assessment and performance improvement program
described in proposed Sec. 418.58. We did not propose to require
hospices to use any specific patient outcome measures or data elements.
Comment: Many commenters requested that we clarify in the opening
paragraph of the CoP that hospices are not required to assess a
patient's condition beyond the patient's need for hospice care and
services related to the terminal illness and related conditions.
Commenters suggested that we delete the phrase ``but is not limited
to'' because it implies that hospices are required to assess and
address areas beyond the boundaries of the terminal illness and related
conditions.
Response: The Medicare hospice benefit covers all care provided by
hospices for the palliation and management of an individual's terminal
illness and related conditions. Hospices are required to furnish these
services; however, they are not required to furnish services for needs
unrelated to the terminal illness and related conditions. Our intent in
specifying that hospices are not limited to assessing the patient's
status and needs associated with the terminal and related conditions
was to explicitly permit hospices to look beyond the terminal and
related conditions to gain a complete picture of the patient. We did
not intend to imply that hospices would be required to provide care for
those issues that are outside of the scope of hospice care under the
hospice benefit. In order to clarify our intent in the second sentence
of the CoP, we have removed the phrase ``but is not limited to'' and we
have replaced the word ``care'' with ``assessment''. The final sentence
of the introductory paragraph at 418.54 now reads, ``This assessment
includes all areas of hospice care related to the palliation and
management of the terminal illness and related conditions.''
Modifying the requirement does not mean that hospices are
prohibited from identifying and/or addressing issues and areas of
patient need outside of the hospice benefit, even though hospices are
not responsible for providing services for these issues. Indeed, not
gathering the information may make it more difficult for hospices to
effectively plan to care for a patient because important information
would not be available when making care planning decisions.
Comment: The majority of commenters who submitted comments in this
section expressed concern about the timing of the initial assessment.
Commenters seemed unclear about the proposed requirement that hospices
would have 24 hours from the time that a physician order is received to
make the assessment. Additionally, commenters were concerned that the
proposed rule, as written, would not allow hospices to adjust the
initial assessment timeframe based upon patient and family wishes. Many
commenters specifically requested that we replace the term
``physician's order for care'' with ``physician's certification'',
which would require the assessment to be completed after the physician
has certified that the patient is terminally ill and thus an
appropriate candidate for hospice care. A few commenters explicitly
disagreed with
[[Page 32102]]
this suggestion. Several other commenters questioned the role that the
patient's election to receive hospice care played in determining when
to begin the timeframe for completing the assessment.
Response: We agree that a more definitive time point needs to be
established and that patient and family wishes should be taken into
account when establishing this timeframe. We recognize that some
patients are self-referred and therefore may not have a physician's
order for hospice care. These patients could create uncertainty in
hospices because hospices would not know when to begin the 24 hour
period for completion of the initial assessment. This uncertainty could
lead to situations of non-compliance that are out of the hospice's
control. We do not believe that this would be in the best interest of
patients or hospices; therefore, we are revising the timeframe language
as requested by many commenters.
In order to clarify the length of time that hospices have to
complete the initial assessment, we have referenced language used in
Subpart B, Eligibility, election and duration of benefits, of the
existing hospice regulations, into the initial assessment requirement
at Sec. 418.54(a). Once a hospice has obtained an election statement
for a particular Medicare or Medicaid patient in accordance with the
requirements of Subpart B, the hospice has 48 hours to complete the
initial assessment, unless the patient, his/her representative, and/or
physician request an expedited timeframe. Since election requirement is
particular to the Medicare and Medicaid hospice benefits, hospices are
free to establish a similar starting point for non-Medicare and
Medicaid patients in their own policies, based on the needs of the
hospice, its community, and any applicable State and local laws and
regulations.
We also agree that the needs of patients or their representatives
should be taken into consideration when completing the initial
assessment. There are times when patients or representatives may want
to expedite the initial assessment, and their wishes, along with the
health status of the patient, should be taken into account when
scheduling and completing the initial assessment. For example, a
patient's representative may request that the hospice complete the
initial assessment in a shortened timeframe because the patient is in
acute distress and requires immediate hospice assistance. We would
expect the hospice to consider the patient's or representative's
request for a change in the initial assessment timeframe when
scheduling the necessary visit(s) to complete the initial assessment.
Therefore, we have modified the language to state that the patient or
representative may request that the initial assessment be completed in
less than 48 hours.
If a patient or representative wishes to delay the completion of
the initial assessment, it would not be appropriate to have that
patient or representative elect the hospice benefit. When a patient
elects the hospice benefit she waives the right to receive all other
Medicare covered services for the terminal illness and related
conditions. If the patient may not receive all other Medicare covered
services for the terminal illness and related conditions, and that
patient cannot receive hospice services because she has not received an
initial assessment to determine her immediate care needs, then the
terminally ill patient is effectively without health care for the
intervening time period. We do not believe that this is an acceptable
situation.
Standard (a), ``Initial assessment,'' now states, ``The hospice
registered nurse must complete an initial assessment within 48 hours
after the election of hospice care in accordance with Sec. 418.24 is
complete (unless the physician, patient, or representative requests
that the initial assessment be completed in less than 48 hours).''
Comment: A few commenters expressed support for separating the
initial assessment from the comprehensive assessment.
Response: We agree that separating the assessment requirements will
enable hospices to quickly assess the most critical areas of need and
begin furnishing appropriate care while ensuring that all areas of need
are assessed by the appropriate disciplines in a timely manner.
Comment: Some commenters requested that we replace the requirement
that hospices complete initial assessments within 24 hours with a
requirement that hospices make or make available an initial patient
contact within 24 hours of receiving a referral. In addition,
commenters requested that any hospice employee, or at least an RN or
social worker, be permitted to make this initial contact.
Response: We understand there may be some confusion in the hospice
community about the purpose of the initial assessment. The purpose of
the initial assessment is to gather the critical information necessary
to treat the patient's immediate care needs. The initial assessment is
not a ``meet and greet'' visit whereby the hospice introduces itself to
the patient and begins to evaluate the patient's interest in and
appropriateness for hospice care. As the commenters stated, the initial
patient contact takes place before the hospice assumes responsibility
for the patient's care. Hospices may choose the timeframe and
appropriate individual for completing this initial contact.
It is not appropriate to substitute an initial contact for an
initial assessment. Merely requiring an initial contact within 24 hours
would not be sufficient to meet the needs of critical patients.
Patients often come to hospice in moments of crisis. An initial contact
when a patient is in need of timely assistance would be a disservice to
the patient and family and would not lead to effective, high quality
care. Hospices may choose to send a social worker or other discipline
to complete the initial assessment along with the RN, and this may lead
to better patient outcomes and satisfaction. Because other disciplines
do not have the skills necessary to independently complete the initial
assessment, we are not incorporating the commenters' suggestions.
Comment: Several commenters suggested that we change the phrase
``RN must make an initial assessment visit'' to ``RN must complete an
initial assessment.'' Similarly, another commenter suggested that we
require that ``the hospice registered nurse must perform and document
an initial assessment visit.'' The commenters stated that their
proposed revised language would clarify our intent that, rather than
simply making a visit to begin the initial assessment, the initial
assessment must be fully complete within the specified timeframe.
Response: The commenters are correct in their assertion that the
initial assessment must be completed, not just started, within the
timeframe. Completing the initial assessment, which means that it is
both performed and documented, enables the hospice to determine the
patient's immediate care and support needs in a timely manner. An
accurate determination of care and support needs cannot be made until
the initial assessment is complete; therefore, we agree that it is
necessary that it be completed within 48 hours. We have clarified the
requirement to read, ``The hospice registered nurse must complete an
initial assessment within 48 hours * * * .''
Comment: A few commenters questioned the role of the hospice
physician in completing the initial assessment.
Response: The initial assessment completed by hospice staff must
address the patient's critical physical, psychosocial and emotional
status
[[Page 32103]]
related to the terminal and related conditions. It is likely not the
most efficient use of a physician's time to complete a task (the
initial assessment) that can be fully handled by a registered nurse.
Therefore, we continue to require that a registered nurse complete the
initial assessment. This requirement in no way prevents a hospice from
using the knowledge and skills of both a registered nurse and a
physician to complete the initial assessment. A physician who is
employed by or under contract with a Medicare hospice cannot bill
separately for the initial and comprehensive assessments.
Comment: Several commenters requested that we revise the timeframe
for completing the initial assessment. Suggestions included 48 hours,
72 hours, the close of the day following the day the patient is
referred, and 24 hours ``when reasonably possible.'' Other commenters
requested that the timeframe be deleted completely.
Response: Establishing a clear and consistent timeframe for
completing the initial assessment is essential to ensuring that
patients benefit from hospice care early in their stay. Completing the
initial assessment within 48 hours will help hospices gather the
essential information to begin a plan of care that addresses the
patient's needs before those needs escalate and become extremely
difficult to address.
Overall, many commenters stated that the 24 hour timeframe for the
initial assessment, as we proposed, was too restrictive. In this final
rule we have effectively increased the length of the timeframe by
changing its starting point from the time the physician's order is
received to the time that the election statement is complete in
accordance with the applicable requirement of Subpart B. Under the
proposed rule, hospices would have been required to complete the
initial assessment within 24 hours of the physician's order to begin
hospice care, even if the hospice was unable to schedule a visit with
the patient and family within that timeframe. Under the revised final
rule language, hospices have 48 hours after the patient elects the
hospice benefit to complete the initial assessment. At times, a
patient, representative, or physician may request that the
comprehensive assessment be completed in a timeframe less than 48
hours, and we expect hospices to accommodate such requests when they
are made.
Comment: Many commenters questioned the role of the patient's
attending physician in completing the comprehensive assessment. Some
commenters explicitly requested that hospices should not be required to
involve attending physicians. Other commenters requested that a
provision be added permitting attending physicians to ``opt out'' of
participating in the assessment. Still others indicated that we should
require attending physicians to approve, in writing, the content of the
comprehensive assessment.
Response: The scope of public comments submitted regarding the role
of the attending physician in hospice care suggested that there is no
single model that applies. Some commenters indicated that community-
based attending physicians provide a leading role in hospice care,
actively participating in the IDG, writing orders, and even making
visits. Some commenters, however, indicated that community-based
attending physicians preferred to step back once a patient has elected
hospice, typically transferring their patients to the hospice
physician's care. While we are pleased to know that there are many
attending physicians who wish to stay involved in caring for their
patients, these physicians should not assume that their attending
physician service role is part of the hospice benefit. Likewise, while
we are pleased to know that hospices are fully prepared to care for all
of their patients needs, including those needs unrelated to the
terminal illness and related conditions that the attending physician
would be responsible for, it would be inappropriate for a hospice to
influence a patient to relinquish his or her attending physician.
At the same time, we are sensitive to the concerns expressed by the
hospices. Some patients do not have attending physicians. Some patients
do not want to continue seeing their attending physicians. Some
attending physicians may be unresponsive to, or uncooperative with, the
hospice. We do not want to place patients in a position where they must
choose between receiving services from their attending physician and
their hospice, nor do we want to place hospices in a position where
they are forced to handle difficult attending physicians who disrupt
their operations.
In light of these considerations, we are maintaining the
requirement that hospices consult with the patient's attending
physician when completing the comprehensive assessment. Involving the
attending physician to the extent possible will allow hospices to gain
additional information about the patient. Attending physicians can
often provide a lengthy history of the patient's disease process and
family dynamics can help the hospice make better care planning
decisions that result in improved patient outcomes. In recognition of
the fact that not all patients have willing attending physicians, we
have added a caveat that this consultation need only occur if there is
an attending physician to consult with. In this way, attending
physicians may, with the patient's agreement, opt out of following the
patient's care through the patient's hospice stay. We are not, as some
commenters suggested, requiring that the attending physician sign a
document approving the content of the comprehensive assessment. Rather,
we leave it to hospices to define in their own policies and procedures
how they will document that they have conferred with the attending
physician. We believe that this will give hospices the ability to
structure their communication and coordination system in a way that
meets their needs for timely information sharing and documentation.
Comment: Several commenters wanted to know if the consultation with
the attending physician to complete the comprehensive assessment could
be accomplished over the telephone or through electronic communication
methods.
Response: A hospice would need to consult with willing attending
physicians in accordance with its own policies and procedures. If a
hospice's policies and procedures permitted it to consult with
attending physicians on the telephone or through electronic
communications, then that would be an acceptable practice. Rather than
dictate what is or is not an acceptable communication method, this rule
seeks to ensure that these communications occur. Effective
communication between the hospice and attending physician in completing
the comprehensive assessment will enable a hospice to develop a more
complete understanding of the patient and family in order to develop a
plan of care that addresses all areas of need related to the terminal
illness and related conditions.
Comment: A majority of commenters addressed the issue of the length
of time necessary to complete the comprehensive assessment. As with the
initial assessment, some commenters questioned the exact time that the
timeframe began. Some commenters expressed strong support for the
proposed four-day timeframe, with a few commenters even suggesting
that, in the future, we should move to a two- or three-day timeframe.
Other commenters suggested that the timeframe should be lengthened to
five, seven, eight, or even 14 days. Some suggested that no
[[Page 32104]]
timeframe be established at all. Still other commenters suggested that
we should add a caveat that completion of the comprehensive assessment
should be dependent upon the patient's condition.
Response: Completing the comprehensive assessment is an integral
step in hospice care. The information gathered in the comprehensive
assessment is the basis for completing the plan of care. If the
information is not gathered in a timely manner, then completing the
plan of care is delayed. This results in patients and families not
receiving all of the services they need in order to maximize comfort
and dignity and achieve the patient's and family's hospice care goals.
Comprehensive assessment plays an important role in hospice care and a
reasonable time is needed for its completion. The timeframes suggested
by the commenters varied greatly, with some being so short as to
potentially preclude hospices from conducting a truly thorough
assessment and some being so long as to virtually ensure that hospices
would never be required to complete comprehensive assessments for more
than 30 percent of their patients. Neither extreme would successfully
meet the needs of patients and hospices.
In the middle are the commenters who suggested maintaining the
four-day requirement, lengthening it to five days, or lengthening it to
seven days. While we appreciate the support from commenters who agreed
with the proposed four-day timeframe, we agree with those commenters
who suggested that a longer timeframe would be more appropriate due to
the scheduling demands of hospice providers. We have lengthened the
timeframe from four days to five days. Allowing hospices another day to
complete the comprehensive assessment will allow more time to schedule
the necessary contacts.
While we have lengthened the timeframe, we note that it is a
maximum, a length of time that should not be exceeded. The timeframe
should not be misinterpreted to prevent hospices from completing the
comprehensive assessment earlier than five days after the patient or
representative elects the hospice benefit. Indeed, we encourage
hospices to complete comprehensive assessments in less than five days
if at all possible. This is particularly true for patients who enter
hospice in crisis. While the initial assessment will provide the
necessary information to begin the plan of care for these critical
patients, it is the comprehensive assessment that will fill in
important pieces of information to be used to maximize the patient and
family's physical, emotional and spiritual comfort. While we recognize
that a portion of patients enter hospice at the end stage of the
disease process and may die in less than five days after electing the
hospice benefit, their physical condition does not necessarily absolve
hospices of the responsibility to comprehensively assess these
patients. The hospice is still responsible for taking all appropriate
steps to complete the comprehensive assessment as that assessment is
tailored to the patient's areas of need. The ability of hospices to
tailor the exact content of the comprehensive assessment, and the
individuals who complete it, to the needs of patient and families
addresses concerns about extremely short stay patients who may not be
contacted by all disciplines before death. We do not expect or require
designated disciplines to complete assessments if those assessments are
not indicated as being necessary during the initial assessment and any
subsequent contacts.
Comment: A few commenters suggested that we eliminate certain areas
from the comprehensive assessment. In particular, commenters suggested
that we eliminate the requirement that hospices assess spiritual or
potential bereavement issues as part of the comprehensive assessment.
Commenters noted that eliminating either of these areas from the
comprehensive assessment would make it easier to complete the
comprehensive assessment within the required timeframe. The commenters
acknowledged that these areas would still need to be assessed, and
stated that completing the assessments by the time of the first IDG
meeting would be sufficient.
Response: As discussed above, we agree that fully assessing all
areas may require more than the four days we initially proposed for
this process. For this reason, we have extended the timeframe from four
days to five days. We believe that this approach, rather than carving
out certain sections of the comprehensive assessment, best meets the
flexibility needs of hospices and the care needs of patients. In
maintaining both the spiritual and bereavement assessment requirements,
hospices will be required to ensure that patient and family specific
information about these important areas is gathered in a timely manner
to inform the care planning decisions. At the same time, allowing
hospices more time to schedule the necessary contacts to gather this
information will ensure that hospices have the flexibility to
incorporate new patients into existing workloads and schedules. We
believe that this solution accommodates the concerns of the commenters
without separating these two key areas from the comprehensive
assessment.
Comment: Some commenters requested that the final sentence of the
introductory paragraph of standard (c) be revised. The commenters
stated that characterizing the comprehensive assessment as a
description does not fully capture the role of the comprehensive
assessment. Commenters suggested that we use either the phrase, ``[t]he
comprehensive assessment must take into consideration the following
factors,'' or the phrase, ``[f]actors that must be considered in
developing the individualized care plan interventions include'' in its
place.
Response: We agree that more expressive language is useful in
introducing the elements that the comprehensive assessment must
contain. Since both of the suggested phrases achieve the same goal, we
chose to incorporate the more concise statement because it will likely
lead to less confusion. Therefore, the final sentence of the
introductory paragraph at Sec. 418.54(c) states, ``[t]he comprehensive
assessment must take into consideration the following factors.''
Comment: Several commenters suggested that we should add a new
element to standard 418.54(c), ``Content of the comprehensive
assessment,'' which would address the issue of the patient's functional
status and the impact of that status on the patient's ability to
understand and participate in care planning and implementation.
Response: We agree that the functional status of the patient, both
physically and mentally, impacts the patient's ability to participate
in his or her own care and the hospice's ability to furnish that care.
Furthermore, we agree that this information should be collected as part
of the comprehensive assessment. Therefore, we have added a new element
at Sec. 418.54(c)(3) that requires hospices to assess the patient's
``[f]unctional status, including the patient's ability to understand
and participate in his or her own care.''
Comment: Several commenters suggested that we add a new element to
standard 418.54(c), ``Content of the comprehensive assessment,'' which
would address the issue of the imminence of death.
Response: We agree that assessing the imminence of the patient's
death is an important part of the comprehensive assessment. A certain
portion of hospice patients have extremely short hospice stays of three
days, and sometimes less
[[Page 32105]]
than that. The imminence of a patient's death will often drive the type
and frequency of services provided to a patient. Published studies and
reports (Medpac, ``Report to the Congress: Increasing the Value of
Medicare,'' Chapter 3, June 2006; Huskamp, H., Buntin, M.B., Wang, V.,
and Newhouse, J., ``Providing Care at the End of Life: Do Medicare
Rules Impede Good Care?'', Health Affairs, 2001) have noted that
hospice per-patient expenditures are highest in the last few days of
life. This indicates that the pattern of care for a patient in the last
days of life will likely be different than for a patient who is
expected to receive hospice services for several weeks or months.
Identifying the imminence of death as part of the comprehensive
assessment will allow hospices to more accurately tailor the plan of
care to the patient's status. We are adding this element as new Sec.
418.54(c)(4).
Comment: Numerous commenters suggested that we add a new element to
the comprehensive assessment standard (c), which would address severity
of symptoms.
Response: We agree that the severity of a patient's symptoms is an
important aspect of the comprehensive assessment that should be
assessed for all patients, and we have added this requirement as new
Sec. 418.54(c)(5). Gathering accurate information about symptom
severity will allow hospices to make more accurate care planning
decisions. We are not prescribing how hospices must assess symptom
severity. There are numerous pain and distress scales available for use
and we do not endorse one scale over another. Hospices have the
discretion to identify the manner in which they will assess and
document symptom severity for their patients. We anticipate, over time,
that useful tools for patient assessment will emerge, and that the
hospice industry will select the most effective and efficient
assessment tools to use as part of a standard patient assessment
practice. We may revisit the patient assessment requirements in the
future to ensure that the requirements reflect current standards of
practice.
Comment: Many commenters supported our proposed requirement that
hospices complete a medication review for each patient as part of the
comprehensive assessment. The commenters suggested that further
clarification was needed with regard to the requirement that hospices
include a review of a patient's prescription and over-the-counter
drugs. Commenters suggested that this review should include all drugs
and alternative therapies, even those unrelated to the terminal illness
and related conditions. Furthermore, some commenters suggested that
hospices should be required to differentiate in their documentation of
this review which drugs were and were not related to the terminal
illness and related conditions. Some commenters noted that hospices
should not be held responsible for not being aware of drugs that they
were not informed of by the patient, family, physician, or other health
care provider.
Response: We thank the commenters for their support and agree that
the drug profile review should include all drugs, herbal remedies and
other alternative treatments that could affect drug therapy, whether
those drugs and remedies are related to the terminal illness and
related conditions or not. This thorough review must document all
substances which the patient is using. While we understand that
patients and families may be unwilling to disclose the use of certain
substances, we expect hospices to use all available and appropriate
methods to develop a complete list. These efforts may include asking
the patient, family, attending physician, and any other health care
providers. Efforts may also include asking to look at all medications
in the home, being attentive to tell-tale odors, and looking for
medication-specific equipment in the home. Hospices may choose how to
document the drug profile review and the efforts made to complete it in
the manner that best suits their individual needs. While we agree that
it may be helpful for hospices to note the relationship of a drug and
therapy to the terminal illness and related conditions, we do not
believe that it is necessary to prescribe this level of documentation
detail in regulation.
Comment: A few commenters suggested that we restructure the
comprehensive assessment standard to de-emphasize the bereavement and
drug therapy sections of the comprehensive assessment. The commenters
acknowledged that these are important areas to assess; however, they
believe that their placement within the standard appeared to place more
value on these two elements than on the other elements of the standard.
Response: We agree that neither bereavement nor drug therapy should
appear to take precedence over the other comprehensive assessment
elements. The drug therapy requirements, now referred to as drug
profile requirements, are now codified at Sec. 418.54(c)(6) and the
bereavement requirements are now codified at Sec. 418.54(c)(7), on par
with the other elements of the standard.
Comment: Many commenters suggested that we should rephrase the
requirement that hospices identify ``ineffective drug therapy'' as a
requirement that hospices assess the ``effectiveness of drug therapy.''
A single commenter suggested that this requirement should be removed
because it is not within the nurse's scope of practice.
Response: We agree that the phrase ``effectiveness of drug
therapy'' is more inclusive and will help to capture the range of
effectiveness of different drugs and therapies. For example, rather
than noting that drug B is ineffective and remaining silent on the
effectiveness of drugs A and C, this new requirement will require
hospices to note for example, that drug A is fully effective, but only
for a few hours, drug B is completely ineffective, and drug C is
consistently minimally effective. The additional level of detail
required by this new provision will help hospices develop a more
complete overall assessment from which to make more accurate care
planning decisions. This new provision is located at Sec.
418.54(c)(6)(i). If a nurse is unable to complete this part of the
assessment, then it is appropriate for a hospice to use another
discipline to complete the drug profile assessment.
Comment: Some commenters suggested that we require hospices to
identify all drug side effects, rather than only those side effects
that are not wanted. In addition, the commenters suggested that we
delete the term ``toxic'' because the phrase ``drug side effects''
would include issues of toxicity.
Response: Our original intent was to ensure that bothersome side
effects were noted in the drug assessment so that they could be
addressed in the care planning process. However, as the commenters
noted, all side effects should be noted, even if they are desirable.
Identifying desirable, as well as undesirable, side effects will help
ensure that the desired side effects are not negatively impacted by
other drugs and their side effects. Additionally, as the commenters
noted, the term ``toxic'' is unnecessary. Any toxic effects would
already be recorded as side effects, rendering the term ``toxic''
duplicative. Therefore, we are deleting the terms ``unwanted'' and
``toxic'' from Sec. 418.54(c)(6)(ii), and are simply requiring that
the hospice review the patient's drug profile for side effects.
Comment: Several commenters suggested that we require hospices to
evaluate potential as well as actual drug interactions.
Response: We agree that more specificity is needed to clarify our
intent. We agree that hospices must identify drug interactions that
have
[[Page 32106]]
occurred in the past or are occurring at the time of the assessment if
at all possible, and must identify drug interactions that have the
potential to occur if the patient continues using the same drugs. The
lack of a drug interaction to date does not mean that an interaction
will never occur as long as the patient continues to use the
potentially interacting drugs. The individual completing the drug
profile must document the existence of the potential interaction so
that the entire IDG is made aware of the potential problem and can then
make an informed decision about the patient's drug regimen. For these
reasons, we are revising the drug profile requirement at Sec.
418.54(c)(6)(iii), to require the hospice to evaluate both actual and
potential drug interactions.
Comment: A commenter suggested that we require hospices to
determine whether the patient is using duplicate medications or
medications that require laboratory monitoring.
Response: We agree that adding these provisions will help hospices
gather more detailed information from which to make accurate care
decisions. Patients often come to hospice with a long list of
medications prescribed by several different doctors. It is very
possible that some of these medications have overlapping effects, in
which case one or more medications may be safely and appropriately
discontinued. Identifying unnecessary/duplicate drugs and subsequently
eliminating them will make it easier for patients to follow their drug
regimens. Identifying drugs that currently require laboratory
monitoring during the assessment will also help patients and hospices.
Some patients come to hospice with the explicit desire to forgo more
laboratory tests. It is imperative that hospices identify any drugs
that the patient is currently taking that may require these tests so
that patients know about the situation and the options available to
them to help achieve their goals. Identifying drugs that require
laboratory testing will enable patients to make informed decisions and
may lead patients to forgo the use of certain drugs. For these reasons,
we have incorporated these two suggestions at Sec. 418.54(c)(6)(iv)
and Sec. 418.54(c)(6)(v).
Comment: A commenter suggested that, as part of the drug review,
hospices should be required to identify:
Medications that are unnecessary or are not consistent with patient
therapy goals; Medications requiring dosage optimization; Medications
that are inappropriate according to evidence based guidelines; and
Missing medications that are necessary to prevent or address symptoms
experienced by the patient.
Response: The purpose of the drug profile assessment is to gather
the information necessary to enable the hospice to make appropriate
care decisions, and it is the role of the individual completing this
portion of the assessment to collect this information. Several of the
commenter's suggestions (1, 3 and 4) require the individual completing
the drug profile portion of the assessment to draw conclusions. We
believe that these conclusions should be made by the IDG during care
planning, rather than by a single member of the IDG who is completing
this portion of the assessment. Suggestion 2 is already captured by the
requirement that hospices review the effectiveness of drug therapy at
Sec. 418.54(c)(6)(i). If a drug dosage needs adjustment, then that
need will be reflected in its level of effectiveness. For these
reasons, we are not incorporating these suggestions.
Comment: Numerous commenters expressed concern about the role of
the initial bereavement assessment in the comprehensive assessment and
in the bereavement plan of care. In particular, commenters noted that
the information gathered in the initial bereavement assessment may not
remain accurate when the patient dies and may unintentionally result in
poor decision making in the final bereavement plan of care. For this
reason, some commenters requested clarification of the role that the
initial bereavement assessment plays in the final bereavement plan of
care. Other commenters suggested that we substitute the hospice plan of
care for the bereavement plan of care. This would require hospices to
use the information gathered in the initial bereavement assessment when
developing the plan of care, but not when developing the bereavement
plan of care. Still other commenters suggested that the initial
bereavement assessment be completely removed from the comprehensive
assessment.
Response: We appreciate the valuable insight that the commenters
provided about the role of the initial bereavement assessment in
hospice. The comments validated our understanding that hospices already
assess patients and families for actual and potential bereavement
issues before the patient's death rather than waiting until after death
to begin this process.
We also appreciate the suggestions to help clarify the role of the
bereavement assessment within the comprehensive assessment. We agree
that the information gained in the initial bereavement assessment
should be incorporated into the hospice plan of care. Issues identified
in the initial bereavement assessment such as anticipatory grief and
previous experiences with loss should inform care planning decisions
long before the patient dies. By requiring hospices to incorporate
bereavement assessment information into the plan of care, hospices will
be able to develop a more complete picture of the patient and family.
Likewise, we agree that feelings can change over time, rendering
the information gathered in the initial bereavement assessment moot at
the time of the patient's death. For this reason, we are no longer
requiring that information gathered from the initial bereavement
assessment be incorporated into the bereavement plan of care. Rather,
we are requiring that the information from the initial bereavement
assessment be considered in the bereavement plan of care. This change
still requires hospices to begin the bereavement assessment process
early in the patient's stay. However, the change reflects that fact
that the bereavement assessment will change as it is updated.
Furthermore, the change allows hospices to use the most accurate
bereavement assessment information, regardless of when it was obtained,
in developing the bereavement plan of care.
Comment: A single commenter suggested that we require, as part of
the comprehensive assessment, that hospices assess the family's needs
along with the patient's needs.
Response: One of the most unique aspects of hospice, and one of the
most valued, is that it treats the patient and family as a single unit
of care. Hospices recognize that patients do not live in a vacuum.
Rather, patients are continually affected by the well-being, or lack
thereof, of the people who surround and care for them. We in no way
want to discourage this holistic practice. However, comprehensively
assessing all of the needs of the patient's family, as we require for
the patient, is beyond the scope of the Medicare and Medicaid hospice
benefits. Therefore, we are not incorporating this suggestion.
Comment: A few commenters suggested that we should add the phrase
``consistent with patient self-determination'' to the description of
the elements that must be included in the comprehensive assessment. The
commenters expressed that adding this phrase would convey to hospices
that the comprehensive assessment is patient-driven.
Response: We agree that, within the broad outline provided in this
rule, the
[[Page 32107]]
comprehensive assessment is a patient-driven process. Hospice has a
long history of tailoring patient care, including assessments, to the
needs and desires of the patient. We do not believe that the new
comprehensive assessment requirement will alter this existing practice
because it provides broad outlines that allow hospices to continue
tailoring their care. Therefore, we do not believe that adding the
phrase ``consistent with patient self-determination'' is necessary.
Comment: A single commenter suggested that we should add a new
element to Standard (c), which would address the issue of the need for
hospices to assess pain and symptom management as well as emotional and
spiritual support.
Response: We agree that these are important areas to be assessed;
however, we do not agree that they need to be separated out as new
elements. Standard (c) already requires hospices to ``identify the
physical, psychosocial, emotional, and spiritual needs'' of the
patient. The specific issues of pain and symptom management and
emotional and spiritual support are addressed by these broader
categories, and therefore do not require separate elements in the
assessment. To do so would be duplicative.
Comment: A few commenters asked us to specify which disciplines and
providers within those disciplines must complete the comprehensive
assessment. For example, one commenter asked us to specify the type of
personnel who are qualified to provide a spiritual assessment. Many
other commenters wanted us to specify that only certified chaplains
should perform this function. Another commenter questioned whether MSWs
should be required to complete social work assessments and whether,
based on those assessments, patients could then be assigned to a
baccalaureate degree prepared social worker.
Response: A comprehensive assessment, in the context of this rule,
is not a single document that all hospice providers are required to
use. Instead, it is a flexible evaluative process that could be
different for each hospice based on the hospice's own needs. If a
hospice chooses to implement a policy that an MSW must assess the
status and needs of all patients, then we would expect the hospice to
follow its own policy. Likewise, if a hospice chooses to implement a
policy that certified chaplains must be used to assess all patients who
do not have existing spiritual support systems while community
religious leaders must be used to assess all patients who have existing
spiritual support systems, then we would expect the hospice to follow
its own policy. These examples illustrate the flexible nature of the
assessment requirement. To prescribe who may or may not complete
different elements of the comprehensive assessment, or even what areas
of care must be assessed, would remove this flexibility. We do not
believe that removing flexibility is in the best interest of patients
or hospices; therefore we are not adopting these suggestions.
Comment: A single commenter observed that the plan of care could
not be completed until the comprehensive assessment was completed.
Response: The commenter is correct; however, the initial assessment
would already have gathered the most critical clinical and psychosocial
information, which would enable the hospice to begin completing the
plan of care. Once the comprehensive assessment is complete, the
hospice must then finish the plan of care based on the needs identified
in the comprehensive assessment. Hospices may not wait until the
comprehensive assessment is complete to begin to formulate the plan of
care and provide services, as the commenter seemed to imply. Such
waiting, when the hospice has assumed responsibility for caring for the
patient and the patient has forgone all other services related to the
terminal illness, would be a disservice to the patient and would likely
lead to negative patient outcomes, patient and family complaints, and
numerous other undesirable effects.
Comment: Several commenters expressed confusion about who would be
responsible for completing the comprehensive assessment, how it would
have to be completed, and who would review its content. Specifically,
commenters suggested that the hospice registered nurse be required to
complete the comprehensive assessment and that the IDG be required to
review its content. Other commenters questioned whether all disciplines
were required to make in-person visits or whether phone contacts could
be used to complete the assessment.
Response: The comprehensive assessment is not a single static
document, a symptom and severity checklist, or a set of generic
questions that all patients are asked. It is a dynamic process that
needs to be documented in an accurate and consistent manner for all
patients. While the comprehensive assessment often begins with a
nursing assessment that is focused on the patient's physical status and
conducted by a registered nurse, it does not end there. The
comprehensive assessment must also focus on the patient's psychosocial
and emotional status and needs, and this piece is often assessed by a
social worker. In addition, the comprehensive assessment must address
the patient's spiritual status and needs, which is often the domain of
the pastoral or other counselor who is a member of the patient's IDG.
Furthermore, the comprehensive assessment must focus on identifying any
other needs that fall into the scope of the physical therapist, speech
language pathologist, occupational therapist, dietitian, or any number
of other disciplines that a hospice may provide. A nurse is not
qualified to provide detailed assessments in all of these areas;
therefore we cannot place the burden of completing the comprehensive
assessment on the nurse alone. The broad nature of the comprehensive
assessment requires the active involvement of all of the members of the
IDG in order to ensure that a complete and accurate picture of the
patient and family is obtained.
The active involvement can occur in any number of ways depending on
the patient's needs and preferences. Some families may need a face-to-
face visit from a social worker to help them sort through myriad
insurance papers or simply provide a supportive presence, while other
families may find it easier to discuss difficult issues by phone. If
families need or prefer in person visits, then those needs should be
met. If they prefer the limited anonymity afforded by the telephone,
then their preference should be accommodated. We cannot provide the
clear cut answer that commenters are seeking because each patient,
family, and situation is different. Decisions about who assesses and
how they assess need to be based on the needs of the patient and family
and the hospice's own policies and procedures.
Comment: A single commenter suggested that we should create a
separate standard for assessing patients with short lengths of stay.
The commenter stated that a separate standard would avoid overwhelming
patients and families.
Response: We agree that patients and families should not be
overwhelmed in the last days of life. However, we do not agree that a
separate short stay assessment standard is necessary. We are finalizing
a requirement that hospices complete an initial, abbreviated patient
assessment within 48 hours of the patient or representative electing
the hospice benefit. This assessment, conducted by the hospice
[[Page 32108]]
nurse in conjunction with other appropriate hospice staff, will provide
hospices with the essential information to formulate a plan of care to
address the patient's immediate care and support needs without
overwhelming the patient and family. We believe that patients who stay
for a short time in hospice will be well served by this initial
assessment. Length of stay should not be the determinant of the quality
of care that is to be furnished. For those patients who stay for a
longer period of time, we are requiring hospices to complete a
comprehensive assessment within five days of the patient or
representative electing the hospice benefit. We are not prescribing
what areas of hospice care must be assessed (that is, nursing, social
work, therapies, etc.) or who must complete those assessments. Allowing
hospices to make these choices allows them to strike a balance between
the need for assessment information and the desire to not overwhelm
patients and families. We believe that this built-in flexibility
accomplishes the commenter's goal without adding a separate short stay
assessment standard. Therefore, we are not adopting the comments as
suggested.
Comment: A commenter suggested that standard (d), ``Update of the
comprehensive assessment'' should be renamed ``Ongoing assessment'' to
clarify that the entire assessment does not need to be redone every 15
days.
Response: We do not believe that renaming the standard will
accomplish the stated goal. Renaming the standard as ``Ongoing
assessment'' would imply that every single change, regardless of how
minute it was, would need to be documented on the comprehensive
assessment, as these minute changes would be identified in the day-to-
day clinical assessments of the patient. We believe this would add an
unnecessary burden to hospice staff and would not advance patient care.
Comment: Many commenters supported the goal of requiring hospices
to regularly update the comprehensive assessment. Most of these
commenters suggested changes to the proposed 14-day timeframe for
updating the comprehensive assessment. Some commenters suggested that
we delete the timeframe completely, while other commenters suggested
that the timeframe be every two weeks or at the beginning of each new
benefit period.
Response: We appreciate the support for regularly updating the
comprehensive assessment, as this support generally reflects our
understanding that most hospices already update patient assessments in
accordance with some sort of self-imposed timeframe. We believe that
establishing a standard comprehensive assessment timeframe in this rule
will help those hospices ensure that their update timeframe is
consistent with patient needs and standards of practice. Deleting or
greatly extending the timeframe, as a few commenters suggested, would
be out of step with current standards of practice and would likely lead
to negative patient outcomes. Updating the comprehensive assessment at
reasonable regular intervals ensures that hospices have the most recent
information about the patient from which to make accurate care planning
decisions. Without the timely updated assessment information, care
planning decisions are likely to be inaccurate, inappropriate, and
possibly harmful to the patient. This is not an acceptable outcome.
We also appreciate the many timeframe suggestions that we received.
We agree that the proposed 14-day timeframe, while within reason and in
the realm of acceptable standards of practice, may not be the best
match between patient and hospice needs. Numerous commenters suggested
that updating the comprehensive assessment at least every 15 days was
the proper match, as the 15-day timeframe would correspond with the 60-
and 90-day Medicare Hospice Benefit election periods described in Sec.
418.21. Corresponding the update timeframe length to the benefit period
length would help hospices avoid completing separate assessments for
the routine comprehensive assessment update and the update to re-
certify that the patient is terminally ill. Two separate assessments
within a few days of each other would be overwhelming for the patient
and burdensome for the hospice. Thus, we agree that requiring hospices
to update the comprehensive assessment at least every 15 days is
preferable to the proposed 14-day timeframe. We believe that the new
15-day timeframe accomplishes the flexibility goals of those commenters
who suggested twice monthly, bi-weekly, and every 14- to 16-day updates
as well. We note that hospices are still required to complete the
comprehensive assessment update more frequently than every 15 days as
the patient's status changes. We also note that hospices are permitted
to update the assessment more frequently than every 15 days if the 15th
day falls on a holiday or if day-to-day hospice operations are
scheduled to be suspended for any reason on the 15th day.
Comment: Several commenters suggested that we should either delete
the requirement that hospices must update the comprehensive assessment
at the time of each recertification, or allow a grace period at the
time of each recertification to ensure that the assessment is not
unnecessarily updated twice within a few days to meet the every 14-day
and recertification timeframes.
Response: As discussed above, we replaced the 14-day timeframe with
a 15-day timeframe. The 15-day timeframe would coincide with the length
of the benefit periods and the recertification timeframes. Since the
assessment and recertification timeframes are now coordinated, we agree
that it is appropriate to delete the recertification assessment
requirement.
Comment: Several commenters expressed confusion about the nature of
the comprehensive assessment update. A few commenters wanted to know if
we expected hospices to complete an entire new set of comprehensive
assessment forms each time an update is due. Other commenters wanted to
know if the update of the comprehensive assessment referred to the
regularly scheduled IDG meetings. Another commenter noted that the
medical director should not be required to update the assessment.
Response: We understand that some hospices are confused by the
proposed requirement that patient-specific comprehensive assessments
should be updated at regular intervals. To clarify, we are requiring
hospices to update those sections of the comprehensive assessment that
require updating. As a patient's condition changes the comprehensive
assessment must be updated to reflect these changes. For example, if a
patient had a normal blood pressure reading at the time of the initial
assessment and at a nursing visit nine days later the patient's blood
pressure becomes elevated for a period of time, this new elevated blood
pressure must be documented. This becomes an update to the
comprehensive assessment. A significant change in the patient's
condition must be documented and the assessment must then be updated to
reflect the patient's revised status. As in the case of the
comprehensive assessment, hospices are not required to use specific
forms or formats. However, there have to be dedicated documents that
contain assessment information and that are easily identified. Hospices
are free to choose the method that best suits their needs when
documenting the comprehensive assessment and the updates to that
assessment. The purpose of updating the assessment is to ensure that
the hospice IDG has the most recent
[[Page 32109]]
accurate information about the patient in order to make accurate care
planning decisions. We are not requiring hospices to complete, in full,
those documents which they identified as comprising their comprehensive
assessment every 15 days, although hospices are free to do so if they
choose. Likewise, we are not requiring hospice medical directors to
assume total responsibility for updating the comprehensive assessment,
although we do expect to see the physician member of the IDG actively
involved in all aspects of furnishing care, including updating the
comprehensive assessment.
Comment: Many commenters expressed confusion about the role of
patient outcome measures in the comprehensive assessment. Some
commenters stated that data elements should be in the plan of care
rather than in the assessments. Others stated that including data
measures in the assessments may limit the amount of useful data
available for a hospice's quality assessment and performance
improvement (QAPI) program.
Response: In the QAPI CoP hospices are required to identify patient
outcome measures that they will apply to all patients. These measures
should help the hospice identify areas of strength and weakness in
patient and family care delivery. Once the measures are identified,
hospices must choose which data elements they will collect in order to
measure their performance. For example, a hospice may choose to focus
on pain control as one of its QAPI domains. Within the pain control
domain, that hospice may choose an outcome measure that identifies the
percentage of patients whose pain was controlled within 48 hours of
admission to hospice. In order to measure this outcome, that hospice
may choose to incorporate a data element in its initial assessment that
identifies those patients who are experiencing uncontrolled pain upon
admission as well as a data element in its comprehensive assessment to
identify patients who experienced uncontrolled pain upon admission and
had that pain controlled within 48 hours of admission. The information
gathered by these data elements during the comprehensive assessment can
then be collected, aggregated, and used to identify areas of strength
and weakness within the hospice's care delivery system. Without these
individual pieces of information gathered during the assessments, the
hospice does not have the information it needs to make effective
judgments of its quality and to make appropriate performance
improvement project decisions. Therefore, QAPI-related data elements
must be included in the patient assessments completed by the hospice.
At the same time, we do not expect hospices to limit their QAPI-
related data collection efforts to the data collected in the patient
assessments. Data collection must look beyond patient assessment data
to examine all facets of a hospices operation, from contract services
to volunteer retention rates to adverse events. Rather than limiting
the amount of useful data available to hospices, this requirement
simply ensures that patient level data are included as part of the
broader data collection program.
For additional discussion of public comments regarding patient
outcome measures and the proposed QAPI CoP, please refer to the quality
assessment and performance improvement section in the preamble of this
rule.
Comment: A commenter requested that we change the timing of the
medical director's certification of the terminal illness to coincide
with the completion of the comprehensive assessment.
Response: The commenter did not provide any particular rationale
for this request. The timing of the certification of the terminal
illness for Medicare beneficiaries is based on specific Medicare
payment requirements. Since payment requirements are not within the
scope of this rule, we are not accepting this suggestion.
Comment: Numerous commenters expressed varying levels of confusion
regarding the exact sequence and timing of the initial assessment,
comprehensive assessment, updated assessments, plan of care, and
updated plans of care. Commenters believed that some of these elements
would occur simultaneously while other elements, such as orienting
patients to hospices and evaluating patients for hospice
appropriateness do not appear in the regulation at all.
Response: We appreciate the opportunity to explain how the
finalized requirements will function in the hospice environment. First,
hospices will obtain a signed election statement in accordance with
Sec. 418.24. Next, the hospice registered nurse must complete an
initial assessment of the patient's physical, psychosocial and
emotional status related to the terminal illness and related conditions
in order to evaluate the patient's immediate care and support needs
within 48 hours of completing the election form. This assessment need
not go into great detail in each of these areas. Rather, it needs to
gather key information, as identified in the hospices policies and
procedures, about the patient that will enable the hospice IDG
accurately to determine what the patient immediately needs to begin or
continue feeling comfortable. The purpose of the initial assessment is
not to determine the patient's eligibility for the hospice benefit,
which is addressed in 418.22 and 418.24, or to orient the patient to
the hospice benefit and obtain the election statement. Additional
information regarding physician certification of the terminal illness
is available in the FY 2008 Hospice Wage Index, 72 FR 50214, 50223,
August 31, 2007. These tasks, which are often part of following-up on
referrals from other providers, must already have been completed before
the initial assessment is completed. This does not mean, however, that
we expect hospices to conduct multiple visits to complete the patient
admission and assessment. Once the initial assessment is complete, the
hospice develops and implements a plan of care to address the immediate
needs identified in the initial assessment.
Next, the hospice must complete a comprehensive assessment within
five days of completion of the election statement. The comprehensive
assessment is defined as a thorough evaluation of the patient's
physical, psychosocial, emotional and spiritual status related to the
terminal illness and related conditions. This includes a thorough
evaluation of the caregiver's and family's willingness and ability to
care for the patient. This comprehensive assessment is based on the
hospice's policies and procedures as well as the information gathered
in the initial assessment. For example, a hospice may have a policy
that all patients will receive a psychosocial assessment conducted by
an MSW. Therefore, we would expect that a patient's comprehensive
assessment in his or her clinical record would include the information
gathered by and the conclusions made by an MSW. The comprehensive
assessment requirement is flexible to adapt to the needs of individual
hospices and patients, and will help hospices gather the information
needed to develop accurate and appropriate plans of care.
Then, based on the information gathered in the comprehensive
assessment, the hospice IDG, in collaboration with the patient's
attending physician (if any), the patient or representative, and the
primary caregiver, must develop an individualized plan of care for each
patient. The plan of care must reflect patient and family goals, and
include all interventions needed to address the problems identified in
the initial and comprehensive assessments. The plan of care is where
information turns into
[[Page 32110]]
actions that will result in patient comfort and dignity, self-
determined life closure, and any other goals that the hospice, patient,
and family establish for the patient's hospice care.
Once the plan of care is established and all disciplines are aware
of their respective roles in caring for the patient, the hospice must
implement the plan of care. If the patient's status in one or more
areas changes, hospice staff must update the comprehensive assessment
to reflect the change(s). We do not expect hospices to complete an
entire comprehensive assessment each time a patient's status changes.
Rather, we expect that the updated assessment reflects status changes
so that other disciplines furnishing services are aware of them.
Updating the comprehensive assessment will ensure that all disciplines
are providing care based on the most recent information about the
patient. We require that these updates occur as frequently as that
patient's condition requires, but no less frequently than every 15
days. If a change in the patient's status will affect the kind of care
that needs to be furnished, then the plan of care needs to be modified.
For example, information from a comprehensive assessment could indicate
that a patient has a stage three pressure ulcer and the patient's plan
of care indicates that the hospice registered nurse will make three
visits a week, in part, for wound care. The wound care provided by the
registered nurse results in the pressure ulcer healing. This change in
status would be recorded as an update to the comprehensive assessment.
Based on this new information in the updated comprehensive assessment,
the hospice IDG may decide to reduce registered nursing visits to two
times per week because the patient's status and needs no longer
indicated that RN visits three times per week were necessary. The
hospice IDG would then update the patient's plan of care to reflect
that RN visits will be two times per week and that wound care was no
longer part of the treatment that the RN would provide. In this way,
the patient's assessment and plan of care are both updated to provide
accurate and timely information to all disciplines providing services
to the patient, and the hospice complies with our requirements to
update both the comprehensive assessment and the plan of care.
We believe that the timeline described above will help illuminate
the timeframe requirements for both the assessment and plan of care
requirements, as well as how these two requirements are related.
Comment: A few commenters explicitly thanked us for not requiring
hospices to use a standardized assessment form. Other commenters
expressed concern that the proposed assessment requirement would result
in CMS requiring hospices to use a specific assessment form. Several of
these commenters specifically stated that we should not require
hospices to use the OASIS data collection tool that is currently used
by home health agencies.
Response: We appreciate the support from commenters who recognized
that we are not requiring any type of assessment form, standardized or
otherwise. As we stated in the preamble to the proposed rule, and
restate here, we are not requiring hospices to use any particular form
or tool to document the completion of the initial assessment,
comprehensive assessment, or updated assessments at this time. Hospices
are permitted to use the written or electronic form or tool that best
suits their needs and their patients' needs, provided that the
information gathered in the assessments is complete and available in
each patient's clinical record. Hospices need to choose a form or tool
that gathers thorough information about the patient's physical,
psychosocial, emotional and spiritual status related to the terminal
illness and related conditions. This form or tool must allow hospices
to document information in a systematic and retrievable way for each
patient. Within the framework of these broad guidelines, it is within
each hospice's discretion to choose its own patient assessment
documentation form or tool.
Hospices may find it beneficial to examine the CARE (Continuity
Assessment Record and Evaluation) tool developed by CMS in choosing
their assessment forms/tools. Under the Deficit Reduction Act of 2005,
Section 5008, CMS was directed to develop a uniform patient assessment
instrument for use in a three year, post acute care-payment reform
demonstration, to begin in January 2008. This uniform assessment
instrument is now referred to as CARE. The purpose of the CARE tool is
to collect standardized data on Medicare beneficiaries' medical
conditions, functional and cognitive impairments, and social support
factors, affecting treatment and discharge, regardless of site of care.
During the demonstration CARE will be administered to Medicare
beneficiaries at time of hospital discharge, upon admission and
discharge from post acute care (PAC) providers, as well as at interim
points, if significant changes occur. CARE is comprised of a set of
common assessment items administered to all patients across all
settings, and a set of supplemental items only administered for
specific conditions or at particular times (i.e., PAC discharge only).
A master version of the CARE instrument and item matrix identifying
common assessment items and supplemental items is available for viewing
at http://www.cms.hhs.gov/PaperworkReductionActof1995/PRALSep2007/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=1&sortOrder=ascending&itemID=CMS1205047&intNumPerPage=10.
If, at some time in the future, we determine that it is necessary
to require hospices to use a standardized patient assessment tool, we
will follow the provisions of the Administrative Procedure Act, which
generally requires us to publish a notice of proposed rule making and
solicit public comment on the proposal.
4. Condition of Participation: Interdisciplinary Group Care Planning
and Coordination of Services (Proposed Sec. 418.56)
This proposed CoP elaborated on the existing Interdisciplinary
group CoP at Sec. 418.68 and combined it with elements of the Plan of
care CoP at Sec. 418.58. It contained five standards: ``(a) Approach
to service delivery,'' ``(b) Plan of care,'' ``(c) Content of the plan
of care,'' ``(d) Review of the plan of care,'' and ``(e) Coordination
of services.'' Together, these standards would have required a hospice,
through its IDG, to develop, implement, and update a comprehensive plan
of care for each patient and family that addresses their needs as
identified in the patient assessment.
Standard (a), ``Approach to service delivery,'' would require each
hospice to have an IDG that included at least the following: A doctor
of medicine or osteopathy who is not the patient's attending physician;
a registered nurse; a social worker; and a pastoral, clergy, or other
spiritual counselor. This IDG would be required to work together to
meet the physical, medical, social, emotional, and spiritual needs of
the patient and family. The IDG would also be required to designate a
qualified individual to coordinate implementation of the plan of care
and assessment of the patient. Paragraph 418.68(d) of the existing rule
required the IDG to designate a registered nurse to fulfill this role.
In the proposed rule, the IDG would be required to establish policies
governing the day-to-day provision of care and services. If a hospice
has more than one IDG, one
[[Page 32111]]
would be designated in advance to fulfill the policy role.
The next proposed standard, ``(b) Plan of care,'' would require
hospices to provide care to patients and families in accordance with a
written plan of care established by the IDG and the patient's attending
physician. This standard would also require hospices to ensure that
patients and families received appropriate education and training that
would enhance the implementation of the plan of care. Unlike the
existing requirement, this proposed standard would incorporate families
into the plan of care, recognizing that hospice care must reach beyond
the patient to support those who surround and care for the patient.
In proposed standard (c), ``Content of the plan of care,'' we would
require hospices to develop a plan of care based on the problems
identified in the patient's assessments. We proposed to require that
the plan of care include: Pain and symptom management interventions; a
detailed statement of the scope and frequency of services; patient
outcomes; any necessary drugs and treatments; any necessary medical
supplies and equipment; and documentation of the patient's and family's
understanding, involvement, and agreement with the plan of care. The
existing plan of care requirement at Sec. 418.58(c) mandated that the
hospice describe the scope and frequency of services. The remainder of
the elements were new in the proposed rule.
The fourth proposed standard, ``(d) Review of the plan of care,''
would require the hospice medical director or physician designee, along
with the IDG and the patient's attending physician, to review, revise,
and document the plan of care at intervals specified in the plan of
care. The review of the plan of care would be required to occur no less
frequently than every 14 calendar days. The revised plan of care would
be required to include information from the patient's updated
assessment, and the hospice would have to document any progress toward
the outcomes specified in the plan of care. This proposed requirement
directly linked the results of the updated assessment, including the
data elements, to the changes that would be made in the plan of care.
This would empower hospices to make care decisions based on evidence of
the successes and failures of past care decisions in achieving the
desired outcomes.
The final proposed standard, ``(e) Coordination of services,'' was
a new addition to the hospice CoPs. Hospice has always been based on an
interdisciplinary care model, which requires frequent communication
between care disciplines and settings, as well as between the hospice,
the patient and the family. This proposed standard would require the
hospice to maintain a system of communication and integration to enable
the IDG to ensure that care and services are provided in accordance
with the plan of care. This system would also be required to ensure the
ongoing liaison of all disciplines providing care and services in the
home, outpatient, and inpatient settings, notwithstanding the manner in
which the care and services are furnished (that is, directly or under
arrangement).
Comment: A commenter asked us to clarify the meaning of the
following sentence at Sec. 418.56, ``The plan of care must specify the
hospice care and services necessary to meet the patient and family-
specific needs identified in the comprehensive assessment and as it
relates to the terminal illness and related conditions.'' The commenter
believed that this statement was confusing.
Response: The intent of the sentence is to ensure that there is a
direct link between the needs identified in the patient assessment and
the plan of care developed by the hospice. The intent is also that
hospices are responsible for including those services and treatments in
the plan of care that are related to the terminal illness and related
conditions, even if the hospice identified other needs in the patient
assessment that are not related to the terminal illness and related
conditions. We agree that minor grammatical changes to the statement
are warranted to clarify our intent. Specifically, we are replacing the
singular term ``it'' with the plural phrase ``such needs'' to
correspond with the plural ``specific needs'' identified earlier in the
sentence. This grammatical change provides a direct link between the
needs identified in the comprehensive assessment and those specific
needs related to the terminal illness and related conditions that must
be addressed in the plan of care. The revised sentence at Sec. 418.56
now states, ``The plan of care must specify the hospice care and
services necessary to meet the patient and family-specific needs
identified in the comprehensive assessment as such needs relate to the
terminal illness and related conditions.'' We have not attempted to
enumerate the conditions in which care outside the hospice would be
covered under Medicare because we recognize that there are many
illnesses which may occur when an individual is terminally ill which
are brought on by the underlying condition of the patient. For example,
it is not unusual for a terminally ill patient to develop pneumonia or
some other illness as a result of his or her weakend condition.
Treatment of such illnesses is considered a hospice service and payment
under other Medicare benefits would be waived by the hospice election.
We expect that the hospice interdisciplinary group will reasonably
determine the services that the individual requires for palliation and
management of his or her symptoms.
Comment: A commenter suggested that, when hospices are caring for
residents of long term care facilities, the long term care facility
medical director should be the individual responsible for designating
the members of the IDG to care for the patient.
Response: It is the hospice's responsibility to furnish hospice
care. While we agree that designated long term care facility staff
should actively participate in a patient's hospice IDG, it is the
hospice's responsibility to decide what care is provided, based on the
information gathered during the patient assessments. Hospices are not
permitted, and certainly should not be compelled, to delegate their
responsibilities to the long term care facility medical director and
staff.
Comment: Numerous commenters suggested that we include the term
``psychosocial'', rather than ``social'', in Sec. 418.56(a) when
detailing the types of patient and family needs that IDGs are required
to address during care planning. The commenters stated that the term
``psychosocial'' is more consistent with the terminology used
throughout the remainder of the rule.
Response: We agree that the word ``psychosocial'' is more
consistent with the terminology in the rest of the rule and we have
made this change.
Comment: Numerous commenters made suggestions to refine our
proposal at Sec. 418.56(a) that ``The hospice must designate a
qualified health care professional that is a member of the IDG to
provide coordination of care and to ensure continuous assessment of
each patient's and family's needs and implementation of the
interdisciplinary plan of care.'' A few commenters supported our
proposal to permit any qualified health care professional that is a
member of the IDG to fulfill the coordinator role, while many other
commenters suggested that only nurses and/or social workers should be
considered qualified for this role. One commenter suggested that the
coordinator should only be responsible for ensuring the assessment of
each patient's and family's specific hospice care, rather than being
personally responsible for assessing their needs.
[[Page 32112]]
Another commenter suggested that the individual responsible for
coordinating the plan of care be named the ``interdisciplinary group
coordinator.''
Response: We appreciate the many comments that were submitted. We
do not believe that the coordinator needs to be given a specific title
in this rule. Hospices are free to refer to the coordinator in a manner
that meets their needs, as long as there is an individual identified as
being responsible for coordinating and implementing each patient's plan
of care.
The majority of commenters noted the unique demands of the case
coordinator role and the many skills that are necessary to successfully
fulfill the role. Commenters described the need for the case
coordinator to have solid knowledge of the biological, psychological
and spiritual issues of terminally ill patients and their families.
They also described the need for the case coordinator to act as an
advocate, negotiator, and leader when dealing with the varied members
of the IDG, the patient, and the patient's family. We agree that the
specific demands of the case coordinator role, as described by the
commenters, warrant a more specific requirement regarding who is
qualified to fulfill this role. Therefore, we are requiring the
coordinator to be a registered nurse. A registered nurse has the
necessary medical and interpersonal background to meet the demands of
the coordinator position in a way that no other discipline does. Social
workers are not educated or trained to identify physical issues, just
as physical or occupational therapists are not educated or trained to
identify psychosocial issues. The unique skills of registered nurses,
who are educated to assess and manage the overall aspects of a
patient's physical and psychosocial care, can be used to oversee the
coordination and implementation of the care identified by the IDG.
Comment: The majority of commenters asked us to reconsider the
specification in proposed Sec. 418.56(a)(1)(i) that the physician
member of the IDG may not be the patient's attending physician. The
commenters stated that hospice physicians often have their own private
practice and may, at times, be in the position of caring for a private
practice patient who has chosen to receive hospice care from the
hospice the physician works with. Furthermore, the commenters stated
that this prohibition could create a barrier to accessing hospice for
those patients whose attending physicians also work with hospices. One
commenter suggested we should replace the general requirement that a
doctor of medicine or osteopathy be a member of the IDG with a
requirement that the hospice medical director or physician designee be
a member of the IDG.
Response: While it was not our intent, we agree that this
prohibition could negatively impact hospice access and treatment.
Therefore, we have removed the statement that the physician member of
the IDG may not be the patient's attending physician. In its place, we
have added a statement that the physician member of the IDG must be an
employee of or under contract with the hospice. While the physician
member could be the hospice medical director or physician designee,
this revised requirement does not mandate this. This new requirement
accomplishes our original intent of ensuring that hospice physicians
are actively involved in patient care through the IDG without the
unintended effect of limiting access that accompanied the original
proposal.
Comment: Numerous commenters suggested that we amend the language
discussing spiritual counselors in Sec. 418.56(a)(1)(iv). Some
commenters noted that the terms ``pastoral'' and ``clergy'' are Judeo-
Christian terms that do not encompass other faiths. These commenters
suggested that we require hospices to have a board certified chaplain
as a member of the IDG because board certified chaplains are routinely
educated and trained to work with individuals from various, non-Judeo-
Christian faiths. On the other hand, some commenters specifically
disagreed with the suggestion that a board certified chaplain be a
required member of the IDG. Still other commenters suggested that we
should use the language that appears in section 1861(dd)(2)(B)(i) of
the Act, which reads that a hospice must have ``at least one pastoral
or other counselor'' as a member of the IDG.
Response: Spiritual advisors play an important role in helping many
patients and families achieve their end-of-life goals. In the proposed
rule we sought to further assure the role of spiritual advisors in
hospice care by specifying that the counselor must be capable of
addressing a patient's spiritual needs. As some commenters stated, not
all patients need or desire the involvement of spiritual counselors in
their care. These patients, the commenters contended, should not be
compelled to accept the involvement, even if that involvement is only
through the spiritual counselor's participation in the IDG meetings. We
agree that spiritual counselors, whether they are certified chaplains,
clergy, pastoral counselors, or any other discipline, should not be
forced upon unwilling patients. Therefore, we have replaced the
proposed ``pastoral, clergy, or other spiritual counselor'' requirement
with the statutory requirement of ``pastoral or other counselor.'' This
revised requirement gives hospices the flexibility to use the counselor
that best meets the patient's needs.
Nothing in this requirement prohibits hospices from using certified
chaplains as the IDG member to fulfill this role. Indeed, some hospice
patients who receive the services of certified chaplains may have
better outcomes because certified chaplains are trained to work with
individuals from various faiths and backgrounds.
Comment: A few commenters suggested that we should require a
bereavement counselor as a member of the IDG. The commenters stated
that including the bereavement counselor in the IDG would help ensure
that the information gathered in the bereavement assessment, required
in final Sec. 418.54(c)(7), is included in the plan of care.
Response: We expect that all disciplines involved in caring for a
patient and family will have a voice in the IDG. This voice may be
reflected through reports given by the members of the patient's care
team who are not part of the official IDG to the individual who is
coordinating care plan implementation or through IDG members attending
IDG meetings in some manner. Including a bereavement counselor, whether
as an individual position or as a function of the counselor or social
worker, in the IDG would satisfy our expectations that all disciplines
communicate with each other and have a voice in IDG meetings and
decisions, and may result in better patient and family satisfaction and
outcomes. Nothing in this rule prevents hospices from involving a
bereavement counselor in the IDG. The core members of the IDG are
identified in section 1861(dd)(2)(B) of the Act. This section permits
the use of another type of counselor instead of, or in addition to, the
pastoral counselor. Hospices are free to use a bereavement counselor
when they believe the needs of the patient and family require it.
Comment: Many commenters took issue with the proposed requirement
in Sec. 418.56(a)(2) that, if a hospice has more than one IDG, it must
designate one IDG to establish policies governing the day-to-day
provision of hospice care and services. Some commenters sought minor
changes to the proposed requirement to allow hospices to create a
special IDG, culled from all of its
[[Page 32113]]
IDGs, for the job of establishing policies. Other commenters suggested
that the hospice's administrator, clinical leaders, or governing body
should be responsible for developing these policies.
Response: Section 1861(dd)(2)(B)(iii) of the Act requires a hospice
IDG to establish policies governing the provision of hospice care and
services. Therefore, we believe that it is appropriate to maintain the
IDG's responsibility for developing a hospice's policies. At the same
time, we agree that the IDG that is responsible for developing those
policies does not need to be the same group that works together to care
for patients. For example, a hospice may choose to have a policy IDG
comprised of the physician from IDG 1, the nurse from IDG 2, and the
social worker and pastoral counselor from IDG 3. In order to clarify
that an arrangement is acceptable, we have modified the requirement at
Sec. 418.56(a)(2) to read, ``[i]f the hospice has more than one
interdisciplinary group, it must identify a specifically designated
interdisciplinary group to establish policies governing the day-to-day
provision of hospice care and services.''
Comment: A commenter sought clarification of the phrase ``policies
governing day-to-day provision of hospice care and services'' as it was
used in proposed Sec. 418.56(a)(2).
Response: This phrase, which is also located in the previously
existing CoPs at Sec. 418.68(b)(4), refers to the hospice's
responsibility to establish its own policies and procedures to govern
its practices within the framework of the CoPs. We are not prescribing
the exact patient care, documentation, orientation and training, and
administration policies and procedures that each hospice will use in
its daily operations. Each hospice, through its designated IDG, will
establish these policies and procedures. The policies and procedures
established by the IDG must be in compliance with the CoPs and other
applicable Federal, State, and local laws and regulations.
Comment: In proposed Sec. 418.56(b), many commenters sought
clarification on the role of the patient's attending physician in the
IDG. Some commenters suggested that all mention of the attending
physician's involvement in the IDG should be deleted because not all
patients would have attending physicians. Other commenters suggested
that the involvement of the attending physician in the IDG should be
qualified by statements such as ``at his/her discretion'', or ``only to
the extent possible.'' Still other commenters suggested that the
patient's attending physician should actively develop the patient's
plan of care or even lead the IDG.
Response: The role of the patient's attending physician in the
patient's hospice care will vary from hospice to hospice, and from
patient to patient. This variability is reflected in the diverse
comments that we received on this subject. Some commenters suggested
that attending physicians should assume a leadership role in the IDG,
while other commenters suggested that the role of the attending
physician should be excluded altogether. To accept either of the
suggested extremes, that is, attending physician leadership or
exclusion, would most certainly not meet the needs of all hospices. To
meet these needs, we have chosen to qualify the role of the attending
physician in the IDG by adding the phrase ``if any'' to Sec.
418.56(b). This phrase recognizes that not all patients have attending
physicians. We expect hospices to document their efforts to involve the
attending physician in developing the hospice plan of care, as well as
the results of those efforts. Hospices may determine the best method
for this documentation in accordance with their own policies and
procedures.
Comment: A commenter suggested that hospices be required to make
efforts to include the patient and primary caregiver when establishing
the plan of care.
Response: We agree that involving the patient and primary caregiver
in developing the plan of care is an important step to ensuring that
the plan of care reflects the patient's goals. We have achieved this
goal by adding a provision to Sec. 418.56(b) that a patient or
representative, and primary caregiver should be included in developing
the plan of care if they so desire in accordance with the patient's
needs. If a patient, his or her representative, and/or primary
caregiver decline to participate in actively developing the plan of
care, then hospices would need to document this. We also added a
provision in the patient rights CoP at Sec. 418.52(c)(2) that patients
have the right to be involved in developing their plan of care. In
addition, we have added a requirement in Sec. 418.56(c) that the plan
of care must reflect the patient's and family's goals. These provisions
will, we believe, ensure that the patient's and family's goals are
reflected in the plan of care and that patients will have full and open
access to the care planning process if they so desire.
Comment: A commenter observed that the proposed rule did not
include a requirement that at least two members of the IDG establish
the initial plan of care. The commenter appreciated that this
requirement was not included in the proposed rule.
Response: The requirement that the commenter referred to is part of
the interpretive guidelines that were issued for the current hospice
regulations. While we did not include this requirement in the proposed
rule, we do not recommend that a single member of the IDG independently
develop the initial plan of care without input from other IDG members.
This would violate the intent of the hospice interdisciplinary care
model. Development of the plan of care is a collaborative effort
involving all members of the IDG. We will continue to include this
information in the new Interpretive Guidelines.
Comment: A commenter suggested that we should include timeframes
for completing the initial plan of care and the comprehensive plan of
care.
Response: We do not differentiate between the stages of the plan of
care. We expect the first stage of the plan of care to be completed
after the initial patient assessment has been completed. This
preliminary plan of care must address the immediate care needs
identified during the initial assessment. Once the comprehensive
assessment is complete, the hospice must then update the plan of care
to address the other care needs identified through the comprehensive
assessment. We believe that beginning and completing the first
iteration of the plan of care should be based on the needs of the
patient and family rather than specific timeframes. If a patient is in
crisis or is actively dying, then it stands to reason that the plan of
care must be developed by the IDG members rather quickly.
Comment: A commenter requested that, in Sec. 418.56(b), hospices
only be required to provide education and training to the patient and
primary caregiver. In addition, the commenter requested that hospices
be permitted to tailor the training and education provided to patients
and caregivers based on their responsibilities for care.
Response: We agree that requiring hospices to educate and train the
family, as we proposed, is unnecessary because not all family members
may participate in furnishing care to the patient. We also agree that
hospices should be permitted to tailor the education and training
provided to patients and caregivers based on the exact services that
patients and caregivers will be providing. For example, if a caregiver
is assessed as being competent and willing to care for a patient's
catheter, then we would expect the caregiver to be educated and trained
on proper catheter
[[Page 32114]]
care procedures. The relevant portion of section 418.56(b) now reads,
``The hospice must ensure that each patient and the primary
caregiver(s) receive education and training provided by the hospice as
appropriate to their responsibilities for the care and services
identified in the plan of care.''
Comment: A commenter suggested that Sec. 418.56(b) should
explicitly state that only one plan of care is required and that a
separate plan of care is not necessary for the family's needs.
Response: One of the most unique and valuable aspects of hospice
care is its treatment of the patient and his/her family as a single
unit of care. It is current hospice practice to address the needs of
the patient's family as part of the patient's plan of care. This
standard practice will not change based on the requirements of this
rule. We expect that this rule will reinforce this practice by
requiring that all services provided to both patients and their
families be included in the written plan of care. We note that the term
``plan of care'' is singular and in no way implies that there should be
more than one plan.
Comment: A few commenters suggested that we should clarify the
scope of the plan of care by stating that the plan of care must address
all of a patient's needs, rather than only those services that the
hospice is capable of providing. Another commenter suggested that we
should specify that the plan of care must be individualized for each
patient and that it must reflect the patient's hospice care goals.
Still other commenters suggested that the plan of care, including
drugs, durable medical equipment and supplies, should be limited to
addressing those needs related to the terminal illness and related
conditions. The commenters suggested that deleting the phrase ``but is
not limited to'' in proposed Sec. 418.56(c) would accomplish this
goal.
Response: The plan of care is one of the most important documents
in hospice care. It is the essential link between the needs of the
patient and the actions of the hospice. Therefore, we agree with the
commenters that the plan of care must be individualized to meet all of
the needs of the patient and family related to the terminal illness and
related conditions. In order to achieve this goal, we have clarified
the rule in several places. First, we have added the term
``individualized'' to both Sec. 418.56(b) and Sec. 418.56(c), to
require hospices to develop and follow an ``individualized written plan
of care.'' Second, we have revised the final sentence of the stem
statement in Sec. 418.56(c) from ``The plan of care must include but
not be limited to--'' to ``The plan of care must include all services
necessary for the palliation and management of the terminal illness and
related conditions, including * * *.'' This revised statement more
explicitly links the patient's needs, as identified in the assessments,
to the services furnished by the hospice. In addition, this revised
statement clarifies that hospices are only responsible for furnishing
services based on those needs identified in the assessments related to
the terminal and related conditions. Needs that are not related to the
terminal illness and related conditions are not the responsibility of
the hospice, although the hospice may choose to furnish services for
those needs regardless of responsibility.
If a hospice does not choose to furnish services for those needs
unrelated to the terminal illness and related conditions, we would
expect the hospice to communicate and coordinate with those health care
providers who are caring for the unrelated needs, as described in Sec.
418.56(e). In such situations where a hospice coordinates its care and
services for the terminal illness and related conditions with care and
services provided by other health care providers for unrelated
conditions, we believe that it is essential for the hospice to be aware
of their role within the larger comprehensive plan of care for that
patient. Furthermore, we believe that it is essential for the hospice
to be aware of any gaps in the overall comprehensive plan of care, and
the parties responsible for filling those gaps.
Comment: A commenter questioned what was meant by the phrase
``initial comprehensive and updated assessment'' as it was used in
proposed Sec. 418.56(c).
Response: Our intent was to require hospices to base the
interventions described in the plan of care on information gathered in
all of the assessments, that is, the initial, comprehensive, and
updated assessments. We have modified the language in Sec. 418.56(c)
to reflect this.
Comment: A commenter suggested that we should remove or define the
terms ``facilitate'', ``targeted'', and ``anticipated'' in Sec.
418.56(c). Another commenter suggested that we should replace the term
``measurable targeted outcomes'' with ``agreed-upon goals.''
Response: Section 418.56(c) describes the general areas that must
be included in each patient's individualized plan of care. We agree
that when describing the interventions necessary to manage a patient's
pain and symptoms in Sec. 418.56(c)(1), the language should be
simplified. We deleted the term ``facilitate'' in this statement and
further refined it to require that the plan of care include
``Interventions to manage pain and symptoms.'' We also agree that in
Sec. 418.56(c)(3) the language should be simplified. We removed the
term ``targeted'' from the statement, which now reads ``Measurable
outcomes anticipated from implementing and coordinating the plan of
care.'' We did not remove the term ``anticipated'' from this
requirement, because the term ``anticipated'' explicitly recognizes
that the measurable outcomes are goals and they may or may not be
achieved. For example, a hospice may not be able to control pain within
48 hours of admission. The hospice may have anticipated meeting that
goal and took all necessary steps. However, 100 percent success is not
always guaranteed. The term ``anticipated'' recognizes that fact.
We did not, as the other commenter suggested, replace ``measurable
outcomes'' with ``agreed-upon goals.'' Instead, we have added a
statement to Sec. 418.56(c) to state that, ``[t]he plan of care must
reflect patient and family goals and interventions based on the
problems identified.* * * '' We believe that this is an appropriate way
to include patient and family goals in the plan of care without
excluding measurable outcomes, which are part of the individual patient
care planning process and the hospice's overall QAPI program. We expect
the hospice plan of care to address all patient goals in some way. If a
patient has a goal that is not related to the terminal illness and
related conditions, and if the hospice does not intend to address this
goal, then the hospice plan of care should identify the party that is
responsible for meeting the unrelated goal. Furthermore, final Sec.
418.56(e) requires the hospice to actively communicate with the outside
party to ensure that the goal is addressed.
Comment: Some commenters questioned the term ``prescribed'' as it
is used in proposed Sec. 418.56(c). The commenters stated that the
term ``prescribed'' implied that we were requiring a specific
physician's order for each intervention included in the plan of care.
Response: We agree that the term ``prescribed'' implies that all
interventions require physician's orders. Requiring physician orders
for everything was not our intent. Therefore, we removed the term
``prescribed'' from this standard.
Comment: Some commenters suggested that we should delete the terms
``detailed'', ``scope'', and ``specific'' as related to the services
provided (Sec. 418.56(c)(2)).
[[Page 32115]]
Response: We did not delete these terms in this final rule. In
Sec. 418.58(c) of the existing hospice regulations, hospices are
required to ``state in detail the scope and frequency of services
needed to meet the patient's and family's needs.'' We note that the
proposed requirement that the plan of care include, ''[a] detailed
statement of the scope and frequency of services necessary to meet the
specific patient and family needs'' is very similar to the requirement
that has existed for the last two decades. We believe that hospices
have already determined, and will continue to determine, through their
own policies and procedures, how to meet this requirement. The level of
detail established by the hospice in the plan of care should be clear
enough to provide a complete picture of which disciplines will be
furnishing which services, how frequently that care will be furnished,
and what needs are being addressed by such care. The plan of care
serves as a primary means of communication between all hospice
disciplines, the patient, the primary care giver, and the family. It
must contain enough information so that all of these individuals know
exactly what is supposed to be done, by whom, at what time, and for
what purpose.
Comment: A commenter suggested that non-pharmacological
interventions should be included, in addition to drugs, in Sec.
418.56(c)(4).
Response: We agree that non-pharmacological interventions should be
included in the individualized hospice plan of care; however, we are
not specifically referencing them in Sec. 418.56(c)(4). We believe
that the provision of required non-pharmacological interventions are
already strongly implied in the stem statement of Sec. 418.56, and
also in Sec. 418.56(c)(1), which states that the plan of care must
include ``interventions to manage pain and symptoms,'' as well as in
Sec. 418.56(c)(5), which requires the plan of care to indicate the
medical supplies and appliances necessary to meet the needs of the
patient.
Comment: Numerous commenters expressed concern regarding our
proposal at Sec. 418.56(c)(6) that the hospice document the patient's
and family's understanding, involvement, and agreement with the content
of the plan of care. The commenters stated that there are times when
the patient may agree with the plan of care while members of his or her
family do not. Commenters suggested either removing the term
``agreement'' or replacing the term ``family'' with ``representative''
or ``primary caregiver'' to narrow the number of individuals who must
agree, and to ensure that the patient's needs and goals take primacy.
Commenters also suggested that, rather than requiring hospices to
document complete understanding, involvement and agreement on the part
of patients and families, which may not be attainable, we should
require hospices to document the level of understanding, involvement
and agreement attained by the patient and family.
Response: We understand that patients and families may sometimes be
in conflict regarding the content of the plan of care, and we agree
that it is the patient's understanding, involvement and agreement with
the plan of care that takes precedence. Therefore, we have removed the
term ``family'' from this requirement and replaced it with the term
``representative.'' As defined in Sec. 418.3, a representative is the
individual who makes decisions for a patient when a patient is unable
to do so. We believe that limiting this requirement to patients and
representatives will help ensure that the patient's needs and goals are
primary in the content of the plan of care. We continue to expect a
hospice to also address, to the extent possible, the goals of the
patient's family in the plan of care. We do not require the entire
family to agree to the patient's plan of care.
Furthermore, we agree that, rather than requiring hospices to
document complete understanding, involvement and agreement with the
plan of care, it is more appropriate to require hospices to document
the level of understanding, involvement and agreement attained by the
patient or representative. The terminal illness and numerous other
factors may affect a patient's or representative's ability to
participate in care planning or understand the content of the plan of
care. Requiring hospices to document a level of understanding,
involvement and agreement with the plan of care recognizes this fact.
Hospices will now be required to note whether impediments to
understanding are present and the degree to which those impediments
impact the patient's or representative's participation in care
planning. Documenting this information will help hospices tailor the
content of the plan of care and their patient communication process to
the needs of the patient, resulting in improved patient outcomes.
Comment: A few commenters questioned the type of documentation that
would be necessary in terms of a patient's or representative's
understanding, involvement and agreement with the plan of care.
Response: The documentation in the clinical record must be correct
and complete, as required by Sec. 418.104, and should provide
sufficient detail to fully describe the level of understanding,
involvement and agreement with the plan of care. Hospices may choose to
include a specific form for this documentation in each patient's
medical record, include the documentation in the clinical notes or use
any number of other documentation methods as those methods meet the
needs and circumstances of individual hospices.
Comment: A commenter suggested that we delete proposed Sec.
418.56(c)(6) because the plan of care is a process, not just a single
document.
Response: While we agree that the plan of care is an on-going
process with many updates along the way, we are retaining this
regulatory element. As the plan of care evolves through updates by the
IDG, patients and representatives should continue to be involved, and
hospices should continue to seek their understanding of and agreement
with the changes. This requirement will help to ensure that patients
and representatives are involved in the care planning process and that
hospices actively address the needs and goals of patients.
Comment: Some commenters sought clarification on the obligations of
the hospice when the family disagrees with the plan of care, even
though the patient agrees.
Response: As discussed previously, we have deleted the requirement
that hospices must obtain family agreement with the plan of care.
Although hospices are no longer required to obtain the family's
agreement, the plan of care must still address the family's goals and
will still require assistance from the family in its implementation.
For these reasons, it remains essential for hospices to actively
educate and involve family members to the extent possible.
Comment: A commenter agreed with our proposal in Sec. 418.56(d)
that the patient's attending physician should be involved, to the
extent possible, in updating the plan of care.
Response: Involving the attending physician to the extent possible
in the patient's care, including updating the plan of care, is an
important step to help ensure continuity of care. We are setting forth
this requirement at Sec. 418.56(d).
Comment: Many commenters requested that the specific reference to
the medical director or physician designee's role in updating the plan
of care be deleted or rearranged. Commenters stated that the medical
director or physician designee is often a member of the IDG and does
not need to be mentioned separately.
[[Page 32116]]
Response: We agree that it is not necessary to specifically require
the involvement of the medical director or physician designee in
updating the plan of care because each IDG must have a physician member
and that physician member provides adequate medical input in the
updates. Therefore, we deleted this proposed requirement.
Comment: We received numerous comments about the proposed
timeframes for updating the plan of care (Sec. 418.56(d)). Some
commenters requested that we delete the proposed requirement that the
plan of care be updated at least every 14 days. Others suggested that
the 14 day requirement be changed to every 14-16 days, every 15 days,
every 30 days, or twice per month.
Response: The plan of care is the map that the hospice will follow
when delivering care to a patient and family. It is essential that the
plan of care accurately reflect the services that must be delivered in
order to meet the needs of the patient and family. As the patient's
condition changes, the plan of care changes as well. In order to ensure
that these updates occur, we proposed timeframes for both updating the
comprehensive assessment and the plan of care. As previously discussed,
we changed the timeframe for updating the comprehensive assessment from
14 to 15 days. We also believe that it is necessary for the timeframes
for updating the plan of care and updating the comprehensive assessment
to coincide. This will help to ensure that there is a direct
correlation between the two. Therefore, we have also changed the update
timeframe for the plan of care from every 14 days to every 15 days.
Comment: Some commenters suggested that we should delete the
requirement in proposed Sec. 418.56(d) that hospices must update the
plan of care at intervals specified in the plan of care. Commenters
stated that the plan of care cannot project future changes in the
patient's needs. Commenters suggested that the plan of care should be
updated based on the updates to the comprehensive assessment instead.
Response: Our intent in the proposed rule was to tie the updates to
the plan of care directly to changes in the patient's condition.
Predicting changes in patient status and the related plan of care is
too difficult; therefore, we agree that this requirement should be
deleted. We have deleted this requirement that hospices must ``review,
revise and document the plan as necessary at intervals specified in the
plan'', and, in its place, require that hospices must ``review, revise
and document the individualized plan as frequently as the patient's
condition requires * * * .''
Comment: A commenter suggested that IDGs should be required to meet
once every 28 days with all team members and the patient and family.
The commenter also suggested that two or three members of the IDG
should meet once a week.
Response: We do not believe that mandating an IDG meeting schedule
would meet the needs of patients and families or would enhance overall
care planning. A large number of patients in hospices die before the
28th day (NHPCO Facts and Figures 2005). In addition, the proposed
smaller weekly meetings would lack the essential input of all
disciplines involved in the patient's care, potentially resulting in
patient and family needs being overlooked or inadequately addressed.
Section 418.56(e), Coordination of services, already requires an IDG
system of communication that enables frequent information sharing among
disciplines and across service locations.
Comment: Several commenters sought clarification regarding the
requirement in proposed Sec. 418.56(e) that hospices must have a
system of communication and integration. Commenters requested
clarification on how the system might be documented, how the system
would interact with contract providers, and how the system might be
implemented. Other commenters expressed support for the new requirement
and stated that the communication system outlined in the requirement is
already standard practice in hospice agencies.
Response: We appreciate the support for this standard, as it
validates our understanding that hospices have already established
robust communication systems. As an interdisciplinary care model,
hospice relies on communication between and integration of providers to
effectively plan and furnish care to patients and families. Through the
years, hospices have developed methods to ensure that all members of a
patient's care team receive timely information about patients. This
standard expands on the communication and integration systems that
hospices have developed for their own uses. This standard requires
hospices to communicate, not only with their employees, but also with
their contractors. It also requires hospices to integrate those same
contractors into the hospice team. Communication and integration with
service providers outside of the hospice's direct purview will help
hospices ensure that each patient receives appropriate, high quality
care in accordance with his or her plan of care, regardless of whether
that care is furnished by hospice employees or contractors. As always,
the hospice is ultimately responsible for the care furnished on its
behalf and must actively ensure that contractors are fulfilling their
patient care and communication contractual obligations.
The exact structure of the system of communication and integration
will vary depending on the unique needs of each hospice. Telephone, e-
mail, instant messaging, the postal service, and any other form of
communication may be used in accordance with a hospice's own policies
and procedures. Likewise, clinical notes, IDG meeting minutes, and any
other form of documentation associated with the patient's plan of care
may be used to demonstrate compliance with this requirement, in
accordance with a hospice's own policies and procedures. We believe
that allowing hospices to determine the structure of the system and the
documentation necessary to ensure that the system is used in the best
and most flexible method for ensuring that hospices are able to comply
with this provision.
Comment: A commenter suggested that we should delete the phrase
``through its designated professionals'' from Sec. 418.56(e)(1)
because the members of the IDG are already defined in Sec.
418.56(a)(1).
Response: We agree with the commenter that the above-referenced
phrase is not necessary, and we have deleted it.
Comment: A commenter suggested that the language in proposed Sec.
418.56(e)(4) be simplified by substituting the phrase ``all
facilities'' for the list of the various settings where hospice care
may be provided.
Response: We agree that adopting an all-inclusive term will make it
easier for hospices to understand their crosscutting communication
responsibilities. Since ``settings'' is a broader term than
``facilities'', as the commenter suggested, we are modifying the text
in Sec. 418.56(e)(4) to require that the system of communication
provides for and ensures the ongoing sharing of information between all
disciplines in all settings.
Comment: A commenter suggested that, in Sec. 418.56(e), hospices
should be required to share information with non-hospice providers who
are also caring for a patient.
Response: We agree with this suggestion. We believe that it will
enhance patient care in the unusual circumstances where patients with
multiple illnesses and conditions receive care from multiple providers.
This will ensure that hospices actively
[[Page 32117]]
coordinate the care that they are providing with the care being
furnished by other providers. The coordination will help hospices avoid
a duplication of services as well as potentially dangerous drug
prescribing and dosage problems. This new requirement is located at
Sec. 418.56(e)(5). As stated previously, when coordinating care with
other providers, it is essential that hospices are aware of their role
within the larger comprehensive plan of care, as well as any gaps in
the comprehensive plan of care and the parties responsible for filling
those gaps.
5. Condition of Participation: Quality Assessment and Performance
Improvement (Proposed Sec. 418.58)
The existing Sec. 418.66, ``Condition of participation-Quality
assurance,'' relies on a problem-oriented approach to identify and
resolve patient care issues. Failure to meet the quality assurance
condition is consistently one of the top 10 deficiencies cited by
Medicare surveyors nationwide. During the last decade the health care
industry, including the hospice industry, has moved beyond the problem-
oriented, after-the-fact corrective approach of quality assurance to an
approach that focuses on a preemptive plan that continuously addresses
QAPI. Hospice industry associations have indicated that the upgraded
QAPI approach used by many hospice providers is incompatible with the
existing quality assurance condition. On the other end of the spectrum
some providers do not have any quality program.
The proposed QAPI requirement would raise the performance
expectations for hospices seeking entrance into the Medicare and
Medicaid programs, as well the expectations of those currently
participating in Medicare and Medicaid. We proposed that each hospice
would develop, implement, and maintain an effective, continuous quality
assessment and performance improvement program that stimulates the
hospice to constantly monitor and improve its own performance, and to
be responsive to the needs, desires, and satisfaction levels of the
patients and families it serves. The desired overall outcome of this
proposed CoP would be that the hospice would drive its own quality
improvement activities and improve its provision of services. With an
effective quality assessment and performance improvement program in
place and operating properly, a hospice can better identify and
reinforce the activities it is doing well, identify its activities that
are leading to poor patient outcomes, and take actions to improve
performance. A hospice would be free to develop a program that meets
its needs. As proposed, a provider's QAPI program would not be judged
against a specific model.
The proposed QAPI CoP was divided into five standards. Under
standard Sec. 418.58(a), ``Program scope,'' a hospice's quality
assessment and performance improvement program would include, but not
be limited to, an ongoing program that would be able to show measurable
improvement in indicators that were linked to improving palliative
outcomes and end-of-life support services. We expect that a hospice
would use standards of care and the findings made available in current
literature to select indicators to monitor its program. The hospice
would measure, analyze, and track these quality indicators, including
areas such as adverse patient events and other aspects of performance
that assess processes of care, hospice services, and operations.
(``Adverse patient events,'' as used in the field, generally refer to
occurrences that are harmful or contrary to the targeted patient
outcomes.)
The second proposed standard at Sec. 418.58(b), ``Program data,''
would require the hospice program to incorporate quality indicator
data, including patient care, administrative, and other relevant data,
into its QAPI program. This would include data that were received from
or submitted to hospice professional organizations. We did not propose
to require that hospices use any particular process or outcome
measures. However, a hospice that would choose to use the available
quality measures would be able to expect an enhanced degree of insight
into the quality of its services and patient satisfaction, compared to
beginning the outcome-measure development process anew because
currently existing measures have already been tested to some degree for
reliability and validity.
Proposed standard (b) also would require that data collected by the
hospice, regardless of the source of the data elements, would be
collected in accordance with the detail and frequency specifications
established by the hospice's governing body. Once collected, hospices
would use the data to monitor the effectiveness and safety of services,
and to identify opportunities for improvement.
The third standard under the quality assessment and performance
improvement program at proposed Sec. 418.58(c), ``Program
activities,'' stated that the hospice would set priorities for its
performance improvement activities that focused on high risk, high
volume and problem-prone areas, considered the prevalence and severity
of identified problems' and gave priority to improvement activities
that affected palliative care, patient safety, and quality of care
outcomes. In Sec. 418.58(c) we also proposed to require the hospice to
track adverse patient events, analyze their causes, and implement
preventive actions that would include feedback and learning throughout
the hospice.
We proposed at Sec. 418.58(d), ``Performance improvement
projects,'' that the number and scope of improvement projects conducted
annually would reflect the scope, complexity, and past performance of
the hospice's services and operations. The hospice would document what
improvement projects were being conducted, the reasons for conducting
them, and the measurable progress achieved on them.
In the final proposed standard at Sec. 418.58(e), ``Executive
responsibilities,'' a hospice's governing body would be responsible and
accountable for ensuring that the ongoing quality improvement program
was defined, implemented, and maintained. The governing body would
ensure that the program addressed priorities for improved quality of
care and patient safety. The governing body would also specify the
frequency and detail of the data collection and ensure that all quality
improvement actions were evaluated for effectiveness. The governing
body's most important role would be to ensure that staff were
furnishing, and patients were receiving, safe, effective, quality care.
Therefore, it would be incumbent on the governing body to lend its full
support to agency quality assessment and performance improvement
efforts.
Comment: A few commenters stated that the phrases ``measurable
improvement,'' ``palliative outcomes,'' ``end of life support
systems,'' and ``quality indicators'' as they were used in the QAPI
CoP, were vague.
Response: We agree that the phrase ``end of life support systems''
is vague, and we have removed it in the opening paragraph and standard
(a) because it is duplicative of the requirement that a hospice's QAPI
program must involve all hospice services, including those services
furnished under contract or arrangement. In Sec. 418.58(a)(1) we have
replaced the term ``end of life support systems'' with ``hospice
services'' to correspond with the ``hospice services'' described in the
opening paragraph. We do not agree that the phrase ``palliative
outcomes'' is vague. Outcomes are the results of care provided;
therefore palliative outcomes are the results of
[[Page 32118]]
palliative care provided. Since hospices primarily furnish palliative
care to patients and respond to the results of the care furnished, we
believe that it is reasonable to expect hospices to include palliative
outcomes, gathered as part of the comprehensive and updated
comprehensive assessments in accordance with final Sec. 418.54(e), as
part of their QAPI programs. We replaced the phrase ``indicators for
which there is evidence that improvement in those indicators will
improve palliative outcomes'' in Sec. 418.58(a)(1) with the phrase
``indicators related to palliative outcomes.'' We believe that this
revised language is clearer and more precise. Therefore, revised Sec.
418.58(a)(1) now reads, ``[t]he program must at least be capable of
showing measurable improvement in indicators related to improved
palliative outcomes and hospice services.'' We do not agree that the
phrase ``measurable improvement'' is vague. Hospices are required to
have data-driven QAPI programs. Through these data, hospices measure
their current performance, implement performance improvement projects,
and measure their changes in performance after implementing the
performance improvement project. Based on an analysis of the data, we
believe that hospices will be able to measure the amount of
improvement, stagnation, or decline in their performance and adjust
their activities accordingly.
Comment: Numerous commenters asked for more clarification of the
term ``adverse event'' as it is used in Sec. 418.58(a) and Sec.
418.58(c) of this Condition of Participation. Other commenters asked
for a delay in the proposed requirement that hospices must collect and
analyze adverse event data.
Response: We do not define the term ``adverse event'' because we
believe that, as part of their QAPI programs, hospices should be free
to define and implement the term in the manner that fits their needs.
Hospices may choose to develop their own definition or use a definition
developed by an accrediting body or industry organization. Once a
hospice has identified the definition of an adverse event, it is
responsible for adhering to the definition when tracking and analyzing
these events and when implementing preventive actions. In general, an
adverse event would be any action or inaction by a hospice that caused
harm to a hospice patient. However, hospices are not bound to use this
generic description.
We believe that it is essential to a hospice's QAPI program to
begin tracking and analyzing adverse events at the same time that it
begins collecting patient level outcome measure data elements and
hospice-wide measures. Since adverse events generally result in harm to
a patient, they serve as important indicators of areas for potential
improvement. If hospices do not collect adverse event information, they
may be missing important data from which to assess their performance.
Therefore, we are not delaying the adverse event requirements in this
final rule.
Comment: Many commenters submitted suggestions for what hospices
may want to consider when selecting the elements of their QAPI program.
Commenters suggested that hospices may want to examine such issues as
pharmacy services, bar coding, electronic prescribing, clinical
decision support programs, adverse event reporting systems, provider
education efforts, patient and family education efforts, pain, nausea,
shortness of breath, skin integrity, constipation, the appropriateness
of emotional and spiritual interventions, and the timeliness of meeting
patient needs at the start of care.
Response: We appreciate all of the suggested areas that hospices
may choose to examine when developing their QAPI programs. In addition
to these suggested domains, hospices may also want to consider issues
surrounding patient transitions. Transitions from one care setting/
provider to a hospice, or from a hospice to another care setting/
provider, are an opportunity for hospices to improve their
relationships with their referral sources while improving patient care
and safety. Hospices may want to consider the use of shared protocols,
agreements to honor advance directives, medication reconciliation
processes, caregiver training and support systems, communication
arrangements, and feedback systems, all related to patient transitions,
as areas to examine in their QAPI programs. We are not requiring
hospices to use any of the suggested domains identified above at this
time because there is no currently available set of standardized
measures.
Comment: A few commenters requested clarification about when and
where patient care measures will be documented.
Response: Different patient care measures require different data
collection timeframes. While some measures may require data collection
only once, other measures may require data collection every few days or
weeks. The nature of the patient care measure will determine the
timeframe for collecting and updating. We expect hospices to establish
their data collection timeframes within the specific context of the
measures used, the available literature, any nationwide data collection
projects they may participate in, their own data collection needs and
goals, as well as the needs of their patients.
We require in Sec. 418.104(a)(4) that the patient care outcome
measure data be included in the patient's clinical record because
hospices must use such data for individual care planning and
coordination of services (Sec. 418.54(e)(2)). Hospices are free to
document the patient care measure data in other locations as well in
order to meet their needs. All documentation must be in accordance with
the data collection policies and procedures established by the hospice
to ensure consistency and retrievability.
Comment: Many commenters requested clarification on the role of
national standardized patient outcome measures and their relationship
to standardized benchmarks. Specifically, commenters noted that, while
some national measures are currently available, there is still work to
be done in this area. A commenter suggested that any measures developed
should relate to providing physical and emotional support, promoting
shared decision-making, individualizing care, and attending to the
needs of families. In addition, commenters expressed uncertainty about
how national benchmarks may be used to measure patient outcomes. Some
commenters suggested that we should work with the hospice industry and
quality improvement organizations (QIOs) to establish such benchmarks
while other commenters stated that benchmarking is not necessary
because the variances between hospices put the validity of the
benchmarks into question.
Response: We agree that more work is needed to establish a wide
variety of valid patient outcome measures that hospices may choose
from. We commissioned a special study, the PEACE project, conducted by
the North and South Carolina QIO. This study created a quality-focused
self-audit tool for hospices to use, and identified quality measures
that focus on the quality of clinical care furnished to hospice
patients. Results of the study are available at http://medqic.org/dcs/ContentServer?pagename=Medqic/MQPage/Homepage.
In addition, the National Hospice and Palliative Care Organization
launched a National Quality Initiative and Quality Collaborative to
improve hospice and palliative care outcomes. This initiative is
helping hospices develop functional
[[Page 32119]]
QAPI programs, including patient outcome measures.
Furthermore, the National Quality Forum has issued voluntary
consensus standards for end-of-life care of cancer patients, who
comprise approximately 50 percent of the hospice patient population
(National Voluntary Consensus Standards for Symptom Management and End-
of-Life Care in Cancer Patients, December 2006, www.qualityforum.org/publications/reports/palliative.asp).
The National Quality Forum also issued the ``National Framework and
Preferred Practices for Palliative and Hospice Care Quality'' (2006,
www.qualityforum.org). This report identified eight domains of quality
care as follows: Structures and processes of care; physical aspects of
care; psychological and psychiatric aspects of care; social aspects of
care; spiritual, religious, and existential aspects of care; cultural
aspects of care; care of the imminently dying patient; and ethical and
legal aspects of care. Using the structure of these domains, the report
identifies 38 preferred practices that have been endorsed as suitable
for implementation in hospice programs.
Furthermore, the agency for Healthcare Quality and Research (AHRQ)
issued an evidence-based review of end-of-life care and outcomes
(www.ahrq.gov/clinic/epcsums/eolsums.htm) that may also assist
hospices.
We believe that these efforts, combined with the measures already
identified by the NHPCO and Brown University (Time Toolkit,
www.chcr.brown.edu/pcoc/toolkit.htm), are sufficient to provide
hospices with patient outcome measure options that suit their needs.
Some of the measures that already have been or are being developed
relate to comfortable dying, self-determined life closure, and family
satisfaction with care.
We do not believe that these efforts are sufficient to establish
nationwide benchmarks that are appropriate for inclusion in this rule.
More time is needed to test, refine, and collect further data related
to any specific measure before we could establish a nationwide
benchmark that all hospices should be required to meet. The necessary
information is simply not available at this time to establish mandatory
benchmarks, although hospices are free to use existing benchmarks to
measure their own performance against that of other similar hospices
who use the same measures.
In order to further the process of establishing widely-accepted,
valid, benchmarked quality measures, CMS is actively pursuing
additional research on selected quality measures. This research will
help identify and refine measures that are valid, meaningful, and
reliable for hospices. It will also help establish benchmarks for
hospices to attain.
Following publication of this final rule, CMS will issue further
sub-regulatory guidance on QAPI.
Comment: A few commenters questioned the ability or appropriateness
of using the same outcome measures for each patient within a hospice.
Some commenters noted that not all measures may apply to all patients.
Likewise, the commenters noted that certain patients may need
individualized measures unique to the patient's needs and goals. Other
commenters noted that measures may be different based on the location
in which care is provided (that is, in the patient's home or in an in-
patient facility). Still other commenters noted that outcome measure
data may not be statistically significant when the data are collected
from extremely small samples due to a low patient census.
Response: A variety of hospice-specific patient outcome measures
are currently available. Many of these measures capture data about
universal issues such as patient pain or discomfort. We believe that
these universal measures can be successfully applied to all of a
hospice's patients, regardless of their diagnosis or care location. At
the same time, we agree that hospices may need to add specific outcome
measures for specific patients in order to gather data related to the
individual's needs and goals. Hospices may add patient-specific
measures to the core set of standard measures that they choose to
collect data on for all patients. As with the core set of standardized
patient data, patient-specific data must be gathered and documented in
a consistent, systematic and retrievable manner.
When analyzing data on a patient level, sample size does not
matter. To use the patient outcome measure of pain controlled within 48
hours of admission discussed above in the patient assessment section, a
hospice would need to document for a patient the presence or absence of
uncontrolled pain upon the patient's admission to hospice. If a patient
has uncontrolled pain, the hospice would then reassess his or her pain
48 hours after the patient's admission to hospice and document the
presence or absence of uncontrolled pain at that time. This does not
mean that the hospice does not assess the patient's pain between the
initial pain assessment and the 48 hour pain assessment. Indeed, the
hospice may need to assess the patient's pain far more frequently in
order to adjust the treatments being provided to control the patient's
pain. In completing a patient-level analysis of the patient's data, the
hospice would be able to judge the effectiveness of the initial care
furnished in controlling the patient's pain.
In completing the hospice-wide analysis, this patient's pain
control data would be aggregated with the pain control data of the
other patients that the hospice cared for. This aggregated data would
allow the hospice to look for patterns such as a high level of pain
control success for patients with cancer diagnoses and lesser levels of
success for congestive heart failure patients. Identifying patterns,
areas of strength, and areas of weakness allows the hospice to reaffirm
promising practices that lead to positive patient outcomes and re-
examine practices that lead to inadequate or negative patient outcomes.
Aggregation of data must be done in accordance with the policies
and procedures established by the hospice. If a hospice has an
extremely small average monthly census, then it may make sense for that
hospice to aggregate several months of data. Likewise, if a hospice has
an extremely large average monthly census, then it may make sense for
them to aggregate the data more frequently to ensure that the amount of
data does not become overwhelming to those analyzing it. The flexible
nature of the patient outcome measure standard and the quality
assessment and performance improvement CoP allow hospices to adapt data
collection and analysis to their needs and goals.
Comment: A few commenters expressed enthusiastic support for the
requirement that hospices collect patient outcome measure data, noting
that other health care providers have been collecting this data for
several years. Other commenters, while expressing support for the
overall goals of data collection and QAPI, expressed concern about the
potential costs. Commenters cited the potential cost and availability
of software to aid in data collection as the single largest concern.
Response: We appreciate the overall support for data collection and
QAPI. At the same time, we understand the concerns that some hospices
have about implementing these new requirements. We note that the new
regulation does not require hospices to use electronic health records
or any specific software for data collection. Hospices are free to
choose the data collection methods and tools that best suit their
needs. We do not believe that this rule is imposing a
[[Page 32120]]
burden on hospices by requiring them to obtain sophisticated data
collection and analysis computer programs. Analysis of patient outcome
measures, as well as administrative data, will allow hospices to
determine objectively what care results in the best outcomes for a
particular patient or subset of patients. This will help hospices
identify best practices and avoid ineffective practices, which may
reduce hospice expenditures in the future. We believe these benefits
will outweigh any costs associated with the process.
Comment: A commenter suggested that, in Sec. 418.58(b)(2)(ii),
hospices should be required to use quality indicator data that they
collected to identify priorities, as well as opportunities, for
improvement.
Response: We agree that hospices should use data to prioritize
their areas for improvement, and we have incorporated this suggestion
into the final rule. Section 418.58(b)(2)(ii) now reads, ``[i]dentify
opportunities and priorities for improvement.''
Comment: In proposed Sec. 418.58(b)(3), a commenter suggested that
the governing body should approve, rather than specify, the frequency
and detail of data collection.
Response: We agree that the governing body's general QAPI oversight
responsibility would be more appropriately described by the term
``approved'' than the proposed term ``specified,'' and we have made
this change.
Comment: Some commenters suggested that the requirement for
hospices to conduct performance improvement projects should be phased
in.
Response: In accordance with this rule, hospices are required to
identify opportunities and priorities for improvement based on the data
that they have collected. We agree that it would be appropriate to
delay implementation of the performance improvement projects
requirement to allow hospices time to develop and implement a data
collection program, and actually amass several months of data. For this
reason, we have added a 240 day phase-in period. This phase-in period
will allow hospices to gather several months of data before being
required to develop and implement their data-driven performance
improvement projects. Once the 240 day phase-in period is complete, we
expect hospices to begin developing and implementing their data-driven
performance improvement projects, with evaluation of those performance
improvement projects to follow thereafter.
Comment: A commenter asked us to specify, in Sec. 418.58(d)(1),
that the number and scope of performance improvement projects that a
hospice undertakes should be based on the needs of the hospice's
population and its own internal organizational needs. Another commenter
asked us to clarify our proposed requirement that performance
improvement projects must reflect a hospice's past performance.
Response: While we understand that some hospices may want
additional guidance on the number and scope of projects that must be
undertaken, we believe that a hospice's performance improvement
projects should be required to reflect the needs of its patient
population as well as its own needs, and this requirement is included
in the final rule. We also believe that hospices must examine their
past performance when developing performance improvement projects. If a
hospice is aware that it had issues in a particular area in the past,
then we believe that it is appropriate to re-examine that issue to
assure that it has been remedied. Hospices should conduct these
performance improvement projects that focus on previously existing
concerns in concert with performance improvement projects that focus on
more recently occurring issues, to ensure that they are consistently
furnishing quality services to patients. Revised Sec. 418.58(d)(1)
reads, ``The number and scope of distinct performance improvement
projects conducted annually, based on the needs of the hospice's
population and internal organizational needs, must reflect the scope,
complexity, and past performance of the hospice's services and
operations.''
Comment: A commenter suggested that, in Sec. 418.58(d)(2),
hospices should be specifically required to document any national
quality improvement projects they are participating in. Other
commenters questioned whether or not participation in national quality
improvement projects would satisfy the QAPI requirement.
Response: Section 418.58(d)(2) requires hospices to document all
performance improvement projects they are conducting, including
national performance improvement projects. There is no need to single
out national performance improvement projects as needing to be
documented separately because they are one part of a hospice's larger
performance improvement project plan, which must be documented.
Hospices are free to participate in such national projects. We would
caution however, that participation in such projects does not guarantee
that hospices are in compliance with this requirement. As required by
Sec. 418.58(b)(2)(ii), hospices must use the quality indicator data
that they have gathered to identify and prioritize opportunities for
improvement. In addition, Sec. 418.58(a)(1) requires a hospice's QAPI
program to be able to show measurable improvement in areas related to
improved palliative outcomes and hospice services. Furthermore, Sec.
418.58(d)(1) requires that the scope and number of a hospice's
performance improvement projects are to be based on the needs of the
hospice and its patient population. Read together, these requirements
require hospices to develop, implement, and assess performance
improvement projects that reflect their areas of weakness, as
identified through the data that they have collected, and the needs of
their organizations. If a hospice participates in a national
performance improvement project that does not address one or more of
its areas of weakness, or if that performance improvement project will
not enable the hospices to demonstrate measurable improvement in areas
identified as needing to be addressed, then participation in the
national performance improvement project would not meet the QAPI
requirements of this rule.
Comment: Numerous commenters stated that the proposed QAPI
requirement at Sec. 418.58(e) assigned a hospice's governing body too
much responsibility for the hospice's QAPI program. Commenters believed
that the hospice IDG or a professional advisory committee would better
fulfill the executive responsibilities described in this paragraph. One
commenter suggested that the role of the governing body should be
augmented by requiring it to monitor the QAPI program rather than
simply ensuring that is it functioning. Another commenter suggested
that the role of the governing body should be further clarified by
adapting leadership standards for home care agencies established by the
Joint Commission.
Response: Section 418.100(b) of this rule requires the hospice's
governing body to assume full legal authority and responsibility for
the management of the hospice, including its QAPI program. Section
418.58(e) of the proposed rule specified the QAPI responsibilities of
the governing body. It would require the hospice's governing body to
ensure that a QAPI program is defined, implemented, and maintained. In
addition, the rule proposed that the governing body must ensure that
the QAPI program addresses the hospice's quality priorities and that
its
[[Page 32121]]
effectiveness is evaluated. As the entity that is legally responsible
for the hospice, we believe that it is essential that the hospice
governing body ensures that the hospice's QAPI program is meeting the
requirements of this rule.
We believe that our governing body requirements meet the intent of
the Joint Commission leadership standards. Therefore we are setting
forth this requirement as final. The governing body may assume hands-on
control of the QAPI program to ensure that the program is in compliance
with this rule, or it may choose to appoint one or more individuals to
handle the structure and administration of the QAPI program while the
governing body retains ultimate responsibility for the actions of the
designated individual(s).
As many commenters noted, the individuals who compose the governing
body may not have significant experience in a hospice QAPI program and
would therefore not be the best candidates to actively supervise or
direct its activities. For this reason, it may not be appropriate to
require the governing body to actively monitor the QAPI program if this
function can be managed by others more knowledgeable in clinical and/or
related fields of endeavor. A new provision has been added at Sec.
418.58(e)(3) explicitly requiring the governing body to appoint QAPI
leaders.
Comment: A commenter asked us to delete the proposed Sec.
418.58(e)(3) which required the governing body to ensure that clear
expectations for patient safety are established. The commenter stated
that patient safety is already addressed throughout the regulations,
and that it is redundant to include this requirement in the QAPI CoP.
Response: We agree that patient safety is already addressed
throughout the rule and does not need to be separately included in the
QAPI section.
Comment: The majority of commenters that submitted comments on the
proposed quality assessment and performance improvement CoP supported
its overall goals. The commenters appreciated our recognition of the
role that QAPI now plays in the hospice industry as well as its current
limitations. The commenters requested assistance from CMS in
implementing some aspects of the proposed QAPI requirement. Commenters
sought additional CMS involvement in developing measures that hospices
may choose to use. Commenters also sought assistance from the QIOs that
CMS contracts with to provide quality assistance for other provider
types.
Response: In August 2006 CMS contracted with the North and South
Carolina QIO to conduct a special study on hospice quality measures.
This study created a quality-focused self-audit tool for hospices to
use and identified quality measures that focus on the quality of
clinical care furnished to hospice patients. Results of the study are
available at http://medqic.org/dcs/ContentServer?pagename=Medqic/MQPage/Homepage.
In addition to this completed project, CMS plans to sponsor
additional research that will examine the validity, reliability,
appropriateness, and usefulness of select quality measures.
Furthermore, CMS plans to sponsor work that will develop a method for
QIOs to actively assist interested hospices in developing and
implementing QAPI programs.
Comment: Many commenters made general statements in support of the
broad framework adopted by the proposed QAPI requirement. These
commenters liked the fact that we did not propose that hospices use any
specific quality measures, data elements or benchmarks. Commenters
voiced approval that they would be permitted to identify their own
quality goals, measures and elements, and that they would be permitted
to identify how many performance improvement projects they undertook
and what those projects would focus upon. Conversely, other commenters
specifically asked for the regulation to detail the quality measures
and data elements that must be collected, the number and topics of
performance improvement projects that must be undertaken, and the exact
benchmarks or results that must be achieved.
Response: The two diametrically opposed viewpoints expressed by
commenters are difficult to reconcile. Our intent in developing the
QAPI CoP was to ensure that hospices would develop a data-driven
program for continuous quality improvement that reflects the needs of
patients and hospices alike. We believe that prescribing specific data
measures and improvement projects is not appropriate at this time
because there is no currently available, valid, reliable, widely
applied set of clinical and/or administrative quality measures. As
hospice quality measurement and best practices continue to evolve, we
believe that a set of measures and practices may be identified, and
that such measures and practices may be appropriate for inclusion in
the hospice rules.
At the same time, we are sensitive to the concerns of hospice
providers who are wary of the new and unknown. As described above, we
conducted a special study through the Carolina QIO to identify hospice
measures focusing on the quality of clinical care furnished to hospice
patients. These measures are publicly available at no cost to hospice
providers. In addition, the largest hospice industry group, the
National Hospice and Palliative Care Organization, has launched a major
quality initiative to provide hospices with the tools they need to
begin collecting and analyzing QAPI data and to develop, implement, and
analyze performance improvement projects. Furthermore, Brown University
has made available the TIME Toolkit, which contains quality measures
and related data elements that hospices may use in their QAPI programs.
We are confident that these efforts, and others that may arise in the
future, will help hospices transition from the quality assurance
approach to the QAPI approach. For additional discussion of the former
quality assurance requirements and the new QAPI requirements, see pages
30847-30849 of the May 27, 2005 hospice proposed rule (70 FR 30840).
Comment: Many commenters expressed general concern about the cost
of implementing a QAPI program. Several of these commenters suggested
that implementing a QAPI program will require more staff hours and
money than estimated in the impact analysis section of the proposed
rule.
Response: We recognize that moving from the basic QA approach to a
QAPI approach will require some hospices to reallocate funds to expand
and evolve their existing quality programs. However, an effective QAPI
program will allow hospices to identify areas for improvement. The
analysis of patient care and administrative data for the QAPI program
may help hospices identify ineffective therapies, opportunities for
staff improvement, low performing contracts for services, etc., and
allow hospices the chance to improve services and efficiency. A
vigorous QAPI program will benefit hospices and patients, and will help
ensure that hospice resources are being used in the most effective and
efficient manner possible. While we have adjusted the cost estimate for
this CoP in the impact analysis section, we have not factored in the
cost savings that hospices may achieve.
Comment: Several commenters stressed the importance of ensuring
that all hospice employees are involved in the QAPI program. Of these
commenters, a few highlighted the need for board certified chaplain
involvement in QAPI.
Response: We agree that it is important to involve employees, both
paid and volunteer, as well as
[[Page 32122]]
individuals furnishing services under contract, in the hospice's QAPI
program. In order to ensure such involvement, we require in Sec.
418.62, that all licensed professionals furnishing services on behalf
of the hospice must actively participate in the hospice's QAPI program.
Hospices have the flexibility, within the licensed professional
requirement, to determine which individuals will lead QAPI efforts
based on their own needs and goals. Hospices may choose to use the
services of board certified chaplains in developing and implementing
their QAPI program.
Comment: A few commenters suggested that we should require hospices
to publicly report the results of their data collection, while other
commenters expressed concern that we may require hospices to use a data
collection tool such as OASIS, which would enable public reporting of
hospice data. Similarly, commenters expressed concern that we would
expect hospices to use computerized systems in implementing the QAPI
requirement.
Response: Quality assessment and performance improvement is a fast
growing approach to quality improvement in the hospice industry.
However, there is no nationally standardized and accepted set of
measures that could be used at this time to develop an OASIS-like tool
that would enable public reporting. The intent of this rule is to
establish the framework of QAPI in hospice, not to prescribe specific
measures or tools. As such, we are not requiring hospices to use
specific outcome or process measures, data elements, forms, or computer
systems. These decisions are at the discretion of each hospice based on
its own needs and goals. We caution that we cannot, at this time,
predict with any certainty the future of hospice data collection and
its relationship to the public reporting of data.
Comment: Many commenters asked for more information about how State
surveyors will survey hospices for compliance with the QAPI
requirements. Commenters sought more information about how hospice
surveyors will use hospice data and how they will determine a QAPI
program's scope, complexity and adequacy of improvement projects.
Response: Hospices are required to collect and analyze patient care
and administrative quality data and to use that data to identify,
prioritize, implement, and evaluate performance improvement projects to
improve the quality of services furnished to hospice patients. In order
to assess compliance with the QAPI requirements, hospice surveyors will
need to access, upon request, a hospice's aggregated data and its
analysis of that data. Surveyors will also need access to the hospice's
QAPI plan, any meeting minutes or notes for meetings concerning the
development and implementation of the hospice's QAPI program, those
individuals responsible for the QAPI program, and any other necessary
resources needed to assess a hospice's compliance. This information
will allow surveyors to match the data provided by the hospice with the
actual experiences of hospice employees and patients to ensure that the
QAPI program is prevalent throughout the hospice's operations and
services, and that it is positively influencing patient care.
Furthermore, this information will enable surveyors to assess the
adequacy and appropriateness of a hospice's QAPI program. Surveyors
will focus on areas such as how and why a hospice chose its quality
measures, how it ensures consistent data collection, how it uses data
in patient care planning, how it aggregates and analyzes data, how it
uses the data analysis to select performance improvement projects, how
it implements such projects, and its use of data to evaluate the
effectiveness of those projects. We will include more detailed
information about the QAPI survey process and goals in future sub-
regulatory guidance such as the State Operations Manual and
Interpretive Guidelines.
We note that hospitals are currently required to comply with a very
similar performance improvement project regulation and have
successfully determined their performance improvement project needs and
goals without prescribed minimums. Likewise, hospital surveyors have
successfully assessed hospital compliance with the performance
improvement project regulation without such minimums. We will use the
knowledge gained through the hospital survey process to guide our
understanding and implementation of surveys for hospices complying with
this performance improvement project regulation.
6. Condition of Participation: Infection Control (Sec. 418.60)
There are no current requirements for infection control other than
the requirements at Sec. 418.100(a) that read in part, ``each patient
is to be kept comfortable, clean, well groomed, and protected from
accident, injury, and infection,'' and the requirement at Sec.
418.100(e) regarding isolation areas. We proposed a new CoP to help
manage the seriousness and hazards of infectious and communicable
diseases.
We recognize that a hospice cannot be directly responsible for the
maintenance of an infection-free environment in every setting. We
proposed in Sec. 418.60(a), ``Prevention,'' that hospices follow
accepted infection control standards of practice and ensure that all
staff that provide hospice services know and use these current best
prevention practices to curb the spread of infection. Periodic training
is one way to assure that staff take all appropriate infection
prevention and control precautions. Hospices may also consider
immunizing their patient care staff for influenza as part of their
infection control programs. Hospice staff may transmit influenza to
patients, compromising their quality of life at this important time,
and to caregivers, compromising their ability to effectively care for
the patient. Furthermore, infected staff may create a staffing
shortage, compromising the entire hospice's ability to safely and
effectively deliver care to all hospice patients and their families.
In Sec. 418.60(b), ``Control,'' we proposed that the hospice be
required to engage in an ongoing system-wide program that focuses on
the surveillance, identification, prevention, control, and
investigation of infections and communicable disease. Where infection
and/or communicable disease are identified, we expect that this
information would be made part of the hospice's quality assessment and
performance improvement program.
As proposed in Sec. 418.60(c), ``Education,'' each hospice would
be expected to educate its staff, as well as patients, families, and
other caregivers in the ``current best practices'' for controlling the
spread of infections within the home during the course of the family/
caregiver's interactions. We did not propose any specific approaches
that a hospice would be required to adhere to. A hospice would be
expected to aggressively seek to minimize the spread of disease and
infection through its efforts to help families and caregivers
understand what can and should be done to minimize infection.
Comment: Several commenters thanked us and supported the
incorporation of this new requirement.
Response: We appreciate the support from the commenters on this
proposal. We believe that this requirement is necessary to ensure that
patients receive quality care from hospices, regardless of the
patient's setting. Due to the potential negative effects on health and
safety that are posed by infection and communicable diseases, we
believe hospices need to address infection standards of practice and
ensure all staff that provide hospice services know and
[[Page 32123]]
use the current best prevention practices to curb the spread of
infection.
Comment: One commenter requested that we add the word ``visitor''
to the list of those protected by the infection control program.
Response: We agree, and the word ``visitor'' has been added to the
opening paragraph. The final language at Sec. 418.60 reads, ``[t]he
hospice must maintain and document an effective infection control
program that protects, patients, families, visitors and hospice
personnel by preventing and controlling infections and communicable
diseases.''
Comment: One commenter recommended that the disease prevention plan
in Sec. 418.60(b)(2)(ii), should ensure the comfort of the patient.
Response: We strongly agree. The comfort, safety and well-being of
the patient must always be the main objective when providing care and
services. Section 418.100(a), ``Serving the hospice patient and
family,'' already requires hospices to furnish all care, including care
related to infection control, in a manner that optimizes patient
comfort.
Comment: A few commenters expressed concern about our proposed
requirement at Sec. 418.60(c) that hospices must provide infection
control education to staff, patients, family and other caregivers. One
commenter expressed concern that the tracking of infection in hospice
patients, especially in the home setting, is difficult and that in many
cases infection is a natural progression of the disease and is not
unexpected.
Response: We acknowledge the limitations hospices may encounter
regarding infections in patients, and in determining the outcomes for
patients that are terminally ill, immune-suppressed and that may have
other co-morbidities. However, we believe that this should not affect
the need to apprise family and caregivers about infection control. The
education standard in Sec. 418.60(c) allows the hospice flexibility in
meeting infection control, prevention and education objectives. While
we would expect the hospice to adhere to best practices, we are not
requiring any specific approaches. Due to the negative effects of
infections on the health and safety of patients and staff and the
potential financial burden on the hospice, we believe that it is in the
best interest of hospices and the patients they serve to focus on
controlling the spread of infections in the home.
Comment: A few commenters asked how hospices should handle
extremely short lengths of stays, where there may not be an opportunity
to educate the caregivers on infection control procedures.
Response: We certainly appreciate that hospices may encounter
patients that elect the benefit in the last 24-72 hours of life. We
agree that, due to the short timeframe, there may not be time to
educate the patient, family and caregiver on myriad infection control
procedures, nor given the circumstances, may it be appropriate.
Nonetheless, we believe that the demonstration of best practices by the
hospice staff while caring for the patient and the ability of the staff
to talk to the patient and family regarding basic precautions such as
hand washing while providing care would be sufficient. This information
will be included in future sub-regulatory guidance.
7. Condition of Participation: Licensed Professional Services (Sec.
418.62)
Sections of current regulations at Sec. 418.82, ``Nursing
services;'' Sec. 418.84, ``Medical social services;'' and Sec.
418.92, ``Physical therapy, occupational therapy and speech-language
pathology,'' identify detailed tasks that must be performed by agency
staff. We proposed to remove Sec. 418.82, Sec. 418.84, and Sec.
418.92, and replace them with a more simplified condition, ``Licensed
professional services.'' Instead of identifying detailed tasks, we
broadly described the expected contributions of the licensed
professionals who are furnishing hospice services. Licensed
professional services, for purposes of this section, would include, but
not be limited to, skilled nursing care, physical therapy, speech
language pathology, occupational therapy, and medical social services.
We proposed that licensed professionals who provide services to hospice
patients either directly or under arrangement would participate in
coordinating all aspects of care, including updating the
interdisciplinary comprehensive assessments, developing and evaluating
plans of care, participating in patient and family counseling,
participating in the quality assessment and performance improvement
plan, and participating in in-service training.
Comment: Several commenters suggested that we amend the language in
proposed Sec. 418.62(b) to apply to the coordination of the patient's
hospice care. One commenter stated that we should limit the hospice's
responsibility to coordination of hospice care, since the hospice
cannot control other aspects of patient care that are unrelated to the
terminal illness and related conditions.
Response: We appreciate the comments and are accepting the
suggested changes. Although we expect that the hospice will actively
participate in the coordination of hospice care, it is unrealistic and
beyond the scope of the hospice regulations to require hospices to
coordinate all aspects of a patient's care. Therefore, we have amended
this provision and the final language at Sec. 418.62(b) now reads,
``[l]icensed professionals must actively participate in the
coordination of all aspects of the patient's hospice care * * *.'' As
previously noted, if a hospice does not coordinate all aspects of a
patient's care, it is incumbent upon the hospice to know who is
performing this function, and to actively communicate and coordinate
with other providers to ensure that the patient's needs and goals are
met.
Comment: One commenter asked that we not require contracted staff
to participate in the hospice's QAPI program. The commenter suggested
that we amend this language so that contracted licensed professionals
are encouraged to participate whenever possible.
Response: For QAPI to work effectively for the hospice, all
professionals must be involved in the quality process. This would
include contracted licensed professionals. We expect all hospices to
provide high quality care for all of the patients they serve, and
believe that the care should be ``seamless,'' meaning that, whether the
individual providing services is an employee or contracted licensed
professional, the care provided to patients and their families must be
provided at the same high level of quality.
8. Condition of Participation: Core Services (Sec. 418.64)
The conditions of participation containing the current core
services requirements are in Sec. 418.80, ``Furnishing of core
services;'' Sec. 418.82, ``Nursing services;'' Sec. 418.84, ``Medical
social services;'' Sec. 418.86, ``Physician services;'' and Sec.
418.88, ``Counseling services.'' We proposed to combine these into a
single condition. We also proposed to incorporate the requirement at
existing Sec. 418.50(b)(3) which required that core services would be
provided in a manner consistent with accepted standards of practice.
This section was revised to reflect changes to the Act made by section
946 of the MMA. In accordance with section 946 of the MMA, we proposed
to allow a hospice (the primary hospice) to enter into arrangements
with another Medicare-certified hospice to obtain core hospice
services. The Act provided that this could be done under extraordinary
or
[[Page 32124]]
other nonroutine circumstances. Pursuant to section 1861(dd)(5)(D) of
the Act (as amended by section 946(a) of the MMA) those circumstances
are: unanticipated periods of high patient loads; staffing shortages
due to illness or other short-term temporary situations that interrupt
patient care such as natural disasters; and temporary travel of a
patient outside the hospice's service area.
In the first proposed standard, ``(a) Physician services,'' we
incorporated the existing requirements of Sec. 418.86. The existing
and proposed requirement states that hospice physicians, in conjunction
with the patient's attending physician, are responsible for the
palliation and management of the terminal illness, conditions related
to the terminal illness, and the general medical needs of the patient.
As a result of changes made to the Act by the BBA, we also proposed to
add a provision to the CoPs permitting hospices to contract for
physician services. This proposed provision would align the CoPs with
current CMS policy permitting hospices to contract for physician
services.
The second proposed standard, ``(b) Nursing services,''
incorporated the requirements of Sec. 418.82 of the existing CoPs. We
also proposed to add specific language to address the role of nurse
practitioners in providing hospice care. The services provided by nurse
practitioners continue to be guided by Medicare statutory requirements.
Within these statutory requirements, we propose to allow nurse
practitioners to perform hospice functions that are within the scope of
their practice and license, as well as within the laws of the State in
which they practice.
We also proposed in Sec. 418.64(b) to allow hospices to provide
certain types of nursing services under contract. This proposed change
also resulted from section 946 of the MMA, which amended the Act by
adding section 1861(dd)(5)(E). As amended, the Act provides that these
nursing services must be highly specialized and provided non-routinely
and so infrequently that their provision by hospice employees would be
impracticable and prohibitively expensive. We recognize that it may be
cost-prohibitive for a hospice to employ a nurse that possesses very
highly specialized skills when he or she may only care for a few
patients a year. By allowing hospices to contract with specialized
nursing providers or others to provide these highly specialized nursing
services to the few patients who require them, hospices would be able
to better implement an efficient staffing plan and ensure proficiency
in the skilled services being provided.
In standard ``(c) Medical social services,'' we proposed to
maintain the requirements of the current medical social services
requirement at Sec. 418.84. This standard would continue to require
that medical social services be provided by a qualified social worker
under the direction of a physician. This standard would also require
that medical social services, when accepted by a patient and family, be
based on an assessment of that patient's psychosocial needs. In
proposed standard Sec. 418.64(d), we addressed the counseling services
that would be available to hospice patients and their families. Those
services would be bereavement, nutritional, and spiritual counseling.
In the bereavement counseling section, we proposed that a hospice would
be required to have an organized program of bereavement services
furnished under the supervision of a qualified professional with
experience in grief/loss counseling. These services would be required
to be made available to individuals identified in the bereavement plan
of care up to one year following the death of the patient, and would
reflect the needs of those individuals. When appropriate, residents and
staff of a SNF/NF, ICF/MR, or other facility would be offered
bereavement services.
In the nutritional counseling section, we proposed to allow
qualified individuals, such as dietitians and nurses to furnish this
service, provided that it was within their scope of practice and
expertise according to State law. We believed that allowing other
qualified individuals to participate in nutritional counseling would
give hospices greater flexibility and would help ensure that all
hospice patients had access to this service when needed. This proposal
conformed to a recommendation made by the Secretary's Advisory
Committee on Regulatory Reform.
In the spiritual counseling section, we proposed that a hospice
would be required to assess the patient's and family's spiritual needs
and provide spiritual counseling to meet those needs, in accordance
with the patient's and family's beliefs and desires. If a patient and
family did not desire spiritual counseling, then they would not have to
be provided this service. If a patient and family did desire spiritual
counseling, then a hospice would be expected to facilitate visits by
local clergy, pastoral counselors, or others to the best of its
ability.
Comment: Numerous commenters requested that the regulations permit
hospices to contract for core services with various entities and for
various reasons. Some of these commenters believed that hospices should
be permitted to contract with hospice and non-hospice agencies on a
routine basis for the provision of core services to hospice patients.
Other commenters believed that, in extraordinary circumstances,
hospices should be allowed to contract with non-hospice agencies in
addition to contracting with other Medicare-certified hospice agencies,
as we proposed. Still other commenters stated that hospices should be
permitted to use contracted staff when they are providing continuous
care to one or more patients, either because continuous care increases
the amount of hours of patient care, which results in a period of peak
patient loads, or because providing continuous care requires highly
specialized nursing skills.
Response: Section 1861(dd) of the Act requires hospices to provide
substantially all core services directly (see section
1861(dd)(2)(A)(ii)(I) of the Act). Thus, in accordance with the Act,
hospices are prohibited from contracting with other hospices and non-
hospice agencies on a routine basis for the provision of core services
to hospice patients. The Act specifically states ``substantially all''
in recognition of the fact that there are times when hospices must
contract for core services. The Act identifies the circumstances in
which hospices are permitted to contract for core services as those
that are ``extraordinary'' or otherwise ``non-routine'' such as
unanticipated periods of high patient loads, temporary staffing
shortages, and travel of a patient outside of the hospice's service
area. We agree that hospices should be permitted to contract with non-
hospice providers as well as other Medicare certified hospices in order
to meet patient needs in extraordinary circumstances, and we have
amended the final rule as such.
We also agree that simultaneously providing continuous home care to
multiple patients may result in an unanticipated period of high patient
load that would warrant contracting for core services through the
extraordinary circumstance exception. If a hospice chooses to contract
with another Medicare-certified hospice or a non-hospice entity, the
contracting hospice must maintain professional management
responsibility for the services provided, in accordance with this final
rule at Sec. 418.100(e). In addition, all licensed professionals who
provide services to hospice patients under contract must actively
participate in the coordination of all aspects of the patient's hospice
care, including patient assessments; care planning development,
delivery, and
[[Page 32125]]
evaluation; patient and family counseling and education; in-service
training; and the hospice's quality assessment and performance
improvement program, to the extent applicable, in accordance with Sec.
418.62.
Comment: A commenter suggested that, in order to ensure the quality
of nurses providing care under contract, CMS should survey nurse
staffing agencies.
Response: Medicare does not currently have the authority to survey
nurse staffing agencies because they are not themselves providers under
Medicare. We expect hospices that use the services of a nurse staffing
agency to ensure that the nurses provided by such agency are qualified
to furnish nursing care to hospice patients. In addition, we expect
hospices to exercise full professional management responsibility for
the services provided by contractors to ensure that those services are
appropriate and are of high quality.
Comment: Many commenters submitted suggestions to refine the
proposed ``Physician services'' standard at Sec. 418.64(a). One of
these commenters suggested that this standard should be removed,
because having a standard for physician services separates physician
services from the rest of the IDG. Another commenter suggested that
this standard should explicitly state that the hospice medical director
would not be required personally to provide direct physician services
to every patient. Still another commenter suggested that the role of
physician assistants should be included in this standard. Several other
commenters suggested that we remove the proposed requirement that
hospice physicians be responsible for the general medical needs of the
patient, because this responsibility would create a conflict with the
role of the attending physician and/or the physicians of a SNF/NF.
Response: We believe that including a standard for physician
services under the umbrella of the core services CoP, highlights the
fact that physician services are one piece in the larger
interdisciplinary services model of hospice care. Physician services
are, in this rule, treated as equal to nursing services, medical social
services, and counseling services. These four disciplines are required
to work together as the core members of the IDG, and we believe that it
is appropriate to group them together under a single CoP.
We do not believe that it is appropriate or necessary to state that
medical directors are not required to furnish hands-on services to each
patient. Elements of the proposed rule, such as the proposed
requirement that the hospice medical director communicate with the
medical director of a SNF/NF in proposed Sec. 418.112(d), may have
incorrectly implied that the hospice medical director would be expected
to furnish direct care to every patient. We have removed or revised
these elements to reflect the fact that the hospice IDG, including its
physician member, is required to fulfill the role originally designated
for the hospice medical director. Now that these implications have been
removed, it is not necessary to explicitly state that the hospice
medical director is not required to furnish care to each patient.
We proposed the provisions governing the role of nurse
practitioners in hospice because the use of nurse practitioner services
is prevalent in the hospice industry, and we have received numerous
requests for this guidance for several years. Conversely, we are not
aware of any need to address the role of physician assistants in
hospice because, to our knowledge, physician assistant services are
rarely used in hospices and are not recognized under the Medicare
hospice benefit. We believe that there is no need to regulate services
that are not used.
We agree that we need to revise the proposed rule requiring hospice
physicians to assume responsibility for the general medical needs of
the patient. This responsibility could well be beyond the scope of
hospice physician services and could conflict with the responsibilities
of other physicians furnishing services for needs unrelated to the
patient's terminal illness and related conditions. Therefore, this
proposed requirement has been removed. We have retained the requirement
that, when the patient's attending physician is not available, a
hospice physician is responsible for meeting the patient's medical
needs. We do not believe that this requirement creates a conflict
because it only applies when the attending physician is not available
to perform his or her duties.
Comment: Several commenters suggested that requirements for nurse
practitioner services should be included in the same standard as those
for physician services. Some of these commenters also suggested that
the ``Physician services'' standard should be renamed ``Medical
services.'' In addition, some of these commenters suggested that the
requirements for nurse practitioner services, as included under the
physician services heading, should be expanded to govern the role of
all advanced practice nurses.
Response: Section 1861(dd) of the Act clearly delineates those
services provided by physicians from those provided by nurses. We
believe that the services of nurse practitioners fall squarely into the
nursing services category, because they are services provided by
nurses. We also believe that, as such, it is not appropriate to
relocate the regulation governing the services of nurse practitioners
from the nursing services standard to the physician services standard.
Since we are not placing nurse practitioner services into the same
standard as physician services, it is not necessary to rename the
standard. We agree that it is appropriate to replace the term ``nurse
practitioner'' as used in proposed Sec. 418.64(b), ``Nursing
services,'' and we have replaced it with the broader term ``registered
nurse.'' If a registered nurse, including a nurse practitioner,
advanced practice nurse, etc., is permitted by State law and regulation
to see, treat, and write orders, then they may perform this function
while providing nursing services for hospice patients. Hospices are
free to use the services of all types of advanced practice nurses
within their respective scopes of practice to enhance the nursing care
furnished to patients. The Medicare Hospice per diem payment includes
nursing costs. A Nurse practitioners cannot bill separately for care
provided to Medicare hospice patients, except under very limited
circumstances. Please refer to the Hospice chapter of the Medicare
Benefit Policy Manual for additional instructions regarding coverage
and payment policy.
Comment: A commenter suggested that we remove the proposed
requirement that the patient's plan of care describe the role and scope
of services provided by nurse practitioners.
Response: We agree that it is not necessary to describe the role
and scope of services provided by nurse practitioners separately from
the role and scope of general nursing services in the patient's plan of
care. Therefore, we have removed this proposed requirement. We continue
to expect that the role and scope of nursing services, including those
provided by nurse practitioners and other advanced practice nurses,
will be specified in each patient's plan of care in accordance with
final Sec. 418.56(c)(2).
Comment: A few commenters suggested that we should revise the
requirements of proposed Sec. 418.64(b)(3). Some of these commenters
suggested that we should delete the requirement that, in order to
contract for highly specialized nursing services, those services must
be provided infrequently. The commenters believed that the term
``infrequently'' was not specific. Other
[[Page 32126]]
commenters suggested that we should clarify that the contract for
highly specialized nursing services is not required to be with another
Medicare-certified hospice in order to differentiate this contracting
requirement from the general core services contracting requirement.
Response: Section 946(a) of the MMA amended 1861(dd)(5) of the Act
by adding a new subparagraph (E). That subparagraph states, ``A hospice
program may provide services described in paragraph (1)(A) other than
directly by the program if services are highly specialized services of
a registered professional nurse and are provided non-routinely and so
infrequently so that the provision of such services directly would be
impracticable and prohibitively expensive.'' We believe that this
criterion, established by the MMA, is sufficient for hospices to assess
whether or not they may contract for a highly specialized nursing
service. If providing the nursing service through direct hospice
employees is impossible and cost-prohibitive because the service is
provided infrequently, and if the service requires highly specialized
nursing skills, then the hospice may contract for the service.
We do not believe that it is necessary to state that the contract
for highly specialized nursing services need not be with another
Medicare-certified hospice because we have revised the requirements for
the general core services contract to permit hospices to contract with
Medicare-certified hospices and non-hospice providers for core services
under certain circumstances. Since hospices may contract with hospice
and non-hospice providers for the general core services contract and
for the highly specialized nursing skills contract, there is no need to
differentiate between the two contracts.
Comment: Several commenters suggested that we should revise
proposed Sec. 418.64(c), ``Medical social services.'' Many of these
commenters suggested that we should remove the requirement that medical
social services be provided under the supervision of a physician.
Others suggested that medical social services should be provided under
the direction of the hospice medical director or the IDG. Another
commenter suggested that this standard should require social workers to
have an MSW from an institution of higher learning that is accredited
by the Council on Social Work Education. Still another commenter
suggested that the scope of medical social services should be
broadened.
Response: Effective supervision of medical social services is
essential for ensuring high quality care. Section 1861(dd)(1)(C) of the
Act requires hospices to provide ``medical social services under the
direction of a physician.'' Since the Act specifically requires a
physician to supervise medical social services, it is not appropriate
to assign supervisory responsibility for medical social services to the
IDG. It is also not appropriate to assign supervisory responsibility to
the medical director because he or she may not necessarily be the
physician member of the IDG assigned to the patient. The medical
director, if he or she is not the physician member of the patient's
IDG, may not have sufficient knowledge about the patient's care to
effectively supervise the medical social services provided to that
patient.
In addition to effective supervision, it is essential that the
individuals providing medical social services to hospice patients be
qualified to provide these services. Section 418.114 addresses the
personnel qualifications that social workers must meet in order to
provide services to hospice patients. We have addressed the commenter's
suggestion of requiring an MSW for social workers in the section
addressing Sec. 418.114 in the preamble of this final rule.
Supervision and qualifications both affect the scope of medical
social services that are provided to patients. These services are
required to be based on the needs of patients and families as those
needs are identified through a thorough psychosocial assessment. Since
the scope of services provided is directly tied to the needs of the
patient and family, it is not possible to generically broaden their
scope. Some patients and families may have limited social work needs,
and should not be compelled to accept broader social work services that
do not meet their needs.
Comment: A commenter suggested that medical social services should
be included in the counseling services standard because social workers
perform counseling functions in hospices.
Response: While social workers do perform counseling functions in
hospices, their duties and responsibilities go beyond counseling.
Therefore, it is not appropriate to place the requirements for social
workers under the counseling services heading.
Comment: Many commenters requested that we broaden the definition
of ``counseling services'' to address the purpose of counseling
services rather than naming precisely which types of counseling
services are included in hospice.
Response: ``Counseling services'' is a broad category of services
that has undergone a change from the traditional physical and
psychological interventions and now includes the use of alternative
therapies (for example, art therapy, yoga therapy, massage therapy, and
light therapy). These therapies are now frequently used to benefit
hospice patients and their families. We encourage hospices to continue
to explore and employ alternative counseling services. We have adopted
the suggestion and have incorporated a broader description into the
requirements for counseling services at Sec. 418.64(d). In the
proposed rule we stated, ``Counseling services for adjustment to death
and dying must be available to both the patient and the family.'' This
final rule now states, ``Counseling services must be available to the
patient and family to assist the patient and family in minimizing the
stress and problems that arise from the terminal illness, related
conditions, and the dying process.'' We believe that this revised
language reflects the broad nature of counseling services described by
the commenters.
Comment: Many commenters suggested that hospices should be
permitted to provide certain specialized counseling services under
contract, either by inserting a provision to allow such contracting or
by relocating the counseling requirements to Sec. 418.70, ``Furnishing
of non-core services.'' Commenters suggested that the contract services
include dietary counseling provided by dietitians, art therapy and
music therapy, to name a few.
Response: Section 1861(dd)(2)(A)(ii)(I) of the Act requires
hospices to routinely provide substantially all core services,
including counseling services to care for the terminally ill patient
and to assist the patient in adjusting to his or her condition. The Act
permits hospices to contract for counseling services as well as other
core services, only under extraordinary or otherwise non-routine
circumstances such as short-term staffing shortages, periods of peak
patient loads, and travel of a patient outside of a hospice's service
area. Therefore, it is not appropriate to permit hospices to routinely
contract for counseling services.
Comment: Numerous commenters suggested changes to the proposed
bereavement counseling requirement at Sec. 418.64(d)(1). One of these
commenters suggested that hospices should be required to incorporate
bereavement services into their daily patient care
[[Page 32127]]
services. Another commenter suggested that either education or
experience in grief/loss counseling should be an appropriate
qualification for the individual supervising the bereavement services
program. Other commenters pointed out a distinction between offering
and providing bereavement services. They suggested that hospices should
only be required to offer bereavement services because they cannot
provide such services to individuals who are unwilling to receive them.
Response: We appreciate the general support received for the
bereavement services requirement. We agree that bereavement counseling
must be a daily hospice activity for each patient and family. To that
end, we have revised the definition of the term ``bereavement
counseling'' at final Sec. 418.3 to require the services to be
provided before and after the death of the patient. We also require
hospices to complete an initial bereavement assessment as part of the
comprehensive assessment, which must be completed within five days of
the completion of the hospice election statement and certification
form. Furthermore, as part of the comprehensive assessment, the
bereavement assessment must be updated in accordance with Sec.
418.56(d). We believe that these requirements will ensure that
bereavement counseling is incorporated into patient care throughout the
patient's hospice stay.
We also believe that it is necessary to ensure that the individual
supervising this thorough bereavement program is appropriately
qualified. We agree that, in addition to experience, education in
grief/loss counseling is an appropriate qualification for the program
supervisor. We have made this change in Sec. 418.64(d)(1)(i).
We also appreciate the support that we received regarding
bereavement services furnished within a SNF/NF or ICF/MR. As we stated
in the proposed rule preamble, there are times when facility staff and
residents fulfill the role of a patient's family, providing caregiver
services, being companions, and generally supporting the patient. We
believe it is appropriate for a hospice to consider the bereavement
needs of these individuals. However, we agree with commenters that
requiring a hospice to offer bereavement services to facility staff may
create a conflict between the hospice and the facility, which bears
ultimate responsibility for its staff. Therefore, we have separated
this requirement into two parts. A hospice may offer bereavement
services to facility residents as identified in the patient's plan of
care. Additionally, a hospice must include a provision in its contract
with a facility that addresses the offering of bereavement counseling
to facility staff. Through this contractual provision, hospices and
facilities can mutually agree upon a plan that meets the needs of the
hospice, the facility, and the staff (see Sec. 418.112(c)(9)).
Additionally, we believe that the offer of bereavement services, as
opposed to providing them, is the appropriate requirement for hospices
to meet. Hospices cannot force bereavement services upon unwilling
recipients; therefore, the bereavement plan of care is only able to
state what services will be offered because it cannot predict what
services will actually be accepted and provided. As such, we have
revised Sec. 418.64(d)(1)(iv) to state that the hospice is to,
``[d]evelop a bereavement plan of care that notes the kind of
bereavement services to be offered and the frequency of service
delivery * * *.''
Comment: One commenter stated that the reference to ``dietary
counseling'' in proposed Sec. 418.74 is confusing because we use the
term ``nutritional counseling'' in the proposed ``Core services''
requirement at Sec. 418.64.
Response: We agree with the commenter. Therefore to be consistent,
we have amended the language at Sec. 418.64(d)(2) to require hospices
to furnish ``dietary counseling.''
Comment: The majority of commenters that submitted comments
concerning our proposed requirements for nutritional counseling
supported the provision allowing nurses to furnish such counseling if
appropriate. However, a small number of commenters suggested that
hospices should be required to employ a registered dietitian to furnish
this counseling.
Response: In Sec. 418.64(d)(2) hospices are required to assure
that the dietary needs of the patient are met. If a nurse is capable of
meeting the patient's needs, then we believe that it is appropriate to
permit the nurse to fulfill this task. However, if the needs of the
patient exceed the knowledge and expertise of a nurse, we expect the
hospice to have available an appropriately educated and trained
individual, such as a registered dietitian or nutritionist, to meet the
needs of the patient. We believe that this needs-based requirement,
rather than a prescriptive requirement dictating the individuals that a
hospice must employ for this service, will assure that patient needs
are met and that hospices have the flexibility to structure their staff
in the manner that meets their needs.
Comment: While commenters generally supported the proposed
requirement at Sec. 418.64(d)(3) that hospices must assess a patient's
and family's spiritual needs, and provide care to meet those needs in
accordance with the patient's and family's acceptance of the hospice's
service, commenters expressed confusion regarding the statement that
hospices are not required to go to extraordinary lengths to facilitate
visits by individuals who can support the patient's needs. Some of
these commenters noted that spiritual counseling is often extremely
important to patients and families and that hospices should try very
hard to facilitate outside spiritual support. Other commenters stated
that the phrase ``extraordinary lengths'' is unclear and should be
removed or replaced. Some of these commenters suggested that the
requirement should read, ``[t]he hospice must make all reasonable
efforts to facilitate visits by local clergy, pastoral counselors * *
*'' or ``[t]he hospice must facilitate visits by local clergy, pastoral
counselors, or other individuals who can support the patient's
spiritual needs consistent with the patient's and family's wishes and
the willingness of the designated counselors to respond.''
Response: We agree that spiritual counseling is an essential
hospice service for many patients and families, and that hospices
should strive to facilitate visits and contacts by those spiritual
supporters that the patient and family need. However, we realize that
there is a limit to what hospices should be expected to do in order to
facilitate such visits, as reflected by the proposed requirement that
hospices are not required to go to extraordinary lengths. We replaced
the proposed ``extraordinary lengths'' requirement with a requirement
that reasonable efforts must be made. This change continues to reflect
the value of spiritual counseling without burdening hospices with
unrealistic expectations.
9. Condition of Participation: Nursing Services Waiver of Requirement
That Substantially All Nursing Services Be Routinely Provided Directly
by a Hospice (Sec. 418.66)
The requirements for obtaining a nursing services waiver as
provided by section 1861(dd)(5) of the Act is currently set forth in
Sec. 418.83, and remained virtually unchanged in the proposed rule.
This condition provides hospices the opportunity to obtain a waiver
from the requirement that substantially all nursing services be
routinely provided directly by the hospice. The Act specifies that to
obtain a waiver a hospice must be located in
[[Page 32128]]
an area that is not an urbanized area, must have been in operation on
or before January 1, 1983, and must demonstrate a good faith effort to
hire a sufficient number of nurse employees. Section 1861(dd)(5)(B) of
the Act also specifies that if a waiver is requested by an organization
that meets the statutory requirements and other provisions required by
the Secretary, then the waiver will be deemed granted unless the
request is denied within 60 days after the request is received by the
Secretary. We proposed to maintain the existing requirement, as well as
the regulatory timeframe that provides that waivers are effective for 1
year at a time, and that CMS may approve a maximum of two 1-year
extensions for each initial waiver.
Comment: A few commenters asked us to define ``urban area.''
Response: The statute at section 8161(dd)(5)(a)(i) of the Act
specifically references urbanized areas as defined by the Bureau of the
Census. We refer the commenters to the Web site at HYPERLINK ``http://www.census.gov''. In addition, hospices may contact their fiscal
intermediary or check the hospice wage index, which is updated and
published yearly.
Comment: Several commenters requested that the waiver language
requiring a hospice to be in operation on or before 1983 be amended by
requiring that hospices to be in operation a specific number of years
in order to qualify. Commenters also asked that urban as well as rural
hospices be eligible for the nursing waiver.
Response: The nursing waiver language at Sec. 418.66 tracks the
statutory language and cannot be significantly changed absent a change
in the statute. Therefore, we are unable to promulgate a regulation
that would modify the requirements of this statutory provision.
Comment: A few commenters stated that the waiver process described
in proposed Sec. 418.66 is complex, cumbersome and time-consuming.
Other commenters urged CMS to streamline and simplify the process. One
commenter asked that the waiver be deemed granted unless the request is
denied within 30 days after it is received. Other commenters asked if
it is CMS' intent to limit the waiver for individual hospice programs
to only 3 years.
Response: While we understand the waiver process may be at times a
lengthy process, CMS is unable to change most of these statutorily
based requirements. Changing the current 60-day timeframe to a 30-day
timeframe would not allow the CMS Regional Office time to sufficiently
review the waiver request. In the proposed rule, we specifically
requested information on how frequently this waiver was being used. We
heard back from very few hospices or other entities. All of those
responding stated that they were not using this waiver. At the request
of those commenters that requested clarification on the restriction of
only two 1-year extensions, CMS has removed the first sentence in the
requirement at Sec. 418.66(d). We are not restricting the number of
extensions a hospice can receive on its original waiver request. We
believe that this will reduce the burden of requesting a waiver because
hospices will no longer be required to submit a new waiver request
every three years (original request + two 1-year extensions). Instead,
a hospice can submit a single waiver request and an unlimited number of
extensions as long as it continues to meet the waiver requirements.
Comment: One commenter requested the waiver not impede a hospice
from contracting with non-Medicare-certified hospices. Other commenters
requested that CMS allow hospices to contract for continuous nursing
care.
Response: The proposed language at Sec. 418.66 does not specify
with whom a hospice can contract, nor does it specify the level of
nursing care for which contracts can be written. The purpose of the
waiver was to allow hospices in rural areas, which were having
difficulty hiring nurses, to have the ability to contract for overall
nursing services. For a discussion of contracting for continuous
nursing care, see the preamble language relating to core services at
Sec. 418.64 and existing regulations at 418.204 and 418.302.
Comment: Some commenters confused the proposed Sec. 418.66 with
the nursing shortage exemption, which was implemented on October 14,
2004 and renewed on September 14, 2006 by CMS (S&C-05-02,
www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter06-28.pdf). Other commenters stated that the proposed rule fails to
recognize the national nursing shortage.
Response: We understand that there may be some confusion about this
nursing waiver at Sec. 418.66, which is currently in regulations at
Sec. 418.83, and the nursing shortage exemption that has been in
effect the past several years. The nursing waiver at Sec. 418.66 is
statutory and allows rural hospices in operation before 1983 the
opportunity to obtain a waiver from the statutory requirement that
substantially all nursing services be routinely provided directly by
the hospice, thereby permitting such hospices to contract for nursing
services if they meet the statutory requirements. The nursing shortage
exemption implemented in 2004, and renewed in 2006, permits all
hospices that are having difficulty hiring nurses to apply for an
exemption that allows the hospice to contract for nursing services.
These two waivers are completely separate from one another. As noted,
the nursing waiver is statutory and applicable only to hospices located
in a nonurbanized area and in operation since 1983. By contrast, the
nursing shortage exemption provides short-term relief to all hospices
who qualify during this nursing shortage.
Comment: One commenter requested that this waiver not be available
to for-profit hospices, stating that ``for-profit hospices are the
fastest growing sector in the hospice industry, and there is no
evidence that they need this waiver.''
Response: The statute does not differentiate between for-profit or
not-for-profit hospices. Therefore, this waiver applies to any hospice
meeting the waiver requirements. We note that hospices must clearly
demonstrate that they have made a good-faith effort to hire nurse
employees before seeking a waiver.
10. Condition of Participation: Furnishing of Noncore Services (Sec.
418.70)
The current CoP governing non-core services is contained in Sec.
418.90. We proposed to re-number the CoP and maintain its requirements,
with slight language modifications. We also proposed to amend this CoP
by adding language contained in Sec. 418.50(b)(3) of the current rule,
which states that non-core services must be provided in a manner
consistent with current standards of practice.
There were no comments received on this condition of participation.
Therefore, we are finalizing it as proposed.
11. Condition of Participation: Physical Therapy, Occupational Therapy,
and Speech-Language Pathology (Sec. 418.72)
Currently, the CoP concerning physical therapy, occupational
therapy, and speech-language pathology is found at Sec. 418.92(a). We
proposed to recodify this CoP at Sec. 418.72 without changes. This CoP
requires hospices to make physical therapy, occupational therapy, and
speech-language pathology services available to patients, and to ensure
that these services are provided in a manner consistent with current
standards of practice.
Comment: Several commenters requested that we add dietary
counseling provided by dietitians to the
[[Page 32129]]
list of non-core services (that is, physical therapy, occupational
therapy, and speech-language pathology) included in proposed Sec.
418.72.
Response: Dietary counseling is seen as a core service, and
therefore falls under the regulatory requirements proposed at Sec.
418.64. Within Sec. 418.64 we have proposed that qualified
individuals, including dietitians and nurses, may furnish dietary
counseling, provided that it is within their scope of practice and
expertise according to State law. Also within Sec. 418.64, we allow
hospices to contract with other Medicare-certified hospices and
contracting agencies for core services under specific circumstances,
such as extraordinary or other non-routine circumstances, unanticipated
periods of high loads, and staffing shortages due to illness or other
short-term temporary situations that interrupt patient care.
Additionally, in Sec. 418.74, we allow hospices located in non-
urbanized areas to receive a waiver of the requirement that dietary
counseling be provided directly pursuant to statutory authorization at
1861(dd)(5)(C). We believe that the staffing flexibility and waivers
give hospices the flexibility to provide dietary counseling to all
patients who require the service.
12. Condition of Participation: Waiver of Requirement--Physical
Therapy, Occupational Therapy, Speech-Language Pathology and Dietary
Counseling (Sec. 418.74)
We proposed a new CoP that would provide for a waiver of certain
requirements. This CoP would establish authority to waive the
requirement that eligible hospices must provide physical therapy (PT),
occupational therapy (OT), and/or speech-language pathology (SLP)
services as needed on a 24-hour basis as otherwise required by section
1861(dd)(2)(A)(i). This CoP would also establish authority to waive the
requirement that eligible hospices must provide dietary counseling
services on a 24-hour basis and/or that eligible hospices must
routinely provide dietary counseling services directly through hospice
employees.
As in the case for a waiver of nursing services (proposed Sec.
418.66), eligibility for a waiver is based on the primary location of a
hospice. For a hospice that operates in multiple locations, its primary
location is considered to be the location of its central office. This
central office must be located in a non-urbanized area as determined by
the Bureau of the Census. The hospice must provide evidence that it
made a good faith effort (for example, copies of advertisements in
local newspapers, documentation of competitive salaries and benefits,
and evidence of recruiting activities) to hire a sufficient number of
PTs, SLPs, OTs, and dietary counselors to provide services directly
through hospice employees or under arrangement on a 24-hour as needed
basis.
Comment: Several commenters supported the optional waiver for PT,
OT, SLP and dietary services, but one commenter stated that these
services are so critical that it seemed inappropriate to provide a
waiver.
Response: We agree that these can be very valuable services for the
care of the hospice patient. However, we do not believe that these
services need to be offered as needed on a 24-hour basis if the 24-hour
requirement places an undue burden on rural hospices. Because of the
scarcity of those professionals in non-urbanized areas, we believe the
option for a waiver is appropriate. We also note that the waiver
conditions are statutory.
Comment: A few commenters requested that we consider allowing
hospices located in urban areas the waiver option as well.
Response: As noted above, this waiver language, like the nursing
waiver option at proposed Sec. 418.66, is statutory. We are unable to
promulgate a regulation that would contravene the statutory provision.
Comment: One commenter asked if it is our intent to limit the
waiver for individual hospice programs to only three years.
Response: As proposed, a hospice would have been required to submit
an original waiver request. The hospice could then request up to two
extensions on the original request. Once those two extensions expired,
the hospice would have been required to submit another original waiver
request. Thus, while the proposed requirement did not limit a hospice
to receiving a waiver for three years in total, it did require a
hospice to submit substantially more paperwork once every three years
in the form of an original waiver request. We believe that it is not
necessary to require an original waiver request every three years.
Therefore, we have removed the first sentence in the proposed
requirement at Sec. 418.74(d). We are not restricting the amount of
extensions a hospice may receive to the original waiver request.
Comment: One commenter requested that this waiver not be available
to for-profit hospices, stating that ``for-profit hospices are the
fastest growing sector in the hospice industry, and there is no
evidence that they need this waiver.''
Response: The statute does not differentiate between for-profit or
not-for-profit hospices. Therefore, this waiver applies to any hospice
meeting the waiver requirements. We believe that the criteria set out
at 1861(dd)(5)(C)(ii) of the Act will ensure that waivers are granted
only on an as-needed basis.
13. Condition of Participation: Hospice Aide and Homemaker Services
(Sec. 418.76)
Section 1861(dd)(1)(D) of the Act requires Medicare covered home
health aide services to be furnished by an individual who has
successfully completed training or a competency evaluation program that
meets the requirements established by the Secretary. This section also
provides for coverage of homemaker services. Currently, the condition
of participation concerning home health aide and homemaker services is
set forth at Sec. 418.94, which incorporates by reference the home
health aide requirements of the home health agency CoPs at Sec.
484.36. We proposed in Sec. 418.76 to use most of the substance of the
requirements of Sec. 484.36. The home health aide CoP establishes that
a home health aide must complete a State-established or other training
program, and in Sec. 418.76(b) we outline the requirements that this
training must meet, which are similar, but not identical to, the
provisions of Sec. 484.36. In Sec. 418.76(e) and Sec. 418.76(f) we
outline requirements for the individuals and organizations eligible to
provide the aide training.
We proposed that three standards be particularly adapted for the
hospice conditions of participation. First, Sec. 418.76(h),
``Supervision of home health aides,'' would be revised from the current
Sec. 484.36(d), to require that a registered nurse or appropriate
qualified therapist conduct an on-site supervisory visit no less
frequently than every 28 days while the home health aide is providing
care. This in-person supervisory visit would need to be conducted with
at least one patient to whom the aide is providing services at the
time. Thorough supervision of home health aides is crucial to ensuring
that the patient's and family's needs are being met, and conducting
supervisory visits when the aide is performing his or her duties is a
key way to provide thorough supervision. Onsite supervisory visits will
still be required every 14 days, as in the current rule at Sec.
484.36(d)(2), but the aide would not be required to be present for
these visits. This supervision schedule would allow hospices to
maintain control over the quality and continuity of care being
provided, and would help ensure that
[[Page 32130]]
all patients receiving home health aide services were having their
needs met by these services.
Second, proposed Sec. 418.76(j), ``Homemaker qualifications,'' was
adapted from the existing Sec. 418.94. The proposed standard would
define a qualified homemaker as a home health aide, as described in
Sec. 418.76, or an individual who met the standards in Sec.
418.202(g) and has successfully completed hospice orientation
addressing the needs and concerns of patients and families coping with
a terminal illness. Homemaker services, as noted in Sec. 418.202(g),
may include assistance in maintenance of a safe and healthy environment
to enable the patient to benefit from care that is furnished.
Finally, Sec. 418.76(k) would require a member of the IDG to
coordinate homemaker services, and supply instructions for the
homemaker on duties to be performed. The homemaker would be required to
report all concerns about the patient or family to the member of the
IDG who was coordinating the homemaker services. We have proposed these
changes to ensure proper training and supervision, and to protect the
quality of the homemaker services provided.
Comment: Numerous commenters suggested that we should change the
term that we use to refer to aides who furnish hospice care. Commenters
suggested that the phrase ``nursing aide'', ``certified nursing
assistant'', or ``hospice aide'' be used instead of the phrase ``home
health aide.''
Response: We agree that it is appropriate to re-name aides who
furnish hospice care in order to differentiate them from aides who
furnish care in other environments. Therefore we have adopted the term
``hospice aide'' as best describing that role.
Comment: A commenter suggested that all of the hospice aide
requirements (that is, training, education, and supervision) should be
replaced by those for nurse aides, as described in 42 CFR part 483,
which sets out standards for long term care facilities.
Response: We agree that nurse aide training and education in
accordance with Sec. 483.151 through Sec. 483.154 is an appropriate
qualification for hospice aides, and we have incorporated these
provisions at new Sec. 418.76(a)(1)(iii). However, we do not believe
that the supervision requirements for nurse aides in long term care
facilities meet the needs of hospices, whose hospice aides furnish care
in the community rather than in a self-contained facility. Therefore,
we are not adopting the supervision requirements from part 483.
Comment: Many commenters suggested that, in order to adapt the
requirements of the home health aide regulations to the hospice
regulations, we should replace all references to home health agencies
with references to hospice agencies. Several commenters singled out the
reference to home health agencies in proposed Sec. 418.76(f),
``Eligible training organizations,'' which prohibits certain home
health agencies from training aides, as a place where a reference to
hospice agencies should be substituted.
Response: We agree that, throughout most of this CoP, references to
home health agencies should be replaced with references to hospice
agencies, and we have made these changes. However, in Sec. 418.76(f),
we are unable to substitute hospices for home health agencies. The
provisions of standard (f) come directly from Section 1891(a)(3) of the
Act. Therefore, certain home health agencies must be prohibited from
providing aide training. Hospices, however, are not prohibited from
providing aide training, even if they meet the exclusion criteria
established for home health agencies. Although hospices are not
excluded from providing training, we caution all hospices to ensure
that training furnished by other providers meets all of the
requirements of this rule and is of the highest quality. It is
essential that aides be well trained to perform their patient care
duties.
Comment: A commenter suggested that hospice aides should be
required to be certified in hospice and palliative nursing assistant
care.
Response: Hospices are free to require their hospice aides to be
certified in hospice and palliative care. However, this certification
goes beyond the standards of aide education and training that are
currently in place for other provider types and is uncommon within the
hospice industry. Requiring such certification for all hospice aides
nationwide would likely result in a shortage of qualified aides, which
would negatively impact patient care and outcomes. For these reasons,
we are not adding this suggested requirement.
Comment: A commenter suggested that, in the first sentence of Sec.
418.76(c), we should add the word ``aide'' to state that ``an
individual may furnish home health aide services on behalf of a hospice
* * *.''
Response: We agree that adding the term ``aide'' will clarify our
intent, and we have made this change. In this section, the term ``home
health aide'' has been replaced by the term ``hospice aide''.
Comment: Many commenters suggested changes to our proposal at Sec.
418.76(e) that would require the registered nurse who provides or
supervises hospice aide training to have at least two years of nursing
experience, one of which must be in home health care. The commenters
suggested that the term ``home health'' be replaced with the term
``hospice''.
Response: We agree that experience in hospice care is an
appropriate source of knowledge for a registered nurse to perform or
supervise practical training for hospice aides. We replaced the term
``home health'' with the term ``home care,'' which is used broadly in
this standard and encompasses both home health care and hospice care.
We believe that this fulfills the commenters' request without limiting
the opportunity for the registered nurse to gain the necessary
experience.
Comment: Numerous commenters made suggestions regarding the
proposed requirement at Sec. 418.76(g)(2) that aide services must be
ordered by a physician or nurse practitioner and included in the plan
of care. Specifically, some commenters suggested that the IDG as a
whole, of which the physician is a member, should be allowed to order
hospice aide services. Other commenters supported our proposal to allow
both nurse practitioners and physicians to order hospice aide services.
Still other commenters suggested that the frequency and scope of aide
services should not need to be detailed, as is required of all other
services contained in the plan of care. A single commenter suggested
that the proposed provisions regarding hospice aide assignments and
duties should only apply in the absence of State requirements.
Response: While we appreciate the support for our proposal that a
nurse practitioner or physician must order hospice aide services, we
agree that the IDG as a whole may order hospice aide services because
physicians and nurse practitioners are already active members of the
IDG. When ordering hospice aide services, we believe that it is
necessary to detail the scope and frequency of such services. The
purpose of the order, as included in the plan of care, is to provide a
comprehensive map of which disciplines are providing which services at
which time(s). Without such detailed information there is a lack of
clarity that may compromise patient and family care. Therefore, we are
keeping the detailed scope and frequency requirements.
Comment: Many commenters requested clarification about what duties
hospice aides are permitted to
[[Page 32131]]
perform. The commenters were particularly interested in proposed Sec.
418.76(g)(3)(iv), which would permit hospice aides to provide
assistance in administering medications that are ordinarily self-
administered. Some commenters wanted to know how to determine which
medications are ordinarily self-administered, while other commenters
noted that the hospice aide training requirement at proposed Sec.
418.76(b) does not require aides to be trained in medication
administration. Related to these comments on aide training are
commenters who sought clarification on the proposed requirements of
Sec. 418.76(g)(2)(iv), which stated that aides may only furnish
services that are consistent with their aide training. Still other
commenters suggested that medication administration requirements should
defer to State laws.
Response: Section 418.106 of this rule requires hospices to
evaluate a patient's and family's ability to safely administer
medications. This requirement is present because various factors may
interfere with a patient's ability to safely adhere to a medication
regimen. Allowing hospice aides to help administer those medications
that patients are typically allowed to administer to themselves, if
they are competent to do so, allows hospices to meet the medication
needs of patients and caregivers who are not capable of safely self-
administering medications. Assistance in medication administration may
consist of helping a patient with hand tremors apply or remove a
medication patch or any number of other similar tasks. Allowing aides
to fulfill this role may decrease the demand for nursing visits for the
purpose of medication maintenance, thus allowing nurses to provided
services where needed.
Determining those medications that are appropriate for aides to
help administer is the decision of the IDG, based on the needs of the
patient and family, the training of the aide, the policies of the
hospice, and any applicable State and local laws and regulations. We do
not require all hospice aides to be trained in medication
administration because not all hospices will choose to have aides
perform this task. Section 418.116 of this rule requires hospices to
comply with all health and safety related State and local laws and
regulations. State or local rules may very well prohibit hospice aides
from administering medication. However, if medication administration is
within the bounds of State and local rules, and if hospices do choose
to have aides perform this task, Sec. 418.76(b)(3)(xiii) requires
those hospices to provide aide training for any other task that an aide
is expected to perform, which would include medication administration.
This, in conjunction with the requirement at Sec. 418.76(g)(2)(iv),
that aide services furnished must be consistent with hospice aide
training, effectively requires medication administration training for
those aides who are charged with assisting patients in administering
medications that are ordinarily self-administered.
Comment: Some commenters suggested that we should replace the
proposed hospice aide supervision requirements with the supervisory
requirements for home health aides found in the home health regulations
at Sec. 484.36. Commenters also suggested that we should replace the
every-14-day supervisory visit requirement, which was designed to
ensure the adequacy and appropriateness of aide services for each
hospice patient, with a requirement that the RN should review the
patient's plan of care with the aide at least every 60 days, and as
needed. These commenters stated that supervising the aide every 14
days, as is currently required in the existing hospice regulations, is
overly burdensome. Other commenters explicitly supported the 14 day
supervision requirement.
Response: We appreciate the support for this requirement among some
commenters. We believe that supervising the aide every 14 days to
ensure that aide services are adequate and appropriate for each hospice
patient is appropriate, given the length of time that most hospice
patients receive hospice services. Many hospice patients die within a
few weeks of beginning hospice services. If we were to extend the
supervision timeframe, the extension would likely result in no
supervisory visits occurring between the time the patient begins
receiving hospice care and the time the patient passes away (for
example, a hospice patient begins receiving aide services on day three
and passes away on day 24, without ever receiving an aide supervisory
visit to assess the adequacy and appropriateness of the aide care
provided). This lack of supervision would in no way benefit patients
and families. In addition, this lack of supervision would likely not
help hospices because they would remain completely unaware of the
quality and adequacy of the aide services they were providing. This
could lead to an over-or under-use of aide services, low quality aide
services, patient and family dissatisfaction, and a wide variety of
other negative outcomes that hospices wish to avoid. In short, we
believe that adequate frequent supervision benefits patient and
hospices alike, and the requirement remains in this final rule.
Comment: A commenter suggested that all hospice aide supervision
requirements should be removed in favor of outcome and patient
satisfaction measures and performance improvement projects when
measures indicate inadequate performance in aide services. Another
commenter suggested that all hospice aide supervision requirements
should be removed because hospices are already required by Sec.
418.76(b) and Sec. 418.76(c) to ensure that hospice aides are trained
and that competency evaluations are completed.
Response: We are not deleting these requirements for two reasons.
First, while hospice aide training and competency evaluations ensure
that aide skills are adequate upon hiring or initial training, they do
not ensure that those same skills remain adequate as time passes. We
believe that aide skills should be continuously reexamined to ensure
competency at all times. Second, hospice quality and outcome measures
have not yet reached the point where there is consensus on a single set
of measures that have been thoroughly tested and determined to be
valid, reliable, and widely applicable. As quality and outcome measures
continue to evolve we will consider this suggestion. Nonetheless,
hospices may use an outcome measure that targets aide services as part
of their QAPI program, however the measure could not replace aide
supervision. Outcome measures and supervision can and should work
together, rather than replace each other, in order to enhance the
quality of the service provided, patient outcomes, and patient
satisfaction.
Comment: A few commenters requested clarification about the nursing
personnel who may function as hospice aide supervisors. One commenter
suggested that licensed vocational nurses (LVNs) and licensed practical
nurses (LPNs) should be permitted to supervise hospice aides. Another
commenter suggested that any nurse should be permitted to supervise a
hospice aide, rather than having a designated nurse supervise a
specific hospice aide's care of a patient.
Response: Registered nurses (RNs) have the education and training
to adequately supervise hospice aide services. In addition to ensuring
that hospice aides furnish the care identified in the plan of care,
nurse supervisors must be able to assess the adequacy of the aide
services in relationship to the
[[Page 32132]]
needs of the patient and family. Registered nurses possess the
assessment skills necessary to fulfill this function to a greater
degree than LVNs and LPNs, which makes registered nurses uniquely
qualified to fulfill the hospice aide supervisory position.
In addition to having the necessary assessment skills, it is
important that registered nurses have a relationship both with the aide
being supervised and the patient receiving the aide's services.
Ideally, the RN responsible for supervising the aide is the RN chiefly
responsible for the patient's nursing care. This allows the RN to
develop a complete picture of the patient and family and of the aide's
services. For this reason, we believe that it is necessary for hospices
to identify a specific RN who will serve as the aide's supervisor
during the care of a specific patient. We understand that, at times, it
is necessary to use other RNs to fill-in and supervise aide services.
If a substitute supervising RN is used, this should be noted.
Comment: A large number of commenters expressed concern about our
proposal in Sec. 418.76(h) to allow therapists to supervise hospice
aides. Some commenters sought clarification regarding the exact meaning
of the term ``qualified therapist.'' Other commenters suggested that
therapists should only be allowed to supervise hospice aides when aides
are furnishing delegated therapy services. Still others suggested that
only nurses be allowed to supervise hospice aides.
Response: We proposed to allow hospices to use therapists to
supervise home health aides in order to provide more flexibility in
meeting the every-28-day in-person supervisory visit requirement
discussed later. We have changed the 28-day timeframe, thereby
alleviating many of the related supervisory demands. For this reason,
we believe that it is no longer necessary to allow therapists, who are
not routinely involved in the care of most hospice patients, to
supervise hospice aides. Thus, the term ``therapist'' has been deleted
from this standard, as well as this CoP.
Comment: A commenter suggested that the every-14-day supervisory
visit could be conducted through a telephone contact with the patient
or family, rather than through a visit to the patient's home.
Response: In-person visits by the supervising nurse to the
patient's home allow the nurse directly to observe the patient and the
results of the aide's care. Telephone contacts do not allow the nurse
to see if the patient has been bathed, and patients may be hesitant to
report these failures of duty to nurses for any number of reasons. In-
person home visits simply provide nurse supervisors with more
information than telephone contacts do.
Comment: A commenter suggested that we should clarify the purpose
of the every-14-day supervisory visit required by Sec. 418.76(h), to
state that the visit is designed ``to assess the quality of care and
services provided'' by the aide.
Response: We agree that clarifying the intent of the every-14-day
supervisory visit will be helpful to hospices. We have added language
at Sec. 418.76(h)(1)(i) to reflect the intent of the suggestion. In
addition, we have added a statement that the every-14-day supervisory
visit is also meant to ensure that the services ordered by the hospice
are sufficient to meet the patient's needs.
Comment: Numerous commenters submitted suggestions on the proposed
every-28-day timeframe for in-person supervision of hospice aides at
Sec. 418.76(h). Although some commenters expressed support for the 28-
day supervision requirement, most suggested that the 28-day timeframe
be changed to every 60 days, every quarter, every 6 months, every 12
months, or even every 24 months. Some commenters also suggested that
the in-person supervision requirement be deleted in its entirety.
Response: We believe that all hospice employees, including hospice
aides, must be supervised. To ensure that aides are adequately
supervised, we proposed that each aide would be supervised while he or
she is furnishing care to a patient for the purpose of observing the
aide's skills. In addition, we proposed that this in-person supervision
would occur at least every 28 days. After reviewing the comments that
we received, we agree that assuring aide skill competency 12 times per
year is not necessary. In keeping with our desire to maintain
consistency with the aide requirements in the home health regulations,
we have changed the in-person supervisory visit timeframe from once
every 28 days to once annually per aide.
At the same time, we have added a new requirement at Sec.
418.76(h)(1)(ii) that requires hospices to conduct in-person
supervisory visits to observe and assess aide skills if a potential
deficiency in care furnished by the aide is noted in the regular 14-day
supervisory visit (during which the aide is not required to be
present). We believe that linking more frequent in-person supervisory
visits to the actual performance of the aides will ensure that aides
furnish quality care and that hospices have the flexibility to
supervise their staff in a manner that meets their needs.
Comment: A few commenters suggested that the aide in-person
supervision visit (proposed as occurring every 28 days and finalized as
occurring annually) should be documented in the aide's personnel
record, rather than in the patient's clinical record.
Response: We agree that the aide's personnel record is an
appropriate place to document the annual in-person supervisory visit.
Hospices may determine the appropriate location to document the annual
aide evaluation in accordance with their own policies and procedures.
Comment: Many commenters expressed confusion about the in-person
supervisory visit to observe the aide furnishing care. Commenters
wanted to know whether the observation visit needed to be conducted
with each patient that the aide is caring for, or whether the
observation visit only needed to be conducted with a single patient
that the aide is caring for. The commenters noted that conducting an
observation visit with each patient that the aide is caring for would
be difficult to schedule and cost-prohibitive.
Response: The intent of the proposed rule was to require an
observation once every 28 days with a single patient that the aide was
caring for at the time of the visit. In response to public comments, we
changed the timeframe for the observation visit from once every 28 days
to once annually. In addition, we have changed the phrasing of this
requirement to more clearly state our intent for only a visit to a
single patient's home. The revised requirement at Sec. 418.76(h)(2)
states, ``A registered nurse must make an annual on-site visit to the
location where a patient is receiving care in order to observe and
assess each aide while he or she is performing care.'' We believe that
``a patient'' is clearer than the language we originally proposed,
``the patient.'' We are not requiring that the aide be supervised with
each patient annually to evaluate the aide's proficiency.
Comment: Many commenters addressed the relationship between hospice
aide services, hospice homemaker services, and Medicaid personal care
benefits. Specifically, commenters suggested that we should state in
the regulation text that hospice aide and homemaker services are not
24-hour-a-day primary caregiver services and are not meant to replace
personal care aide services covered under Medicaid or other insurers.
Commenters also suggested that we should clarify the relationship
between the hospice and personal care aides by
[[Page 32133]]
stating that hospices may use the personal aides in implementing the
plan of care only to the extent that the hospices would routinely use
the services of a patient's family in implementing the plan of care.
Furthermore, commenters suggested that hospices should be required to
coordinate their services with those furnished by personal care aides.
Response: We understand that there may be confusion relative to the
interaction between the Medicaid personal care aide benefit and the
hospice benefit. The Medicaid personal care benefit is designed to
assist eligible Medicaid beneficiaries with daily personal care tasks
such as household chores and personal hygiene. The hospice aide and
homemaker services covered under the Medicare hospice benefit cover
many of the same tasks. However, hospice aide and homemaker services
are not necessarily meant to be daily services, and are certainly not
meant to be 24-hour daily services. Hospices are neither expected to
nor prohibited from fulfilling the caregiver role for a patient.
Rather, hospice aide and homemaker services are provided to supplement
the primary caregiver(s).
Since there may be occasions where a patient receives services
through a personal care aide benefit while receiving hospice services,
we agree with the commenters that this rule should address the
responsibilities of the hospice for coordinating the care provided by
hospice personnel and the Medicaid personal care aide. We have added
new elements to address this, Sec. 418.76(i)(2) and Sec.
418.76(i)(3). Section 418.76(i)(2) provides that services furnished by
the Medicaid personal care benefit may be used to the extent that the
hospice would routinely use the services of a hospice patient's family
in implementing a patient's plan of care. Section 418.76(i)(3) requires
that a hospice coordinate hospice aide and homemaker services with the
services furnished by the Medicaid personal care aide benefit to ensure
that patients receive all the services that they require.
Comment: Numerous commenters requested clarification of the
requirements at proposed Sec. 418.76(j), Homemaker qualifications. The
commenters interpreted the proposed standard to mean that only those
individuals who have completed hospice aide training are considered
qualified to function as homemakers. The commenters disagreed with this
policy and stated that orientation to hospice care should be sufficient
for homemakers.
Response: In Sec. 418.76(j) we proposed that a homemaker be either
an individual who has completed aide training or an individual who has
successfully completed hospice orientation addressing the needs and
concerns of patients and families coping with a terminal illness. We
believe that the commenters misinterpreted this requirement, and that
the misinterpretation led to a great deal of confusion. We agree with
the commenters that homemakers do not need to complete hospice aide
training in order to be qualified, which is why we proposed that
hospice orientation is sufficient. We do not agree that hospice aide
training should be completely removed from this standard. If an
individual has completed hospice aide training, he or she should not be
prevented from serving as a homemaker. Indeed, hospice aide training
provides an extra level of education and training that would go above
and beyond hospice orientation. In order to clarify our intent in this
standard, we have reformatted it to place hospice orientation as the
first option for homemaker qualifications and hospice aide training as
the second option for homemaker qualifications. We believe that this
reformatting will make it clearer that either qualification is
acceptable.
Comment: A commenter asked whether or not hospices are permitted to
contract for homemaker services.
Response: Section 1861(dd)(2)(A)(ii)(I) of the Act requires
hospices to provide substantially all nursing, medical social, and
counseling services through direct employees. Homemaker services do not
fall into any of these categories; therefore hospices may contract for
homemaker services. If hospices choose to contract for homemaker
services, then the professional management responsibility requirements
of Sec. 418.100(e) will apply. We believe that this question may have
been prompted by a requirement in proposed Sec. 418.76(h)(4) regarding
contracting for hospice aide services. The inclusion of specific
requirements for aide contracting, and the omission of requirements for
homemaker contracting, seemed to imply that homemaker contracting would
not be allowed. We have removed the aide contracting provision at Sec.
418.76(h)(4) in order to remove any implication that homemaker services
may not be contracted.
Comment: A commenter suggested that we should explicitly state that
homemakers can be volunteers.
Response: Volunteers are permitted to fulfill many roles in hospice
care, including providing homemaker services, provided that the
volunteers meet all qualifications and personnel requirements
established by this rule. We do not believe that it is necessary to
explicitly state in this standard that volunteers may function as
homemakers. We believe that making this statement may unintentionally
imply that volunteers may not function in other capacities within a
hospice program. The implication would negatively impact the role of
volunteers in hospice and may affect the level of volunteer services
that hospices furnish.
Comment: A commenter sought clarification about who is responsible
for supervising homemaker services.
Response: We agree that this rule should explicitly require such
supervision. We have added a provision at Sec. 418.76(k)(1), stating
that the member of the patient's IDG group who is responsible for
coordinating homemaker services must also be responsible for
supervising those services.
14. Condition of Participation: Volunteers (Sec. 418.78)
The current CoP for volunteers is located at Sec. 418.70. We
proposed to recodify this CoP at Sec. 418.78 with minor changes. We
proposed to remove the existing Sec. 418.70(f), regarding the
availability of clergy, because the role of the pastoral, clergy, or
other spiritual counselor would be described as part of the IDG at
proposed Sec. 418.56(a)(1)(iv). This change would not preclude the
hospice from continuing to use or starting to use clergy as volunteers.
We did not propose any changes to the requirements to document cost
savings and to maintain a sufficient level of volunteer activity.
Comment: A few commenters suggested that we should remove the term
``day to day'' from the proposed Sec. 418.78(b). The commenters stated
that removing the phrase would permit hospices to use volunteers for
special events that occur infrequently.
Response: The phrase ``day-to-day,'' as used, requires hospices to
incorporate volunteer services into their daily patient care and
operations routine in order to retain the volunteer-based essence of
hospice as it originated in the United States. The phrase does not
preclude hospices from using volunteer services for special events or
non-routine occurrences. Hospices must use volunteers for day-to-day
services, and may use volunteers for other services as well.
Comment: Some commenters asked us to clarify that volunteer time
spent in training, orientation, travel, direct patient care, and
administrative services may be included when documenting the
[[Page 32134]]
cost savings that the hospice achieves through the use of volunteers.
Response: Section 1861(dd)(2)(E)(ii) of the Act requires hospices
to maintain records on the cost savings achieved through the use of
volunteers. That is, hospices must document those hours that volunteers
furnished care and services for which a hospice would otherwise have
been required to pay its employees to furnish such care and services.
If a hospice is training and orienting volunteers, it is most likely
using its paid employees to do so. Therefore, no cost savings is
achieved. However, if a hospice does pay an employee for time spent
traveling for direct patient care and administrative purposes, and does
not compensate a volunteer for the time, then it may include the
volunteer's travel time, direct patient care and administrative
services in its documentation of the cost savings it achieves.
Likewise, hospices may document the time that volunteers actually spend
providing direct patient care and administrative services, because
hospices would compensate paid employees for the time spent performing
these duties. We note that travel time is not the same as direct
patient care. Following publication of this final rule, we will issue
further sub-regulatory guidance addressing the manner in which the cost
savings needs to be calculated and documented.
Comment: Several commenters requested clarification about what
volunteer hours may be included in calculating the level of volunteer
activity within a hospice, as required by proposed Sec. 418.78(e).
Commenters specifically suggested that time spent traveling, providing
care or services, documenting, and phoning patients should be included
in the level of volunteer activity calculation.
Response: We understand that traveling, providing care or services,
documenting information, and calling patients all consume volunteer
time, and we agree that the time may be used in calculating the level
of volunteer activity in a hospice. If a hospice chooses to include any
of these areas that are directly related to providing direct patient
care or administrative services in its percentage calculation of
volunteer hours, it must ensure that the time spent by its paid
employees and contractors for the same activity is also included in the
calculation. That is, if a hospice chooses to count the hours spent by
volunteers traveling to and from patient homes in its calculation of
the numerator, it must count the hours spent by its paid employees and
contractors in traveling to and from patient homes in its calculation
of the denominator. In this way, hospices will be able to accurately
assess the proportion of volunteer hours to paid staff and contractor
hours. Upon issuance of this final rule, we will issue sub-regulatory
guidance to reflect the potential inclusion of certain volunteer hours
in the overall calculation.
Comment: Some commenters suggested that hospices should only be
required to provide volunteer hours equal to five percent of the
routine home care level of care hours furnished to patients. Commenters
stated that this would be easier for hospices to comply with because
providing direct inpatient, respite, or continuous home care accounts
for a substantial number of paid staff hours. Eliminating the hours
spent providing direct inpatient, respite, or continuous home care
would decrease the number of hours in the denominator, thereby altering
the ratio of volunteer hours to paid hours. Other commenters suggested
that the five percent goal should be completely eliminated.
Response: Section 1861(dd)(2)(E)(i) of the Act requires the
Secretary to ensure a continuing level of effort to use volunteers in
providing care and services to hospice patients. In addition to serving
as companions, homemakers and administrative staff, volunteers often
serve as medical directors, nurses, alternative counselors, and
spiritual advisors. All of these services, when provided by volunteers,
count toward the five percent goal. Since we permit hospices the
flexibility to use volunteers to function in such a wide variety of
roles within hospices, we do not believe that it is necessary to
artificially lower the standard for achieving continual volunteer use
in hospice by eliminating the hours spent by hospices furnishing direct
inpatient, respite, or continuous home care. Additionally, we note that
hospices have not historically failed to meet the five percent
requirement, as this is not a frequently cited deficiency during
hospice surveys conducted by the State survey agencies.
Comment: A commenter asked us to define the role of a hospice
volunteer.
Response: Hospice volunteers are permitted to fill any role within
the hospice, provided that the volunteer filling the role meets the
appropriate qualifications of this rule and any other applicable State
and local requirements (for example, State licensure). Since volunteers
may be used in any role, there is no one volunteer role that can be
defined in this rule. Any definition may unintentionally limit a
hospice's use of volunteer services, thus compromising its ability to
comply with the requirements of this rule.
Comment: Some commenters suggested that board certified chaplains
should be required to train and supervise hospice volunteers.
Response: Hospices are responsible for ensuring that volunteers are
trained, oriented, and supervised. While a designated employee must
supervise volunteers, their training and orientation may be conducted
by a person(s) of the hospice's choosing. We believe that it is
inappropriate to prescribe the qualifications for the person(s)
responsible for training and supervising volunteers because hospices
need the flexibility to make the staffing decisions based on their
individual needs. If hospices choose to use board certified chaplains
to train and/or supervise volunteers, they are free to do so.
15. Condition of Participation: Organization and Administration of
services (Sec. 418.100)
We proposed to combine several conditions of the existing CoPs into
a single new CoP. The proposed CoP included the requirements of current
Sec. 418.50, ``General provisions,'' Sec. 418.52, ``Governing body,''
Sec. 418.56, ``Professional management,'' Sec. 418.60, ``Continuation
of care,'' and Sec. 418.64, ``In-service training.'' We believe that
the proposed CoP simplifies the structure of the requirements, making
them easier to understand. We also proposed to condense the list of all
services that hospices are required to furnish into a single standard.
We believe that this single list will emphasize hospice's holistic
approach to patient and family care.
We made minor changes to the ``General provisions,'' ``Governing
body,'' ``In-service training,'' and ``Continuation of care''
requirements. In Sec. 418.100(e), ``Professional management
responsibility,'' we proposed to revise some of the current
requirements found at Sec. 418.56(b) and Sec. 418.56(c). This
proposed standard would require written agreements for services
furnished under arrangement, and would require that the hospice retain
professional management, supervisory, and financial responsibility for
all services that are provided to the patient and family. The hospice
would be required to ensure that it authorizes all services that it
provides, that they are furnished in a safe and effective manner by
qualified personnel, and that items and/or services specified in the
plan of care are provided.
We proposed to add a new standard to address the issue of multiple
service locations. This provision was intended to codify long-standing
Medicare survey
[[Page 32135]]
and certification policy, which allows for the operation of multiple
locations by a single hospice provider with a single Medicare
agreement. We expect that any hospice that requests to establish a
satellite location (now referred to as a multiple location) will be
able to demonstrate how it is able to manage and monitor all of the
services provided in its entire service area, including services from a
multiple location. Patients who receive care and services from a
hospice multiple location must receive the full range of services that
are documented in the plan of care.
Before operating a multiple location, also known as a practice
location on CMS form 855, a hospice must enroll with the fiscal
intermediary and notify the State agency and CMS of all currently
approved multiple locations at the time it requests approval for any
additional multiple locations. If a hospice provides care and services
to Medicare beneficiaries from an unapproved or disapproved multiple
location, these services may be determined to be non-covered. At the
time of any multiple location closure the hospice is expected to notify
the fiscal intermediary, State agency and CMS. Hospice multiple
locations are also subject to survey by the State survey agency or CMS
regional office. Deficiencies that are identified at any multiple
location will apply to the entire hospice issued the provider agreement
number. Multiple locations must comply with the hospice conditions of
participation at Sec. 418.52 through Sec. 418.116.
Comment: A few commenters suggested that we restate the
requirements in proposed Sec. 418.100(a)(1) to clarify that hospices
are responsible for providing care that meets the patient's needs for
comfort and dignity, but are not responsible for ensuring that
patient's actually experience such care because patient perceptions are
outside of the hospice's control. A commenter suggested that this
requirement should be further qualified by adding a statement that
hospices should only be responsible for providing such care to the
extent that it is possible within the context in which the patient is
living.
Response: We agree that hospices are responsible for providing care
rather than ensuring experiences. We also believe that the term
``optimizes'' already reflects the fact that hospices must work within
the context of the patient's living situation to address the patient's
unique needs and goals. Rather than holding hospices responsible for
actually assuring comfort and dignity, we are requiring hospices to
optimize, or take all appropriate steps, to provide care that promotes
comfort and dignity. The revised requirement reads, ``[t]he hospice
must provide hospice care that [optimizes] comfort and dignity.''
Comment: Many commenters suggested that we should reexamine the
proposed requirement at Sec. 418.100(a)(2) which would require that
the hospice must ensure ``[t]hat each patient experiences hospice care
that is consistent with patient and family needs and desires.'' The
commenters stated that hospices are not necessarily able to ensure that
patients experience care that is consistent with their needs and
desires. Rather, hospices are able to, through their actions, promote
care that is consistent with patient needs. Furthermore, commenters
stated that the term ``desires'' was too broad to be successfully met
by hospices. The commenters suggested that it be deleted; qualified by
phrases such as ``consistent with hospice practice'' or ``that are
reasonable and necessary''; or replaced by ``goals.'' In addition, the
commenters expressed concern about the requirement to meet family
desires when those desires are in conflict with each other or those of
the patient.
Response: We agree with the commenters that hospices should be
required to provide care consistent with patient and family needs
rather than requiring hospices to ensure that patients and families
experience care that is consistent with their needs and desires. Using
the term ``provide'' holds hospices responsible for those things that
are within their control in contrast to the term ``experience,'' which
is subjective and out of a hospice's control. We also agree that the
term ``desires'' is too broad and subjective, even when qualified by
the suggested phrases. We believe that the term ``goals'' is more
objective, and it corresponds with the requirement at Sec. 418.56(c)
that the hospice plan of care must reflect patient and family goals.
Therefore, we have replaced the term ``desires'' with ``goals'' in this
requirement. Furthermore, we have added a statement in Sec.
418.100(a)(2) affirming that the patient's needs and goals are the
hospice's primary consideration in care planning and delivery. While
hospice treats the patient and family as a single unit of care, this
new statement recognizes that not all members of a family may agree
about the patient's hospice care. In situations where agreement cannot
be reached regarding the goals of hospice care, the patient's needs and
goals must take precedence.
Comment: A commenter suggested that the requirement for the
governing body to assume full responsibility for management of the
hospice may be in conflict with State laws regarding management of
entities. The commenter stated that Boards of Directors generally do
not perform hands-on management of the entity.
Response: We believe that the commenter may have misunderstood our
intent in this section. We are not requiring the governing body to
actually perform day-to-day management functions. We clarified in
proposed and final Sec. 418.100(b) that the administrator, who is
appointed by the governing body, is responsible for the 24-hour
operation of the hospice. If the administrator is not available to
fulfill his or her assigned duties and responsibilities, the hospice
must identify another individual to assume those assigned duties and
responsibilities in accordance with the hospice's established policies
and procedures. The governing body must assume responsibility for
ensuring that the hospice is managed by the administrator and any
managers that the administrator appoints.
Comment: A commenter requested that we provide a definition for the
term ``administrator'' at Sec. 418.100(b).
Response: At Sec. 418.100(b) we are requiring hospices to have an
administrator who reports to the governing body and who is responsible
for the day-to-day operations of the hospice. We have added a new
requirement that the administrator be appointed by the governing body,
to further clarify the relationship between the two parties. We are
requiring that the administrator be a hospice employee who possesses
the education and experience determined to be necessary by the
governing body. We intentionally are not including specific personnel
requirements or a job description for the administrator because this
leadership position varies from hospice to hospice, based on the unique
needs of each hospice. A hospice's governing body, with knowledge of
its operations and needs, is far better suited for making administrator
personnel and job description decisions.
Comment: A commenter suggested that we should add requirements
related to advanced beneficiary notices and expedited determination
notices to proposed Sec. 418.100(d), which states that hospices may
not discontinue or reduce care provided to a Medicare or Medicaid
beneficiary because of the beneficiary's inability to pay for that
care.
Response: It is not appropriate to add information about advanced
beneficiary
[[Page 32136]]
notices and expedited determination notices to this rule because these
notices are not within the scope of this rulemaking.
Comment: Many commenters expressed concern about our proposed
requirement at Sec. 418.100(e) that hospices must retain supervisory
responsibility for services furnished under arrangement. The commenters
stated that the word ``supervision'' implies that hospices are
responsible for providing personnel supervision for those individuals
furnishing services. Personnel supervision, the commenters further
stated, is the role of the entity with which the hospice has an
arrangement. The hospice should be responsible for ensuring that such
supervision occurs. Commenters suggested that the word ``supervision''
be deleted and replaced with ``oversight'', ``supervisory
responsibility'', or ``continually monitor and manage.''
Response: It was not our intent to imply that hospices must provide
personnel supervision for contracted staff. We agree that the term
``supervision,'' as used in the proposed regulatory standard, implies
much more than was intended. Therefore, we are deleting the term
``supervision'' and replacing it with the term ``oversight'' to clarify
that the hospice must be responsible for the services furnished rather
than the individuals furnishing the services.
Comment: Numerous commenters suggested that the proposed
requirement at Sec. 418.100(e)(2) regarding the qualifications of
contracted personnel be clarified. The commenters suggested that the
phrase ``qualified personnel'' replace the phrase ``personnel having at
least the same qualifications as hospice employees.'' The commenters
stated that for some contracted services, for example, durable medical
equipment, there are no equivalent positions between the hospice and
the contractor. Therefore, it would not be possible for the
contractor's employees to have at least the same qualifications as
hospice employees.
Response: Our intent was to ensure that hospice patients receive
the same quality service regardless of whether that service is provided
by hospice employees or contracted staff. We believe that the
commenters' suggestion is appropriate and we revised the requirement
found at Sec. 418.100(e)(2). This revised element requires contracted
staff to be ``qualified,'' meaning that they must meet the personnel
qualifications of whatever profession or job description they are in,
as well as any regulatory requirements particular to that profession or
job description.
Comment: A large number of commenters expressed support for, or
requested clarification regarding, our proposal at 418.100(f),
``Hospice satellite locations.'' Commenters appreciated our inclusion
of regulations on this fast growing part of hospice care and our
exclusion of mileage restrictions. Some commenters sought specific
criteria that hospices must meet in order to open a multiple location,
while other commenters requested more detailed information on the
Medicare approval process, including what would constitute an ``initial
determination'' under Sec. 498.3, regarding such locations. A few
commenters suggested that the entire proposed multiple location
requirement be deleted.
Response: We appreciate the support from commenters on this
proposal. We believe that this proposed requirement is necessary to
ensure that patients receive quality care from hospices, regardless of
whether those services are being provided by the hospice location
originally issued the certification number or by a multiple location of
the hospice. (As noted in the discussion of public comments in Sec.
418.3, the term ``multiple location'' is more current and appropriate
than the term ``satellite location.'') We also believe that the
proposed requirement at Sec. 418.100(f), coupled with the definition
of ``multiple locations'' at Sec. 418.3, will provide much-needed
guidance for hospices considering operating one or more ``multiple
locations.''
As previously stated, we relocated the requirement that hospices
must exercise supervision and management over multiple locations from
the definition of the term ``multiple location'' at Sec. 418.3 to
Sec. 418.100(f)(1)(ii). Furthermore, we reorganized Sec. 418.100(f)
to group all requirements related to Medicare approval of multiple
locations under a single regulatory element, Sec. 418.100(f)(1),
``Medicare approval.'' We believe that grouping these elements will
clarify our expectations for hospices seeking to operate multiple
locations. Revised Sec. 418.100(f)(1)(iii) now requires that the lines
of authority, and professional and administrative control be clearly
delineated in the hospice's organizational structure and in practice.
It also requires that the lines of authority be traceable between the
hospice location issued the certification number and all multiple
locations. This new requirement further clarifies how a hospice must
demonstrate supervision and management of the multiple location by the
hospice issued the provider number. Revised Sec. 418.100(f)(1)(iv)
also includes a provision that a determination of whether or not a
location qualifies as a multiple location in accordance with the
considerations described above is an ``initial determination'' under
Sec. 498.3. An ``initial determination'' is an administrative action
made by CMS, and is subject to appeal. Section 498.5 sets out the
procedures for appellate review of CMS administrative actions that
qualify as initial determinations. Therefore, hospices may appeal an
unfavorable multiple location determination in accordance with the
procedures of Sec. 498.5.
In the preamble to the proposed rule, we described some of the
factors that are currently examined when hospices apply to their CMS
regional office for Medicare approval of a multiple location. The
factors further explain what evidence must be presented by a hospice to
CMS to demonstrate that the requirements of Sec. 418.100(f)(1), such
as supervision and management by the hospice issued the certification
number, are met by the hospice. The factors, which will be updated in
sub-regulatory guidance [(Pub. 100-7, Chapter 2, section 2081)] for
this final rule, include, but are not limited to, the following:
The hospice's ability to supervise the multiple location to assure
the provision of quality care for the patients and families served by
the multiple location;
The hospice's past compliance history;
Relevant state issues and recommendations, such as a reciprocal
agreement between states to assure that at least one of the state
agencies assumes responsibility for any necessary surveys of multiple
locations in situations in which a hospice provides services across
State lines, certificate of need requirements, State licensure
requirements, etc.; and
The ability of the hospice to ensure that each patient receives
care from an assigned IDG that effectively works together to identify
and meet the needs of the hospice patient and family.
Once a hospice has received approval from Medicare and the State
(where applicable) to operate multiple locations, Sec. 418.100(f)(2)
requires that supervision and management of the multiple locations must
continually ensure that services delivered through the multiple
locations are delivered in a safe and effective manner, and that the
care of each patient and family is provided in accordance with the plan
of care. All care and services provided by multiple locations must be
in accordance with all hospice conditions of participation at all
times. Deficiencies
[[Page 32137]]
identified at any multiple location will apply to all locations
operating under the CMS-issued certification number.
Comment: A few commenters suggested that existing multiple
locations should not be required to have individual Medicare approval.
Other commenters suggested that multiple locations, whether existing or
new, should not be required to have Medicare approval.
Response: Hospices have been required through a CMS policy
memorandum from the Director of the Office of Chronic Care and
Insurance Policy and the Deputy Director for Survey and Certification
to all Regional Administrators on the subject of the Hospice Conditions
of Participation (June 27, 1997) to obtain Medicare approval for
multiple locations since 1997. Thus, there is no need to exclude
existing multiple locations from obtaining Medicare approval because
they should have already received such approval. Furthermore, we
believe that Medicare approval is essential for ensuring that hospice
services furnished from multiple locations are in accordance with all
Medicare conditions of participation and that hospice services meet the
needs of the patients and families being served.
Comment: Some commenters suggested that we should require hospices
to orient each hospice employee to specific job duties that the
employee is expected to perform and to the fundamentals of hospice
philosophy.
Response: We agree that employees and contracted staff furnishing
patient care should be oriented in hospice philosophy, and this
requirement has been added to 418.100(g)(1). We do not believe that it
is necessary for employees and staff that do not have patient contact
to be knowledgeable in hospice philosophy, and requiring them to be
oriented as such would be an unwise use of hospice resources. We also
agree that hospice employees should be oriented to their specific job
duties, and this requirement has been added to Sec. 418.100(g)(2). If
hospice employees provide hospice care to patients who reside in
regulated facilities (for example, a nursing facility), we believe that
it would be beneficial to educate hospice employees regarding the
regulatory requirements that the facility and its staff are required to
meet. Such education may help improve hospice-facility understanding
and cooperation to ensure consistent, high quality care for hospice
patients residing in facilities.
Comment: A commenter requested that we add a provision to this
standard stating that board[pi]certified chaplains who furnish hospice
care must maintain national standards of practice and serve as teachers
to other disciplines on the topics of patient rights, advance
directives, ethics, and cultural and spiritual needs.
Response: Hospices are permitted to use certified chaplains in the
manner that best meets their needs. If a hospice chooses to use the
services of certified chaplains, then we would expect the chaplains to
maintain national standards of practice just as all other disciplines
are expected to do.
16. Condition of Participation: Medical Director (Sec. 418.102)
We proposed to revise the existing medical director requirements at
Sec. 418.54 in several ways. First, we proposed that the medical
director could provide services under contract to the hospice. This
proposal would have prohibited general contracts with agencies or
organizations for medical director services, and reflected existing CMS
policy, as permitted by section 4445 of the BBA 1997. Second, we
proposed that another physician would be identified by the medical
director to assume the role of the medical director in the medical
director's absence. We believe that having another physician prepared
to assume the medical director role would ensure continuity of care for
the hospice's patients, even when the regular medical director was
unavailable.
Third, in standard (a) and (b), we proposed to add further guidance
on the factors that would need to be considered when certifying and
recertifying the terminal illness. We believe that these factors, such
as related diagnoses, current medication and treatment orders, and the
patient's desire to continue hospice care, are already routinely
considered by most medical directors when certifying and recertifying
the terminal illness. Fourth, we proposed to further define the role of
the medical director. We proposed that the medical director coordinate
with other physicians and health care professionals to ensure that
patients receive care that is consistent with hospice policy.
Additionally, we proposed that the medical director, in tandem with the
IDG, be responsible for patient medical care in its entirety. Finally,
we proposed that the medical director be responsible for directing the
hospice's QAPI program. We believed that these medical director
responsibilities would ensure that the medical director was an active
leader and participant in all aspects of the hospice's operations and
services. We believe active participation would lead to better quality
care and patient outcomes.
Comment: While several commenters expressed general support for our
proposed medical director requirements, calling them ``appropriate''
and ``much needed,'' many commenters expressed concern that the medical
director's role appeared to supersede the role of the IDG.
Specifically, commenters stated that the proposed requirement at Sec.
418.102 that, ``[t]he medical director and physician designee
coordinate with other physicians and health care professionals to
ensure that each patient experiences medical care that reflects hospice
policy'' seemed to elevate the medical director above the other members
of the IDG. In addition, the commenters stated that making the medical
director and physician designee responsible for this coordination would
be burdensome for volunteer medical directors. Some commenters also
stated that a patient's hospice care should reflect the hospice
philosophy rather than hospice policy.
Response: Our intent in this proposed standard was to ensure that
medical directors are actively involved in patient care. However, after
considering commenter concerns, we agree that this level of involvement
is not always necessary. Some larger hospices have several physicians
who may serve on IDGs, and it is the physician member of the IDG,
whether he or she is the medical director or not, who shares the
responsibility with the rest of the IDG for communicating with other
physicians and health care providers and for ensuring that the care
furnished by the hospice reflects hospice policy. Since the medical
director may not be the physician member of the IDG, we agree that this
requirement should be removed. Hospices will still be required to have
a communication system in place to ensure the ongoing sharing of
information, both between all disciplines providing care and services
in all settings, and with other non-hospice health care providers
furnishing services to the patient in accordance with final Sec.
418.56(e). In addition, hospices will still be required to develop and
implement an individualized plan of care for each patient that
addresses the patient's and family's hospice care needs and goals in
accordance with Sec. 418.56(c). The individualized plan of care and
the services furnished to execute the plan should be in accordance with
hospice policies, which should, in turn, reflect the individual
hospice's philosophy of care.
[[Page 32138]]
Comment: A few commenters wanted to know if a medical director
could be a volunteer.
Response: Medical directors may be volunteers, and we did not
intend to imply otherwise. We believe that this question arose from the
phrasing in the proposed rule that was used to describe the employment
status of the medical director. In Sec. 418.102 of the proposed rule,
we stated that the medical director could be ``employed by, or [be]
under contract with,'' the hospice. Additionally, in Sec. 418.3 we
define the term ``employee'' to include volunteers. Since the proposed
phrasing did not explicitly use the term ``employee'', we believe that
commenters were confused about our intent. We have clarified in this
final rule that the medical director may be an ``employee'' of the
hospice, which includes volunteers.
Comment: Many commenters suggested that the hospice, rather than
the medical director, should be responsible for identifying the
physician designee who fulfills the role of the medical director in the
medical director's absence. A few commenters suggested that hospices
should be allowed to contract with physician groups, without
designating a specific physician, for medical director services, while
still other commenters suggested that hospices should not be required
to have physician designees at all.
Response: We agree that the hospice is better suited than the
medical director exclusively to choose the physician designee, and we
have incorporated this suggestion in Sec. 418.102. We are requiring
hospices to employ or contract with physician designees because, in
many hospices, the medical director may be the only physician employee
or contractor in the entire hospice. It is essential that another
physician be available to assume the medical director's role when the
medical director is absent to ensure continuous quality care for the
hospice's patients. Likewise, it is essential that there be a specific
individual identified to be the physician designee. Allowing numerous
physicians to fulfill the medical director role would likely result in
inconsistent care and decreased accountability.
Comment: Numerous commenters requested that hospices be allowed to
contract with physicians employed by a professional entity or a
physicians'' group. The commenters explained that, for tax and
paperwork purposes, it is often easier for the hospice and the
physician to arrange the contract for a particular physician's medical
director services through the physician's practice or professional
organization. In such a case, a specific physician would fulfill the
medical director position at the hospice, but the hospice's contract
for that particular physician's services would be with the physicians''
group or professional organization.
Response: Our intent in this standard is to ensure that there is a
specific physician who fulfills and is held accountable for the medical
director's responsibilities. We agree that there may be times when it
is beneficial for hospices and physicians to handle contracts through
established entities, rather than through direct individual contracts.
For this reason, we have added a new standard at Sec. 418.102(a),
``Medical director contract,'' which permits hospices to contract with
a self-employed physician or a physician employed by a professional
entity or physicians'' group. The new standard at Sec. 418.102(a)
establishes that, when contracting for medical director services, the
contract must specify the name of the physician who assumes the
responsibilities and obligations of the medical director.
Comment: A commenter suggested that we should add attending
physicians to proposed Sec. 418.102(a), which requires the medical
director or physician designee to review clinical information for each
patient and provide written certification of the patient's terminal
illness.
Response: The attending physician is a participant in the
certification process pursuant to Sec. 418.22(c)(1)(ii). Although
regulating the actions of the attending physician is not within the
scope to this rule, we agree that attending physicians should consider
the same clinical information as the medical director or physician
designee to help ensure that all physicians make certification
decisions based on the same information.
Comment: Many commenters sought clarification on our proposal at
Sec. 418.102(a) that the medical director must consider certain
factors when initially certifying that it is anticipated that a
patient's life expectancy is 6 months or less if the illness runs its
normal course.
Response: We proposed that the medical director must consider the
primary terminal condition, related diagnoses, current subjective and
objective medical findings, current medication and treatment orders,
and information about unrelated conditions when considering the initial
certification of the terminal illness. In the proposed rule, we called
these areas ``criteria'', and we believe that this term may have been
the source of commenter concern. Our intent was to ensure that medical
directors carefully examine all relevant information that is gathered
about the patient before making this determination in accordance with
the requirements for establishing eligibility for the Medicare hospice
benefit found at 418.22 and 418.25. The interdisciplinary group may
consider the information gathered during the certification in and
developing the patient specific plan of care. We have removed the term
``criteria'' in order to remove any implication that there are specific
CMS clinical benchmarks in this rule that must be met in order to
certify terminal illness.
We believe the requirements in this final rule compliment and
encompass the existing Medicare hospice certification requirements and
may enhance the health and safety of patients by ensuring that hospices
have all relevant information about a patient in the patient's record.
Comment: Several commenters suggested that the IDG as a whole,
rather than the medical director or physician designee individually as
we proposed, be responsible for reviewing the patient's clinical
information in preparation for recertifying the terminal illness. One
commenter wanted to know if a review of the patient's clinical
information would include a review of the plan of care.
Response: Certifying and recertifying the terminal illness is the
function of the medical director or physician member of the IDG, and
the patient's attending physician, if any, (in accordance with Sec.
418.22(c)), not the entire IDG. The contributions of the other members
of the IDG should be considered when making the recertification
decision. Section 418.102(c) of the final rule requires that the
patient's clinical information be reviewed before recertification.
During this review the physicians would consider all of the patient's
clinical information from all disciplines providing services to the
patient. The review would, by definition, include the patient's plan of
care since we would deem the plan of care to be ``clinical
information.'' The plan of care is required to be updated at least
every 15 days, and the 90- and 30-day benefit periods that require
recertification would coincide with the plan of care updates. We
believe that this review will allow the collection of the necessary
information from which to make a determination.
Comment: Many commenters asked for clarification of the proposed
requirement at Sec. 418.102(b)(2) that provides for review of the
patient's and family's expectations and wishes for the continuation of
hospice care. Some
[[Page 32139]]
commenters suggested that the review should focus on the patient's or
representative's expectations and wishes, rather than the family's.
Others suggested that a review of the patient's goals would be more
appropriate. Some of these commenters contended that, because hospice
is an elected benefit and patients are free to revoke their election at
any time, this requirement is unnecessary. In addition, commenters
expressed concern that reviewing the patient's and family's desire for
hospice care may appear to patients and families as though they are
being pressured to change their minds about hospice care.
Response: We agree that the proposed requirement is not necessary
because patients may choose to leave hospice at any time. Therefore, we
are not finalizing this requirement.
Comment: Numerous commenters expressed concern regarding the
proposed requirement at Sec. 418.102(c) that the medical director or
physician designee and the other members of the IDG have joint
responsibility for coordinating the patient's medical care in its
entirety. Some of the commenters believed that the proposed standard
unnecessarily separated the medical director or physician designee from
the rest of the IDG, thereby downplaying the interdisciplinary nature
of hospice care. Other commenters believed that the hospice should only
be responsible for coordinating the patient's hospice care, because
other care being furnished to a hospice patient for unrelated
conditions is not within the hospice's control. Still other commenters
believe that the patient's attending physician (if any) or the
physician of the long term care facility where the patient resides (if
applicable) would be the appropriate provider to coordinate the
patient's medical care in its entirety.
Response: We agree that it is inappropriate to create an
environment which separates the medical director or physician designee
from the IDG. We expect that all members of the IDG, including the
physician, will actively work together to ensure that a patient's care
is coordinated. We believe that this IDG approach to care is already
reflected in final Sec. 418.56. Section 418.56(e) of this final rule
requires hospices to have a communication system that allows for the
sharing of information with health care providers who are furnishing
care to hospice patients for unrelated conditions. In addition, Sec.
418.56(a)(1) of this final rule requires hospices to designate a
registered nurse who is a member of the IDG to coordinate
implementation of the plan of care, which is required to address all of
a patient's hospice needs. Since these provisions adequately ensure
that each patient's hospice care is coordinated both within the hospice
and with other health care providers, we have removed the language in
question.
Comment: The majority of commenters expressed support for involving
medical directors in a hospice's quality assessment and performance
improvement program, but expressed concern about holding medical
directors responsible for directing the QAPI program. Commenters stated
that medical directors may not be the individuals who are most
qualified to direct QAPI programs. Commenters also stated that these
medical director responsibilities would be burdensome, particularly for
part-time and volunteer medical directors. Some commenters suggested
that the IDG designated as being responsible for establishing a
hospice's day-to-day policies should have the responsibility for
directing the QAPI program, while others suggested that the governing
body or a professional advisory committee should have this
responsibility.
Response: We agree that the medical director may not be the
individual who is most qualified to direct a hospice's QAPI program;
therefore, we have removed this requirement. As licensed professionals,
Sec. 418.62(c) requires medical directors to actively participate in a
hospice's QAPI program. We believe that this requirement is sufficient
to ensure that QAPI programs benefit from the expertise of medical
directors. We considered commenter suggestions for reassigning
responsibility for directing the QAPI program. The final rule at Sec.
418.58(e)(3) requires the governing body to designate individuals to be
responsible for directing the hospice's QAPI program.
Comment: A commenter suggested maintaining the existing requirement
at Sec. 418.54 that the medical director must be a hospice employee
who is a doctor of medicine or osteopathy who assumes overall
responsibility for the medical component of the hospice's patient care
program.
Response: We do not believe that the medical director requirement
in the current regulation is sufficient, because it does not address
the issues of contracting for medical director services, physician
designees, or the role of the medical director in certifying and
recertifying terminal illness status. These are important areas to
address, as they impact a hospice's ability to obtain medical director
services as well as patient care and patient eligibility. At the same
time, we agree that it continues to be appropriate to require the
hospice medical director to assume overall responsibility for the
medical component of the hospice's patient care program. We have
incorporated this requirement into the final rule at new Sec.
418.102(d).
Comment: A commenter suggested that we should incorporate the
definition of the term ``medical director'' from the American Academy
of Hospice and Palliative Care into the final rule.
Response: No publication or policy of the American Academy of
Hospice and Palliative Care defines the term ``medical director'';
therefore, we cannot incorporate this suggestion into the final rule.
Comment: One commenter stated that the ``Medical director''
condition of participation should be deleted because the requirements
can be incorporated into the physician services requirement at Sec.
418.64(a).
Response: The hospice medical director's role is above and beyond
that of general physician services because, in addition to furnishing
physician services and being a member of the IDG, the medical director
also is responsible for providing overall medical leadership in the
hospice. We believe that this additional level of responsibility,
coupled with the medical director's supervisory role of other hospice
physicians, warrants a separate condition of participation.
Comment: Some commenters suggested that we should require hospice
medical directors to have additional education, experience, and/or
training in palliative and end-of-life care.
Response: We agree that hospices should choose a medical director
with an appropriate set of knowledge and skills to meet the needs of
patients and the hospice. We do not believe that a single set of
personnel requirements for medical directors would achieve this goal.
Hospices need the flexibility to determine the qualifications of the
medical director based on the role of the medical director in that
particular hospice. That is, a medical director who is the only
physician in the hospice, and who is thus expected to provide direct
patient care to each patient needs a very different set of skills and
knowledge than the medical director of a large hospice whose job it is
to manage numerous hospice physicians and perform various other
administrative-type tasks.
17. Condition of Participation: Clinical Records (Sec. 418.104)
The proposed condition of participation, ``Clinical records,''
would
[[Page 32140]]
incorporate several of the existing requirements in Sec. 418.74 of the
current regulation, ``Central clinical records'' (for example, that
clinical records contain past and current findings, be maintained for
each patient who is admitted by the hospice, be protected from loss or
unauthorized use, and be readily accessible). We proposed to add a new
requirement that the clinical record contain accurate clinical
information that would be available to the physician and hospice staff.
At Sec. 418.104(a), ``Content,'' we proposed to retain the
requirement that the clinical record include all assessments (including
the initial assessment and all updated assessments), plans of care,
consent and election forms, and clinical and progress notes. We
proposed the following additional requirements for the content of the
clinical record--
Advance directive information as described in proposed
Sec. 418.52(a)(3);
Authorization forms;
Responses to medications, symptom management, treatments
and services;
Patient process and outcome measures as they relate to the
plan of care; and
Physician certification of terminal illness as required in
Sec. 418.22(c) and described in proposed Sec. 418.102(a) and (b) (now
(b) and (c) in the final rule).
We proposed to add a new standard at Sec. 418.104(b),
``Authentication,'' to require authentication of clinical records. This
proposed standard was similar to a requirement in the conditions of
participation for hospitals. We proposed that all entries be legible,
clear, complete, and appropriately authenticated and dated.
Authentication would include verification of handwritten and/or
electronic signatures by signature logs or a computer secure entry of a
unique identifier for a primary author who has reviewed and approved
the entry. This new standard would address technological changes in
information management, such as the computerization of records and
electronic signatures.
Under Sec. 418.104(d), ``Retention of records,'' we proposed to
ensure protection of patient information by adding a new requirement
that patient records be retained for five years after the death or
discharge of the patient, unless State law stipulated a longer period
of time.
Under Sec. 418.104(e), ``Discharge or transfer of care,'' we
proposed a new requirement that Medicare/Medicaid-approved hospice
facilities forward a copy of the patient's clinical record and hospice
discharge summary to the facility or provider to which the patient was
being transferred. We believe that this would help to ensure that the
information flow between the hospice and the transfer facility/provider
would be smooth, and that appropriate care would continue without being
compromised. Furthermore, we proposed that the hospice discharge
summary would include information that accurately described the
patient's stay; current plan of care; recent treatment, symptom, and
pain management information; most recent physician orders; and any
other documentation that would assist in post-discharge continuity of
care.
Comment: One commenter requested that we clarify the term
``accurate'' as it pertained to the information contained in the
clinical record.
Response: CMS expects that the hospice will ensure that information
placed into the clinical record is correct and we have replaced the
term ``accurate'' with the term ``correct'' to reflect this
expectation. This would include providing correct information in
appropriate sections of the clinical record in accordance with accepted
hospice documentation policies.
Comment: One commenter suggested that updated plans of care as well
as assessments should be included in the clinical record requirement
because updated plans of care are better to use than progress notes.
Response: We agree with the commenter's suggestion and have amended
the language at Sec. 418.104(a)(1) to indicate that the patient's
clinical record must include, ``the initial plan of care, updated plans
of care, initial assessment, comprehensive assessment, updated
comprehensive assessments, and clinical notes.''
Comment: Several commenters asked CMS to clarify what is meant by
the term ``authorization'' in proposed 418.104(a)(2). Another commenter
asked that we amend the language to read ``election statement, which is
required to include consent to start hospice services as well as
patient rights.''
Response: We agree that the word ``authorization'' was confusing in
this context. We also agree that ``election statement'' should be added
to this section. Therefore we have removed ``authorization'' and have
added ``election statement'' to the regulatory text. The election
statement must be completed in accordance with the requirements of
Sec. 418.24, which is not a part of these conditions of participation.
The new Sec. 418.104(a)(2) now requires the patient's clinical record
to include signed copies of the notice of patient rights and election
statement.
Comment: The majority of commenters believed that proposed Sec.
418.104(b) was too broad and held hospices to a higher standard than
home health agencies. They recommended that we consider using the
language in the home health CoPs regarding authentication issues.
Another commenter recommended that we mirror the home health
requirements by not having a signature requirement. The commenter
stated that making a home health agency and a hospice conform to the
same requirements would offer entities that have both a hospice and a
home health agency an administrative advantage. For example clinical
record software could be utilized by both entities. One commenter
believed that the proposed language looked too much like the hospital
conditions of participation. The majority of commenters strongly
recommended that this section be excluded from the hospice conditions
of participation.
Response: We do not believe it is the best interest of the hospice
to exclude this requirement, nor do we believe the clinical record
requirement of the home health agency conditions of participation meets
the needs of hospices. We agree that the proposed language could be
difficult for the hospice to comply with; therefore we have amended the
language to allow greater flexibility. We believe that a hospice should
have the authority to create its own policy on authentication of
clinical records. We have modified the proposed rule to reflect this
change. Hospices will follow State laws regarding authentication of
clinical records, and, within this context, alter their policies as
often as necessary to adapt to changing technologies and practices.
Comment: One commenter asked if a unique user name and password
that would allow access to, and creation of, an electronic health
record would constitute authentication. One commenter stated that
electronic medical records already have multiple protections in place,
such as frequently changed passwords, making the proposed signature
requirement duplicative and unnecessary. Some commenters stated that
hospices have no mechanism to authenticate a signature of a covering
physician beyond the initial verbal order taken by the registered
nurse. Another commenter suggested that we require authentication of
documents, not signatures. One commenter asked if authentication
requirements apply to consulting physicians and covering physicians.
Another asked whether they would be required to maintain a sample
[[Page 32141]]
signature on file as proof of the legitimacy of an authentication. An
additional commenter suggested that hospices should only be required to
authenticate handwritten and electronic signatures made by hospice
employees.
Response: It will be up to the individual hospice to decide how it
will handle authentication of entries made by employees, contracted
staff, attending physicians, and any other individuals who input
information in a patient's clinical record. Hospices must first decide
on who is permitted to enter information into a clinical record. If the
hospice is using electronic medical records, electronic authentication
must have a user ID and frequently changed passwords. Every entry, both
written and electronic must be signed and dated. Hospices must continue
to comply with any applicable State laws regarding record
authentication.
Comment: Many commenters asked what we meant by ``primary author''
in proposed 418.104(b). Commenters asked whether faxed signatures would
meet the authentication requirement, and who (if anyone) would be
required to authenticate a faxed signature. Commenters also asked if we
were requiring hospices to be held accountable for signature logs for
attending physicians not employed by the hospice, or whether we were
requiring a signature log for everyone. Finally, they asked whether
this standard would apply to contracted entities.
Response: ``Primary author,'' a term that has been removed from
this final rule, referred to the person who wrote the entry. For
information that is transcribed, we would require both the physician's
and transcriber's signatures. Faxed signatures supporting orders and
documentation, or care and services delivered would be acceptable, and
we will provide sub-regulatory guidance to that effect. The hospice
would need to make its own decision as to how it wanted to approach
authentication; it will be up to the hospice to make decisions
regarding signature logs.
Comment: Several commenters noted that there were differences
between the hospice proposed record retention standard and Health
Insurance Portability and Accountability Act (HIPAA) requirements as
set out at 45 CFR 164.530(j)(2).
Response: We thank the commenters for pointing out the different
timeframe requirements under HIPAA. It was an oversight by us. To
ensure consistency between these two regulations, we have changed the
language at Sec. 418.104 (d) to read: ``Patient clinical records must
be retained for 6 years after the death or discharge of the patient,
unless State law stipulates a longer period of time.''
Comment: Several commenters requested that we amend the discharge
summary language by stating that we prefer the use of electronic
methods for sending discharge summaries and/or clinical records when a
patient is discharged.
Response: We believe that when electronic clinical records are
available, sharing of discharge summaries and/or clinical record
information through an electronic format would be acceptable if agreed
upon by both the sender and the receiver. Electronic sharing of
information may include access to a record through a secure internet
access portal. We understand that many hospices may not have this
capability. We are not mandating this as a requirement. Paper copies of
the discharge summary and clinical record are acceptable.
Comment: One commenter requested that we amend the language at
Sec. 418.104(e) so that it does not apply to patients discharged as a
result of their death.
Response: We have amended the regulatory text to indicate that a
discharge summary is only necessary for patients discharged under Sec.
418.26. We agree with the commenter that a discharge summary need not
be completed for deceased patients; we do not deem a patient's death to
be a discharge within the meaning of Sec. 418.26.
Comment: Several commenters requested language changes under Sec.
418.104(e); for example, commenters requested that ``Medicare/Medicaid
approved'' be changed to ``Medicare/Medicaid certified''; that we add
the phrase ``as requested'' to the end of proposed Sec.
418.104(e)(3)(iv); and that we add the phrase ``patient's written
consent'' to the same element. Others commented on the unnecessary
requirement that both the clinical record and discharge summary be
sent. Many commenters believed that the discharge summary contains
enough information to maintain continuity of care, and believed that a
copy of the clinical record should only be sent upon request of the
receiving entity. One commenter questioned whether sending the
discharge summary would violate the HIPAA ``minimum necessary''
standards.
Response: In response to these suggestions we have decided to amend
the language under Sec. 418.104(e). We have changed ``Medicare/
Medicaid approved'' to ``Medicare/Medicaid certified,'' and have added
the term ``if requested'' when forwarding the clinical record. Pursuant
to the HHS privacy rule at 45 CFR 164.502(a)(1)(i), 164.502(b)(2), and
164.506 the ``minimum necessary'' standard does not apply to
disclosures to or requests by a health care provider for treatment. The
transfer of patient information is permitted when the patient transfers
from one provider to another.
In the reorganization of Sec. 418.104(e) we believe we captured
the commenters' concerns in the area of discharge summary. We recognize
that the discharge summary and clinical record are very important, and
have amended the language to specify that the discharge summary will be
sent automatically, but that a copy of the patient's entire clinical
record will only be sent if requested. When patients transition from a
hospice to another provider, it is important for hospices to establish
communication channels with receiving providers. The communication
channels give hospices to opportunity to receive feedback from
receiving providers regarding the adequacy and appropriateness of the
hospice's discharge process. This feedback, which can be incorporated
into a hospice's QAPI program, gives hospices the opportunity to
improve patient transitions to ensure that patients receive safe and
effective care at all times during the transfer process.
Comment: A commenter asked us to elaborate on the proposed
requirement at Sec. 418.104(f), ``Retrieval of clinical records.''
Response: Clinical records, either in electronic or hard copy form,
must be made available to the appropriate requestor, such as the State
survey agency or and accrediting body, within a reasonable amount of
time. Access needs to be granted to any and all patient related
documentation that the hospice maintains. If the hospice maintains
electronic clinical records, equipment must be available to allow
access to the clinical record information.
Comment: Many commenters responded to our request for information
and input on the use of electronic health records. The overwhelming
consensus at this time was that electronic health records (EHR) would
be burdensome and cost prohibitive, especially for smaller hospices. A
few commenters stated that financial assistance may be necessary to
achieve EHR standards, and one commenter suggested that at the very
least, EHR standards would need to be phased in.
Response: Given the potential financial constraints, we are not
amending the final rule to mandate
[[Page 32142]]
EHRs. Hospices may use EHRs if they choose, and would need to ensure
trouble-free record retrieval.
Comment: A few commenters requested that Federal regulations as a
whole need to address the development of EHRs that can be accessed and
used in multiple care sites, including the patient's home. One
commenter included the specific pieces of information that should be in
the EHR. Some commenters commented on the advantages of the EHR, such
as: improved coordination of care, increased communication, increased
accuracy, accessibility from any computer, easy portability and
legibility, with documentation available to others much more rapidly.
Response: We acknowledge and appreciate the comments. The overall
goal of the EHR is to achieve and improve collaborative practice among
all care providers and to ensure continuity of care as patients move
across the care continuum.
Promoting the use of health information technology (HIT) is a major
health initiative of the President and the Secretary of the Department
of Health and Human Services (HHS). The President has made
implementation of interoperable HIT a national priority and has
expressed a goal that most Americans have an electronic health record
(EHR) by 2014. While this rule does not require hospice providers to
use specific health information technology solutions, including EHRs,
we encourage hospice providers to become knowledgeable about ongoing
HHS activities and actively participate in efforts to develop and
implement cost-effective HIT. For example, one activity recently
undertaken by the Secretary has been the formation of the American
Health Information Community (AHIC), a public-private sector federal
advisory body charged with providing advice on accelerating the
adoption of interoperable EHRs. In another effort, the Health
Information Technology Standards Panel (HITSP) has identified widely
accepted, consensus-based HIT standards to enable and support the
development and use of interoperable HIT products in several healthcare
domains. While HITSP did not focus on the quality measures that are
typically important to hospice providers, several of the identified
standards could be used to support the development of interoperable
quality measurement and reporting HIT products needed by hospice
providers.
Comment: Some commenters noted the disadvantages of EHRs. For
example, software requirements to meet regulatory requirements and
quality initiatives have not been finalized, EHRs may be less flexible
that paper records, EHRs can be time consuming to computer challenged
staff, and EHR systems may be more prone to failures. Commenters
believed that one of the biggest barriers to the EHR was the potential
to allow personal health records to automatically be left available to
the patient/caregiver. The commenters stated that clear safeguards need
to be in place to ensure the security and appropriate use of personal
health records in the home. A commenter believed that caregivers might
be less likely to record certain procedures or observations because of
open access in the EHR.
Response: We acknowledge the disadvantages the commenters listed.
Because of these and other issues, we are not abandoning the
traditional clinical record keeping process in favor of the EHR at this
time.
18. Condition of Participation: Drugs and Biologicals, Medical
Supplies, and Durable Medical Equipment (Sec. 418.106)
This proposed condition of participation would revise the current
general requirement, found at Sec. 418.96, that durable medical
equipment, supplies, appliances, and drugs and biologicals related to
the palliation and management of the terminal illness and related
conditions, as identified in the hospice plan of care, must be provided
by the hospice while the patient is under hospice care.
Section 418.106(a)(1), ``Administration of drugs and biologicals,''
would have required that all drugs and biologicals be administered in
accordance with accepted hospice and palliative care standards of
practice and according to the patient's plan of care. In Sec.
418.106(a)(2) we proposed to add a new requirement that the IDG be
responsible for reviewing the plan of care to determine whether the
patient and/or family has and continues to have the ability to safely
administer drugs and biologicals.
In Sec. 418.106(b), we proposed that the hospice would have a
written policy for tracking, collecting and disposing of controlled
drugs that are maintained in a patient's home. We proposed that this
policy would be discussed with patients and their families during the
initial assessment to ensure that patients and families were educated
about the uses and potential dangers of controlled drugs. We believe
that the hospice's policy, coupled with patient and family education,
would result in shared responsibility for these beneficial, but
potentially dangerous, drugs.
Standard 418.106(c) proposed that hospices assume responsibility
for the use and maintenance of durable medical equipment and supplies.
This standard proposed that hospices, either directly or under
contract, would be responsible for ensuring the maintenance and repair
of durable medical equipment in a manner that conformed to manufacturer
recommendations. If no manufacturer recommendations existed for a piece
of equipment, then repair and routine maintenance policies and
procedures would have to be established. This standard also proposed
that the hospice ensure that the patient, family, and all other
caregivers receive instruction in the safe use of equipment and
supplies. Likewise, the hospice would have to ensure that the patient,
family, and other caregivers could demonstrate the safe use of such
equipment and supplies to the satisfaction of hospice staff. We believe
that proper maintenance and education are essential to ensuring the
patients benefit from fully functional equipment and supplies that they
are able to use in a safe and effective manner.
Comment: A commenter asked us to define the term ``controlled
drugs.''
Response: In this regulation we intend controlled drugs to mean
those substances identified under schedules II, III, IV, and V of the
Federal Controlled Substances Act (Pub. L. 91-513) and FDA regulations
(see 21 CFR part 290) issued thereunder.
Comment: A few commenters suggested that we should require hospices
to use pharmacists to participate in the drug review. Other commenters
suggested that we should require a pharmacist as a member of the IDG to
help identify and prevent drug-related complications such as
duplication, improper dosing, and drug interactions. Still other
commenters suggested that the requirements for pharmacist and
pharmaceutical services at proposed Sec. 418.110(m) and Sec.
418.110(n) should apply to the entire hospice, rather than only to the
hospice inpatient facility. The commenters stated that, since drugs are
prescribed to virtually all hospice patients, these patients should
benefit from the expertise of a pharmacist and the additional level of
drug oversight required by these regulatory standards. One commenter
suggested that we should retain the existing requirements for drugs
found at Sec. 418.96(b), which requires the hospice to have a policy
for the disposal of controlled drugs maintained in the patient's home
when
[[Page 32143]]
those drugs are no longer needed by the patient.
Response: Many hospices, particularly those with hospice inpatient
facilities, have already realized the benefits of actively involving
pharmacists in patient care planning. Hospices are seeking to use drugs
more effectively and efficiently to improve patient outcomes and reduce
costs. In the last years of life, patients typically use five drugs or
more at any one time, increasing the risk of duplicative drug therapy,
drug interactions, or drug side effects, as well as the risk of
dispensing or dosing errors. (Steinman, M., Landefeld, C.S., Rosenthal,
G., Berthenthal, D., Sen, S., et al., ``Polypharmacy and prescribing
quality in older people,'' Journal of the American Geriatrics Society,
2006; Koh, N.Y., Koo, W.H., ``Polypharmacy in palliative care: Can it
be reduced,'' Singapore Medical Journal, 2002; Meredith, S., Feldman,
P., Frey, D., Hall, K., Arnold, K., et al., ``Possible medication
errors in home healthcare patients,'' Journal of the American
Geriatrics Society, 2001; Twycross, R., Bergl, S., John, S., and Lewis,
K., ``Monitoring drug use in palliative care,'' Palliative Medicine,
1994.) The need for the use of drugs in caring for hospice patients,
coupled with the risk of negative patient outcomes, warrants an
additional focus on drug management for all hospice patients,
regardless or whether they receive care in their place of residence or
in an inpatient facility. Therefore, we have moved and modified the
requirements of proposed Sec. 418.110(m) and Sec. 418.110(n) to Sec.
418.106 and have reorganized the requirements in standards (a) through
(e).
In new standard (a), ``Managing drugs and biologicals,'' we
combined some of the requirements of proposed Sec. 418.110(m) and
Sec. 418.110(n), such as the proposed requirement that a qualified
licensed pharmacist direct the inpatient hospice's pharmaceutical
services, including evaluation of a patient's response to drug therapy,
and identification of adverse drug reactions. New standard (a) requires
the hospice to ensure that the interdisciplinary group confers with an
individual with education and training in drug management as defined in
hospice policies and procedures and State law, who is an employee of or
under contract with the hospice to ensure that drugs and biologicals
meet each patient's needs.
Hospices may choose to use a licensed pharmacist, an individual who
has an extensive and up-to-date knowledge of drugs, to fulfill this
role. Approximately 1,600 hospices already contract with pharmacy
benefit management companies to provide drugs and pharmacist services
to each of their patients. Hospices may also choose to use other
individuals with specialized education and training in drug management,
including evaluating the effectiveness of drug therapies, identifying
drug side effects, identifying actual or potential drug interactions,
identifying redundant drugs, and taking appropriate corrective actions.
All hospices must be able to demonstrate an individual's knowledge,
skills, and abilities in managing the use of drugs in accordance with
accepted standards of practice and all applicable State and local
requirements, including State licensure requirements.
Standard (a)(2) also incorporates the proposed requirements of
Sec. 418.110(m) and Sec. 418.110(n) that a pharmacist must oversee an
inpatient hospice's pharmacy program. The provided pharmacist services
must include evaluation of a patient's response to medication therapy,
identification of potential adverse drug reactions, and recommended
appropriate corrective action. New standard (b), ``Ordering of drugs,''
relocates the requirements of proposed Sec. 418.110(n)(1). This new
standard indicates who may order drugs for a hospice patient and how
verbal or electronic drug orders should be documented. New standard
(c), ``Dispensing of drugs and biologicals,'' combines some of the
requirements of proposed Sec. 418.110(m), with proposed Sec.
418.110(n)(4)(ii). This new standard requires a hospice to have a
written policy that promotes dispensing accuracy, to maintain current
and accurate records of the receipt and disposition of all controlled
drugs, and to obtain drugs and biologicals from community or
institutional pharmacists or from its own stock. New standard (d),
``Administration of drugs and biologicals,'' combines the requirements
of proposed Sec. 418.106(a)(2) and Sec. 418.110(n)(2). The new
standard addresses drug administration in both the home and hospice
inpatient facility environments to ensure that drugs and biologicals
are administered to a patient by an individual who is competent to do
so, regardless of the patient's current environment.
New standard (e), ``Labeling, disposing, and storing of drugs and
biologicals,'' combines and revises the requirements of proposed Sec.
418.106(b) and Sec. 418.110(n)(3), (n)(4)(i), (n)(4)(iii), and (n)(5).
This new standard ensures that drugs are safely labeled, stored, and
disposed of in accordance with accepted standards of practice and
applicable Federal and State laws and regulations. It also ensures that
patients and families are properly educated about drug disposal.
We understand that the revised drug requirements may have some
financial impact on hospices. However the cost saving achieved through
a more efficient and effective use of drugs in the hospice, as well as
improved patient outcomes and satisfaction, will, we believe, offset a
portion of this financial impact. Additionally, we believe that the new
standards (for example, development of hospice-wide policies and
procedures, patient and family education) will help hospices create
partnerships with patients and families to ensure that controlled drugs
are used and disposed of in a safe manner.
Comment: Numerous commenters suggested that we should address the
issue of hospice patients bringing their own drugs from their homes
into a hospice inpatient facility.
Response: This rule does not prohibit patients from bringing their
own drugs into a hospice inpatient facility. If patients do so, the
transportation and use of these drugs must be in accordance with any
applicable Federal, State, and local laws and regulations, as well as
with the hospice's own policies and procedures.
Comment: A commenter suggested that we should delete the
requirement that drugs and biologicals must be obtained from a
community or institutional pharmacist or stocked by the hospice.
Response: We assume that the commenter seeks to obtain drugs and
biologicals from sources outside of the United States. Due to concerns
about the safety of drugs and biologicals obtained from sources that
are outside of the purview of the Food and Drug Administration, we
believe it it necessary to continue to require hospices to obtain drugs
and biologicals from a community or institutional pharmacist or from
its own stocks.
Comment: A commenter requested that the following statement be
added to proposed Sec. 418.106(a) (now located at Sec.
418.106(d)(1)):
``If the patient and/or family are determined to be unable to
safely administer drugs and biologicals, the patient and family will be
encouraged to relocate the patient to a setting where administration
assistance can be routinely offered. However, it is recognized that the
patient, if competent, and the patient's surrogate if the patient is
not competent, can refuse to relocate. Given patient rights and the
home setting, [the] hospice will be expected to provide reasonable
[[Page 32144]]
assistance. [The] hospice will not be expected to restrict the
provision of medications unless there is a blatant safety issue for
non-competent adults or children in the home.''
Response: If a patient and all family members are unable to safely
administer drugs themselves, then it is incumbent upon the hospice to
identify alternatives to ensure safe administration. Depending on the
circumstances, alternatives may include friends and neighbors of the
patient and family who are competent to administer medications with
appropriate training from the hospice, the hospice's own paid employees
and volunteers, paid caregivers, and, lastly, patient relocation. We do
not believe that it is necessary to include the suggested language
because the options mentioned above are already available to hospices.
Furthermore, we do not believe that it is necessary to establish in
this regulation criteria for restricting the placement of drugs in a
patient's home. We believe that hospices should be able to assume the
responsibility to determine when it is or is not appropriate to place
drugs in a patient's home.
Comment: A few commenters suggested changes regarding who is
permitted to administer medications to patients in a hospice inpatient
facility. One commenter suggested that licensed practical nurses (LPN)
and licensed vocational nurses (LVN) should be allowed to administer
medications, while other commenters suggested that the patient's family
or caregiver should be allowed to administer medications.
Response: In accordance with Sec. 418.106(d)(2) of this final
rule, licensed nurses are permitted to administer medications in
accordance with their scope of practice. If an LPN's or LVN's scope of
practice permits him or her to administer medications, then it is
appropriate to allow them to administer medications in accordance with
this rule. However, it is not appropriate to allow the family or
primary care giver of a patient to administer medications in an
inpatient facility. Patients enter hospice inpatient facilities for two
primary reasons, respite and general inpatient care. If a patient is in
an inpatient facility for respite care, it is because the family/care
giver needs a temporary break from care giving duties. It would not be
appropriate to expect the family/caregiver to administer medications to
the patient in the inpatient facility. If a patient is in an inpatient
facility for general inpatient care, it is because the patient is
experiencing pain or symptoms which cannot be managed in the patient's
home by the patient's caregivers in conjunction with the hospice staff,
in which case it is not appropriate to expect the family/caregiver to
handle the complex medication regimen the patient likely requires. This
is the job of the hospice inpatient staff.
Comment: Numerous commenters expressed concern regarding our
proposal in Sec. 418.52(a)(3) that hospices inform patients and
families about their drug policies before hospice care is furnished.
Commenters believed that providing the drug policy information at that
time would overwhelm patients and families with information that was
not urgent. Some commenters suggested that a hospice should be required
to provide information about its drug policy in the admission package
of information that is left with the patient. The content of the
admission package, including the drug policy, could be discussed with
the patient and family at some time during the comprehensive assessment
period. Other commenters suggested that hospices be required to discuss
their drug policies when patients are prescribed drugs to which the
hospice's policy applies. Other commenters requested clarification
regarding the form of the drug policy notice, noting the difficulties
involved in furnishing the notice in obscure or otherwise uncommon
languages. As with the general notice of patient rights in Sec.
418.52, many commenters requested that we explicitly allow the use of
translators when providing the drug policy notice. Additionally, as
with the general notice of patient rights, a few commenters requested
that we clarify how hospices should document the fact that patients and
families were informed of the hospice's drug policies.
Response: We agree that providing controlled drug policy
information before the start of care may not be appropriate in all
cases because not all patients are taking controlled drugs at the start
of care. We also agree that providing such information may
unnecessarily overwhelm patients and families. Therefore, we have
replaced the proposed requirement at Sec. 418.52(a)(3), with a
requirement set out at Sec. 418.106(e)(2) that, at the initial time
that controlled drugs are ordered by the hospice for the patient's use
at home, the hospice must provide a copy of its written policies and
procedures on the management and disposal of controlled drugs to the
patient or representative, and the family.
While we are requiring hospices to provide drug policy and
procedure information to patients and families, we are not prescribing
the manner in which they must document this information sharing. The
drug policy and procedure information, unlike the notice of patient
rights in Sec. 418.52, is more of an educational effort. The hospice's
drug policies and procedures will help patients learn how to safely use
controlled substances and avoid negative outcomes. The drug policies
and procedures will also help the hospice explain its own role in
controlled drug management. We do not believe that it is necessary to
dictate the method for educating patients and families about the
hospice's drug policies and procedures, nor is it necessary to
prescribe how hospices should document that patients and families have
received such education. Hospices should decide for themselves, in
their own policies and procedures, how staff will document the
discussion of the hospice's drug policies and procedures. Obtaining a
patient or family member signature would be appropriate, as would any
number of other documentation methods.
As previously discussed in the notice of patient rights section, it
is acceptable to use translators, either professional or family
members, to ensure that patients and families fully understand the
hospice's controlled drugs policies and procedures.
Comment: In Sec. 418.106(b) we proposed that hospices have a
written policy for tracking, collecting, and disposing of controlled
drugs maintained in the patient's home. The majority of commenters who
submitted comments on this CoP asked us to remove this requirement. The
commenters were concerned that the tracking requirement would require
hospice staff to conduct pill counts. They were also concerned that
these proposed requirements would compel hospice employees to remove
drugs from the patient's home, which employees are prohibited from
doing because the drugs are the patient's property.
Response: While it was not our intent to imply that hospices would
be required to conduct pill counts or remove drugs from patient homes,
we understand that the terms ``tracking'', ``collecting'' and
``disposing'' implied precisely that. Therefore, we have removed these
terms and replaced them with a requirement at new Sec. 418.106(e)(2)
that hospices have written policies and procedures for management and
disposal of controlled drugs maintained in the patient's home. The
intent of this revised requirement is to ensure that hospices have a
clear picture of what drugs have been prescribed and delivered to the
patient,
[[Page 32145]]
and are therefore present in the patient's home, at any time. Through
the written policies and procedures, hospices will have a plan
detailing how they can assist a family in safely disposing of
controlled drugs after a patient's death.
Comment: The majority of commenters who submitted comments on this
CoP asked us to replace the proposed requirement that hospices must
discuss the potential dangers of controlled drugs with a requirement
that hospices must discuss the ``safe use,'' ``appropriate use,'' or
``risks/benefits'' of controlled drugs.
Response: Our intent in the proposed standard was to ensure that
hospices educate patients and families on how controlled drugs are used
and the risks associated with abusing and/or improperly disposing of
them. We agree that requiring hospices to discuss the ``safe use'' of
controlled drugs accomplishes this intent without the negative
connotations that may be associated with the language of the proposed
rule. The safe disposal of controlled drugs should also be part of the
patient and family education effort. Therefore, we revised Sec.
418.106(e)(2)(B) to require that, when controlled drugs are first
ordered for use in the patient's home, the hospice must, ``[d]iscuss
the hospice policies and procedures for managing the safe use and
disposal of controlled drugs with the patient or representative and the
family in a language and manner that they understand to ensure that
these parties are educated regarding the safe use and disposal of
controlled drugs.''
Comment: A commenter suggested that we should require hospices to
educate patients and families about drug policies in a language and
manner that the patient and family understand.
Response: HHS guidance on Title VI, ``Guidance to Federal Financial
Assistance Recipients Regarding Title VI, Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons,''
August 8, 2003 (68 FR 47311), related to limited English proficiency
persons, presents guidelines for developing and implementing
communication strategies in a variety of settings, including hospice.
Since hospices are already expected to meet these guidelines, we agree
that it is appropriate to re-enforce the existing guidance by requiring
the discussion of drug policies to occur in a language and manner that
the patient and family understand.
Comment: A few commenters wanted to know where drug discrepancy
investigation reports should be sent to. One of these commenters
suggested that sending drug discrepancy investigation reports to State
and Federal officials should be done only when required by law.
Response: We agree that such reports should only be sent to the
appropriate agencies when required by a specific Federal or State law
or regulation. These State specific laws and regulations may vary, and
describe the appropriate reporting mechanism, timeframe, and recipient.
We have added the phrase ``if required by law or regulation'' to the
end of the reporting requirement, which is now located at Sec.
418.106(e)(3)(ii).
Comment: A commenter asked us to clarify the relationship between
the requirement that hospices must provide drugs for patients and the
Medicare Part D benefit.
Response: Hospices are required by section 1861(dd)(1)(E) of the
Act to furnish all drugs and supplies related to the terminal illness
and related conditions. Hospices may not expect patients to obtain
drugs related to the terminal illness and related conditions through
the Medicare Part D benefit. If a patient requires drugs that are not
related to the terminal illness and related conditions, then it may be
possible for the patient to obtain those unrelated drugs through the
Medicare Part D benefit.
Comment: A commenter suggested that hospices should note in the
patient's clinical record any drugs that are prescribed for the patient
that are not standard treatment for that patient's symptoms. The
commenter further suggested that the patient's clinical record should
include an explanation for such unconventional use.
Response: Hospices are free to determine the type, dose and
administration methods for any drugs that they choose to prescribe. We
would expect hospices to confer with an individual with education and
training in drug management and use current practices to select the
most appropriate drugs for a particular patient, and to be able to
explain drug choices to those providing patient care, the patient or
representative, the family, and any authorities having jurisdiction, as
necessary. Hospices may find it appropriate to document those drugs
that are prescribed for uncommon or unconventional reasons, and the
rationale behind such decisions; however, we do not believe that it is
necessary to require such additional documentation.
Comment: Numerous commenters stated that, when durable medical
equipment (DME) is provided under contract, the contracted DME provider
is responsible for DME maintenance. As such, the commenters stated that
hospices should not be held responsible for DME maintenance when it is
provided under contract.
Response: We understand that the majority of hospices contract with
outside entities for DME equipment. We also understand that, as part of
that contract, most hospices require the DME company to provide
maintenance services. This is an acceptable arrangement. However,
requiring a DME company to maintain the equipment that it provides does
not absolve the hospice of its ultimate responsibility to ensure that
all services provided on its behalf, whether by its employees or
through a contract, are safe and effective. An improperly or
inadequately maintained piece of DME is neither safe nor effective.
Thus, it is the hospice's ultimate responsibility (as it is with
respect to all of its contracted services) to ensure that maintenance
is performed on DME equipment, regardless of the source of such
equipment. A written statement from the DME supplier and signed by a
person of authority stating that equipment has been serviced according
to manufacturer recommendations or other comparable standards would be
one way that the hospice could assure that the equipment is safe and
performs as required. If a hospice does not ensure that such
maintenance is performed, it is not in compliance with the requirement
that it must maintain professional management responsibility for all
services provided or this requirement at new Sec. 418.106(f)(1).
At the same time, we understand that the proposed requirements
should be clarified to ensure that hospices may provide DME maintenance
services under contract. We have revised new Sec. 418.106(f)(1) to
state that hospices must ensure that manufacturer maintenance
recommendations are followed. If there are no manufacturer
recommendations, hospices must ensure that maintenance policies are
developed. We believe that adding the term ``ensure'' will clarify that
hospices must make sure that such maintenance is complete, but that
hospices are not necessarily required to handle maintenance through
their employees.
Comment: Numerous commenters stated that the contracted entity that
supplies the DME is best suited to instruct the patient and family in
the safe use of the DME provided.
Response: In the proposed rule at Sec. 418.106(c)(2), we stated
that hospices must ensure that patients and families receive DME
instruction. Our intent was to allow hospices to provide such
instruction through a contracted DME supplier. We agree that this
intent
[[Page 32146]]
should be further clarified. We have added a provision to the final
rule at Sec. 418.106(f)(2) to clarify that, ``[t]he hospice may use
persons under contract to ensure patient and family instruction.''
Comment: A few commenters asked for clarification about the role of
the Medicare Supplier Standards and accreditation in contracting for
DME services. Some of these commenters suggested that any DME supplier
who furnished DME equipment as part of the Medicare hospice benefit be
required to meet the Medicare Supplier Standards and be accredited by a
national accrediting body. Another commenter suggested that by
contracting with a DME supplier that met the Medicare Supplier
Standards, hospices would have more assurance that the DME provider
would safely and effectively perform its maintenance and instruction
duties.
Response: We believe that Medicare beneficiaries should receive the
same high quality DME service whether they receive such DME through
Medicare Part B or through the Medicare hospice benefit. In order to
ensure continuous DME service quality, we agree that hospices should
contract with those DME suppliers who meet the Medicare Supplier
Quality and Accreditation Standards. A provision to this effect has
been added at new Sec. 418.106(f)(3).
Comment: A commenter suggested that the National Safety Council
should be involved in conducting site inspections of DME suppliers to
determine compliance with the Medicare Supplier Standards.
Response: As part of the effort to ensure quality DME services for
Medicare beneficiaries, the Medicare Supplier Quality and Accreditation
Standards require DME suppliers to be accredited by national
accrediting organizations. (See 42 CFR 424.58.) Accreditation requires
regular surveys by CMS-approved accrediting bodies. The existing DME
accreditation regulations, we believe, respond to the commenter's
concern.
Other Issues
We are aware that the appearance of a conflict of interest or an
actual conflict of interest could exist when a pharmacist or pharmacist
service under contract to the hospice recommends one brand name drug
over another, favors one drug in a therapeutic class over another, or
recommends an increase in the utilization of a specific drug. For
example, a conflict of interest exists when a pharmacist under contract
to the hospice is employed by the pharmacy that supplies drugs to the
hospice and that pharmacy accepts access/performance rebates or other
price concessions designed to or likely to influence or impact
utilization of drugs in the hospice. The term ``access/performance
rebates'' refers to rebates manufacturers provide to pharmacies that
are designed to prefer, protect, or maintain that manufacturer's
product selection by the pharmacy or to increase the volume of that
manufacturer's products that are dispensed by the pharmacy under its
formulary (referred to as ``moving market share''). If a conflict of
interest exists, it has the potential to compromise the judgment of the
pharmacist which could affect the care of a patient. The hospice IDG
retains responsibility for all patient care decisions independent of
others, and it is inappropriate for a pharmacist or any other member or
consultant of the IDG to drive patient care decisions based on
financial or business incentives. It is incumbent upon a hospice to
obtain assurance that a contracted pharmacist or pharmacist service is
free of any potential or real conflicts of interest or financial
incentives.
19. Condition of Participation: Short-Term Inpatient Care (Sec.
418.108)
Under Sec. 418.108, we proposed to retain the requirement that
hospices make inpatient care available for pain control, symptom
management, and respite purposes, and that care be provided either in
the hospice or in a participating Medicare or Medicaid facility. We
proposed to recodify the current standard found at Sec. 418.98(a),
``Inpatient care for symptom control,'' as Sec. 418.108(a),
``Inpatient care for symptom management and pain control.'' We proposed
to recodify the current standard found at Sec. 418.98(b), ``Inpatient
care for respite purpose'', as Sec. 418.108(b), with the same title
and only minor terminology changes.
We proposed to eliminate the existing requirement found at Sec.
418.100(a)(2), requiring that a registered nurse provide direct patient
care on each shift. In its place, we proposed that the patient's plan
of care and the patient's condition should determine the amount and
skill level of nursing care required, as well as the skill level and
State licensing requirements of the staff required to provide requisite
care.
Under proposed Sec. 418.108(c), ``Inpatient care provided under
arrangement,'' we proposed to incorporate the requirements of existing
standard 418.56(e), ``Inpatient care.'' In particular, we proposed to
require that, if a hospice chose to contract with another type of
facility to provide inpatient care, the hospice would have to include
in its contract a provision that it would train the personnel who would
be providing hospice patient care in the inpatient facility (currently
at Sec. 418.56(e)(5)). We believe the training is necessary because
the hospice palliative model of patient care is very different from the
curative model of patient care in which medical personnel are routinely
trained. We also proposed that, as part of the contract, a copy of the
inpatient clinical record and discharge summary would have to be
available to the hospice at the time of discharge from the inpatient
facility.
Under proposed Sec. 418.108(d), ``Inpatient care limitation,'' and
Sec. 418.108(e), ``Exemption from limitation,'' we proposed to re-
codify the existing parallel requirements at Sec. 418.98(c) and (d)
respectively, without changes, because these requirements are derived
directly from section 1861(dd) of the Act.
Comment: Many commenters believe that a reference to the
psychosocial/family crisis situations should be added to the opening
paragraph of the CoP as an additional reason to admit a patient to
inpatient care. Adding psychosocial and family crisis situations would,
according to the commenters, conform to the requirements of Chapter 9,
section 40.1.5 of the Medicare benefit policy manual. Another commenter
asked that we allow inpatient care to be used for acute caregiver
breakdown. One commenter stated that the hospice should have the option
of placing the patient in a general inpatient level of care for a short
period of time while developing a more appropriate plan of care.
Response: We believe that caregiver and family status should be
considered in the comprehensive assessment process. This allows
families and hospices time to develop back-up plans for any family or
caregiver breakdowns that may occur in the future. As this issue
primarily relates to Medicare payment rules, we refer readers to the FY
2008 hospice wage index (72 FR 50214, August 31, 2007) for additional
discussion of the appropriate use of the respite and general inpatient
levels of care in situations where a caregiver breakdown has occurred.
Comments: One commenter requested that we change the language in
proposed Sec. 418.108(b)(2) from ``Medicare/Medicaid approved'' to
``Medicare/Medicaid participating.'' Two commenters requested that we
use the phrase ``Medicare certified.''
Response: We have amended the language to read ``Medicare or
Medicaid-certified.''
[[Page 32147]]
Comment: One commenter asked for clarification of whether or not a
freestanding hospice inpatient facility operated by a Medicare-
certified hospice would qualify as a participating Medicare or Medicaid
facility.
Response: Yes, the facility would qualify if it met all applicable
requirements of the hospice regulations at 42 CFR part 418.
Comment: One commenter stated that a hospice should not be able to
send its own nursing staff to supplement contracted facility staff to
meet inpatient care staffing requirements.
Response: We understand the commenter's view; however, this issue
is related to a hospice's contractual agreement with its providers. A
hospice must set up its own polices and guidelines, as well as its own
written contract with an inpatient provider. We would not prohibit a
hospice from sending in its own staff to care for the hospice patient,
if it is permitted within the provisions of its contractual arrangement
and the statutory and regulatory requirements applicable to the
contracted inpatient provider.
Comment: One commenter requested that we allow up to four patients
per room for inpatient respite purposes.
Response: We do not agree with the commenter. The level of care
provided to the patient should not determine the level of patient and
family privacy. Therefore, we believe that no more than two patients
per room should be permitted.
Comment: Many commenters thanked us for proposing to remove the 24
hour nursing requirement for respite care. The commenters felt it was
not always necessary to have an RN on duty 24 hours a day for respite
care and that the proposed nurse staffing requirement allowed for
greater staffing flexibility and improved coordination of care between
hospices and nursing homes where respite care may be provided.
Response: We agree that it is not automatically necessary to have a
registered nurse on every shift to provide direct patient care if the
only hospice patients in a facility are receiving the respite level of
care. We believe that respite care is meant to give the family time to
rest and re-energize before the patient returns to the home. The care
needs of a respite patient are equivalent to those of the patient in
his or her home and therefore may not necessitate registered nursing
care on a 24-hour basis. Rather, staffing for a facility solely
providing the respite level of care to hospice patients should be based
on each patient's care needs. The requirements for nursing services for
respite care are now at Sec. 418.108(b)(2).
Comment: A few commenters requested that that we define nursing
services in inpatient facilities as care provided by an RN or LPN.
Response: Because Congress was not specific about what level of
nursing services were required, we believe that the intent of section
1861(dd) of the Act has always been for hospices to furnish nursing
services from a variety of different categories of nurses, ranging from
nurse practitioners to licensed vocational nurses to registered nurses.
Since hospices have not, to our knowledge, had any difficulty in
determining what constitutes nursing services, we see no reason to
establish a definition for the term at this time.
Comment: One commenter stated that the respite level of care should
be able to be provided in any facility that meets the general nursing
requirements that apply to all hospice care; that is, that the nursing
services provided must meet patient needs without CMS issuing specific
regulations prescribing the exact level of nursing services that must
be available at all times (such as 24-hour RN services). A few
commenters requested that assisted living facilities and licensed group
homes providing 24-hour care (but not necessarily nursing care) that
meet the needs of the patient should be authorized for inpatient
respite purposes.
Response: To meet each patient's nursing needs the facility would
need to be a Medicare/Medicaid certified nursing facility, a Medicare-
certified hospice or a Medicare-certified hospital or skilled nursing
facility because these facilities already maintain the requisite staff
to meet hospice patient's needs at the respite level of care.
While we understand that care of the respite patient is much
different than care of the general inpatient, we do not have regulatory
authority over assisted living facilities or group homes. Therefore, to
maintain continuity and safe care of the respite patient, we require
that all respite care be provided in Medicare or Medicaid certified
inpatient facilities. This in no way prohibits a hospice patient from
residing in an assisted living facility or licensed group home.
Comment: One commenter requested that we add language that states
that general inpatient care and respite care are coordinated by the
hospice in a Medicare or Medicaid facility.
Response: We agree with the commenter in that care of the general
inpatient and respite patient must be coordinated by the hospice. The
standard at Sec. 418.108(c), ``Inpatient care provided under
arrangements'' has been modified to read: ``If the hospice has an
arrangement with a facility to provide for short-term inpatient care,
the arrangement is described in a legally binding written agreement,
coordinated by the hospice * * *.''
Comment: A few commenters suggested that the inpatient clinical
record should be provided by the inpatient facility only if requested
by the hospice, and that a discharge summary would be routinely
provided to the hospice at the time of discharge.
Response: We agree with the commenters, and the amended language at
Sec. 418.108(c)(3) requires the written agreement to specify, ``[t]hat
the hospice patient's inpatient clinical record includes a record of
all inpatient services furnished and events regarding care that
occurred at the facility; that a copy of the discharge summary be
provided to the hospice at the time of discharge; and that a copy of
the inpatient clinical record is available to the hospice at the time
of discharge.''
Comment: One commenter requested that we replace the word
``individual'' with ``position'' in proposed Sec. 418.108(c)(4). This
would have the effect of permitting more than individual holding that
position to implement the provisions of the agreement.
Response: Identifying a single individual, rather than a position
that may be shared by more than one individual, in the inpatient
facility that is responsible for implementing the contract, ensures
that accountability is clearly assigned. Therefore, we are not
accepting the commenter's suggestion and are finalizing this
requirement as proposed.
Comment: A few commenters stated that, since inpatient facilities
provide services to more than one hospice, the hospice should retain
responsibility for ensuring the training of all personnel who will be
providing care to the patients in facilities for which it has
responsibility, rather than the hospice actually arranging such
training. In addition, a description of the training and the names of
those giving the training would be documented. Another commenter noted
that hospices have no control over the staff of facilities, and
therefore, requiring hospice responsibility for training will pose
problems for hospices.
Response: The training of personnel who will be furnishing care
must be specified in the contractual agreement. The hospice must ensure
that facility personnel are trained. Through the contractual agreement,
the hospice is responsible for ensuring that the facility makes its
staff available for these trainings. We agree with the
[[Page 32148]]
commenters that hospices are responsible for ensuring that training
occurs, but not necessarily arranging for or providing such training;
therefore, we are amending the language at Sec. 418.108(c)(5) and
Sec. 418.108(c)(6) to require the agreement between the hospice and
the inpatient facility to state: ``that the hospice retains
responsibility for ensuring that the training of personnel who will be
providing the patient's care in the inpatient facility has been
provided and that a description of the training and the names of those
giving the training is documented; and (6) A method for verifying that
the requirements in paragraphs (c)(1) through (c)(5) of this section
are met.''
Comment: A few comments were submitted regarding the proposed
requirement in Sec. 418.108(d), ``Inpatient care limitation.'' The
commenters stated that the 20 percent limitation is problematic because
patients who reside a great distance from the hospice must be admitted
to the hospice, making their entire hospice stay an inpatient stay.
Response: We believe that there may be some confusion about the
proposal in this section. Hospices are permitted to admit patients to
their own facilities if the patient lives a long distance from the
hospice, cannot stay at home, or for any number of other reasons.
However, if the patient is admitted for a reason other than the need
for short-term respite care, or for symptom management or pain ---
control, then the patient is not receiving an inpatient level of care
that counts toward the 20 percent inpatient cap. atients admitted for
reasons other than short-term respite care, symptom management, or pain
control receive the routine home care level of payment.
20. Condition of Participation: Hospices That Provide Inpatient Care
Directly (Sec. 418.110)
We proposed to recodify most of the requirements of existing Sec.
418.100 at Sec. 418.110, with some revisions. We proposed to recodify,
without change, the requirements of Sec. 418.100(d), ``Fire
protection,'' at Sec. 418.110(d); Sec. 418.100(e), ``Patient areas,''
at Sec. 418.110(e); Sec. 418.100(f), ''Patient rooms and toilet
facilities,'' at 418.110(f) and (g); Sec. 418.100(g), ``Bathroom
facilities,'' at Sec. 418.110(h); Sec. 418.100(h), ``Linen,'' at
Sec. 418.110(k); and Sec. 418.100(k), ``Pharmaceutical services,'' at
Sec. 418.110(m) and (n).
We proposed to replace existing Sec. 418.100(a) with Sec.
418.110(a), ``Staffing,'' and Sec. 418.110(b), ``24-hour nursing
services.'' The existing regulation requires that a registered nurse
must provide direct patient care on each shift. The two proposed
standards provide some flexibility and would require hospices that
provide inpatient care in their own inpatient facilities to ensure that
staffing for all services, including nursing services, is adequate,
based on the volume of patients, their acuity, and the level of
services they need. These standards further proposed that staffing must
meet the needs of patients to ensure that each patient's plan of care
is adhered to and that the outcomes described in each patient's plan of
care are achieved. Finally, these standards proposed that nursing
services must be adequate to ensure that each patient is kept
comfortable, clean, well-groomed, and protected from accident, injury,
and infection. We believe that this outcome-based approach meets the
needs of patients and hospices without using prescriptive requirements.
At Sec. 418.110(c), ``Physical environment,'' we proposed that the
hospice maintain a safe physical environment that was free of hazards
for patients, staff, and visitors. In Sec. 418.110(c)(1), ``Safety
management,'' we proposed that the hospice prevent situations that
posed a real or potential threat to the health and safety of the
patients, others, and property. The hospice would be required to
promptly investigate, correct, and report to appropriate State and
local bodies with jurisdiction all breaches of safety. The hospice
would be required to take steps to prevent equipment failures, and
correct and report any equipment failures promptly.
In addition, Sec. 418.110(c)(1)(iii) proposed to retain the
existing requirement at Sec. 418.100(b) that the hospice periodically
rehearse with staff a disaster preparedness plan for managing the
consequences of natural disasters and other emergencies that affect the
hospice's ability to provide care. In developing and rehearsing their
disaster preparedness plans, we believe that it is important for
hospices to be engaged with their local and state disaster preparedness
planning counterparts. Although this disaster preparedness requirement
applies only to hospice inpatient facilities, we encourage all hospices
to be aware of the need for disaster planning at the hospice, local,
and State levels, and to actively engage in the planning process. We
also proposed, at Sec. 418.110(c)(2), that the hospice develop
procedures for managing trash and medical waste disposal; light,
temperature and ventilation; emergency gas and water supplies; and
equipment maintenance and repairs. We believe that these basic
precautions and actions will help the hospice ensure that buildings, as
well as the equipment inside of them, are fully and safely functioning
at all times to ensure patient and family comfort and satisfaction.
Proposed Sec. 418.110(f), ``Patient rooms,'' would recodify and
revise the requirements of existing 418.100(f). We proposed in Sec.
418.110(f)(3)(iv) that each room accommodate no more than two patients
because we believe that hospice patients and families need the
additional privacy that a two-patient room affords them in order to
help preserve the patient's comfort and dignity during the dying
process. We believe this is the standard accommodation in most
facilities. We proposed to allow existing hospice facilities with more
than two patients in each room to receive a waiver of this requirement.
This waiver would be based on whether the hospice was already providing
direct inpatient care in a non-compliant facility when this regulation
became effective. That is, if a hospice was providing direct inpatient
care in a non-compliant building on the day before the effective date
of the final rule and could demonstrate that the imposition of a two-
patient-per-room requirement would result in unreasonable hardship or
jeopardize its ability to continue to participate in Medicare or
Medicaid, then the hospice operating in the non-compliant building
could qualify for a waiver of the proposed requirement. A hospice would
have to demonstrate to CMS that the waiver served the needs of its
patients and did not adversely affect their health and safety. If that
same hospice moved into a non-compliant building after the effective
date of this final rule, then the hospice would be deemed out of
compliance with our rules. If a hospice chose to begin operating its
own inpatient unit after the effective date of this final rule, then it
would not qualify for the proposed waiver, and would be required to
have no more than two patients per room. The remaining paragraphs in
this standard would be virtually the same as in the current
requirement, with only minor revisions to the language that would not
change the substantive requirements of the regulation.
In Sec. 418.110(i), ``Infection control,'' we proposed to revise
the infection control standards to conform to those required of other
provider types, such as home health agencies and hospitals. We proposed
to require a hospice to establish an infection control program that
would protect patients, families, and staff against communicable
diseases and would prevent and control the
[[Page 32149]]
spread of infections. The infection control program would be required
to follow professionally established infection control standards and be
part of the hospice's overall quality assurance and performance
improvement and education program. We did not propose any specific
approaches to meeting the infection control requirement.
In Sec. 418.110(l), ``Meal service and menu planning,'' we
proposed to revise the existing Sec. 418.100(j). We proposed to make
this standard less restrictive by eliminating several structural
requirements, such as serving at least three meals at regular times,
with no more than 14 hours between substantial evening and breakfast
meals, and having a staff member trained in food management or
nutrition. In place of these prescriptive requirements, we proposed
that a hospice should focus on meeting the individual patient's
nutritional and plan of care needs.
We proposed a new standard at Sec. 418.110(o) to address the use
of seclusion and restraints in hospice inpatient facilities. Anecdotal
evidence indicates that seclusion and restraints are occasionally used
in hospice inpatient facilities ostensibly to protect patients,
visitors, and/or staff. The proposed requirements, modeled on those for
hospitals issued by CMS in 1999, and on the requirements of section
3207 of the Children's Health Act (Pub. L. 106-310), would ensure that,
when seclusion or restraints are used, they are used in a safe manner
for the shortest time necessary to ensure patient and staff safety.
The proposed standard, divided into seven elements, focused on the
proper use of seclusion and restraints, and on the need for hospice
personnel to receive training and education both in the proper use of
seclusion and restraint application and techniques, and in the use of
alternative methods for handling situations that arise. The standard
proposed specific requirements for physician orders for seclusion or
restraint (for example, consultation with the hospice medical director,
1 hour face-to-face evaluation of the patient, and time limits on the
length of orders). The proposed standard also included a requirement
that a hospice would have to report to its CMS regional office any
death that occurs while a patient is restrained or in seclusion, or
that occurred within 24 hours of a patient being removed from seclusion
or restraint.
Comment: A commenter asked us to clarify that the requirements in
Sec. 418.110 would apply only to facilities operated by the hospice
and not to nursing facilities or hospitals with which the hospice has a
contract for inpatient care.
Response: The commenter is correct that, with the exception of
Sec. 418.110(b) and Sec. 418.110(f), the requirements of this CoP
only apply to hospice operated inpatient facilities. These facilities
may be in a building owned wholly by the hospice, or may be in space
leased from a company or health care provider, such as a designated
hospice inpatient facility leasing and occupying a floor in a hospital.
In order to clarify our longstanding intent that this CoP only applies
to inpatient facilities operated by a hospice, we have added the term
``in its own facility'' to the stem statement, which now reads, ``[a]
hospice that provides inpatient care directly in its own facility must
demonstrate compliance with all of the following standards.'' We
believe that restricting the majority of the requirements of Sec.
418.110 to hospice-operated inpatient facilities, and permitting
contracted facilities to comply with their own applicable regulations,
will help avoid and potential regulatory conflicts between the hospice
regulations and the regulations pertaining to a contracted facility
(for example, a hospital or skilled nursing facility). A contracted
facility would nonetheless be required to comply with (b) and (f),
because these requirements are necessary to ensure appropriate staffing
levels to care for seriously ill patients receiving the general
inpatient level of hospice care and to ensure that hospice patients and
families receive the care in a comfortable environment.
Comment: A commenter suggested that we should define the term
``nursing services'' as it is used in proposed Sec. 418.110(b) to
include the services of licensed practical nurses within their scope of
practice.
Response: The nursing services, as well as all other services,
furnished by a hospice inpatient facility must meet the needs of the
patients in the facility. Hospices may choose to use registered nurses,
licensed practical nurses, licensed vocational nurses, and any other
level of nurse to meet the needs of their patients. We expect all
nurses, as well as other professionals, to always act within the scope
of their training and licensure. We do not believe that a statement to
this effect needs to be in regulation because we require in Sec.
418.114 that all professionals must obtain the license offered by their
State. In order to obtain and maintain the license, these providers are
required by their State to practice only within the scope of their
license.
Comment: The majority of commenters who submitted comments on this
CoP made suggestions regarding the 24-hour nursing services requirement
at proposed Sec. 418.110(b). An overwhelming number of commenters
suggested that, if a hospice is providing general inpatient care, the
hospice should be required to have a registered nurse (RN) on duty at
all times. These same commenters stated that it is not necessary to
have a registered nurse on duty at all times if the hospice is only
providing respite care. Other commenters agreed with our proposal to
require that the nursing services provided by the hospice must meet
patient needs rather than requiring hospices to have a registered nurse
on duty at all times. Still other commenters suggested that, if a
registered nurse is not present in the facility, one must be available
for on-call consultation and direct care, if needed.
Response: We proposed to eliminate the 24-hour registered nurse
requirement in order to make it easier for providers to care for
respite patients. We continue to believe that it is not necessary to
require a registered nurse on duty for all shifts if patients in the
facility are receiving respite care only, and we therefore did not
include a 24-hour RN requirement in Sec. 418.108(b)(2), which pertains
to nurse staffing levels in facilities that are only providing respite
level care to hospice patients. At the same time, we agree that the
needs of patients receiving general inpatient care, who are in distress
to such a degree that their pain and symptoms cannot be managed in
their homes, necessarily require care from a registered nurse on all
shifts. Therefore, we have incorporated a requirement for 24-hour RN
services at Sec. 418.110(b)(2), and have cross-referenced this
requirement at Sec. 418.108(a)(2). All facilities providing the
general inpatient level of care, whether operated by the hospice or
under arrangement with the hospice, must provide 24-hour RN care if at
least one hospice patient is receiving general inpatient care.
Comment: Numerous commenters asked us to define and provide
examples of the terms ``breach of safety'' and ``equipment failures''
as they are used in proposed Sec. 418.110(c)(1) (i) and (ii),
respectively. Commenters asked us to clarify the relationship between
the requirements for equipment failures and the requirements of the
Safe Medical Devices Act of 1990 (Pub. L. 101-629). Furthermore,
commenters asked us to clarify which State and local bodies should
receive reports of safety breaches and equipment failures.
[[Page 32150]]
Response: The intent of these proposed requirements was to ensure
that the proper authorities were alerted by hospices regarding
situations that may jeopardize patient health and safety. We agree that
this goal has already been accomplished both through the requirements
of the Safe Medical Devices Act, with which health care providers are
required to comply (21 U.S.C. Sec. 360L), and the requirements of
final Sec. 418.110(c)(2)(iv), which requires hospices to have
procedures for controlling the reliability and quality of their
emergency maintenance and repair program for their equipment.
Therefore, we have deleted the proposed requirements.
Comment: A commenter was confused about the requirements for
chapter 9 of the Life Safety Code, as included in proposed Sec.
418.110(d)(4).
Response: In January 2003 we published a final rule adopting the
2000 edition of the Life Safety Code. The 2000 edition of the Life
Safety Code requires health care facilities, including hospices, to
have emergency lighting systems meeting certain specifications. We
allowed hospices a 3-year phase-in period after the effective date of
the Life Safety Code rule to purchase and install their emergency
lighting systems. That phase-in period expired March 13, 2006.
Therefore all hospices must now have emergency lighting systems that
comply with the specifications of chapter 9 of the 2000 edition of the
Life Safety Code. Since the phase-in date has now passed, we have
removed the phase-in language in this final hospice rule. We believe
that removing the phase-in language will make it clearer that hospices
must comply with all of the requirements of the 2000 edition of the
Life Safety Code.
Comment: Some commenters suggested that we should define the terms
``home-like'' and ``equipped for nursing care'' as they are used in
proposed Sec. 418.110(e) and (f).
Response: Hospice inpatient facilities have been required, since
the inception of the Medicare hospice benefit, to have a home-like
environment for patients and families to enjoy. Hospices should take
all appropriate steps to minimize a cold, clinically sterile
environment by incorporating materials and items typically found in
private residences where appropriate. We understand that certain
standards of hygiene may preclude the use of certain materials or
objects. We also understand that certain machines and devices needed to
provide medical care to patients may need to be present and that such
machines and equipment may not appear ``home-like.'' We expect hospices
to take appropriate steps, where feasible, to create a soothing,
inviting atmosphere within the context of creating an environment where
nurses and other hospice staff are able to effectively provide care and
services.
Comment: Many commenters submitted comments regarding our proposal
at Sec. 418.110(f), ``Patient rooms.'' Some suggested that hospices
should be allowed to have more than two patients in a room during
community disasters or evacuations. Others suggested that patient rooms
should be required to accommodate families as well as patients. Still
others supported our proposal to waive the maximum two patients per
room requirement for existing hospice facilities.
Response: We appreciate the support and thoughtful comments that we
received in this area. We agree that the two-patient rooms should
accommodate patients and family members, and we have specified this in
revised Sec. 418.110(f)(3)(iv). We also agree that hospices should be
allowed to place more than two patients in a room during community
disasters or evacuations. This situation is already addressed through
separate waiver authority in section 1135 of the Act. Furthermore, we
agree that the two-patient-per-room waiver for existing facilities
should remain. Requiring a hospice to reduce the number of beds per
room without the opportunity for a waiver may reduce the number of
overall beds available and could create a hardship for affected
facilities and problems for patients requiring access to inpatient
care.
Comment: All commenters who submitted comments on proposed Sec.
418.110(l), ``Meal service and menu planning,'' supported our proposal
to replace prescriptive food planning and service requirements with
requirements based on patient needs and goals.
Response: We thank the commenters for their support of this change.
The final rule will require that food service in a hospice inpatient
facility be based on the needs and wants of the patient in the
facility, rather than on prescriptive regulatory requirements.
Comment: Numerous commenters who submitted comments on our proposed
seclusion and restraint requirements at Sec. 418.110(o) were confused
about the applicability of the proposed standard. Commenters seemed to
believe that the proposed standard would apply to patients in their
homes or to hospice patients who reside in long term care facilities.
Response: This standard is located in the CoP that governs hospice
inpatient facilities operated by the hospice. It only applies to care
furnished to hospice patients in the hospice's inpatient facility. This
requirement does not apply to care furnished to hospice patients
outside of the hospice's inpatient facility. If a hospice contracts
with another facility (for example, hospital, or SNF) for inpatient
care, we believe that it is preferable for the seclusion and restraint
requirements for that provider to apply to the hospice patient.
Comment: A single commenter suggested that we should convene an
expert task force to examine the use of drug restraints in hospice
care.
Response: Under the revised definition of ``drug restraints''
previously described, we believe that it will be a rare situation for a
hospice to use a drug restraint on a patient. Since the situation is
likely to be very rare, we do not believe that it is necessary to
convene an expert panel to examine the issue. Moreover, we are
following the statutory definition, which applies to hospices through
the Children's Health Act (42 U.S.C. 290ii(d)(1)(B)).
Comment: Many commenters made suggestions to modify proposed Sec.
418.110(o)(3)(ii) regarding orders for seclusion and restraint. One
commenter sought clarification about the prohibition on standing or as
needed orders for seclusion and restraint. Other commenters stated that
it would be difficult for a hospice physician to get to the inpatient
facility in time to complete the one-hour visit and evaluation of a
patient in seclusion or restraint. A commenter questioned the role and
responsibility of the attending physician ordering restraints or
seclusion. Other commenters suggested that orders be allowed to be
written for eight or even 24-hour periods, rather than only for four
hours as proposed. One commenter suggested that there should be no
maximum length of time for a seclusion or restraint order.
Response: An order for seclusion or restraint must be specific to
the patient, time, and place where the intervention will be used. A
physician may not order restraint for a patient unless the patient
requires such intervention at that very moment. In other words, orders
based on future contingencies are not acceptable.
Hospices may authorize their medical director, physician designee,
other hospice physician employees, and/or attending physicians to issue
restraint or seclusion orders. If an order for seclusion or restraint
is not ordered by the attending physician, medical director, or
physician designee, then the medical director or physician designee
must be consulted as soon as possible after the order is issued.
[[Page 32151]]
Once an order for seclusion or restraint is issued and implemented,
the patient must be seen within one hour to evaluate the need for
continuing the intervention. We agree that it may be difficult for a
hospice physician to arrive at the inpatient facility and actually see
the patient within this one-hour window. Therefore, we have added a
provision permitting a registered nurse trained in the proper use of
seclusion and restraint to conduct the one-hour face-to-face evaluation
of the patient.
In addition to the one-hour evaluation, we believe that it is
necessary to regularly re-evaluate the patient's status and need for
the ordered intervention. To ensure a thorough re-evaluation, we are
requiring orders for seclusion or restraint to last no more than four
hours each for a total of up to 24 hours. We believe that frequently
re-ordering the intervention will ensure that patients remain in
seclusion or restraint for the shortest time possible to control their
distress.
Comment: A commenter asked us to clarify the meaning of the term
``continually'' as it is used in proposed Sec. 418.110(o)(4)(i). The
commenter specifically asked if this term meant that patients would
need to be constantly monitored when restraint and seclusion are used
simultaneously.
Response: If restraint and seclusion are used simultaneously, the
patient must be continually monitored, face-to-face, by an assigned,
trained staff member or continually monitored by trained staff using
both video and audio equipment. This monitoring must be in close
proximity to the patient. For the purposes of this provision,
``continually'' means ongoing without interruption.
Comment: Some commenters expressed concern that the presence of
seclusion and restraint requirements would seem to discourage their
use, even when medically necessary and appropriate. Other commenters
suggested that the requirement proposed at Sec. 418.110(o)(7),
regarding the reporting of seclusion and/or restraint-related deaths,
would discourage the use of seclusion and/or restraint because hospices
would fear that the reports would result in State surveys. They
therefore suggested deleting the seclusion and restraint requirements
in their entirety, while other comments suggested that hospices should
only be required to report unexpected deaths or deaths that occur by
hanging due to physical restraints.
Response: Seclusion and restraint requirements are needed to
protect a patient from harm by ensuring that professionals will be able
to appropriately use seclusion and restraint methods. These regulations
also implement sections 591-593 of the Public Health Service Act, as
added by section 3207 of the Children's Health Act. In order to further
the goal of safe and appropriate implementation of seclusion and
restraint techniques, we clarified the training requirements for
hospice inpatient staff. Staff must be trained in techniques to
identify behaviors, events, and environmental factors that may trigger
the need for seclusion and restraint techniques. Staff must also be
trained in the following: using nonphysical intervention skills,
choosing the least restrictive intervention, safely implementing all
types of restraint and seclusion, recognizing and responding to
distress signs, identifying behavioral changes that indicate that
seclusion and restraint are no longer necessary, monitoring patient
well-being, and using first aid and cardiopulmonary resuscitation
techniques. We believe that this staff training will minimize the
likelihood of a patient death related to the use of seclusion or
restraint for a patient, and will thus minimize the number of deaths
that hospices must report. These regulations are similar to those that
we plan for other facility types, as required by section 593(b) of the
PHS Act.
Should a seclusion or restraint-related death occur, our intent is
to ensure that hospices fully investigate the death and notify CMS of
the death and the investigation findings. We have clarified that the
seclusion and restraint investigation and reporting requirements in
final standard Sec. 418.110(o), ``Death reporting requirements,'' only
apply to those patients who die unexpectedly.
Section 592 of the PHS Act requires facilities to report all deaths
within 24 hours after a patient is removed from restraint or seclusion,
or where it is reasonable to assume that a patient's death is a result
of such seclusion or restraint. Therefore, we have also clarified that
unexpected deaths occurring within 24 hours of a patient being removed
from seclusion and/or restraints would need to be investigated. We
believe that unexpected deaths require a full investigation by the
hospice to determine the presence or lack of a relationship between the
seclusion and/or restraint and the patient's death. We also believe
that CMS must be apprised of such situations because a patient death
related to seclusion and/or restraint use may indicate the presence of
patient safety issues within the hospice that require additional
guidance from the State or CMS. It is important to remember that we are
in no way seeking to discourage the use of seclusion and restraint if,
within these regulatory boundaries, their use will benefit a patient.
Our goal is to ensure that seclusion and restraint, when used, are used
in a safe manner for the shortest amount of time necessary, as required
by the PHS Act.
21. Condition of Participation: Hospices That Provide Hospice Care to
Residents of a SNF/NF or ICF/MR (Sec. 418.112)
We currently do not separately address the provision of hospice
care to a hospice-eligible resident of a facility. This includes
hospice care provided to residents who choose to live in skilled
nursing facilities, nursing facilities, intermediate care facilities,
and many other types of facilities. The provision of, and questions
related to, hospice care for residents of those facilities has come
under scrutiny as a result of a variety of report findings, including
Operation Restore Trust (ORT) activities, Inspector General (OIG)
reports from 1996, 1997, and 1998, and a 2000 report from the
Department's Assistant Secretary for Planning and Evaluation (ASPE)
Office of Disability, Aging and Long-Term Care Policy and the Urban
Institute. (U.S. D.H.H.S. OIG, ``Hospice and Nursing Home Contractual
Relationships,'' Nov. 1997, OEI-05-95-00251; OIG Special Fraud Alert,
``Fraud and Abuse, Nursing Home Arrangements with Hospices,'' Mar.
1998; ``Synthesis and Analysis of Medicare Hospice Benefit Executive
Summary and Recommendations.'' (Harvell, J.; Jackson, B.; Gage, B.;
Miller, S.; and Mor, V., Mar. 2000)). The relationship between hospices
and nursing facilities was also addressed by the Secretary's Advisory
Committee on Regulatory Reform. The committee focused on clarifying the
responsibilities of each provider and on patient access to the hospice
benefit while residing in a facility.
Based on the recommendations of the committee, as well as the
reports from Operation Restore Trust, the Office of the Inspector
General, and ASPE, we proposed to add a new condition at Sec. 418.112,
``Hospices that provide care to residents of a SNF/NF, ICF/MR, or other
facilities.'' We are also preparing a separate regulatory document to
address long-term care facility obligations regarding residents
receiving hospice services.
Under Sec. 418.112(a), ``Resident eligibility, election and
duration of benefits,'' we proposed that the hospice ensure that the
resident met all the same Medicare eligibility requirements for hospice
care (found at Sec. 418.20 to
[[Page 32152]]
Sec. 418.30), as a patient who resides in his or her home in the
community.
At Sec. 418.112(b), ``Professional management,'' we proposed that
the hospice assume full responsibility for all of the hospice care
provided to the patient. This would include making arrangements for any
inpatient care that the patient would require in accordance with Sec.
418.100. This standard would reinforce the necessity of continuity of
care for patients who reside in a SNF/NF, ICF/MR, or other facility. In
Sec. 418.112(c), ``Core services,'' (and in accordance with sections
1861(dd)(1) and (2)(A) of the Act), we proposed that the hospice be
required to provide all necessary core services to its patients
residing in a SNF/NF, ICF/MR, or other facility in the same manner that
it would provide such core services to a patient residing in a home in
the community. It is not reasonable for the hospice to delegate any of
its standard hospice core services to the nursing or residential
facility staff.
In Sec. 418.112(d), ``Medical director,'' we proposed that a
hospice medical director would be expected to communicate with all
facility physicians, including the facility's medical director, and the
attending physician and other professionals involved in developing and/
or implementing the patient's plan of care. This standard was designed
to ensure that all physicians, including those in leadership positions,
were in agreement regarding the patient's care to ensure that
duplicative and/or conflicting physician orders are not issued for
patient care.
Under Sec. 418.112(e), ``Written agreement,'' we proposed that a
comprehensive written agreement be developed between the hospice and
facility, and that it be in effect before any hospice care was provided
to a facility resident. The purpose of the written agreement would be
to ensure that the duties and responsibilities of the hospice and
facility were clearly articulated and executed in a manner that ensured
that the patient would receive quality hospice care. The written
agreement would be required to include the following:
(1) Written consent and documentation of the patient or the
representative's desire for hospice services.
(2) Identification of the services that the hospice and the
facility would provide.
(3) The manner in which the facility and the hospice would
communicate to ensure that the needs of the patient were addressed and
met 24 hours a day.
(4) A requirement that the facility immediately notify the hospice
when:
(A) A significant change in the patient's physical, mental, social
or emotional status occurred;
(B) Clinical complications appeared that suggested a need to alter
the plan of care;
(C) A life threatening condition(s) appeared;
(D) A need to transfer the patient from the facility arose; or
(E) The patient died.
(5) A provision stating that the hospice assumed responsibility for
determining the appropriate course of care, including the determination
to change the level of services provided. (An agreement that it was the
facility's primary responsibility to furnish room and board.)
(6) A delineation of the hospice's responsibilities, which would
include, but not be limited to, providing medical direction and
management of the patient, nursing, counseling (including spiritual and
dietary counseling), social work, bereavement counseling, provision of
medical supplies and durable medical equipment, provision of drugs
necessary for the palliation of pain and symptoms associated with the
terminal illness and related conditions, as well as all other hospice
services that might be necessary for the care of the resident's
terminal illness and related conditions.
(7) A provision that the hospice could use the facility's nursing
personnel where permitted by law and as specified by the facility to
assist in the administration of prescribed therapies included in the
plan of care, but only to the extent that the hospice would routinely
use the services of a hospice patient's family in implementing the plan
of care.
These would be mandatory agreement provisions, but would not
otherwise limit the scope or content of the relationship between the
hospice and the facility. Additional provisions could be added subject
to mutual agreement.
Under Sec. 418.112(f), ``Hospice plan of care,'' we proposed that
the content of the plan of care for a patient residing in a SNF/NF,
ICF/MR, or other residential facility would be similar to the content
of the plan of care for a patient residing in a home in the community.
The plan would have to reflect the hospice philosophy in all aspects,
be based on an assessment of the patient's needs and unique living
situation in the facility, and be updated at least every 14 calendar
days. In addition to the standard plan of care requirements, the plan
of care for a patient residing in a SNF/NF, ICF/MR, or other facility
would be required to be coordinated with and developed by the hospice
IDG and SNF/NF, ICF/MR, or other facility in collaboration with the
attending physician. Furthermore, the plan of care would have to
specify which provider would be responsible for providing a particular
form of care. The performance of the functions would reflect the
participation of the hospice, SNF/NF, ICF/MR, or other facility, and
the patient and family to the extent possible.
At Sec. 418.112(g), ``Coordination of services,'' we proposed that
the hospice designate a member of the IDG to coordinate the
implementation of the plan. The hospice would provide the residential
facility with the plan of care, hospice consent form, contact
information for hospice personnel involved in the care of the resident,
instructions on accessing the hospice 24-hour on-call system,
medication information specific to the patient, physician orders, and
any advance directives. We believe that these requirements would ensure
effective communication between the hospice and the facility.
Under Sec. 418.112(h), ``Transfer, revocation, or discharge from
hospice care,'' we proposed to cross-reference the proposed requirement
for discharge or revocation at Sec. 418.104(e). In addition, we
proposed that discharge or revocation of the hospice care would not
impact the eligibility to continue to reside in a SNF/NF, ICF/MR, or
other facility.
At Sec. 418.112(i), ``Orientation and training of staff,'' we
proposed that the hospice staff would be required to train facility
staff who provided care to hospice patients on aspects of the hospice
philosophy and unique program features, including policies and
procedures, methods of comfort, pain control and symptom management,
general principles about death and dying and individual responses,
patient rights, appropriate forms, and record keeping requirements.
Comment: Many commenters suggested that the phrase ``other
facilities'' be removed from the title and text of this CoP. The
commenters stated that this phrase was too broad and imprecise to
enable hospices to effectively determine when they would have to comply
with the additional requirements of this CoP. Some commenters suggested
that ``other facilities'' should only apply to those that were
Medicare-or Medicaid-approved, while others suggested that assisted
living facilities could be included as well.
[[Page 32153]]
Response: We agree that the phrase ``other facilities'' is
ambiguous and difficult to objectively determine. We also agree that
this requirement should be limited to those facilities that can be
Medicare-certified so as not to impose a de facto burden upon
facilities that do not receive Medicare funds. Therefore, this final
requirement applies only to those types of residential facilities that
are eligible to be Medicare-certified, that is SNFs, NFs, and ICFs/MR.
Hospices are permitted to use the structure and content of this section
when establishing and managing their relationships with other facility
types such as assisted living facilities.
Comment: A commenter asked us to clarify that the requirement of
proposed Sec. 418.112(a) regarding eligibility criteria would apply to
residents of ICFs/MR in addition to residents of SNFs and NFs.
Response: We agree that this clarification would be helpful, and we
have made the suggested change.
Comment: Many commenters asked us to specify in Sec. 418.112(b)
that hospices would only be responsible for making the necessary
arrangements for inpatient care related to a patient's hospice care
(that is, the terminal illness and related conditions).
Response: We agree that is it helpful to clarify that the hospice
is responsible for hospice-related inpatient care for the patient, and
we have made this change. In addition, we have clarified that the
arrangements for hospice inpatient care must be in accordance with the
requirements of Sec. 418.108, ``Short term inpatient care,'' as well
as the requirements of Sec. 418.100(e), ``Professional management
responsibility.'' We believe that the new reference to the requirements
of Sec. 418.108 will ensure that hospices make arrangements with the
appropriate facilities and ensure proper staffing to meet the needs of
the patient.
Comment: Numerous commenters sought clarification on proposed Sec.
418.112(b), ``Professional management.'' Commenters were confused by
the proposed requirement that the hospice must assume full
responsibility for professional management of the resident's hospice
care. They believed that this requirement could create conflicts with
long term care facility responsibilities. One commenter suggested that,
in order to further clarify the hospice's responsibility, we should add
a statement that the hospice is responsible for those services that are
included in the hospice plan of care. Another commenter suggested that
deleting the word ``full'' would clarify the scope of the hospice's
responsibility.
Response: We agree that further clarification is warranted in this
standard. Hospices are only responsible for furnishing and managing a
patient's hospice care related to the terminal illness and related
conditions. They are not responsible for managing all of a patient's
care. We believe that requiring hospices to take responsibility for the
care they furnish is not in conflict with the long term care facility
regulations at 42 CFR part 483. To ensure that our intent is clear in
the requirement, we have removed the word ``full'' and have added a
provision that the hospice is responsible for services provided in
accordance with the plan of care. Revised standard (b) now reads,
``[t]he hospice must assume responsibility for professional management
of the resident's hospice services provided, in accordance with the
hospice plan of care and the hospice conditions of participation, and
make any arrangements necessary for hospice-related inpatient care in a
participating Medicare/Medicaid facility according to Sec. 418.100 and
Sec. 418.108.''
Comment: A commenter sought additional clarification on the
distinction between coordination of care and responsibility for the
provision of care as the latter appears in the proposed rule at Sec.
418.112(b).
Response: Hospices are responsible for furnishing all care and
services related to the terminal illness and related conditions as
those services are identified in the plan of care, regardless of where
the patient resides. Hospices are required by section 1861(dd) of the
Act to provide some of these services directly, while other services
may be provided under arrangement. Regardless of whether the hospice
services are provided directly or under arrangement, hospices are
required to assume full professional management responsibility for
those services. In addition, hospices are required to designate a
registered nurse who is a member of the hospice's IDG to coordinate the
implementation of the patient's hospice care and services. Furthermore,
hospices are required to have a system of communication to ensure that
all disciplines furnishing hospice care to patients communicate with
each other about patient needs. This system of communication must also
include a sharing of information with health care providers that are
simultaneously caring for the same patients that the hospice is caring
for to ensure that the hospice is able to coordinate its care with that
being provided by others.
Through these mechanisms, the hospice maintains responsibility for
all of its care and services for all of its patients and ensures that
the care it is providing complements the care being provided by others.
In addition to these mechanisms used for all patients, hospices are
required to establish written agreements and communication systems with
SNFs, NFs, and ICFs/MR when hospices are furnishing hospice care to
residents of those facilities. Clear communication between the hospice
and the SNF/NF or ICF/MR will help hospices ensure that they are
meeting their responsibility to furnish the care necessary to meet the
needs of its patients.
Comment: Many commenters suggested that we should revise or remove
the proposed requirement at Sec. 418.112(e)(4)(iii) that the written
agreement between a hospice and a SNF/NF or ICF/MR must contain a
provision that the facility notifies the hospice if a life-threatening
condition appears in a hospice patient. Some commenters stated that
this should be clarified to state that the life-threatening condition
is only required to be reported if it is unrelated to the terminal
illness and related conditions. Other commenters stated that this
should be removed because the requirement at proposed Sec.
418.112(e)(4)(i), stating that the facility must notify the hospice if
a significant change in a patient's status occurs, would apply to life-
threatening conditions as well.
Response: We agree that proposed Sec. 418.112(e)(4)(i), now
located at 418.112(c)(2)(i), applies to life threatening conditions,
and, as a result, we have deleted the proposed requirement at Sec.
418.112(e)(4)(iii).
Comment: Many commenters asked us to clarify or remove the proposed
requirements of Sec. 418.112(e)(6), which would require the agreement
between the hospice and the residential facility to state that it would
be the residential facility's primary responsibility to furnish room
and board. Commenters stated that, although SNFs/NFs and ICFs/MR do
provide room and board, describing these functions as their primary
responsibility ignores the other functions that the facilities perform.
Commenters also stated that the services provided by the SNF/NF or ICF/
MR should not be assumed by the hospice. Rather, the commenters stated,
the SNF/NF or ICF/MR should furnish services in the role of the primary
caregiver at the same level that would have been provided if the
resident had not elected to receive hospice care.
Response: We agree that the term ``primary'' unnecessarily excludes
the other functions that SNFs/NFs and ICFs/MR perform for their
residents, and it has been deleted. Nonetheless,
[[Page 32154]]
the responsibility of room and board will be deemed to be that of the
residential facility. In addition, we have expanded this requirement to
clarify that hospices should not be expected to assume the functions of
the SNF/NF or ICF/MR. The revised requirement, located at new Sec.
418.112(c)(4), requires the agreement to state that ``it is the SNF/NF
or ICF/MR's responsibility to continue to furnish 24-hour room and
board care, meeting the personal care and nursing needs that would have
been provided by the primary caregiver at home at the same level of
care provided before hospice care was elected.'' This expanded
requirement clarifies that hospices are not required to assume the
functions that the SNF/NF or ICF/MR performed for the patient before
the patient elected to receive hospice care. This requirement is not,
however, meant to imply that the SNF/NF or ICF/MR is required to
automatically increase its level of services simply because the
resident has elected to receive hospice care. All Medicare and Medicaid
approved facilities, be they SNFs/NFs or ICFs/MR are responsible for
providing services to their residents in accordance with their
respective laws and regulations.
Comment: Numerous commenters suggested that the written agreement
between the hospice and the SNF/NF or ICF/MR should contain a provision
that the SNF/NF or ICF/MR will continue to provide services at the same
level as those services would have been provided before the patient
elected the hospice benefit.
Response: We agree that it is beneficial for hospice patients to
continue to receive the same level of services provided by the SNF/NF
or ICF/MR upon entry into the hospice program. These facilities often
function as a patient's family, and, just as hospices are not expected
to replace the role of the family in caring for hospice patients, we do
not expect hospices to replace the role of the SNF/NF or ICF/MR staff
in caring for hospice patients who reside in those facilities. We have
clarified proposed Sec. 418.112(e)(6) to this effect, and have
relocated the requirement to new Sec. 418.112(c)(4). To further
clarify this issue, we have also added a new requirement for the
written agreement, located at Sec. 418.112(c)(5), that it is the
hospice's responsibility to provide services to residents of a SNF/NF
or ICF/MR at the same level and to the same extent as those services
would be provided to patients residing in their own private homes.
Regardless of where a patient resides, a hospice is continually
responsible for furnishing core services, and may not delegate these
services to the staff of a SNF/NF or ICF/MR. We believe that this new
requirement will help to ensure consistent, high quality hospice care
for all hospice patients, regardless of their place of residence.
Comment: Numerous commenters sought clarification on our proposal
at Sec. 418.112(e)(8) that a hospice may use the nursing personnel of
the SNF/NF or ICF/MR, where permitted by law and as specified by the
facility, to assist in administering hospice care, to the extent that
the hospice would routinely use a patient's family to implement the
plan of care. Some commenters suggested that hospices should be allowed
to use the nursing personnel of SNFs/NFs or ICFs/MR to a greater extent
than family members would be used, because the nursing personnel have
more training and education in furnishing medical care than family
caregivers typically do. Other commenters wanted to know how this
provision would affect the long term care facility requirement that
long term care facility staff must provide care to residents as needed
to maintain resident well-being. Other commenters were concerned that
utilizing facility nursing personnel could be a ``slippery slope''
whereby hospices would delegate essential tasks to the facility's
personnel. Still other commenters sought clarification regarding which
laws would apply to hospices utilizing facility personnel to implement
the plan of care. These commenters suggested that State laws would most
appropriately apply. A single commenter suggested that the personnel of
the SNF/NF or ICF/MR should be expected to provide all nursing care
unless the facility specifically asks the hospice to perform a nursing
function.
Response: The utilization of SNF/NF or ICF/MR personnel in
implementing the hospice plan of care for a patient is difficult to
address because both hospices and these facilities provide varying
levels of care based on the needs of the patient/resident. We agree
that State laws are best suited to governing the use of facility
personnel by hospice staff, and we have specified this in the final
rule. This provision is not intended to preempt any State laws that may
apportion duties between hospice and residential facility staff.
We proposed that hospices may only use the staff of the SNF/NF or
ICF/MR as specified in the written agreement signed by the SNF/NF or
ICF/MR. This is being retained in the final rule at Sec.
418.112(c)(7). It recognizes that facilities must give consent for
their staff to be used in caring for the hospice patient and must
determine the extent of staff involvement. This consent allows
facilities and hospices to match their corresponding levels of
available personnel service to the needs of the patients being served.
As stated above, hospices are not responsible for assuming the
functions that the SNF/NF or ICF/MR performed for the patient before
the patient elected to receive hospice care. Likewise, SNFs/NFs and
ICFs/MR are not responsible for assuming the functions that the hospice
would provide for a patient residing in his or her own home.
The hospice benefit is not designed so that hospice personnel
routinely provide 24-hour care or serve as the patient's primary
caregiver. Hospice patients in their private homes have private
caregivers, be they family members, friends, hospice volunteers, paid
assistants, or any of a number of other combinations. These caregivers
are trained by the hospice to administer care in accordance with the
patient's plan of care. Caregivers may help patients with a variety of
duties, such as medication administration, bathing, and housekeeping.
Hospice patients in SNFs/NFs and ICFs/MR depend, at least in part,
on facility staff to provide caregiver services. As such, we believe
that it is reasonable to allow hospices to use facility staff who act
as caregivers in the same manner and to the same extent that hospices
would use family members, friends or other caregivers who care for
patients in their private residences. For example, hospices typically
instruct home caregivers in how and when to administer medications to
hospice patients. Therefore, it would be appropriate to instruct
facility staff caregivers in how and when to administer medications.
Hospices typically do not instruct home caregivers in how to draw blood
to monitor medication levels; thus it would not be appropriate to
expect facility staff to draw blood, even though some members of the
facility's staff may be competent to do so. Hospices are to use
facility staff in the same way that they would use home caregivers to
implement the patient's plan of care. While facility staff presumably
possess more sophisticated health care skills than home caregivers,
they may not be used to perform functions more frequently, or with a
greater degree of complexity, than the hospice would utilize home
caregivers under similar circumstances.
We understand that, in times of crisis, it may be necessary for a
hospice to direct staff of the SNF/NF or ICF/MR to perform more
sophisticated functions than caregivers would typically perform in
order to ensure patient comfort while
[[Page 32155]]
the hospice staff are in route to the patient. A hospice should, in the
contract between it and the facility, address potential crisis
situations, and how they would be handled, with facility staff.
Potential crisis situations specific to the circumstances of individual
patients should also be included in individual plans of care. The
temporary emergency measures should be undertaken at the direction of
the hospice, which maintains responsibility for ensuring that all
hospice care is provided in accordance with the patient's plan of care.
We understand that this does not provide the exact specificity of
what functions may or may not be performed by facility caregivers that
some commenters sought. We cannot provide an absolute list because such
a list is subject to many variables (for example, patient needs,
provisions of the written agreement, staff skill levels, etc.).
Comment: Some commenters supported, while others demurred, on our
proposal, originally at Sec. 418.64(d), to require hospices to provide
bereavement services to facility personnel when appropriate and
identified in the patient's plan of care.
Response: We appreciate the support that we received regarding
bereavement services furnished to facility personnel. There are times
when facility employees fulfill the role of a patient's family,
providing caregiver services, being companions, and generally
supporting the patient. In order to ensure that the needs of these
individuals are met in a manner that accommodates the needs and
responsibilities of the hospice and the SNF/NF or ICF/MR, we moved the
requirements concerning bereavement care for staff from 418.64, ``Core
services,'' to 418.112(c), which governs the written agreement between
a hospice and a facility. The relocated requirement at 418.112(c)(9)
requires the written agreement to include a provision delineating the
responsibilities of the hospice and the facility with regard to
providing bereavement services to facility staff that fulfill the role
of a hospice patient's family.
Comment: Numerous commenters suggested that the proposed written
agreement requirements at Sec. 418.112(e) should be clarified. A
primary concern of the commenters was the proposed requirement that the
written agreement must include the written consent of the patient or
the patient's representative that hospice services are desired.
Commenters stated that this proposed requirement implies that a new
written agreement must be developed for each resident who receives
hospice services. Commenters then noted that, if a written agreement is
necessary per patient, it may be difficult to secure the agreement
before furnishing care to the patient.
Response: We agree that the proposed requirement implied that a new
written agreement must be developed for each resident who receives
hospice services. We also agree that such a requirement would be
difficult to fulfill before any hospice services are furnished to a
specific patient. As a proxy for the written consent of the patient or
representative, we will use the requirement at new Sec.
418.112(e)(3)(ii), which requires hospices to provide SNFs/NFs, ICFs/
MR, and assisted living facilities with each patient's hospice election
form, to ensure that each provider is aware of the patient's choice to
receive hospice care. In this way, the election form is not linked to
the content of the written agreement. We believe that this will help to
clarify that the written agreement does not need to be completed for
each and every patient who is a resident of an SNF/NF or ICF/MR. In
addition, we believe that this will make it easier for hospices to
secure agreements before furnishing care to the patient because they
will be required to secure the agreements less often than was implied.
We would like to clarify that the written agreement requirements
only apply to hospice patients who are residents of SNFs/NFs and ICFs/
MR. The written agreement, and the remaining requirements of Sec.
418.112, do not apply to hospice patients who are placed in SNFs/NFs
for general inpatient or respite care by the hospice itself. Rather,
the requirements for the written agreement between a hospice and a
facility that furnishes general inpatient or respite care are described
in Sec. 418.108(c).
Comment: Several commenters suggested that we should add a
provision requiring the written agreement to contain information about
the services to be provided by the SNF/NF or ICF/MR.
Response: The services provided by the SNF/NF or ICF/MR will vary
based on the plan of care which will identify the resident's needs. The
written agreement established between the hospice and the SNF/NF or
ICF/MR is not the appropriate place for a list of the services to be
provided by the SNF/NF or ICF/MR. The services provided by the facility
are included in the plan of care and coordinated by the hospice and the
facility in accordance with new Sec. 418.112(d).
Comment: Some commenters expressed confusion about the proposed
hospice plan of care requirements at proposed Sec. 418.112(f).
Commenters questioned if the standard required hospices and SNFs/NFs
and ICFs/MR to have a single plan of care that applied to both
providers. If so, commenters stated that updating the plan of care
every 14 days would be burdensome to long term care facilities that
otherwise would be required to update the resident's plan of care only
every three months.
Response: Hospices and SNFs/NFs and ICFs/MR must have a single plan
for each patient. We would expect the hospice and the facility to
develop and update this plan in full consultation with each other. The
hospice portion of the plan of care governs the actions of the hospice
and describes the services that are needed to care for the patient. The
patient's single, coordinated plan of care must identify which provider
(hospice or facility) is responsible for performing a specific service.
The plan of care may be divided into two portions, one of which is
maintained by the long term care facility and the other of which is
maintained by the hospice. These two sections must work together to
ensure that the needs of the patient for both hospice care and long
term care facility care are met at all times. The facility is required
to update its portion of the plan of care in accordance with any
Federal, State or local laws and regulations governing the particular
facility just as hospices would need to update their plans of care
according to Sec. 418.56(d) of these CoPs.
Comment: As with the proposed update of the plan of care
requirements in Sec. 418.56, many commenters suggested changes to the
update timeframe for the hospice plan of care for residents of SNFs/NFs
and ICFs/MR. Commenters suggested that the update timeframe be changed
from ``at least every 14 days'' to ``at least every 15 days'' or ``at
least twice a month.''
Response: We agree that the update timeframe should be lengthened
to at least every 15 days to correspond with the lengths of the
Medicare hospice benefit periods. This change has been made by
referencing the requirements of Sec. 418.56, which includes an every-
15-day update timeframe.
Comment: A commenter suggested that we should clarify that the
hospice plan of care must be based on a comprehensive assessment of the
patient's needs.
Response: We agree that the plan of care must address those needs
identified in the comprehensive assessment of the patient. This
requirement is included in Sec. 418.56, and the revised hospice plan
of care standard at new Sec. 418.112(d) references the requirements of
Sec. 418.56.
[[Page 32156]]
Comment: Numerous commenters suggested that the proposed
requirement at Sec. 418.112(f)(4) should be clarified. Specifically,
these commenters expressed concern about the proposed requirement that
changes in the plan of care must be discussed ``among all caregivers.''
These commenters stated that the phrase ``among all caregivers'' was
very broad, considering that multiple facility staff may act as
caregivers for a resident on any given day. Some commenters suggested
that ``between both providers'' or ``discussed by the IDG, facility
representatives and the patient/family'' should replace the phrase
``among all caregivers.''
Response: We agree that discussing plan of care changes with ``all
caregivers'' should be replaced by a more definite requirement.
Therefore, the final rule at Sec. 418.112(d)(3) requires changes in
the hospice portion of the plan of care to be ``discussed with the
patient or representative, and SNF/NF or ICF/MR representatives* * *''
This revised requirement allows the facility to identify those with
whom plan of care discussions must occur and provides hospices with a
defined list of those individuals who must be consulted before a change
in the hospice portion of the plan of care is implemented. The revised
requirement still states that the hospice must approve any changes to
the hospice portion of the plan of care before those changes are
implemented. We believe that this enables hospices to maintain control
over the hospice portion of the plan of care while allowing facilities
to have their voices heard before final decisions are made about
hospice care.
Comment: A commenter wanted to know what forms of communication are
acceptable between the hospice and the residential facility concerning
care planning.
Response: Hospices are free to use any form of communication that
best suits their needs in accordance with their established system of
communication as required by Sec. 418.56(e). In accordance with
418.112(c)(1) of this final rule, hospices must document that this
communication has occurred to ensure that the hospice has made all
necessary efforts to consult facility representatives in hospice care
planning activities.
Comment: A large number of commenters requested clarification of
the proposed medical director requirement at proposed Sec. 418.112(d).
The overall response of commenters was that the proposed requirements
were overly burdensome. Many of these commenters suggested that the
medical director requirement should be entirely deleted. Others
suggested that the communication responsibilities assigned to the
hospice medical director would be more appropriately handled by all
physicians in the hospice, the hospice IDG, or the RN member of the IDG
who is assigned the care plan coordinator role. Still others expressed
concern that the proposed medical director communication requirement
would overwhelm SNF/NF and ICF/MR medical directors with information
about the care of patients that they are not actively involved with.
Response: Our intent in proposing the medical director requirement
was to ensure that there was communication and agreement among the
clinical leadership of both providers. The purpose of this
communication was to ensure that these senior physicians did not issue
incompatible care orders for the same patient or otherwise disagree on
the approach to patient care. However, as some commenters noted,
hospice and facility medical directors are not necessarily involved in
actively caring for all patients and facility residents. Some hospices
and facilities have multiple physicians, and one of these physicians,
rather than the medical director, could potentially be the most
knowledgeable with respect to the care of a particular patient or
resident. For this reason, we agree that it is appropriate to remove
the medical director requirement. We also agree that it is appropriate
to reassign communication responsibilities to the IDG responsible for
caring for the resident of a SNF/NF or ICF/MR. New Sec. 418.112(e)
requires the hospice IDG to designate one of its members to coordinate
the patient's hospice care with representatives of the SNF/NF or ICF/
MR. The designated IDG member must also communicate with
representatives of the SNF/NF or ICF/MR and any other health care
providers to ensure quality care for the patient.
Additionally, the designated IDG member must ensure that the
hospice IDG communicates with the SNF/NF or ICF/MR medical director,
the patient's attending physician, and any other physicians caring for
the patient as needed to coordinate the patient's hospice care with the
care provided by other entities. We believe that this new requirement
will alleviate the demand on the hospice and facility medical directors
while actively involving all members of the patient's care team, both
within the hospice and the facility, in care planning and delivery.
Comment: Commenters expressed general support for the coordination
of services requirement at proposed Sec. 418.112(g), stating that it
would have the greatest potential for strengthening the partnerships
between hospices and SNFs/NFs and ICFs/MR. Several commenters suggested
that we specify that the hospice provide the SNF/NF or ICF/MR with a
copy of the hospice plan of care.
The commenters believe that requiring this would reinforce the fact
that the hospice and the facility have separate, but coordinated plans
of care for each patient. Other commenters suggested that, in addition
to the original hospice plan of care, facilities should also be
provided with updated plans of care. Still other commenters suggested
that hospices should provide SNFs/NFs and ICFs/MR copies of each
patient's initial certification and recertification of terminal illness
forms.
Response: We appreciate the general support of this requirement. We
agree that this standard, now at Sec. 418.112(e), should specify that
hospices provide facilities with the most recent hospice plan of care.
This will ensure that facilities have the most current plan for what
services the hospice is providing as well as what services they are
committed to providing. We also agree that it is helpful for the
hospice to provide the facility with a patient's certification and
recertification forms. Having these forms on file will serve as a
reminder to the facility that the patient is terminally ill and that he
or she is a Medicare hospice beneficiary.
Comment: A few commenters sought clarification about what kind of
physician orders hospices would provide to facilities. Other commenters
suggested that we should take action to require SNFs/NFs and ICFs/MR to
accept hospice physician orders.
Response: Although a large amount of the care decided upon by the
hospice IDG does not require specific physician orders, certain
elements of the plan of care, such as medications and laboratory work,
do require physician orders. Whenever physician orders are issued,
whether by the hospice physician or the attending physician in
coordination with the hospice, a copy of those orders must be provided
to the SNF/NF or ICF/MR in a timely manner. Providing a copy of
physician orders to the SNF/NF or ICF/MR allows the staff of the
facility to implement any portions of the order for which they may be
responsible. Providing a copy of orders is simply another way in which
the hospice keeps the SNF/NF or ICF/MR abreast of its hospice care
activities. In the final rule at Sec. 418.112(e)(3)(vii) we clarified
that the ``physician orders'' supplied by the hospice are those issued
by the hospice physician(s) and the patient's attending physician (if
any). The acceptance of hospice physician orders by residential
[[Page 32157]]
facility staff is not within the purview of this rule. In its contract
with the residential facility, the hospice is responsible for ensuring
that the management of the residential facility communicates with its
staff regarding the acceptability of hospice physician orders.
Comment: A majority of commenters who submitted recommendations on
this CoP recommended that we revise the proposed requirement at Sec.
418.112(i) regarding the training of staff of a SNF/NF or ICF/MR in
hospice philosophy. Most of these commenters noted that a SNF/NF or
ICF/MR may work with several different hospices and that facility staff
should not be required to be oriented to hospice philosophy by every
hospice. The commenters suggested that hospices be required to assure
that the staff of the SNF/NF or ICF/MR has received the required
training, rather than requiring each hospice to provide the training.
One commenter suggested that the responsibility for orienting facility
staff in hospice philosophy should fall to the facility, rather than
the hospice.
Response: The intent of this proposed standard was to ensure that
facility staff who furnish care to patients are provided information on
the hospice philosophy and approach to care, much in the same way that
home caregivers are routinely provided information on the hospice
philosophy and approach to care. We agree that facility staff should
not be oriented multiple times using the same basic information.
Therefore, we have amended this requirement at new Sec. 418.112(f) of
the final rule to state that hospices must assure the orientation of
facility staff.
At the same time, we note that the entire purpose for using outside
hospices to furnish hospice care to facility residents is to fulfill a
need that the facility is not able to fulfill on its own. If a facility
is unable to provide hospice care because it lacks the capability to do
so, then the facility is certainly not qualified to orient its staff in
hospice philosophy. Furthermore, the facility would not be qualified to
orient its staff in a particular hospice's policies and procedures,
patient rights, forms, and record keeping requirements. In that case,
the hospice working with the facility needs to provide information,
guidance and/or staff to assure orientation of the facility staff.
Comment: Several commenters asked how frequently hospices are to be
involved in offering training to facility staff, considering the high
staff turnover rates of some facilities. Commenters also questioned who
might be in the best position to coordinate the training sessions.
Response: It is the hospice's responsibility to coordinate the
trainings with representatives of the facility. It is also the
hospice's responsibility to determine how frequently training needs to
be offered in order to ensure that the staff furnishing care to hospice
patients are oriented to the philosophy of hospice care. Facility staff
turnover rates should certainly be a consideration in determining
training frequency.
Comment: A commenter disagreed with our proposed requirement that
facility staff should be trained by hospices in hospice philosophy and
care. The commenter stated that there is a ``spillover effect,''
whereby the training received by staff affects the care furnished to
non-hospice patients as well as hospice patients. The commenter further
stated that this ``spillover effect'' may not be desirable for those
patients who do not choose to receive hospice care.
Response: While there may be a ``spillover effect'' when facility
staff are oriented to hospice philosophy, we do not believe that the
effect is inherently negative. The hospice philosophy focuses on using
multiple treatment modes to make patients physically, emotionally, and
spiritually comfortable. Providing comfort to residents, regardless of
whether those residents receive hospice care or not, would positively
impact their well-being. Therefore, we do not view a ``spillover
effect'' as a problem that would warrant removal of the proposed
facility staff orientation requirements.
Comment: A commenter suggested that hospices be required to educate
the facility staff regarding the individualized plan of care for each
hospice patient who resides in the facility.
Response: We agree with this suggestion. Section 418.56(b) of this
rule, ``Plan of care,'' requires hospices to ensure that each patient
and his or her primary caregiver(s) receives education and training
provided by the hospice as appropriate to their responsibilities for
the care and services identified in the plan of care. Facility staff
members acting as the patient's primary caregivers are expected to
receive education specific to each patient's hospice plan of care and
the caregiver's role in implementing the content of the hospice portion
of the plan of care.
Comment: A commenter suggested that hospices should be required to
orient facility administrative staff as well as the staff who furnish
care to hospice patients that reside in the facility.
Response: With the facility's consent, hospices may orient facility
administrative staff as well as hands-on care staff. However, we do not
believe that this orientation should be required because it is unlikely
to improve patient care or outcomes.
Comment: A commenter asked for a definition of the term ``nursing
facility.''
Response: Our use of the abbreviation ``SNF/NF'' refers to the long
term care facilities referenced at 42 CFR part 483, where skilled
nursing facilities (SNF) and nursing facilities (NF) are described.
Comment: Many commenters stated that this section of the rule
should require SNFs/NFs and ICFs/MR to contract with any hospice that a
resident chooses. Many other commenters stated that hospices should be
prohibited from contracting with SNFs/NFs and ICFs/MR that do not
contract with all interested hospices.
Response: As noted above, these CoPs regulate hospices, not SNFs/
NFs and ICFs/MR. We are not proposing mirroring requirements for
Medicare/Medicaid facilities at this time. We also note that we do not
have jurisdiction or authority to regulate facilities that do not
participate in Medicare or Medicaid. In addition, even though these
CoPs do regulate hospices, we do not believe that it is appropriate to
preclude hospices from contracting with certain SNFs/NFs or ICFs/MR
because the facility chooses to be selective in its contracting
decisions. Indeed prohibiting hospices from contracting with selective
SNFs/NFs and ICFs/MR could deny residents of those facilities any
access to hospice care furnished by Medicare-approved hospices. We
believe that this would be a disservice to those residents.
Comment: Some commenters took issue with the requirement that, when
hospice services are furnished to Medicaid eligible SNF/NF residents,
the hospice receives payment from Medicaid for room and board care and
is responsible for paying the SNF/NF for this service.
Response: Payment and billing procedures are not within the scope
of these CoPs. We have shared this comment with the appropriate
officials within CMS, and it will be taken under advisement.
Comment: A commenter suggested that hospices should be required to
notify hospice patients who reside in a SNF/NF or ICF/MR that Medicare
does not pay for room and board for a patient who is receiving the
routine home care level of hospice care.
[[Page 32158]]
Response: The commenter is correct that Medicare does not pay for
room and board. We believe that Medicare coverage of services under the
hospice benefit is already addressed by Sec. 418.52(c)(7), stating
that patients have the right to ``[r]eceive information about the
services covered under the hospice benefit.'' We do not believe that it
is necessary to require hospices to provide a separate notice in
writing regarding Medicare non-coverage of a patient's room and board
in a SNF/NF or ICF/MR.
Comment: Many commenters had questions about the proposed core
services requirement at Sec. 418.112(c), which would have required
hospices to routinely provide all core services to hospice patients who
are residents of SNFs/NFs or ICFs/MR. Some commenters wanted to know if
this requirement was the same as proposed Sec. 418.64, ``Core
Services.'' If so, the commenters suggested that it should be deleted
because it is duplicative and unnecessary. Other commenters asked if it
would be permissible to use staff of the SNFs/NFs or ICFs/MR to furnish
core services to hospice patients. A single commenter suggested that,
for clarity, we should add the word ``work'' to the term ``medical
social'' to clarify that hospices must provide medical social work
services to patients who reside in SNFs, NFs, or ICFs/MR.
Response: Hospices that furnish hospice services to residents of a
SNF/NF or ICF/MR are required to furnish core services to those
residents under the same requirements and in the same manner as those
services are furnished to patients residing in their own homes. The
core services requirement at Sec. 418.64 applies equally to both
facility and community residents. We agree that it is not necessary to
state the same requirements in both Sec. 418.64 and Sec. 418.112.
Therefore, the core services standard in Sec. 418.112 has been
removed.
Since the core services requirement at Sec. 418.64 applies,
regardless of where services are provided, hospices are not permitted
to routinely delegate hospice services to the staff of a SNF/NF or ICF/
MR. Hospices are required to routinely provide substantially all core
services directly. Hospices may only provide core services under
arrangement if they meet the conditions for an extraordinary
circumstance exemption described in Sec. 418.64, the nursing services
waiver described in Sec. 418.66, or the nursing shortage waiver
described in CMS S&C letter 05-02.
Comment: Numerous commenters asked us to clarify or delete the
proposed requirement at Sec. 418.112(h), ``Transfer, revocation, or
discharge from hospice care.'' Most of these commenters stated that
this requirement should be deleted because hospices have no authority
to govern the discharge actions of SNFs/NFs and ICFs/MR, thereby making
it very difficult for hospices to comply with the requirement. Some
commenters suggested that the intent of the standard should be
clarified. One commenter suggested that we should add the following
statement to the end of the requirement: ``It is believed that patients
should not experience the trauma of an external move because they
perhaps have stabilized and may not continue to be eligible for
hospice.''
Response: We agree that resident eligibility is not within the
control of the hospice, and this requirement has been removed. Absent
this requirement, the discharge requirement set forth in Sec.
418.104(e) continues to apply to any hospice patients who reside in a
SNF/NF or ICF/MR. The requirements of Sec. 418.104(e) do not place any
requirements on residential facilities serving as a patient's home.
Comment: A large number of commenters stated that it would be
difficult for hospices to implement the requirements of this CoP
without the inclusion of complementary requirements in the long term
care CoPs at 42 CFR part 483. Some commenters suggested that we should
not issue this CoP until the complementary requirements are included in
the long term care CoPs, while other commenters suggested that we
should add a phase-in period for this CoP to allow the long term care
CoPs to ``catch-up'' to this hospice CoP. Still other commenters
suggested that this CoP should be issued as planned, but that survey
enforcement of its requirements should understand that not all
provisions can be adequately implemented until the long term care CoPs
agree with those for hospices.
Response: Upon issuance of this final rule we intend to issue a
proposed rule to add a new requirement to the long term care CoPs at
Sec. 483.75(r). This proposed rule would describe:
The manner in which long term care facilities may furnish
hospice services to their residents;
The minimum content of the written agreement between the
long term care facility and the hospice;
The conditions under which the long term care facility
must contact the hospice;
The participation and coordination of the long term care
facility in care planning and delivery; and
The information that the long term care facility must
obtain from the hospice.
We agree that, without this requirement in the long term care
facility regulations, it will be challenging for hospices to comply
with the requirements of this CoP. We will work with the hospice and
long term care industries to address any situations that may occur
during the intervening time period.
Comment: Several commenters sought clarification about how
surveyors would determine accountability for negative patient outcomes
when patients were both hospice patients and residents of a SNF/NF or
ICF/MR.
Response: Hospices are responsible for all hospice care and
services provided to a patient, regardless of where that patient
resides. Hospices are also responsible for coordinating the plan of
care for a particular patient with representatives of the facility
where the patient resides to ensure that both the hospice and facility
are aware of their respective patient care responsibilities.
Furthermore, hospices are responsible for ensuring that the terms of
the arrangement established between the hospice and the facility are
met to ensure patient care and safety at all times. We expect hospices
to fulfill their responsibilities at all times and for all patients. If
a hospice does not fulfill its responsibility and take all appropriate
actions to ensure the health and safety of its patient in accordance
with the requirements of this final rule, then that hospice will be
held accountable for its actions. We note that these final provisions
do not propose to judge hospices on ``negative patient outcomes''
except to the extent that those outcomes are connected with regulatory
non-compliance.
Comment: Several commenters noted that the interpretive guidelines
that surveyors will use to ensure compliance with this CoP needs to
provide further detail regarding provider responsibilities for
individual aspects of hospice care.
Response: We agree that additional detail is needed and we will
take this suggestion under advisement as we develop interpretive
guidelines for this regulation.
Comment: A commenter suggested that frequent onsite verification of
hospice agency compliance with this proposed CoP is the best way to
ensure that hospices are fulfilling their regulatory obligations.
Response: State surveyors are required to survey long term care
facilities annually. These surveyors have already been directed to
report issues involving long term care facility residents who are
hospice patients to their hospice surveyor counterparts for
[[Page 32159]]
follow-up with the hospice. We believe that using hospice survey
resources to focus on potential problems is preferable to randomly
surveying hospices where issues involving long term care facility
residents have not appeared.
Comment: Several commenters suggested that we address the
responsibilities of the attending physician in caring for residents of
a SNF/NF or ICF/MR who receive hospice services. The commenters
suggested that the attending physician be responsible for coordinating
the patient's care and communicating with hospice and facility
physicians.
Response: We do not have the authority to regulate the actions of a
patient's attending physician who is not an employee of or under
contract with the hospice through this hospice rule. If a patient has
an attending physician who is actively involved in his or her care,
then the hospice is required to consult the attending physician in
developing and updating the patient's hospice plan of care. The hospice
may use this consultation with the attending physician to gather
information about other care and services the patient is receiving from
the facility where the patient resides and from any other health care
providers. The hospice may not delegate its responsibility to
coordinate the patient's hospice care to the attending physician.
Comment: A commenter asked if the medical director of a SNF/NF or
ICF/MR may also be the medical director of a hospice.
Response: These regulations do not prohibit this arrangement.
Comment: A commenter suggested that the interpretive guidelines
should allow the medical director of the SNF/NF to relinquish or assume
secondary professional responsibility for coordinating the medical care
for residents who elect the hospice benefit.
Response: As discussed above, we have deleted the proposed medical
director requirement at proposed Sec. 418.112(d), including the
requirement that the hospice medical director must provide overall
coordination of the medical care of the hospice patient residing in a
SNF/NF or ICF/MR. We have replaced it with the requirement of the final
rule at Sec. 418.112(e)(1) that a member of the IDG coordinate the
patient care and services with the facility.
22. Condition of Participation: Personnel Qualifications (Sec.
418.114)
We proposed significant revisions to the personnel qualifications
for hospice employees. Specifically, we proposed to provide that in
cases where personnel requirements are not statutory, or do not relate
to a specific payment provision, personnel would only be required to
meet State certification or licensure requirements.
In Sec. 418.114(a), ``General qualifications,'' we proposed that
licensed professionals who provide hospice services directly, either as
employees or under individual contract, or under arrangement with a
hospice must be licensed, certified, or registered to practice by the
State in which they perform the functions, as applicable. All personnel
who fall into this category must act exclusively within the scope of
the State license, certification or registration. In proposed Sec.
418.114(b), ``Personnel qualifications for physicians, speech-language
pathologists, and home health aides,'' we proposed to include those
personnel requirements that are included in the Act.
When a State does not have a licensure, certification, or
registration requirement, the hospice would apply the qualifications in
proposed Sec. 418.114(c), ``Personnel qualifications when no State
licensing laws or State certification or registration requirements
exist.'' This category would consist of all personnel qualifications
specified in existing Sec. 418.3, ``Definitions,'' including a
requirement that a social worker have a baccalaureate degree from a
school of social work accredited by the Council on Social Work
Education (proposed Sec. 418.114(c)(7)).
In Sec. 418.114(d), we proposed a new requirement that a hospice
obtain a criminal background check for all hospice and contract
employees before employment at the hospice. We believe that this is an
important safety measure to protect both patients and the hospice. We
did not propose any specific type, scope, or frequency requirements for
completing the background check.
Comment: A commenter noted that the proposed title of this CoP is
``Personnel qualifications for licensed professionals,'' and that this
title could be interpreted as to apply only to those individuals for
whom licensure is available. As such, the commenter reasoned, the
criminal background check requirement would not apply to unlicensed
individuals.
Response: Our intent, as stated in the proposed rule, is for all
appropriate individuals to have background checks. We have removed the
phrase ``for licensed professionals'' from the title of this CoP to
avoid any confusion in this area.
Comment: Several commenters supported the proposed requirement
that, if a State offers licensure for any discipline, including social
workers, the individuals practicing within that discipline must obtain
State licensure. One commenter even suggested that social workers
should be required to obtain the highest level of State licensure
available to them. However, a few commenters disagreed, stating that
social workers should not be required to obtain State licensure.
Response: The existing hospice requirements at Sec. 418.72 require
employees who provide services to be licensed, certified, or registered
in accordance with applicable Federal and State laws. We believe that
it is necessary to maintain this requirement in this final rule to
ensure that the individuals furnishing services to hospice patients are
legally authorized to furnish care in their respective disciplines. We
believe that State licensure, certification and/or registration, where
required by State law or regulation, help to ensure that individuals
are qualified to furnish safe and effective care to patients and
families. As professionals and equals among the IDG members, we believe
that it is necessary to require social workers to meet the same
licensure qualifications that all other hospice professionals are
required to meet.
Comment: The majority of commenters who submitted comments on our
proposed personnel qualifications section made suggestions to revise
the requirements for social workers. While some of these commenters
agreed with our proposal to defer to State requirements for social
workers, the majority of commenters believed that all hospice social
workers should be required to meet the same basic qualifications. Of
these commenters, many suggested that hospice social workers should be
required to have a baccalaureate degree in social work from an
accredited higher education institution. Other commenters suggested
that a baccalaureate or higher degree in a field related to social
work, such as psychology, would be an appropriate qualification for
hospice social workers, while some commenters explicitly disagreed with
this suggestion. Numerous other commenters suggested that hospice
social workers should be required to have a Master of Social Work (MSW)
degree from an accredited university. Of these commenters, several
suggested that a waiver should be granted for hospices in rural areas
to allow them to use the services of a social worker with a
baccalaureate degree under the supervision of an MSW or a licensed
mental health
[[Page 32160]]
professional with a graduate degree. Still other commenters suggested
that, regardless of the degree that the social worker holds, he or she
should be required to have one or two years of social work experience
in a health care setting. Some commenters explicitly disagreed with
this suggestion.
Response: The large number of public comments submitted in
reference to the personnel requirements for social workers, coupled
with the divergent views expressed in the comments, leads us to believe
that there is no standard or consensus in the hospice industry on this
issue. Our goal is to balance the needs of patients and families at a
very stressful time and the needs of hospices that may have difficulty
employing personnel who meet appropriate personnel standards. We
believe that all hospices should strive to employ the most qualified
individuals possible to provide social work services to patients and
families. In order to ensure that hospices employ a qualified
individual as a social worker, we are requiring that a hospice social
worker must at least meet one of the following options:
Have a Master of Social Work (MSW) degree from a school of
social work accredited by the Council on Social Work Education, and one
year of experience in a health care setting;
Have a baccalaureate degree in social work (BSW) from a
school of social work accredited by the Council on Social Work
Education, and one year of experience in a health care setting; or
Have a baccalaureate degree in psychology, sociology, or
other field related to social work, and at least one year of social
work experience in a health care setting.
If a hospice chooses to employ a social worker with a baccalaureate
degree in social work, psychology, sociology, or other field related to
social work, the services of that baccalaureate social worker must be
provided under the supervision of a social worker with an MSW from a
school of social work accredited by the Council on Social Work
Education and one year of experience in a health care setting. We
believe that requiring MSW supervision of BSW services will help ensure
that patient and family needs are met in a complete and timely manner.
The MSW supervisor role is that of an active advisor, consulting with
the BSW on assessing the needs of patients and families, developing and
updating the social work portion of the plan of care, and delivering
care to patients and families. This supervision may occur in person,
over the telephone, through electronic communication, or any
combination thereof.
Social workers with a baccalaureate degree from a school of social
work accredited by the Council on Social Work Education and who are
employed by the hospice before the effective date of this final rule
are exempted from the MSW supervision requirement. Therefore, if a
hospice currently employs a BSW, unsupervised by an MSW, it is not
required to hire an MSW to supervise the BSW. If a hospice hires a new
social worker with a baccalaureate degree and one year of experience in
a health care setting, then the new baccalaureate social worker must be
supervised by an MSW who has one year of experience in a health care
setting.
Comment: Many commenters suggested that the final rule should
include personnel qualifications for chaplains. Commenters suggested
that education (that is, a baccalaureate and graduate-level divinity or
theological degree from a university accredited by the Council of
Higher Education Accreditation and/or 4 units of clinical pastoral
education), experience in the medical field, certification from a
national organization, or any combination thereof would be appropriate
to qualify a chaplain to care for hospice patients. Other commenters
explicitly disagreed with this suggestion, stating that the final rule
should not include personnel qualifications for chaplains or require
them to be licensed or certified.
Response: Hospices may choose to employ the individual(s) best
suited to meet the needs of the hospice and its patients. If a hospice
chooses to employ a chaplain, it may choose to use any criteria in
selecting the appropriate candidate. We do not believe that it is
appropriate to require hospices to use specific criteria to guide the
selection of a spiritual counselor. Rather, the needs of the hospice's
patient population should drive the selection of the appropriate
person.
Comment: A commenter suggested that, if physical therapist
assistants furnish care to hospice patients, they should be required to
be under the supervision of a physical therapist.
Response: As a general statement, hospices are required to furnish
physical therapy services in a manner consistent with accepted
standards of practice. In addition, physical therapists and assistants
are required to act only within the scope of their State license,
certification, or registration. We believe that these requirements
ensure that physical therapy services are provided in a safe and
effective manner by and under the supervision of the appropriate
personnel.
In this final rule we are incorporating changes made by a separate
final rule (72 FR 66222, 66406, November 27, 2007) to the personnel
qualifications for physical therapists, physical therapist assistants,
occupational therapists, occupational therapist assistants, and speech-
language pathologists. That final rule amended Sec. 418.92 of the
existing hospice regulations to cross reference the revised personnel
requirements contained in 42 CFR 484.4, thereby requiring physical
therapists, physical therapist assistants, occupational therapists,
occupational therapist assistants, and speech-language pathologists
subject to the requirements of the hospice conditions of participation
to meet the same personnel requirements as therapists subject to the
requirements of the home health agency conditions of participation. In
this final rule, we continue to require therapists who are subject to
the requirements of the hospice conditions of participation to meet the
same personnel requirements as therapists subject to the requirements
of the home health agency conditions of participation, as was required
by the November 27, 2007 final rule.
We believe that these revised requirements, which went through the
notice-and-comment rulemaking process separate from and more recently
than the hospice conditions of participation continue to allow hospices
the flexibility to employ or contract with individuals who are well
qualified to provide therapy services to hospice patients. However, we
are replacing the cross reference to the requirements of 42 CFR part
484 with a duplicate of the requirements of Sec. 484.4. We believe
that duplicating the relevant requirements of Sec. 484.4 in Sec.
418.114(b)(4)-(8) will make it easier for hospices to know the
personnel requirements that their therapists must meet in order to be
considered qualified to provide services to hospice patients.
Comment: A commenter suggested that we should incorporate the
definition of the term ``licensed professionals'' from the home health
regulations at 42 CFR part 484 in the personnel requirements for
registered nurses at Sec. 418.114(c).
Response: The home health regulations at 42 CFR part 484 do not
define the term ``licensed professionals''; therefore we cannot
incorporate this suggestion into the final rule.
Comment: Some commenters suggested that we should add personnel
qualifications for nurse practitioners.
Response: Section 1861(aa)(5) of the Act describes a nurse
practitioner for
[[Page 32161]]
purposes of Medicare as an individual ``who performs such services as
such individual is legally authorized to perform (in the State in which
the individual performs such services) in accordance with State law (or
the State regulatory mechanism provided by State law), and who meets
such training, education, and experience requirements (or any
combination thereof) as the Secretary may prescribe in regulations.'' A
Medicare-participating hospice that employs a nurse practitioner is
expected to comply with these statutory requirements, and we believe
that they are sufficient.
Comment: Numerous commenters sought clarification about who was
required to have a criminal background check. Some commenters suggested
that volunteers should not be required to have a background check,
while others suggested that only those individuals who provide direct
patient care and/or who have access to patient financial information
should be required to have background checks. Furthermore, some
commenters suggested that only unlicensed hospice personnel should be
required to have criminal background checks. Other commenters wanted to
know if hospices would be required to obtain background checks on
current employees, or only for employees hired after the effective date
of this final rule. Still other commenters wanted to know if background
checks were needed for individuals employed by a DME supplier or
pharmacy that the hospice has a contract with. Some commenters
suggested that, if background checks are required for contractors, the
contracted entity would be the most appropriate entity to complete
criminal background checks for its employees.
Response: We believe that any individual who has direct patient
contact or has access to a patient's records, clinical, financial or
otherwise, should have a criminal background check because these
individuals are in a position that enables them to violate patient
rights to both safety and privacy. This includes all current paid
hospice employees, volunteers, and contracted employees, as well as any
new employees. If an office employee, such as a receptionist, does not
have access to patient records, and does not make patient visits, then
that employee is not required to have a criminal background check. If a
volunteer is a homemaker, and thus has direct patient contact, he or
she is required to have a background check. We understand that hospices
would likely not actually conduct background checks on contracted
employees. We have added a statement to Sec. 418.114(d)(1) that
hospices must require, as part of their written agreement with a
contractor, that the contractor provides the hospice a background check
for each contracted employee who has direct hospice patient contact or
access to hospice patient records. We believe that requiring all
individuals who have direct patient contact or access to patient
records to have background checks will help hospices assure that
patient rights are protected at all times.
Comment: Many commenters suggested that the requirements for
criminal background checks (that is, scope, frequency, timing, etc.)
should apply only in the absence of State requirements. Other
commenters suggested that the timeframe for completing a criminal
background check should be lengthened because it may take a few weeks
to receive a background check from the State police and/or FBI. Still
other commenters suggested that the scope of this requirement should be
clarified.
Response: We agree that if a State has particular laws or
regulations requiring criminal background checks for hospice employees
and contractors, then hospice compliance with such State requirements
satisfies the intent of this requirement. If a State does not have any
requirements, or does not have requirements for a specific discipline,
then the requirements of this final rule must be met. In this final
rule, we require hospices to obtain a criminal background check within
three months of the date of employment for all states that the
individual has lived or worked in for the past three years. We believe
that it is essential to gather information on the individual's
activities in several states to ensure that the criminal background
check presents a complete and accurate picture of the individual's
compliance with the law. In order to gather such information while
allowing hospices to fill vacant positions in a timely fashion, we
believe that it is necessary to alter the proposed timeframe from
``before employment'' to ``within three months of the date of
employment. * * *'' Therefore, if a State requires a registered nurse
to have a State police background check completed within six months of
employment, and the hospice complies with this State requirement when
conducting background checks on its nurses, then the hospice is in
compliance with this final rule even though the state standard is not
as stringent. If that same State does not have requirements for
background checks of physicians, then the hospice must obtain a
criminal background check within three months of the date of employment
for all states that the physician (paid, volunteer, or contracted) has
lived or worked in for the past three years.
Comment: A few commenters sought clarification on the relationship
between the background check obtained by the hospice and the background
check conducted by the State licensing body.
Response: Many States require a criminal background check before a
health care practitioner can obtain a State license, and some of these
states require background checks to be updated when the license is
renewed. However, not all states have a background check requirement in
place for licensing. As described above, if a State has criminal
background check requirements for a specific discipline, and the
hospice complies with the State requirements for that discipline, then
the hospice is in compliance with this Federal criminal background
check requirement. This means an individual does not need a criminal
background check if his or her license is current and State licensure
requires a background check. If a State does not have such criminal
background check requirements, then the hospice must comply with the
Federal requirements described above.
Comment: One commenter suggested that we should delay implementing
the criminal background check requirement until completion of the
background check demonstration project called for by the MMA.
Response: While the results of the MMA background check
demonstration project may provide further clarification on the
particulars of implementing background check requirements in health
care, we do not believe that it is appropriate to delay this important
requirement. Hospices must make informed decisions regarding the staff
(paid, volunteer, and contracted) that they use to care for patients.
Without such vital information patients become vulnerable, and this can
lead to negative patient outcomes.
Comment: Some commenters noted that obtaining background checks
will have a financial impact on hospices, while others noted that
requiring volunteers to submit to background checks may decrease the
number of willing volunteers.
Response: We understand that obtaining background checks will have
some degree of financial impact on hospices. We believe that this
impact will be offset by a decreased level of hospice liability.
Hospices will be able to exclude those individuals who may pose a
threat to hospice patients, thereby decreasing the likelihood of
[[Page 32162]]
patient's rights violations and/or criminal and civil litigation.
We also understand that some volunteers may perceive a criminal
background check as an affront. However, we believe that explaining
that background checks are a precaution that everyone must take, and
that background checks are not meant to single anyone out, will ease
volunteer concerns and not deter them from offering their time and
services to hospices.
Comment: A few commenters asked us to prescribe the exact offenses
that would preclude a hospice from employing a certain individual. A
commenter also asked us to include a waiver for individuals who have
been reformed as well as protections for hospices to choose to
terminate an individual's employment based on the results of the
criminal background check.
Response: We do not believe that it is appropriate to prescribe the
circumstances under which an individual must be precluded from hospice
employment on the basis of his or her criminal background check
results. Hospices should consult applicable labor laws and regulations
when developing their own policies and procedures for implementing the
criminal background check requirement. In addition, hospices should
inform current and prospective direct employees (including volunteers)
and contracted employees about their criminal background check policy.
We believe that a well-designed and openly implemented policy will help
hospices choose the individuals best suited for hospice employment and
service.
Comment: A commenter suggested that the section for personnel
requirements should be re-located to the beginning of the rule, rather
than its proposed location at the end of the rule.
Response: This rule is organized into two subparts, Subpart C--
Patient Care, and Subpart D--Organizational environment. Subpart C
contains the conditions of participation related to providing direct
patient care, while Subpart D contains the conditions of participation
related to the administration of a hospice. Since the requirements for
personnel qualifications relate more to the administration of a hospice
than to the delivery of direct patient care, we believe that it is
appropriate to keep the personnel qualifications section in its
proposed location.
23. Condition of Participation: Compliance With Federal, State, and
Local Laws and Regulations Related to the Health and Safety of Patients
(Sec. 418.116)
The provisions concerning licensure requirements for hospices are
currently located at Sec. 418.72, ``Condition of participation:
Licensure.'' We proposed to expand this condition by making a minor
revision to the language at existing Sec. 418.72(a), requiring the
hospice and its staff to operate and furnish services in compliance
with all Federal, State, and local laws and regulations applicable to
hospices related to the health and safety of patients.
Under Sec. 418.116(b), ``Satellite locations,'' we proposed to
continue to require that the hospice comply with the requirements of
Sec. 420.206 regarding disclosure of ownership and control
information. We also proposed that the hospice and any other satellite
locations operated under the same provider number be licensed in
accordance with applicable State licensure laws before the hospice
could be reimbursed for Medicare services. This proposed provision
would apply to the hospice as an entity, as well as to any personnel
furnishing services to hospice patients. We proposed to recodify the
current requirements at Sec. 418.92(b), regarding laboratory services,
at Sec. 418.116(c).
Comment: We received a minimal number of comments on the proposed
rule concerning multiple location requirements in this section. The
commenters requested that hospices be allowed to have multiple
locations (previously known as satellite locations) and also asked
about the procedures for the approval of such locations.
Response: As previously noted in this preamble, we have deleted the
term ``satellite'' and replaced it with ``multiple locations.''
Hospices are permitted to operate in multiple locations if they meet
the requirements set forth in Sec. 418.3 and Sec. 418.100(f). The
definition of ``multiple location'' as defined in Sec. 418.3 is ``a
Medicare-approved location from which the hospice provides the same
full range of hospice care and services that is required of the hospice
issued the certification number. A multiple location must meet all of
the conditions of participation applicable to hospices.'' The multiple
location is part of the hospice and shares administration, supervision,
and services with the hospice that was issued the certification number.
In Sec. 418.100(f) we state that all multiple locations must be
approved by Medicare before providing hospice care and services to
Medicare patients. The hospice must continually monitor and manage all
services provided at all of its locations to ensure that services are
delivered in a safe and effective manner and to ensure that each
patient and family receives the necessary care and services outlined in
the plan of care. Procedures for requesting CMS approval of a multiple
location will be set forth in the hospice interpretive guidelines,
which will be made available after this final rule has been published.
The interpretive guidelines will provide sub-regulatory instructions
and parameters which will apply to multiple locations.
III. Provisions of the Final Regulations
In this final rule we are adopting the provisions as set forth in
the May 27, 2005 proposed rule with the following revisions. We have--
1. Definitions (Sec. 418.3)
Deleted proposed revisions to the definition of the term
``attending physician.''
Amended the definition of ``bereavement counseling'' by
adding the term ``before and''.
Revised the definition of ``clinical note.''
Added a definition of the term ``comprehensive
assessment.''
Added a definition of the term ``dietary counseling.''
Deleted the definition of the term ``drug restraint.''
Added a definition of the term ``initial assessment.''
Amended the definition of ``licensed professional.''
Amended the name and definition of ``satellite location,''
now referred to as ``multiple location.''
Added a definition of the term ``physician.''
Added a definition of the term ``physician designee.''
Revised the definition of ``restraint,'' incorporating
definitions of the terms ``restraint'', ``drug restraint'', and
``physical restraint'' into a single definition.
Revised the definition of ``seclusion.''
Deleted the definitions of the terms ``physical
restraint'' and ``progress note.''
2. Condition of Participation: Patient's Rights (Sec. 418.52)
Renamed 418.52(a) ``Notice of rights and
responsibilities.''
Revised the phrasing of Sec. 418.52(a)(1).
Redesignated and revised proposed Sec. 418.52(a)(3) to
Sec. 418.106(e)(2)(i).
Redesignated and revised proposed Sec. 418.52(a)(4) as
Sec. 418.52(a)(3).
[[Page 32163]]
Revised Sec. 418.52(b)(4) to clarify the hospice's
responsibility for investigating and reporting violations of patient
rights.
Renamed and revised section 418.52(c) ``Rights of the
patient'' to include several new patient rights.
Deleted Sec. 418.52(d) ``Confidentiality of clinical
records'' (now at 418.52(c)) and Sec. 418.52(e), ``Patient
liability.''
3. Condition of Participation: Initial and Comprehensive Assessment of
the Patient (Sec. 418.54)
Revised the stem statement.
Revised Sec. 418.54(a) to clarify the assessment timeframe.
Revised Sec. 418.54(b) to clarify the role of the patient's
attending physician, and expand the timeframe for completing the
comprehensive assessment.
Revised Sec. 418.54(c) to include new factors that must be
considered during all comprehensive assessments. The new factors are
functional status, imminence of death, and severity of symptoms.
Renumbered Sec. 418.54(c)(3)(ii) as Sec. 418.54(c)(6), and
revised the title of this section as ``Drug Profile.'' We also revised
the factors that hospices must consider in the drug profile assessment.
Revised the requirements for the ``bereavement assessment'' now at
Sec. 418.54(c)(7) to require that a hospice incorporate information
gathered from the initial assessment into the patient's plan of care
and consider such information when developing the bereavement plan of
care.
Revised Sec. 418.54(d) to require an update of the comprehensive
assessment at least every 15 days. We also deleted the requirement that
the comprehensive assessment be updated at the time of each
recertification.
4. Condition of Participation: Interdisciplinary Group, Care Planning,
and Coordination of Services (Sec. 418.56)
Revised the stem statement.
Revised Sec. 418.56(a)(1) to maintain consistent terminology
throughout the rule. In addition, we retained the existing hospice rule
provision that requires the hospice to designate a registered nurse
that is a member of the IDG to coordinate patient care, assessment, and
care plan implementation.
Revised the IDG requirements at Sec. 418.56(a)(1)(i) to require
that the physician member of the IDG be an employee of or under
contract with the hospice. We also revised Sec. 418.56 (a)(1)(iv), to
retain the existing hospice requirement that the hospice IDG must
include a pastoral or other counselor.
Revised Sec. 418.56(a)(2) regarding the members of the IDG
responsible for developing day-to-day hospice policies and procedures.
Revised Sec. 418.56(b) to clarify that a patient's plan of care
must be individualized to his or her needs and circumstances.
Additionally, we revised this section to require a hospice to involve
the patient and primary caregiver in developing the plan of care in
accordance with the patient's needs. We also clarified which
individuals must be educated and trained by the hospice in implementing
the plan of care, as well as the extent of that education and training.
Revised Sec. 418.56(c) to specify that the written plan of care
must be individualized. We also added a provision that the plan of care
must reflect patient and family goals.
Revised Sec. 418.56(c)(1) to simplify the phrasing of the
requirement.
Removed the term ``targeted'' from Sec. 418.56(c)(3) to simplify
its phrasing.
Revised Sec. 418.56(c)(6) by changing ``family'' to
``representative.''
Revised Sec. 418.56(d). We removed specific mention of the role of
the hospice medical director or physician designee in updating each
patient's plan of care. We also revised the timeframes for updating the
plan of care to at least every 15 days. Additionally, we added a
requirement that the IDG must note the patient's progress toward
specified goals when updating in the plan of care.
Made several minor revisions to Sec. 418.56(e) that do not change
the intent of the proposed and added a new requirement that hospice
coordination and communication systems must ensure that information is
shared with non-hospice health care providers furnishing services to
patient.
5. Condition of Participation: Quality Assessment and Performance
Improvement (Sec. 418.58)
Removed the phrase ``focuses on the end-of-life support services
provided'' from Sec. 418.58.
Replaced the phrase ``end-of-life support services'' with ``hospice
service'' in Sec. 418.58(a). In addition, we replaced the phrase ``for
which there is evidence that improvement in those indicators will
improve palliative outcomes'' with the phrase ``related to improved
palliative outcomes.''
Revised Sec. 418.58(b) to clarify our intent. In Sec.
418.58(b)(2)(ii), we incorporated a requirement that quality indicator
data must be used to identify priorities, as well as opportunities, for
improvement. In Sec. 418.58(b)(3), we replaced the term ``specified''
with the term ``approved'' to clarify that the governing body is not
necessarily the entity that establishes data collection specifications.
Added a 240-day phase-in period to Sec. 418.58(d) to allow
hospices more time to collect the initial program data.
Revised Sec. 418.58(e) by adding a requirement that the governing
body annually evaluates the hospice's QAPI program. We also added a
requirement that the hospice governing body must identify at least one
individual who is responsible for operating the QAPI program. Deleted
proposed Sec. 418.58(e)(3) regarding expectations for patient safety.
6. Condition of Participation: Infection Control (Sec. 418.60)
Expanded the scope of the hospice's infection control program to
protect visitors as well as patients, families and hospice personnel.
Replaced the term ``staff'' in proposed Sec. 418.60(c) with the
terms ``employees'' and ``contracted providers.''
7. Condition of Participation: Licensed Professional Services (Sec.
418.62)
Revised Sec. 418.62(b) to clarify that licensed professionals
providing care to hospice patients must actively participate in the
coordination of all aspects of the patient's hospice care.
8. Condition of Participation: Core Services (Sec. 418.64)
Revised Sec. 418.64 to permit hospices to utilize contracted
staffing sources under extraordinary or other non-routine circumstances
(for example, unanticipated periods of peak patient loads, short-term
staffing shortages that interrupt patient care, and patient travel).
Deleted the proposed requirement at Sec. 418.64(a) that hospice
physicians be responsible for meeting a patient's general (that is,
non-hospice) medical needs.
Replaced the term ``nurse practitioner'' with ``registered nurse''
in Sec. 418.64(b)(2). We also deleted the proposed requirement at
Sec. 418.64(b)(2) that the role and scope of nurse practitioner
services be separately specified in the plan of care.
Revised the requirements in Sec. 418.64(d) to clarify the role of
counseling services, requiring that hospices make available counseling
services, ``* * * to assist the patient and family in minimizing the
stress and problems that arise from the terminal illness, related
conditions, and the dying process.''
Revised Sec. 418.64(d)(1)(i) to permit individuals with education
(as well as experience) in grief/loss counseling to supervise a
hospice's bereavement
[[Page 32164]]
program. Furthermore, we revised Sec. 418.64(d)(1)(ii) by removing the
term ``other facility'' and removing the requirement that hospices must
offer bereavement services to facility staff. We also revised Sec.
418.64(d)(1)(iv) by changing ``provided'' to ``offered.''
Revised Sec. 418.64(d)(2), renaming it ``Dietary counseling,'' to
be more consistent with the terminology used throughout the rest of the
rule.
Revised section 418.64(d)(3)(iii) by removing the statement that
hospices are not required to go to extraordinary lengths to facilitate
clergy, pastoral, or other visits from this section. We added language
that indicates that hospices must make all reasonable efforts to
facilitate such visits.
9. Condition of Participation: Nursing Services--Waiver of Requirement
That Substantially All Nursing Services Be Routinely Provided Directly
by a Hospice (Sec. 418.66)
Removed the requirement at proposed Sec. 418.66(d) that CMS may
approve a maximum of two 1-year extensions for each initial waiver.
10. Condition of Participation: Waiver of Requirement--Physical
Therapy, Occupational Therapy, Speech-Language Pathology, and Dietary
Counseling (Sec. 418.74)
Revised Sec. 418.74(d) by removing the requirement at 418.66(d)
that CMS may approve a maximum of two 1-year extensions for each
initial waiver.
11. Condition of Participation: Hospice Aide and Homemaker Services
(Sec. 418.76)
Revised Sec. 418.76 by changing its name from ``Home health aide
and homemaker services'' to ``Hospice aide and homemaker services.''
Revised Sec. 418.76(a)(ii) to clarify that the evaluation program
used to measure aide competency must meet the specific requirements of
Sec. 418.76(c) of this section. Clarified that the training or
competency evaluation programs referred to in Sec. 418.76(a)(2) are
those programs described in Sec. 418.76(a)(1).
Added an option in Sec. 418.76(a)(1), that a hospice aide may be
considered qualified if the aide has completed a training and
competency evaluation program in accordance with the content and
specifications of the nurse aide training program requirements for long
term care facilities at 42 CFR part 483.
Revised the language in Sec. 418.76(b)(1) to describe the training
that hospice aides must complete. The revised requirement states that,
``[h]ospice aide training must include classroom and supervised
practical training.''
Revised Sec. 418.76(c)(1) to clarify that a competency evaluation
program is required to address the areas identified in Sec.
418.76(b)(3) of this section, rather than the requirements of Sec.
418.76(b)(1) through Sec. 418.76(b)(3). Revised the requirement in
Sec. 418.76(c)(4) to specify that an aide is not considered to have
successfully completed a competency evaluation if the aide has an
``unsatisfactory'' rating in more than one required area.
Deleted the proposed requirement in Sec. 418.76(d) that an
organization excluded by Sec. 418.76(f) would be excluded from
offering in-service training to hospice aides. This paragraph continues
to exclude certain organizations from initially training hospice aides.
Revised Sec. 418.76(e) to clarify that the requirements of this
section apply to instructors providing both classroom and supervised
practical training. We are no longer applying the requirements of this
standard to those individuals performing competency evaluations or in-
service trainings. Third, we clarified the description of the training
instructor by rearranging the language and clarifying that one year of
the trainer's health care experience would be in the broad home care
environment (that is, hospice or home health care), rather than in the
more specific home health care environment.
Revised Sec. 418.76(f) to state that any home health agency that,
within the last two years, was out of compliance with the requirements
of paragraphs Sec. 418.76(b) or Sec. 418.76(c) of this section was
not eligible to train hospice aides, except with respect to in-service
training.
Deleted the proposed language in 418.76(g)(1) that an appropriate
qualified therapist may make hospice aide assignments or supervise
hospice aides. Also in section 418.76(g)(1), we added a new
specification requiring the nurse who makes aide assignments for a
specific aide and patient to be a member of that patient's hospice IDG.
Revised Sec. 418.76(g)(2) to indicate that the hospice IDG as a
whole may order aide services.
Revised Sec. 418.76(h) by removing references to qualified
therapists.
Clarified the purpose of the every 14 day aide supervision visit in
Sec. 418.76(h)(1)(i).
Added a provision in Sec. 418.76(h)(1)(ii) stating that if during
the supervision visit the nurse supervisor notes a potential area of
concern regarding the way in which hospice aide services are being
furnished, then the supervising registered nurse must make an on-site
visit to the patient when the hospice aide is present, to observe and
assess the aide while he or she is performing care.
Added Sec. 418.76(h)(1)(iii) to clarify these problems identified
during any hospice aide supervisory visits that cannot be resolved at
that time by the supervising registered nurse, the hospice aide must
complete a competency evaluation in accordance with Sec. 418.76(c). We
also redesignated Sec. 418.76(h)(2) as Sec. 418.76(h)(3). We added a
new section 418.76(h)(2) to require a hospice registered nurse to make
an annual on-site visit to observe each hospice aide furnishing aide
services to at least one patient. Hospices may determine the
appropriate location to document this annual aide evaluation in
accordance with their own policies and procedures.
Deleted proposed 418.76(h)(3).
Added a provision in Sec. 418.76(i)(2) that the individuals
providing Medicaid personal care aide services may only be used by the
hospice in implementing a patient's plan of care to the same extent
that the hospice would routinely use a patient's family in implementing
the plan of care.
Added a provision in Sec. 418.76(i)(3) that a hospice must
coordinate its hospice aide and homemaker services with the personal
care aide services provided by Medicaid to ensure that patient needs
are met.
Reorganized Sec. 418.76(j) to clarify that homemakers must either
meet the standards of Sec. 418.202(g) (in 42 CFR 418 Subpart F Covered
Services) and complete hospice orientation, or meet the requirements
for hospice aides at Sec. 418.76 as indicated in revised Sec.
418.76(j)(2). There are no substantive changes to this paragraph.
Revised the qualifications for the supervision of homemakers in
Sec. 418.76(k) to require that such services be supervised by the same
member of the IDG who coordinates the services.
12. Condition of Participation: Organization and Administration of
Services (Sec. 418.100)
Revised the requirements of Sec. 418.100(a) and Sec. 418.100
(a)(1) to make clear that hospices must structure their operations to
fully serve patients and families at the end of life.
Clarified then relationship between a hospice's governing body and
administrator in Sec. 418.100(b) by adding a provision that the
administrator must be appointed by the governing body.
Revised the requirement in Sec. 418.100(e) to state that hospices
must maintain oversight responsibility for services furnished under
contract.
Revised the requirement in Sec. 418.100(e)(2) that contracted
services
[[Page 32165]]
be provided by personnel having at least the same qualifications as
hospice employees with a requirement that contracted services by
provided by qualified personnel.
Revised and reorganized Sec. 418.100(f) by replacing the term
``satellite location'' with the term ``multiple location,'' and adding
new requirements for Medicare approval.
Revised Sec. 418.100(g) by adding (g)(1) and (2) to address the
orientation of patient care employees in the hospice philosophy and the
initial orientation of a hospice employee to his or her specific job
duties. We also redesignated proposed paragraph (g) as (g)(3).
13. Condition of Participation: Medical Director (Sec. 418.102)
Revised Sec. 418.102 by describing the employment relationship
between the medical director and the hospice. We clarified that the
medical director is either an employee of the hospice (paid or
volunteer) or is an individual under contract with the hospice. We also
revised the requirement to state that the hospice is responsible for
designating the individual who fulfills the physician designee role in
the medical director's absence.
Inserted a new Sec. 418.102(a) to address contracting for medical
director services, and redesignated the other paragraphs accordingly.
The new paragraph specifies that hospices may choose to make
arrangements for medical director services to be met through a contract
with a self-employed doctor or through a contract with a professional
entity or physicians group. Revised Sec. 418.102 (a)(2) specifies that
if a hospice chooses to contract with a professional entity or
physicians group for medical director services, the contract must
identify a particular physician who will fulfill the hospice medical
director's role and responsibilities.
Redesignated Sec. 418.102(a) as Sec. 418.102(b) and revised it to
delete the term ``criteria.''
Deleted proposed Sec. 418.102(b)(2), which would have required the
medical director to review the patient's and family's expectations and
wishes for the continuation of hospice care at the time of each
recertification.
Redesignated and revised Sec. 418.102(c) as Sec. 418.102(d). The
revision requires the hospice medical director to assume responsibility
for the medical component of the hospice's patient care program. We
deleted references to the joint responsibility of the IDG.
13. Condition of Participation: Clinical Records (Sec. 418.104)
Revised Sec. 418.104(a) to clarify which documents must be
included in the clinical record.
Revised Sec. 418.104(a) to specify that all versions of the plan
of care (initial and updated) must be in the clinical record. Likewise,
we clarified that all assessments (initial, comprehensive, and updated
comprehensive) must be included in the patient's clinical record. In
addition, we removed the language that separate progress notes must be
included in the clinical record because all notes, including notes that
document a patient's progress, are included under the broad heading of
``clinical notes.'' Furthermore, we removed the requirement that the
clinical record must contain a patient's informed consent from this
section. In its place, we require that the clinical record contain a
copy of the notice of patient rights (in accordance with Sec.
418.52(a)(3)), which requires a hospice to obtain the patient's or
representative's signature confirming that he or she has received a
copy of the notice of rights. Deleted the requirement in section Sec.
418.104(b) that, ``[a]ll entries must be signed, and the hospice must
be able to authenticate each handwritten and electronic signature of a
primary author who has reviewed and approved the entry.'' We are
requiring authentication and dating in accordance with hospice policy
and accepted standards of practice.
Revised Sec. 418.104(d) to specify the length of time that a
hospice is required to retain a patient's clinical record after death
or discharge from five years to six years in accordance with the HIPAA
requirements.
Revised Sec. 418.104(e) by replacing the term ``Medicare/Medicaid-
approved facility'' with ``Medicare/Medicaid-certified facility.''
Revised Sec. 418.104(e)(1) and (2) by requiring only that the
discharge summary be sent to the receiving facility/physician, and that
the clinical record be made available only upon request.
14. Condition of Participation: Drugs and Biologicals, Medical
Supplies, and Durable Medical Equipment (Sec. 418.106)
Revised this CoP by combining the requirements of proposed Sec.
418.106 and proposed Sec. 418.110(m) and Sec. 418.110(n).
Revised Sec. 418.106(a) to now require the hospice to ensure that
the IDG confers with a qualified individual with education and training
in drug management who is an employee of, or under contract with, the
hospice to ensure that drugs and biologicals meet each patient's needs.
This section also requires a hospice that provides inpatient care
directly in its own facility to provide pharmacy services under the
direction of a qualified licensed pharmacist who is an employee of, or
under contract with, the hospice. Incorporated the proposed
requirements of Sec. 418.110(n) in section 418.106(b). Drug orders
must only be given by a physician or nurse practitioner. If a drug
order is given verbally or electronically, it must be given to a
licensed nurse, nurse practitioner, pharmacist, or physician, and must
be recorded and signed immediately by the receiver. The prescribing
individual must sign the order in accordance with State and Federal
regulations.
Inserted new section 418.106(c), ``Dispensing of drugs and
biologicals,'' to incorporate elements of proposed Sec. 418.110(m) and
(n). This new standard requires a hospice to have a written policy to
promote dispensing accuracy, maintain current and accurate records of
the receipt and disposition of all controlled drugs, and obtain drugs
and biologicals from community or institutional pharmacists or its own
stock. Some of these requirements (that is, policy for dispensing
accuracy and controlled drug records) only apply to those hospices that
choose to maintain their own drug and biological stocks.
Revised Sec. 418.106(d) to combine proposed standards Sec.
418.106(a)(2) and Sec. 418.110(n)(2). Revised Sec. 418.106(d) is
divided into two elements, one for patients receiving care in their
home and another for patients receiving care in a hospice inpatient
facility. If a patient is receiving care in his or her home, the
hospice IDG must determine the patient's and/or family's ability to
safely administer drugs and biologicals in the home. If a patient is
receiving care in an inpatient facility operated by the hospice, then
drugs may only be administered to the patient by a designated list of
individuals working in the inpatient facility.
Revised Sec. 418.106(e) to combine and revise the requirements of
Sec. 418.106(b) and Sec. 418.110(n)(3), Sec. 418.110(n)(4), and
Sec. 418.110(n)(5). A hospice must ensure that all drugs and
biologicals are labeled with appropriate use and cautionary
instructions, as well as an expiration date, in accordance with
accepted standards of practice. In addition, a hospice must have
written policies and procedures for the management and disposal of
controlled drugs in a patient's home, and must provide and discuss them
with the patient and family at the time when controlled drugs are
initially ordered. Furthermore,
[[Page 32166]]
a hospice that operates its own inpatient facility must dispose of
controlled drugs in compliance with State and Federal requirements and
its own policies and procedures. It must also store drugs and
biologicals in a secure area. Certain controlled drugs must be stored
in locked compartments within the secure area, and access to those
locked compartments must be restricted to those individuals who are
permitted to administer these drugs. Any discrepancies in the
acquisition, storage, dispensing, administration, disposal, or return
of controlled drugs in the hospice's inpatient facility must be
investigated immediately, and reported, if necessary. An investigation
report must be made available to State and/or federal officials, if
required.
Revised Sec. 418.106(f) to clarify the hospice's responsibility
for durable medical equipment and medical supplies and the hospice's
contractual relationship with a durable medical equipment supplier.
Specifically, section 418.106(f)(1) and (2) have been revised to state
that, regardless of whether the hospice provides durable medical
equipment and medical supplies directly or under contract, the hospice
must ensure the following: That manufacturer recommendations for
routine and preventive maintenance are followed; that maintenance
policies are developed when no manufacturer recommendations exist; that
equipment is safe; that equipment works as intended; that patients,
families, and other caregivers receive instruction in the safe use of
equipment and supplies; and that patients, families, and other
caregivers are able to demonstrate the safe and appropriate use of
equipment and supplies.
Added Sec. 418.106(f)(3) to state that, if a hospice chooses to
contract with an entity for durable medical equipment, it may only
contract with a durable medical equipment supplier that meets the
Medicare Supplier Quality and Accreditation Standards at 42 CFR 424.57.
15. Condition of Participation: Short-Term Inpatient Care (Sec.
418.108)
Revised 418.108(b)(2) to require a facility providing only the
respite level of care to meet the 24-hour nursing needs of all patients
in accordance with each patient's plan of care. A facility providing
only the respite level of care is not required to automatically have
registered nurse present on all shifts to provide direct patient care.
16. Condition of Participation: Hospices That Provide Inpatient Care
Directly (Sec. 418.110)
Revised the opening paragraph of this CoP to clarify that the
requirements of Sec. 418.110 apply only to those inpatient facilities
operated by a hospice. Where a hospice has its ``own inpatient
facility,'' either in a freestanding building or as a section located
in the building of another provider type, the requirements of Sec.
418.110 apply to the building or applicable portion thereof as if it
were physically located with the hospice administrative offices, as
well as to the hospice patients receiving care within that building.
Added a requirement at Sec. 418.110(b)(2), originally at Sec.
418.100(a) of the existing hospice regulations, that at least one
registered nurse must provide direct patient care on each shift.
However, unlike the current Sec. 418.100(a), this requirement only
applies if the hospice inpatient facility is providing general
inpatient care to one or more patients.
Removed the proposed requirements Sec. 418.110(c)(1)(i) and (ii),
that a hospice must report safety breaches and that hospices must
prevent, report, and correct equipment failures.
Deleted Sec. 418.110(d)(4) and Sec. 418.110(d)(5), the phase-in
provisions requiring hospices to comply with certain emergency lighting
and door latching requirements as of March 13, 2006.
Redesignated proposed paragraph Sec. 418.110(d)(6) as paragraph
Sec. 418.110(d)(4).
Added an exception to Sec. 418.110(f)(1)(iv) with respect to the
number of patients that may occupy a single room. Redesignated proposed
Sec. 418.110(o) as Sec. 418.110(m), and revised it to correspond with
the seclusion and restraint requirements for hospitals.
Revised proposed Sec. 418.110(o)(6) as Sec. 418.110(n) to provide
more detailed guidance regarding the role of staff training in safely
and successfully implementing restraint or seclusion techniques. These
changes conform to the requirements of the hospital conditions of
participation.
Redesignated proposed Sec. 418.110(o)(7) as Sec. 418.110(o) to
provide more detailed requirements regarding death reporting
requirements.
16. Condition of Participation: Hospices That Provide Hospice Care to
Residents of a SNF/NF or ICF/MR (Sec. 418.112)
Deleted the term ``other facilities'' throughout this section.
Revised Sec. 418.112(b) to clarify a hospice's responsibility for
care furnished to hospice patients who reside in a SNF/NF or ICF/MR. A
hospice assumes all responsibility for the professional management of
all hospice services furnished to residents, including hospice-related
inpatient care. All services furnished by the hospice must be in
accordance with the individualized plans of care.
Deleted Sec. 418.112 (c) and (d), and redesignated the remaining
sections accordingly.
Redesignated Sec. 418.112(e) as Sec. 418.112(c), deleted some
provisions, clarified other provisions, and incorporated new provisions
regarding the written agreement between a hospice and a SNF/NF or ICF/
MR.
Redesignated Sec. 418.112(f) as Sec. 418.112(d) and replaced some
of the detailed plan of care requirements included in the proposed
standard with a cross reference to the requirements of Sec. 418.56. We
also clarified that the hospice must discuss changes in a patient's
plan of care with the patient or the patient's representative, as well
as with representatives of the SNF/NF or ICF/MR where the patient
resides.
Revised Sec. 418.112(g) (redesignated as Sec. 418.112(e)) to
clarify the hospice's patient care coordination responsibility.
Deleted proposed Sec. 418.112(h).
Revised Sec. 418.112(i) and redesignated it as Sec. 418.112(f) to
clarify that a hospice is not required to provide orientation training
itself if another hospice has already done so.
17. Condition of Participation: Personnel Qualifications (Sec.
418.114)
Revised Sec. 418.114(a) by combining the requirements of proposed
standards Sec. 418.114(a) and Sec. 418.116(a). The revised Sec.
418.114 requires that all professionals who furnish hospice services be
currently licensed, certified or registered to provide services in
accordance with applicable Federal, State, and local laws. Furthermore,
all professionals must act only within the scope of their license,
certification, or registration.
Revised Sec. 418.114(b) by replacing the proposed term ``home
health aides'' with the final term ``hospice aides.'' We also added
revised personnel requirements for social workers at Sec.
418.114(b)(3).
Revised personnel requirements for physical therapists, physical
therapy assistants, occupational therapists, occupational therapy
assistants, and speech-language pathologists to incorporate changes
made to these sections in a separate final rule (72 FR 66222, November
27, 2007) Revised Sec. 418.114(d) to provide more specificity
[[Page 32167]]
about the timing and scope of the criminal background check
requirement.
18. Condition of Participation: Compliance With Federal, State, and
Local Laws and Regulations Related to the Health and Safety or Patients
(Sec. 418.116)
Moved proposed Sec. 418.116(a) to a similar provision at final
Sec. 418.114(a).
Replaced the term ``satellite locations'' with the term ``multiple
locations'' in final Sec. 418.116(a) (proposed Sec. 418.116(b)) to
conform to other sections of the final rule.
IV. Crosswalk
Provisions Not Cited in the Crosswalk are Unchanged in the Final Rule
----------------------------------------------------------------------------------------------------------------
Proposed citation Proposed condition Final citation Final condition
----------------------------------------------------------------------------------------------------------------
418.3................................ Definitions............ Same................... Definitions.
New.................... 418.3.................. Initial assessment,
Comprehensive
assessment, Physician
designee, and Dietary
counseling.
Satellite location..... Same................... Multiple location, New
and amended language.
Bereavement counseling, Same................... New and amended
Clinical note, language.
Employee, Hospice
care, Licensed
professional,
Restraint, Seclusion.
Attending physician, ....................... Deleted.
Cap period, Drug
restraint, Physical
restraint, Progress
note, Terminally ill.
418.52............................... Patient Rights......... Same................... Patient Rights.
418.52(a)(1)......................... The hospice must Same................... New and amended
provide the patient or language.
representative with
verbal and written
notice of the
patient's rights and
responsibilities in a
language and manner
that the patient
understands during the
initial evaluation
visit in advance of
furnishing care.
418.52(a)(3)......................... The hospice must inform 418.106(e)(2)(i)....... Relocated and amended
the patient and family language.
of the hospice's drug
policies and
procedures, including
the policies and
procedures regarding
the tracking and
disposing of
controlled substances.
418.52(a)(4)......................... The hospice must 418.52(a)(3)........... New and amended
maintain documentation language.
showing that it has
complied with the
requirements of this
section and that the
patient or
representative has
demonstrated an
understanding of these
rights.
418.52(b)(4)(i)...................... The hospice must-- 418.52(b)(4)(i) and New and amended
Ensure that all 418.52(b)(4)(iv). language.
alleged violations
involving
mistreatment, neglect,
or verbal, mental,
sexual, and physical
abuse, including
injuries of unknown
source, and
misappropriation of
patient property are
reported to State and
local bodies having
jurisdiction
(including to the
State survey and
certification agency)
within at least 5
working days of the
incident, and
immediately to the
hospice administrator.
Investigations and/or
documentation of all
alleged violations
must be conducted in
accordance with
established procedures.
418.52(b)(4)(ii)..................... Immediately investigate Same................... New and amended
all alleged violations language.
and immediately take
action to prevent
further potential
abuse while the
alleged violation is
being verified.
418.52(4)(iv)........................ Investigate complaints 418.52(b)(4)(ii)....... Amended language.
made by a patient or
the patient's family
or representative
regarding treatment or
care that is (or fails
to be) furnished, lack
of respect for the
patient or the
patient's property by
anyone furnishing
services on behalf of
the hospice, and
document both the
existence of the
complaint and the
steps taken to resolve
the complaint.
418.52(c)............................ Pain management and 418.52(c)(1)........... New and amended
symptom control. language.
New.................... 418.52(c)(2)........... New.
New.................... 418.52(c)(3)........... New.
418.52(c)(4)........... New.
418.52(c)(6)........... New.
New.................... 418.52(c)(7)........... New.
418.52(c)(8)........... New.
418.52(d)............................ Confidentiality of 418.52(c)(5)........... Same.
clinical records.
418.52(e)............................ Patient liability...... Deleted................ Deleted.
418.54............................... Initial and Same................... Same.
Comprehensive
Assessment of the
Patient.
418.54(a)............................ Initial assessment: The Same................... New and amended
hospice registered language.
nurse must make an
initial assessment
visit within 24 hours
after the hospice
receives a physician's
admission order for
care (unless ordered
otherwise by the
physician), to
determine the
patient's immediate
care and support needs.
418.54(b)............................ Timeframe for Same................... New and amended
completion of the language.
comprehensive
assessment: The
hospice
interdisciplinary
group in consultation
with the individual's
attending physician,
must complete the
comprehensive
assessment no later
than 4 calendar days
after the patient
elects the hospice
benefit.
[[Page 32168]]
418.54(c)............................ Content of the Same................... New and amended
comprehensive language.
assessment: The
comprehensive
assessment must
identify the physical,
psychosocial,
emotional, and
spiritual needs
related to the
terminal illness that
must be addressed in
order to promote the
hospice patient's well-
being, comfort, and
dignity throughout the
dying process. The
comprehensive
assessment describes--
418.54(c)(1)......................... The nature and Same................... New and amended
condition causing language.
admission (including
the presence or lack
of objective data and
subjective
complaints);
418.54(c)(3)......................... Factors that must be Same................... New and amended
considered in language.
developing
individualized care
plan interventions,
including--
418.54(c)(3)(i)...................... Bereavement. An initial 418.54(c)(7)........... New and amended
bereavement assessment language.
of the needs of the
patient's family and
other individuals
focusing on the
social, spiritual, and
cultural factors that
may impact their
ability to cope with
the patient's death.
Information gathered
from the initial
bereavement assessment
must be incorporated
into the bereavement
plan of care.
418.(c)(3)(ii)....................... Drug therapy. A review 418.54(c)(6)........... New and amended
of the patient's language.
prescription and over-
the-counter drug
profile, including but
not limited to
identification of the
following--
418.54(c)(3)(ii)(A).................. Ineffective drug 418.54(c)(6)(i)........ New and amended
therapy;. language.
418.54(c)(3)(ii)(B).................. Unwanted drug side and 418.54(c)(6)(ii)....... New and amended
toxic effects; and language.
418.54(c)(3)(ii)(C).................. Drug interactions...... 418.54(c)(6)(iii)...... New and amended
language.
New.................... 418.54(c)(6)(iv)....... Duplicate therapy.
New.................... 418.54(c)(6)(v)........ Laboratory monitoring.
418.54(c)(4)......................... The need for referrals 418.54(c)(8)........... Same.
and further evaluation
by appropriate health
professionals.
418.54(d)............................ Update of the Same................... New and amended
comprehensive language.
assessment.
418.54(d)(1)......................... As frequently as the 418.54(d).............. Amended language.
patient requires, but
no less frequently
than every 14 days;
and
418.54(d)(2)......................... At the time of each Deleted................ Deleted.
recertification.
418.56............................... Sec. 418.56 Condition Same................... Amended language.
of participation:
Interdisciplinary
group care planning
and coordination of
services.
The hospice must
designate an
interdisciplinary
group or groups as
specified in paragraph
(a) of this section
which, in consultation
with the patient's
attending physician,
must prepare a written
plan of care for each
patient. The plan of
care must specify the
hospice care and
services necessary to
meet the patient and
family-specific needs
identified in the
comprehensive
assessment and as it
relates to the
terminal illness and
related conditions.
418.56(a)(1)......................... Standard: Approach to Same................... New and amended
service delivery. (1) language.
The hospice must
designate an
interdisciplinary
group or groups
composed of
individuals who work
together to meet the
physical, medical,
social, emotional, and
spiritual needs of the
hospice patients and
families facing
terminal illness and
bereavement.
Interdisciplinary
group members must
provide the care and
services offered by
the hospice, and the
group in its entirety
must supervise the
care and services. The
hospice must designate
a qualified health
care professional that
is a member of the
interdisciplinary
group to provide
coordination of care
and to ensure
continuous assessment
of each patient's and
family's needs and
implementation of the
interdisciplinary plan
of care. The
interdisciplinary
group must include,
but is not limited to,
individuals who are
qualified and
competent to practice
in the following
professional roles:
418.54(a)(1)(i)...................... A doctor of medicine or Same................... Amended language.
osteopathy (who is not
the patient's
attending physician).
418.54(a)(1)(iv)..................... A pastoral, clergy, or Same................... Amended language.
other spiritual
counselor.
418.56(a)(2)......................... If the hospice has more Same................... Amended language.
than one
interdisciplinary
group, it must
designate in advance
only one of those
groups to establish
policies governing the
day-to-day provision
of hospice care and
services.
418.56(b)............................ Plan of care: All Same................... New and amended
hospice care and language.
services furnished to
patients and their
families must follow a
written plan of care
established by the
hospice
interdisciplinary
group in collaboration
with the attending
physician. The hospice
must ensure that each
patient and family and
primary caregiver(s)
receive education and
training provided by
the hospice as
appropriate to the
care and services
identified in the plan
of care.
[[Page 32169]]
418.56(c)............................ Content of the plan of Same................... New and amended
care: The hospice must language.
develop a written plan
of care for each
patient that reflects
prescribed
interventions based on
the problems
identified in the
initial comprehensive
and updated
comprehensive
assessments, and other
assessments. The plan
of care must include
but not be limited to--
418.56(c)(1)......................... Interventions to Same................... Amended language.
facilitate the
management of pain and
symptoms;
418.56(c)(3)......................... Measurable targeted Same................... Amended language,
outcomes anticipated
from implementing and
coordinating the plan
of care;
418.56(c)(6)......................... The interdisciplinary Same................... Amended language.
group's documentation
of patient and family
understanding,
involvement, and
agreement with the
plan of care, in
accordance with the
hospice's own
policies, in the
clinical record.
418.56(d)............................ Review of the plan: The Same................... Amended language.
medical director or
physician designee,
and the hospice
interdisciplinary team
(in collaboration with
the individual's
attending physician to
the extent possible)
must review, revise
and document the plan
as necessary at
intervals specified in
the plan but no less
than every 14 calendar
days. A revised plan
of care must include
information from the
patient's updated
comprehensive
assessment and the
patient's progress
toward outcomes
specified in the plan
of care.
418.56(e)............................ Coordination of Same................... New and amended
services: The hospice language.
must develop and
maintain a system of
communication and
integration, in
accordance with the
hospice's own policies
and procedures, to--
418.56(e)(1)......................... Ensure the Same................... Amended language.
interdisciplinary
group, through its
designated
professionals,
maintains
responsibility for
directing,
coordinating, and
supervising the care
and services provided;
418.56(e)(4)......................... Provide for and ensure Same................... Amended language.
the ongoing sharing of
information between
all disciplines
providing care and
services in the home,
in outpatient
settings, and in
inpatient settings,
irrespective whether
the care and services
are provided directly
or under arrangement.
New.................... New 418.56(e)(5)....... New.
418.58............................... Quality assessment and Same................... New and amended
performance language.
improvement: The
hospice must develop,
implement, and
maintain an effective,
ongoing, hospice-wide
data-driven quality
assessment and
performance
improvement program.
The hospice's
governing body must
ensure that the
program: Reflects the
complexity of its
organization and
services; involves all
hospice services
(including those
services furnished
under contract or
arrangement); focuses
on indicators related
to improved palliative
outcomes; focuses on
the end-of-life
support services
provided; and takes
actions to demonstrate
improvement in hospice
performance. The
hospice must maintain
documentary evidence
of its quality
assessment and
performance
improvement program
and be able to
demonstrate its
operation to CMS.
418.58(a)(1)......................... Program scope: (1) The Same................... Amended language.
program must at least
be capable of showing
measurable improvement
in indicators for
which there is
evidence that
improvement in those
indicators will
improve palliative
outcomes and end-of-
life support services.
418.58(b)(2)(ii)..................... Identify opportunities Same................... Amended language.
for improvement.
418.58(b)(3)......................... The frequency and Same................... Amended language.
detail of the data
collection must be
specified by the
hospice's governing
body.
418.58(d)(1)-(d)(2).................. Performance improvement Same................... New and amended
projects: (1) The language.
number and scope of
distinct improvement
projects conducted
annually must reflect
the scope, complexity,
and past performance
of the hospice's
services and
operations. (2) The
hospice must document
what quality
improvement projects
are being conducted,
the reasons for
conducting these
projects, and the
measurable progress
achieved on these
projects.
418.58(e)-(e)(1)..................... Executive Same................... Amended language.
responsibilities: The
hospice's governing
body is responsible
for ensuring the
following: (1)That an
ongoing program for
quality improvement
and patient safety is
defined, implemented
and maintained;
[[Page 32170]]
418.58(e)(2)......................... That the hospice-wide Same................... Amended language.
quality assessment and
performance
improvement efforts
address priorities for
improved quality of
care and patient
safety, and that all
improvement actions
are evaluated for
effectiveness; and
418.58(e)(3)......................... That clear expectations Deleted................ Deleted.
for patient safety are
established.
New.................... 418.58(e)(3)........... New.
418.60............................... Infection Control: The Same................... Amended language.
hospice must maintain
and document an
effective infection
control program that
protects patients,
families and hospice
personnel by
preventing and
controlling infections
and communicable
diseases.
418.60(b)(2)(ii)..................... A plan for the Same................... Amended language.
appropriate actions
that are expected to
result in improvement
and disease prevention.
418.62............................... Licensed professional Same................... Same.
services.
418.62(b)............................ Licensed professionals Same................... Amended language.
must actively
participate in the
coordination of all
aspects of the
patient's care, in
accordance with
current professional
standards and
practice, including
participating in
ongoing
interdisciplinary
comprehensive
assessments,
developing and
evaluating the plan of
care, and contributing
to patient and family
counseling and
education; and
418.64............................... Core Services: A Same................... New and amended
hospice must routinely language.
provide substantially
all core services
directly by hospice
employees. These
services must be
provided in a manner
consistent with
acceptable standards
of practice. These
services include
nursing services,
medical social
services, and
counseling. The
hospice may contract
for physician services
as specified in Sec.
418.64(a). A hospice
may, under
extraordinary or other
non-routine
circumstances, enter
into a written
arrangement with
another Medicare
certified hospice
program for the
provision of core
services to supplement
hospice employee/staff
to meet the needs of
patients.
Circumstances under
which a hospice may
enter into a written
arrangement for the
provision of core
services include:
Unanticipated periods
of high patient loads,
staffing shortages due
to illness or other
short-term temporary
situations that
interrupt patient
care; and temporary
travel of a patient
outside of the
hospice's service area.
418.64(a)............................ Physician services: The Same................... Amended language.
hospice medical
director, physician
employees, and
contracted
physician(s) of the
hospice, in
conjunction with the
patient's attending
physician, are
responsible for the
palliation and
management of the
terminal illness,
conditions related to
the terminal illness,
and the general
medical needs of the
patient.
(1) All physician
employees and those
under contract, must
function under the
supervision of the
hospice medical
director.
(2) All physician
employees and those
under contract shall
meet this requirement
by either providing
the services directly
or through
coordinating patient
care with the
attending physician.
(3) If the attending
physician is
unavailable, the
medical director,
contracted physician,
and/or hospice
physician employee is
responsible for
meeting the medical
needs of the patient.
418.64(b)............................ Nursing services: (1) Same................... Amended language.
The hospice must
provide nursing care
and services by or
under the supervision
of a registered nurse.
Nursing services must
ensure that the
nursing needs of the
patient are met as
identified in the
patient's initial
comprehensive
assessment and updated
assessments.
(2) If State law
permits nurse
practitioners (NPs) to
see, treat and write
orders for patients,
then NPs may provide
services to
beneficiaries
receiving hospice
care. The role and
scope of the services
provided by a NP that
is not the
individual's attending
physician must be
specified in the
individual's plan of
care.
(3) Highly specialized
nursing services that
are provided so
infrequently that the
provision of such
services by direct
hospice employees
would be impracticable
and prohibitively
expensive, may be
provided under
contract.
[[Page 32171]]
418.64(d)............................ Counseling services: Same................... New and amended
Counseling services language.
for adjustment to
death and dying must
be available to both
the patient and the
family. Counseling
services must include
but are not limited to
the following:
418.64(d)(1)(i)...................... Bereavement counseling. Same................... Amended language.
The hospice must: Have
an organized program
for the provision of
bereavement services
furnished under the
supervision of a
qualified professional
with experience in
grief/loss counseling.
418.64(d)(1)(ii)..................... Make bereavement Same................... Amended language.
services available to
the family and other
individuals in the
bereavement plan of
care up to one year
following the death of
the patient.
Bereavement counseling
also extends to
residents and
employees of a SNF/NF,
ICF/MR, or other
facility when
appropriate and
identified in the
bereavement plan of
care.
418.64(d)(1)(iv)..................... Develop a bereavement Same................... Amended.
plan of care that
notes the kind of
bereavement services
to be provided and the
frequency of service
delivery. A special
coverage provision for
bereavement counseling
is specified in Sec.
418.204(c).
418.64(d)(2)......................... Nutritional counseling. Same................... Renamed: Dietary
Nutritional Counseling.
counseling, when
identified in the plan
of care, must be
performed by a
qualified individual,
which include
dietitians as well as
nurses and other
individuals who are
able to address and
assure that the
dietary needs of the
patient are met.
418.64(d)(3)(i)-(iv)................. Spiritual counseling. Same................... Amended language.
The hospice must:
(i) Provide an
assessment of the
patient's and family's
spiritual needs;
(ii) Provide spiritual
counseling to meet
these needs in
accordance with the
patient's and family's
acceptance of this
service, and in a
manner consistent with
patient and family
beliefs and desires;
(iii) Facilitate visits
by local clergy,
pastoral counselors,
or other individuals
who can support the
patient's spiritual
needs to the best of
its ability. The
hospice is not
required to go to
extraordinary lengths
to do so; and
(iv) Advise the
patient and family
of this service.
418.66............................... Nursing services-- Same................... Same.
Waiver of requirement
that substantially all
nursing services be
routinely provided
directly by a hospice.
418.66(a)............................ CMS may waive the Same................... Amended language.
requirement in Sec.
418.64(b) that a
hospice provide
nursing services
directly, if the
hospice is located in
a nonurbanized area.
The location of a
hospice that operates
in several areas is
considered to be the
location of its
central office. The
hospice must provide
evidence to CMS that
it has made a good
faith effort to hire a
sufficient number of
nurses to provide
services. CMS may
waive the requirement
that nursing services
be furnished by
employees based on the
following criteria:
(1) The location of
the hospice's
central office is
in a nonurbanized
area as determined
by the Bureau of
the Census.
(2) There is evidence
that a hospice was
operational on or
before January 1, 1983
including--
(i) Proof that the
organization was
established to provide
hospice services on or
before January 1,
1983;
(ii) Evidence that
hospice-type services
were furnished to
patients on or before
January 1, 1983; and
(iii) Evidence that
hospice care was a
discrete activity
rather than an
aspect of another
type of provider's
patient care
program on or
before January 1,
1983.
(3) By virtue of the
following evidence
that a hospice made a
good faith effort to
hire nurses:
(i) Copies of
advertisements in
local newspapers that
demonstrate
recruitment efforts;
(ii) Job descriptions
for nurse employees;
(iii) Evidence that
salary and benefits
are competitive for
the area; and
[[Page 32172]]
(iv) Evidence of any
other recruiting
activities (for
example, recruiting
efforts at health
fairs and contacts
with nurses at
other providers in
the area).
418.66(d)............................ CMS may approve a Same................... Amended language.
maximum of two 1-year
extensions for each
initial waiver. If a
hospice wishes to
receive a 1-year
extension, it must
submit a request to
CMS before the
expiration of the
waiver period, and
certify that the
conditions under which
it originally
requested the initial
waiver have not
changed since the
initial waiver was
granted.
418.74............................... Waiver of requirement-- Same................... Same.
Physical therapy,
occupational therapy,
speech-language
pathology, and dietary
counseling.
418.74(a)............................ A hospice located in a Same................... Amended language.
non-urbanized area may
submit a written
request for a waiver
of the requirement for
providing physical
therapy, occupational
therapy, speech-
language pathology,
and dietary counseling
services. The hospice
may seek a waiver of
the requirement that
it make physical
therapy, occupational
therapy, speech-
language pathology,
and dietary counseling
services (as needed)
available on a 24-hour
basis. The hospice may
also seek a waiver of
the requirement that
it provide dietary
counseling directly.
The hospice must
provide evidence that
it has made a good
faith effort to meet
the requirements for
these services before
it seeks a waiver. CMS
may approve a waiver
application on the
basis of the following
criteria: (1) The
hospice is located in
a non-urbanized area
as determined by the
Bureau of the Census.
(2) The hospice
provides evidence that
it had made a good
faith effort to make
available physical
therapy, occupational
therapy, speech-
language pathology,
and dietary counseling
services on a 24-hour
basis and/or to hire a
dietary counselor to
furnish services
directly. This
evidence must include--
(i) Copies of
advertisements in
local newspapers that
demonstrate
recruitment efforts;
(ii) Physical therapy,
occupational therapy,
speech-language
pathology, and dietary
counselor job
descriptions;
(iii) Evidence that
salary and benefits
are competitive for
the area; and
(iv) Evidence of any
other recruiting
activities (for
example, recruiting
efforts at health
fairs and contact
discussions with
physical therapy,
occupational
therapy, speech-
language pathology,
and dietary
counseling service
providers in the
area).
418.74(d)............................ CMS may approve a Same................... Amended language.
maximum of two 1-year
extensions for each
initial waiver. If a
hospice wishes to
receive a 1 year
extension, it must
submit a request to
CMS prior to the
expiration of the
waiver period and
certify that
conditions under which
it originally
requested the waiver
have not changed since
the initial waiver was
granted.
418.76............................... Home health aide and Same................... New and amended
homemaker services: language.
All home health aide
services must be
provided by
individuals who meet
the personnel
requirements specified
in paragraph (a) of
this section.
Homemaker services
must be provided by
individuals who meet
the personnel
requirements specified
in paragraph (j) of
this section.
418.76(a)(1)......................... Home health aide Same................... New and amended
qualifications:. language.
(i) A training program
and competency
evaluation as
specified in
paragraphs (b) and (c)
of this section
respectively; or
(ii) A competency Same................... New and amended
evaluation program; or language.
(iii) A State 418.76(a)(1)(iv)....... Same.
licensure program
that meets the
requirements of
paragraphs (b) and
(c) of this section.
New.................................. New.................... 418.76(a)(1)(iii)...... New.
[[Page 32173]]
418.76(a)............................ (2) A home health aide Same................... New and amended
is not considered to language.
have completed a
training program, or a
competency evaluation
program if, since the
individual's most
recent completion of
the program(s), there
has been a continuous
period of 24
consecutive months
during which none of
the services furnished
by the individual as
described in Sec.
409.40 of this chapter
were for compensation.
If there has been a 24
month lapse in
furnishing services,
the individual must
complete another
training and/or
competency evaluation
program before
providing services, as
specified in paragraph
(a)(1) of this section.
418.76(b)............................ Content and duration of Same................... Amended language.
home health aide
classroom and
supervised practical
training: (1) Home
health aide training
must include classroom
and supervised
practical classroom
training in a
practicum laboratory
or other setting in
which the trainee
demonstrates knowledge
while performing tasks
on an individual under
the direct supervision
of a registered nurse
or licensed practical
nurse, who is under
the supervision of a
registered nurse.
Classroom and
supervised practical
training combined must
total at least 75
hours.
(2) A minimum of 16
hours of classroom
training must precede
a minimum of 16 hours
of supervised
practical training as
part of the 75 hours.
(3) A home health aide
training program must
address each of the
following subject
areas:
(4) The hospice must
maintain documentation
that demonstrates that
the requirements of
this standard are met.
418.76(c)............................ Competency evaluation: Same................... Amended language.
An individual may
furnish home health
services on behalf of
a hospice only after
that individual has
successfully completed
a competency
evaluation program as
described in this
section.
418.76(c)(1)......................... (1) The competency Same................... Amended language.
evaluation must
address each of the
subjects listed in
paragraphs (b)(1)
through (b)(3) of this
section. Subject areas
specified under
paragraphs (b)(3)(i),
(b)(3)(iii),
(b)(3)(ix), (b)(3)(x)
and (b)(3)(xi) of this
section must be
evaluated by observing
an aide's performance
of the task with a
patient. The remaining
subject areas may be
evaluated through
written examination,
oral examination, or
after observation of a
home health aide with
a patient.
418.76(c)(2)......................... (2) A home health aide Same................... Amended language.
competency evaluation
program may be offered
by any organization,
except as specified in
paragraph (f) of this
section.
418.76(c)(4)......................... (4) A home health aide Same................... New and amended
is not considered language.
competent in any task
for which he or she is
evaluated as
unsatisfactory. An
aide must not perform
that task without
direct supervision by
a registered nurse
until after he or she
has received training
in the task for which
he or she was
evaluated as
``unsatisfactory,''
and successfully
completes a subsequent
evaluation.
418.76(d)............................ In-service training: A Same................... Amended language.
home health aide must
receive at least 12
hours of in-service
training during each
12-month period. In-
service training may
occur while an aide is
furnishing care to a
patient.
(1) In-service training
may be offered by any
organization except
one that is excluded
by paragraph (f) of
this section, and must
be supervised by a
registered nurse.
(2) The hospice must
maintain documentation
that demonstrates the
requirements of this
standard are met.
418.76(e)............................ Qualifications for Same................... Amended language.
instructors conducting
classroom supervised
practical training,
competency evaluations
and in-service
training:
Classroom supervised
practical training
must be performed by
or under the
supervision of a
registered nurse who
possesses a minimum of
two years nursing
experience, at least
one year of which must
be in home health
care. Other
individuals may
provide instruction
under the general
supervision of a
registered nurse.
[[Page 32174]]
418.76(f)............................ Eligible training Same................... Amended language.
organizations. A home
health aide training
program may be offered
by any organization
except by a home
health agency that,
within the previous 2
years--
(1) Was out of
compliance with the
requirements of
paragraphs (b) or (c)
of this section;
(2) Permitted an
individual that does
not meet the
definition of a
``qualified home
health aide'' as
specified in paragraph
(a) of this section to
furnish home health
aide services (with
the exception of
licensed health
professionals and
volunteers);
(3) Was subjected to an
extended (or partial
extended) survey as a
result of having been
found to have
furnished substandard
care (or for other
reasons at the
discretion of CMS or
the State);
(4) Was assessed a
civil monetary penalty
of $5,000 or more as
an intermediate
sanction;
(5) Was found by CMS to
have compliance
deficiencies that
endangered the health
and safety of the home
health agency's
patients and had
temporary management
appointed to oversee
the management of the
home health agency;
(6) Had all or part of
its Medicare payments
suspended; or
(7) Was found by CMS or
the State under any
Federal or State law
to have:
418.76(g)............................ Home health aide Deleted................ Deleted stem.
assignments and
duties: A registered
nurse or the
appropriate qualified
therapist that is a
member of the
interdisciplinary team
makes home health aide
assignments.
418.76(g)(1)......................... Home health aides are Same................... New and amended
assigned to a specific language.
patient by a
registered nurse or
the appropriate
qualified therapist.
Written patient care
instructions for a
home health aide must
be prepared by a
registered nurse or
other appropriate
skilled professional
(i.e., a physical
therapist, speech-
language pathologist,
or occupational
therapist) who is
responsible for the
supervision of a home
health aide as
specified under
paragraph (h) of this
section.
418.76(g)(2)......................... A home health aide Same................... Amended language.
provides services that
are:
(i) Ordered by the
physician or nurse
practitioner;
(ii) Included in the
plan of care;
(iii) Permitted to be
performed under State
law by such home
health aide; and
(iv) Consistent with
the home health
aide training.
418.76(g)(3)......................... The duties of a home Same................... Amended language.
health aide include:
(i) The provision of
hands on personal
care;
(ii) The performance of
simple procedures as
an extension of
therapy or nursing
services;
(iii) Assistance in
ambulation or
exercises; and
(iv) Assistance in
administering
medications that
are ordinarily self
administered.
418.76(g)(4)......................... Home health aides must Same................... Amended language.
report changes in the
patient's medical,
nursing,
rehabilitative, and
social needs to a
registered nurse or
other appropriate
licensed professional,
as the changes relate
to the plan of care
and quality assessment
and improvement
activities. Home
health aides must also
complete appropriate
records in compliance
with the hospice's
policies and
procedures.
418.76(h)............................ Supervision of home 418.76(h)(1) and (h)(2) New and amended
health aides: (l) A language.
registered nurse or
qualified therapist
must make an onsite
visit to the patient's
home no less
frequently than every
14 days to assess the
home health aide's
services. The home
health aide does not
have to be present
during this visit. A
registered nurse or
qualified therapist
must make an onsite
visit to the location
where the patient is
receiving care in
order to observe and
assess each aide while
he or she is
performing care no
less frequently than
every 28 days.
418.76(h)(2)......................... The supervising nurse 418.76(h)(3)........... Amended language.
or therapist must
assess an aide's
ability to demonstrate
initial and continued
satisfactory
performance in meeting
outcome criteria that
include, but is not
limited to--
(i) Following the
patient's plan of care
for completion of
tasks assigned to the
home health aide by
the registered nurse
or qualified
therapist;
[[Page 32175]]
(ii) Creating
successful
interpersonal
relationships with the
patient and family;
(iii) Demonstrating
competency with
assigned tasks;
(iv) Complying with
infection control
policies and
procedures; and
(v) Reporting changes
in the patient's
condition.
418.76(h)(3)......................... If the hospice chooses Deleted................ Deleted.
to provide home health
aide services under
contract with another
organization, the
hospice's
responsibilities
include, but are not
limited to--
(i) Ensuring the
overall quality of
care provided by an
aide;
(ii) Supervising an
aide's services as
described in
paragraphs (h)(l) and
(h)(2) of this
section; and
(iii) Ensuring that
home health aides who
provide services under
arrangement have met
the training and/or
competency evaluation
requirements of this
condition.
New.................... 418.76(h)(3)........... New language.
418.76(i)............................ Individuals furnishing 418.76(i) and (i)(1)... Amended language.
Medicaid personal care
aide-only services
under a Medicaid
personal care benefit.
An individual may
furnish personal care
services, as defined
in Sec. 440.167 of
the Code of Federal
Regulations, on behalf
of a hospice or home
health agency. Before
the individual may
furnish personal care
services, the
individual must be
found competent by the
State to furnish those
services. The
individual only needs
to demonstrate
competency in the
services the
individual is required
to furnish.
418.76(i)(2)........... New language.
418.76(i)(3)........... New language.
418.76(j)............................ Homemaker Same................... New and amended
qualifications. A language.
qualified homemaker is
a home health aide as
described in Sec.
418.76 or an
individual who meets
the standards in Sec.
418.202(g) and has
successfully completed
hospice orientation
addressing the needs
and concerns of
patients and families
coping with a terminal
illness.
418.76(k)............................ Homemaker supervision Same................... New and amended
and duties. language.
(1) Homemaker services
must be coordinated by
a member of the
interdisciplinary
group.
(2) Instructions for
homemaker duties must
be prepared by a
member of the
interdisciplinary
group.
(3) Homemakers must
report all concerns
about the patient or
family to the member
of the
interdisciplinary
group who is
coordinating homemaker
services.
----------------------------------------------------------------------------------------------------------------
Subpart D Conditions of Participation: Organizational Environment
----------------------------------------------------------------------------------------------------------------
418.100.............................. Organization and Same................... New and amended
administration of language.
services. The hospice
must organize, manage,
and administer its
resources to provide
the hospice care and
services to patients,
caregivers and
families necessary for
the palliation and
management of terminal
illness.
418.100(a)........................... Serving the hospice Same................... New and amended
patient and family. language.
The hospice must
ensure--(1) That each
patient receives and
experiences hospice
care that optimizes
comfort and dignity;
and (2) That each
patient experience
hospice care that is
consistent with
patient and family
needs and desires.
418.100(c)........................... Services: (1) A hospice Same................... Amended language.
must be primarily
engaged in providing
the following care and
services and must do
so in a manner that is
consistent within
accepted standards of
practice:
(i) Nursing services
(ii) Medical social
services.
(iii) Physician
services.
(iv) Counseling
services, including
spiritual
counseling, dietary
counseling, and
bereavement
counseling.
(v) Home health
aide, volunteer,
and homemaker
services.
(vi) Physical
therapy,
occupational
therapy and speech-
language pathology
therapy services.
(vii) Short-term
inpatient care.
(viii) Medical
supplies (including
drugs and
biologicals) and
medical appliances.
[[Page 32176]]
(2) Nursing services,
physician services,
and drugs and
biologicals (as
specified in Sec.
418.106) must be made
routinely available on
a 24-hour basis 7 days
a week. Other covered
services must be
available on a 24-hour
basis when reasonable
and necessary to meet
the needs of the
patient and family.
418.100(e)........................... Professional management Same................... Amended language.
responsibility. A
hospice that has a
written agreement with
another agency,
individual, or
organization to
furnish any services
under arrangement,
must retain
administrative and
financial management,
and supervision of
staff and services for
all arranged services,
to ensure the
provision of quality
care. Arranged
services must be
supported by written
agreements that
require that all
services be--
(1) Authorized by the
hospice;
(2) Furnished in a safe
and effective manner
by personnel having at
least the same
qualifications as
hospice employees; and
(3) Delivered in
accordance with the
patient's plan of
care.
418.100(f)........................... Hospice satellite Same................... Renamed. Amended
locations: (1) All language.
hospice satellite
locations must be
approved by CMS before
providing hospice care
and services to
Medicare patients. The
determination that a
satellite location
does or does not meet
the definition of a
satellite location, as
set forth in this
part, is an initial
determination, as set
forth in Sec. 498.3.
(2) The hospice must
continually monitor
and manage all
services provided at
all of its locations
to ensure that
services are delivered
in a safe and
effective manner and
to ensure that each
patient and family
receives the necessary
care and services
outlined in the plan
of care.
418.100(g)........................... In-service training: A Same................... Renamed. New and
hospice must assess amended language.
the skills and
competence of all
individuals furnishing
care, including
volunteers furnishing
services, and, as
necessary, provide in-
service training and
education programs
where required. The
hospice must have
written policies and
procedures describing
its method(s) of
assessment of
competency and
maintain a written
description of the in-
service training
provided during the
previous 12 months.
418.102.............................. Medical director. The Same................... Amended language.
hospice must designate
a physician to serve
as medical director.
The medical director
must be a doctor of
medicine or osteopathy
who is either employed
by, or under contract
with, the hospice.
When the medical
director is not
available, a physician
designated by the
medical director
assumes the same
responsibilities and
obligations as the
medical director. The
medical director and
physician designee
coordinate with other
physicians and health
care professionals to
ensure that each
patient experiences
medical care that
reflects hospice
policy.
418.102(a)........................... Initial certification 418.102(b)............. Amended language.
of terminal illness.
The medical director
or physician designee
reviews the clinical
information for each
hospice patient and
provides written
certification that it
is anticipated that
the patient's life
expectancy is 6 months
or less if the illness
runs its normal
course. The physician
must consider the
following criteria
when making this
determination:
(1) The primary
terminal condition.
(2) Related
diagnosis(es), if
any.
(3) Current
subjective and
objective medical
findings.
(4) Current
medication and
treatment orders.
(5) Information
about the medical
management of any
of the patient's
conditions
unrelated to the
terminal illness.
New.................................. 418.102(a)............. New.
418.102(b)........................... Recertification of the 418.102(c)............. Amended language.
terminal illness.
Before the
recertification period
for each patient, as
described in Sec.
418.21(a), the medical
director or physician
designee must review:
(1) The patient's
clinical information;
and
(2) The patient's Deleted................ Deleted.
and family's
expectations and
wishes for the
continuation of
hospice care.
[[Page 32177]]
418.102(c)........................... Coordination of medical Deleted................ Deleted.
care. The medical
director or physician
designee, and the
other members of the
interdisciplinary
group are jointly
responsible for the
coordination of the
patient's medical care
in its entirety. The
medical director or
physician designee is
also responsible for
directing the
hospice's quality
assessment and
performance
improvement program.
New.................................. New.................... 418.102(d)............. New.
418.104(a)........................... Clinical records. Same................... New and amended
Content. Each language.
patient's record must
include the following:
(1) The plan of
care, initial
assessment,
comprehensive
assessment, and
updated
comprehensive
assessments,
clinical notes, and
progress notes.
(2) Informed
consent,
authorization, and
election forms.
(3) Responses to
medications,
symptom management,
treatments, and
services.
(4) Outcome measure
data elements, as
described in Sec.
418.54(e) of this
subpart.
(5) Physician
certification and
recertification of
terminal illness as
required in Sec.
418.22 and
described in Sec.
418.102(a) and Sec.
418.102(b)
respectively.
(6) Any advance
directives as
described in Sec.
418.52(a)(3).
418.104(b)........................... Authentication. All Same................... New and amended
entries must be language.
legible, clear,
complete, and
appropriately
authenticated and
dated. All entries
must be signed, and
the hospice must be
able to authenticate
each handwritten and
electronic signature
of a primary author
who has reviewed and
approved the entry.
418.104(d)........................... Retention of records: Same................... Amended language.
Patient clinical
records must be
retained for 5 years
after the death or
discharge of the
patient, unless State
law stipulates a
longer period of time.
If the hospice
discontinues
operation, hospice
policies must provide
for retention and
storage of clinical
records. The hospice
must inform its State
agency and its CMS
Regional office where
such clinical records
will be stored and how
they may be accessed.
418.104(e)........................... Discharge or transfer Same................... New and amended
of care: (1) If the language.
care of a patient is
transferred to another
Medicare/Medicaid
approved facility, the
hospice must forward a
copy of the patient's
clinical record and
the hospice discharge
summary to that
facility.
(2) If a patient
revokes the election
of hospice care, or is
discharged from
hospice because
eligibility criteria
are no longer met, the
hospice must provide a
copy of the clinical
record and the hospice
discharge summary of
this section to the
patient's attending
physician.
(3) The hospice
discharge summary must
include--
(i) A summary of the
patient's stay
including treatments,
symptoms and pain
management;
(ii) The patient's
current plan of care;
(iii) The patient's
latest physician
orders; and
(iv) Any other
documentation that
will assist in post-
discharge
continuity of care.
418.106(a)........................... Drugs and biologicals, 418.106(d)............. Partially deleted and
medical supplies, and moved to stem.
durable medical
equipment.
Administration of
Drugs and biologicals:
(1) All drugs and
biologicals must be
administered in
accordance with
accepted hospice and
palliative care
standards of practice
and according to the
patient's plan of care.
418.106(a)........................... (2) The 418.106(d)(1).......... Renamed. New and
interdisciplinary amended language.
group, as part of the
review of the plan of
care, must determine
the ability of the
patient and/or family
to safely self-
administer drugs and
biologicals.
New.................................. New.................... 418.106(a)............. Renamed. New and
amended language.
418.106(b)........................... Controlled drugs: The 418.106(e)............. Renamed. New and
hospice must have a amended language.
written policy for
tracking, collecting,
and disposing of
controlled drugs
maintained in the
patient's home. During
the initial hospice
assessment, the use
and disposal of
controlled substances
must be discussed with
the patient and family
to ensure the patient
and family are
educated regarding the
uses and potential
dangers of controlled
substances. The
hospice nurse must
document that the
policy was discussed
with the patient and
family.
[[Page 32178]]
418.110(n)(1)........................ New.................... 418.106(b)............. Renamed. New and
amended language.
418.106(c)........................... Use and maintenance of 418.106(f)............. New and amended
equipment and language.
supplies. (1) The
hospice must follow
manufacturer
recommendations for
performing routine and
preventive maintenance
on durable medical
equipment. The
equipment must be safe
and work as intended
for use in the
patient's environment.
Where there is no
manufacturer
recommendation for a
piece of equipment,
the hospice must
develop in writing its
own repair and routine
maintenance policy.
The hospice may use
persons under contract
to ensure the
maintenance and repair
of durable medical
equipment.
(2) The hospice must
ensure that the
patient, where
appropriate, as well
as the family and/or
other caregiver(s),
receive instruction in
the safe use of
durable medical
equipment and
supplies. The patient,
family, and/or
caregiver must be able
to demonstrate the
appropriate use of
durable medical
equipment to the
satisfaction of the
hospice staff.
418.110(m)........................... ....................... 418.106(c)............. Renamed. New and
amended language.
418.110(n)(2)........................ ....................... 418.106(d)(2).......... Renamed. New and
amended language.
418.106(b) and 418.110(n)(3)-(5)..... ....................... 418.106(e)............. Renamed. New and
amended language.
New.................................. New.................... 418.106(f)(3).......... Amended language.
418.108(a)........................... Inpatient care for Same................... Amended language.
symptom management and
pain control.
Inpatient care for
pain control and
symptom management
must be provided in
one of the following:
(1) A Medicare-
approved hospice that
meets the conditions
of participation for
providing inpatient
care directly as
specified in Sec.
418.110. (2) A
Medicare-participating
hospital or a skilled
nursing facility that
also meets the
standards specified in
Sec. 418.110(b) and
(f) regarding 24-hour
nursing services and
patient areas.
418.108(b)........................... Inpatient care for Same................... New and amended
respite purposes: language.
Inpatient care for
respite purposes must
be provided by one of
the following:
(1) A provider
specified in
paragraph (a) of
this section.
(2) A Medicare/
Medicaid approved
nursing facility
that also meets the
standards specified
in Sec. 418.110
(b) and (f).
418.108(c)........................... Inpatient care provided Same................... Amended language.
under arrangements. If
the hospice has an
arrangement with a
facility to provide
for short-term
inpatient care, the
arrangement is
described in a legally
binding written
agreement that at a
minimum specifies--
(1) That the hospice
supplies the inpatient
provider a copy of the
patient's plan of care
and specifies the
inpatient services to
be furnished;
(2) That the inpatient
provider has
established patient
care policies
consistent with those
of the hospice and
agrees to abide by the
palliative care
protocols and plan of
care established by
the hospice for its
patients;
(3) That the hospice
patient's inpatient
clinical record
includes a record of
all inpatient services
furnished, events
regarding care that
occurred at the
facility, and that a
copy of the inpatient
clinical record and
discharge summary is
available to the
hospice at the time of
discharge;
(4) That the inpatient
facility has
identified a
individual within the
facility who is
responsible for the
implementation of the
provisions of the
agreement;
(5) That the hospice
retains responsibility
for arranging the
training of personnel
who will be providing
the patient's care in
the inpatient facility
and that a description
of the training and
the names of those
giving the training is
documented; and
(6) That a way to
verify that
requirements in
paragraphs (c)(1)
through (c)(5) of this
section have been met
is established.
418.110.............................. Hospices that provide
inpatient care
directly.
418.110.............................. A hospice that provides Same................... New language.
inpatient care
directly must
demonstrate compliance
with all of the
following standards:
[[Page 32179]]
418.110(b)........................... Twenty-four hour Same................... New language.
nursing services: The
hospice facility must
provide 24-hour
nursing services that
meet the nursing needs
of all patients and
are furnished in
accordance with each
patient's plan of
care. Each patient
must receive all
nursing services as
prescribed and must be
kept comfortable,
clean, well-groomed,
and protected from
accident, injury, and
infection.
418.110(c)........................... Physical environment. Same................... Amended language.
The hospice must
maintain a safe
physical environment
free of hazards for
patients, staff, and
visitors.
(1) Safety management.
(i) The hospice must
address real or
potential threats to
the health and safety
of the patients,
others, and property.
The hospice must
report a breach of
safety to appropriate
State and local bodies
having regulatory
jurisdiction and
correct it promptly.
(ii) The hospice
must take steps to
prevent equipment
failure and when a
failure occurs,
report it to the
appropriate State
and local bodies
having regulatory
jurisdiction and
correct it promptly.
(iii) The hospice
must have a written
disaster
preparedness plan
in effect for
managing the
consequences of
power failures,
natural disasters,
and other
emergencies that
would affect the
hospice's ability
to provide care.
The plan must be
periodically
reviewed and
rehearsed with
staff (including
non-employee staff)
with special
emphasis placed on
carrying out the
procedures
necessary to
protect patients
and others.
418.110(c)........................... (2) Physical plant and Same................... Amended language.
equipment. The hospice
must develop
procedures for
managing the control,
reliability, and
quality of--
(i) The routine storage
and prompt disposal of
trash and medical
waste;
(ii) Light,
temperature, and
ventilation/air
exchanges throughout
the hospice;
418.110(d)........................... Fire protection........ Same................... Amended language.
418.110(f)........................... Patient rooms: (1) The Same................... New and amended
hospice must ensure language.
that patient rooms are
designed and equipped
for nursing care, as
well as the dignity,
comfort, and privacy
of patients.
(2) The hospice must
accommodate a patient
and family request for
a single room whenever
possible.
(3) Each patient's room
must--
(i) Be at or above
grade level;
(ii) Contain a suitable
bed and other
appropriate furniture
for each patient;
(iii) Have closet space
that provides security
and privacy for
clothing and personal
belongings;
(iv) Accommodate no
more than two
patients;
(v) Provide at least 80
square feet for each
residing patient in a
double room and at
least 100 square feet
for each patient
residing in a single
room; and
(vi) Be equipped
with an easily-
activated,
functioning device
accessible to the
patient, that is
used for calling
for assistance.
418.110(f)(4)........................ For an existing Same................... New and amended
building, CMS may language.
waive the space and
occupancy requirements
of paragraphs
(f)(2)(iv) and
(f)(2)(v) of this
section for a period
of time if it
determines that--(i)
Imposition of the
requirements would
result in unreasonable
hardship on the
hospice if strictly
enforced; or
jeopardize its ability
to continue to
participate in the
Medicare program; and
418.110(m)........................... Pharmaceutical 418.106(a)............. New and amended
services: Under the language.
direction of a
qualified pharmacist,
the hospice must
provide pharmaceutical
services such as drugs
and biologicals and
have a written process
in place that ensures
dispensing accuracy.
418.110(m)........................... The hospice will 418.54(a)(6)........... New and amended
evaluate a patient's language.
response to the
medication therapy,
identify adverse drug
reactions, and take
appropriate corrective
action.
418.110(m)........................... Drugs and biologicals 418.106(c)............. New and amended
must be obtained from language.
community or
institutional
pharmacists or stocked
by the hospice.
[[Page 32180]]
418.110(m)........................... The hospice must 418.106 Stem........... New and amended
furnish the drugs and language.
biologicals for each
patient, as specified
in each patient's plan
care.
418.110(m)........................... The use of drugs and 418.100(c) and 418.116. New and amended
biologicals must be language.
provided in accordance
with accepted
professional
principles and
appropriate Federal,
State, and local laws.
418.110(n)........................... Pharmacist: A licensed 418.106(a)............. New and amended
pharmacist must language.
provide consultation
on all aspects of the
provision of
pharmaceutical care in
the facility,
including ordering,
storage,
administration,
disposal, and record
keeping of drugs and
biologicals.
418.110(n)(1)........................ Orders for medications. 418.106(b)............. New and amended
language.
(i) A physician as
defined by section
1861(r)(1) of the Act,
or a nurse
practitioner in
accordance with the
plan of care and State
law, must order all
medications for the
patient.
(ii) If the medication
order is verbal or
given by or through
electronic
transmission--
(A) The physician must
give it only to a
licensed nurse, nurse
practitioner (where
appropriate),
pharmacist, or another
physician; and
(B) The individual
receiving the order
must record and sign
it immediately and
have the prescribing
physician sign it in
accordance with State
and Federal
regulations.
418.110(n)(2)........................ Administration of 418.106(d)(2).......... New and amended
medications. language.
Medications must be
administered by only
the following
individuals:
(i) A licensed
nurse, physician,
or other health
care professional
in accordance with
their scope of
practice.
(ii) An employee who
has completed a
State-approved
training program in
medication
administration.
(iii) The patient,
upon approval by
the attending
physician.
418.110(n)(3)........................ Labeling of drugs and 418.106(e)(1).......... New and amended
biologicals. Drugs and language.
biologicals must be
labeled in accordance
with currently
accepted professional
practice and must
include appropriate
accessory and
cautionary
instructions, as well
as an expiration date
(if applicable).
418.110(n)(4)........................ Drug management 418.106(e)(3).......... New and amended
procedures. (i) All language.
drugs and biologicals
must be stored in
secure areas. All
drugs listed in
Schedules II, III, IV,
and V of the
Comprehensive Drug
Abuse Prevention and
Control Act of 1976
must be stored in
locked compartments
within such secure
storage areas. Only
personnel authorized
to administer
controlled medications
may have access to the
locked compartments.
(ii) The hospice must
keep current and
accurate records of
the receipt and
disposition of all
controlled drugs.
(iii) Any discrepancies
in the acquisition,
storage, use,
disposal, or return of
controlled drugs must
be investigated
immediately by the
pharmacist and hospice
administrator and
where required
reported to the
appropriate State
agency. A written
account of the
investigation must be
made available to
State and Federal
officials.
418.110(n)(5)........................ Drug disposal. 418.106(e)(2)(ii)...... New and amended
Controlled drugs no language.
longer needed by a
patient must be
disposed of in
compliance with the
hospice policy and in
accordance with State
and Federal
requirements.
418.110(o)(1)........................ Seclusion and 418.110(m)............. Same.
restraint: (1) The
patient has the right
to be free from
seclusion and
restraint, of any
form, imposed as a
means of coercion,
discipline,
convenience, or
retaliation by staff.
418.110(o)(1)........................ The term restraint
includes either a
physical restraint or
a drug that is being
used as a restraint. A
physical restraint is
any manual method or
physical or mechanical
device, material or
equipment attached or
adjacent to the
patient's body that he
or she cannot easily
remove, that restricts
free movement of,
normal function of, or
normal access to one's
body.
[[Page 32181]]
A drug used as a 418.3.................. Same.
restraint is a
medication used to
control behavior or to
restrict the patient's
freedom of movement
and is not a standard
treatment for a
patient's medical or
psychiatric condition.
Seclusion is the
confinement of a
person alone in a room
or an area where a
person is physically
prevented from leaving.
418.110(o)(2)........................ Seclusion and restraint 418.110(m) and Same.
can only be used in 418.110(m)(1).
emergency situations
if needed to ensure
the patient's or
others' physical
safety, and only if
less restrictive
interventions have
been tried, determined
and documented to be
ineffective.
418.110(o)(3)(i)..................... The use of restraint 418.110(m)(2).......... New and amended
and seclusion must be-- language.
(i) Selected only when
less restrictive
measures have been
found ineffective to
protect the patient or
others from harm;
418.110(o)(3)(ii).................... Carried out in 418.110(m)(4) and New and amended
accordance with the 418.110(m)(7). language.
order of a physician.
The following will be
superseded by more
restrictive State
laws:
418.110(o)(3)(ii)(A)................. Orders for seclusion or 418.110(m)(5).......... Amended language.
restraints must never
be written as a
standing order or an
as needed basis (that
is, PRN).
418.110(o)(3)(ii)(B)................. The hospice medical 418.110(m)(6).......... Amended language.
director or physician
designee must be
consulted as soon as
possible if restraint
or seclusion is not
ordered by the hospice
medical director or
physician designee.
418.110(o)(3)(ii)(C)................. A hospice medical 418.110(m)(11) and New and amended
director or physician 418.110(m)(12). language.
designee must see the
patient and evaluate
the need for restraint
or seclusion within 1
hour after initiation
of this intervention.
418.110(o)(3)(ii)(D)................. Each order for a 418.110(m)(7).......... New and amended
physical restraint or language.
seclusion must be in
writing and limited to
4 hours for adults; 2
hours for children and
adolescents ages 9
through 17; or 1 hour
for patients under the
age of 9. The original
order may only be
renewed in accordance
with these limits for
up to a total of 24
hours. After the
original order
expires, a physician
must reassess the
patient's need before
issuing another
seclusion and
restraint order.
418.110(o)(3)(iii)................... In accordance with the 418.110(m)(3)(i)....... Amended language.
interdisciplinary
group and a written
modification to the
patient's plan of
care;
418.110(o)(3)(iv).................... Implemented in the 418.110(m)(2).......... Amended language.
least restrictive
manner possible not to
interfere with the
palliative care being
provided;
418.110(o)(3)(v)..................... In accordance with 418.110(m)(3)(ii)...... Amended language.
safe, appropriate
restraining techniques.
418.110(o)(3)(vi).................... Ended at the earliest 418.110(m)(8).......... Amended language.
possible time; and
418.110(o)(3)(vii)................... Supported by medical 418.110(m)(15)......... New and amended
necessity and the language.
patient's response or
outcome, and
documented in the
patient's clinical
record.
418.110(o)(4)........................ A restraint and 418.110(m)(14)......... Amended language.
seclusion may not be
used simultaneously
unless the patient is--
(i) Continually
monitored face to face
by an assigned staff
member; or
(ii) Continually
monitored by staff
using video and
audio equipment.
Staff must be in
immediate response
proximity to the
patient.
418.110(o)(5)........................ The condition of the 418.110(m)(9).......... New and amended
patient who is in a language.
restraint or in
seclusion must
continually be
assessed, monitored,
and reevaluated by an
assigned staff member.
418.110(o)(6)........................ All staff who have 418.110(n)............. New and amended
direct patient contact language.
must have ongoing
education and training
in the proper and safe
use of seclusion and
restraint application
and techniques and
alternative methods
for handling behavior,
symptoms, and
situations that
traditionally have
been treated through
the use of restraints
or seclusion.
418.110(o)(7)........................ The hospice must report 418.110(o)............. New and amended
to the CMS regional language.
office any death that
occurs while the
patient is restrained
or in seclusion,
within 24 hours after
a patient has been
removed from restraint
or seclusion.
418.112.............................. Hospices that provide Same................... New and amended
hospice care to language.
residents of a SNF/NF,
ICF/MR, or other
facilities. In
addition to meeting
the conditions of
participation at Sec.
418.10 through Sec.
418.116, a hospice
that provides hospice
care to residents of a
SNF/NF, ICF/MR, or
other residential
facility must abide by
the following
additional standards.
[[Page 32182]]
418.112(a)........................... Resident eligibility Same................... New and amended
election, and duration language.
of benefits. Medicare
patients receiving
hospice services and
residing in a SNF, NF,
or other facility must
meet the Medicare
hospice eligibility
criteria as identified
in Sec. 418.20
through Sec. 418.30.
418.112(b)........................... Professional Same................... New and amended
management: The language.
hospice must assume
full responsibility
for professional
management of the
resident's hospice
care, in accordance
with the hospice
conditions of
participation and make
any arrangements
necessary for
inpatient care in a
participating Medicare/
Medicaid facility
according to Sec.
418.100.
418.112(c)........................... Core services: A 418.64................. New and amended
hospice must routinely language.
provide all core
services. These
services include
nursing services,
medical social
services, and
counseling services.
The hospice may
contract for physician
services as stated in
Sec. 418.64(a). A
hospice may use
contracted staff
provided by another
Medicare certified
hospice to furnish
core services, if
necessary, to
supplement hospice
employees in order to
meet the needs of
patients under
extraordinary or other
non-routine
circumstances, as
described in Sec.
418.64.
418.112(d)........................... Medical director: The 418.112(e)............. New and amended
medical director and language.
physician designee of
the hospice must
provide overall
coordination of the
medical care of the
hospice resident that
resides in an SNF, NF,
or other facility. The
medical director and
physician designee
must communicate with
the medical director
of the SNF/NF, the
patient's attending
physician, and other
physicians
participating in the
provision of care for
the terminal and
related conditions to
ensure quality care
for the patient and
family.
418.112(e)........................... Written agreement: The 418.112(c)............. New and amended
hospice and the language.
facility must have a
written agreement that
specifies the
provision of hospice
services in the
facility. The
agreement must be
signed by authorized
representatives of the
hospice and the
facility before the
provision of hospice
services.
418.112(e)(1) and (e)(2)............. The written agreement Deleted................ Deleted.
must include at least
the following:
(1) The written
consent of the
patient or the
patient's
representative that
hospice services
are desired.
(2) The services
that the hospice
will furnish and
that the facility
will furnish.
418.112(e)(3)........................ The manner in which the 418.112(c)(1).......... Amended language.
facility and the
hospice are to
communicate with each
other to ensure that
the needs of the
patient are addressed
and met 24 hours a day.
418.112(e)(4)(i) and (ii)............ A provision that the 418.112(c)(2), Amended language.
facility immediately 418.112(c)(2)(i) and
notifies the hospice 418.112(c)(2)(ii).
if--
(i) A significant
change in the
patient's physical,
mental, social, or
emotional status
occurs;
(ii) Clinical
complications appear
that suggest a need to
alter the plan of
care;
418.112(e)(4)(iii)................... A life threatening Deleted................ Deleted.
condition appears;
418.112(e)(4)(iv).................... A need to transfer the 418.112(c)(2)(iii)..... Amended language.
patient from the
facility and the
hospice makes
arrangements for, and
remains responsible
for, any necessary
continuous care or
inpatient care
necessary related to
the terminal illness;
or
418.112(e)(4)(v)..................... The patient dies....... 418.112(c)(2)(iv)...... Amended language.
418.112(e)(5)........................ A provision stating 418.112(c)(3).......... Amended language.
that the hospice
assumes responsibility
for determining the
appropriate course of
care, including the
determination to
change the level of
services provided.
418.112(e)(6)........................ An agreement that it is 418.112(c)(4).......... New and amended
the facility's primary language.
responsibility to
furnish room and board.
New.................................. New.................... 418.112(c)(5).......... New.
[[Page 32183]]
418.112(e)(7)........................ A delineation of the 418.112(c)(6).......... New and amended
hospice's language.
responsibilities,
which include, but are
not limited to,
providing medical
direction and
management of the
patient, nursing,
counseling (including
spiritual and dietary
counseling), social
work, bereavement
counseling for
immediate family
members, provision of
medical supplies and
durable medical
equipment, and drugs
necessary for the
palliation of pain and
symptoms associated
with the terminal
illness, as well as
all other hospice
services that are
necessary for the care
of the resident's
terminal illness.
418.112(e)(8)........................ A provision that the 418.112(c)(7).......... Amended language.
hospice may use the
facility's nursing
personnel where
permitted by law and
as specified by the
facility to assist in
the administration of
prescribed therapies
included in the plan
of care only to the
extent that the
hospice would
routinely utilize the
services of a hospice
resident's family in
implementing the plan
of care.
New.................................. New.................... 418.112(c)(8).......... New.
New.................................. New.................... 418.112(c)(9).......... New.
418.112(f)........................... Hospice plan of care: A 418.112(d)............. New and amended
written plan of care language.
must be established
and maintained for
each facility patient
and must be developed
by and coordinated
with the hospice
interdisciplinary
group in consultation
with facility
representatives and in
collaboration with the
attending physician.
All care provided must
be in accordance with
this plan.
418.112(f)........................... The plan must reflect 418.56(b) and (c)...... New and amended
the hospice's policies language.
and procedures in all
aspects and be based
on an assessment of
the patient's needs
and unique living
situation in the
facility. It must
include the patient's
current medical,
physical, social,
emotional, and
spiritual needs.
Directives for
management of pain and
other symptoms must be
addressed and updated
as necessary to
reflect the patient's
status.
418.112(f)(1)........................ The plan of care must 418.112(d)(1).......... Amended language.
identify the care and
services that are
needed and
specifically identify
which provider is
responsible for
performing the
respective functions
that have been agreed
upon and included in
the plan of care.
418.112(f)(2)........................ The plan of care 418.112(d)(2).......... Amended language.
reflects the
participation of the
hospice, the facility,
and the patient and
family to the extent
possible.
418.112(f)(3)........................ In conjunction with 418.56(d).............. New and amended
representatives of the language.
facility, the plan of
care must be reviewed
at intervals specified
in the plan but no
less often than every
14 calendar days.
418.112(f)(4)........................ Any changes in the plan 418.112(d)(3).......... Amended language.
of care must be
discussed among all
caregivers and must be
approved by the
hospice before
implementation.
418.112(g)........................... Coordination of 418.112(e)(1).......... New and amended
services: The hospice language.
must designate a
member of its
interdisciplinary
group to coordinate
the implementation of
the plan of care with
the representatives of
the facility. The
hospice must provide
the facility with the
following information:
(1) Plan of care.......
418.112(g)(2)-(g)(6)................. (2) Patient or 418.112(e)(3).......... New and amended
patient's language.
representative hospice
consent form and
advance directives.
(3) Names and contact
information for
hospice personnel
involved in hospice
care of the patient.
(4) Instructions on how
to access the
hospice's 24-hour on-
call system.
(5) Medication
information specific
to the patient.
(6) Physician orders...
418.112(h)........................... Transfer, revocation, Deleted................ Deleted.
or discharge from
hospice care:
Requirements for
discharge or
revocation from
hospice care, Sec.
418.104(e), apply.
Discharge from or
revocation of hospice
care does not directly
impact the eligibility
to continue to reside
in an SNF, NF, ICF/MR,
or other facility.
418.112(i)........................... Orientation and 418.112(f)............. Amended language.
training: Hospice
staff must orient
facility staff
furnishing care to
hospice patients in
the hospice
philosophy, including
hospice policies and
procedures regarding
methods of comfort,
pain control, symptom
management, as well as
principles about death
and dying, individual
responses to death,
patient rights,
appropriate forms, and
record keeping
requirements.
418.114.............................. Personnel Same................... Renamed.
qualifications for
licensed professionals.
[[Page 32184]]
418.114(a)........................... General qualification Same................... New and amended
requirements. Except language.
as specified in
paragraph (c) of this
section, all
professionals who
furnish services
directly, under an
individual contract,
or under arrangements
with a hospice, must
be legally authorized
(licensed, certified
or registered) to
practice by the State
in which he or she
performs such
functions or actions,
and must act only
within the scope of
his or her State
license, or State
certification, or
registration. All
personnel
qualifications must be
kept current at all
times.
418.114(b)........................... Personnel Same................... Renamed. New and
qualifications for amended language.
physicians, speech-
language pathologists,
and home health aides:
The following
qualifications must be
met:
418.114(b)(1)........................ Physicians............. Same and 418.3......... New and amended
language.
418.114(b)(2)........................ Speech language 418.114(b)(4).......... New and amended
pathologists. language.
418.114(b)(3)........................ Home health aides...... 418.114(b)(2).......... Renamed. New and
amended language.
418.114(c)........................... Personnel Same................... New and amended
qualifications when no language.
State licensing,
certification, or
registration
requirements exist. If
no State licensing
laws, certification or
registration
requirements exist for
the profession, the
following requirements
must be met:
418.114(c)(1)........................ Occupational therapist. 418.114(b)(5).......... New and amended
language.
418.114(c)(2)........................ Occupational therapy 418.114(b)(6).......... New and amended
assistant. language.
418.114(c)(3)........................ Physical therapist..... 418.114(b)(7).......... New and amended
language.
418.114(c)(4)........................ Physical therapist 418.114(b)(8).......... New and amended
assistant. language.
418.114(c)(5)........................ Registered nurse. A 418.114(c)(1).......... New and amended
graduate of a school language.
of professional
nursing.
418.114(c)(6)........................ Licensed practical 418.114(c)(2).......... New and amended
nurse. A person who language.
has completed a
practical nursing
program.
418.114(c)(7)........................ Social worker.......... 418.114(b)(3).......... New and amended
language.
418.114(d)........................... Criminal background Same................... New and amended
checks: The hospice language.
must obtain a criminal
background check on
each hospice employee
and contracted
employee before
employment at the
hospice.
418.116(a)........................... Standard: Licensure of 418.114(a)............. Relocated and amended.
staff. Any persons who
provide hospice
services must be
licensed, certified,
or registered in
accordance with
applicable Federal,
State and local laws.
418.116(b)........................... Standard: Multiple 418.116(a)............. Amended language.
locations. Every
hospice must comply
with the requirements
of Sec. 420.206 of
this chapter regarding
disclosure of
ownership and control
information. All
hospice satellite
locations must be
approved by CMS and
licensed in accordance
with State licensure
laws, if applicable,
before providing
Medicare reimbursed
services.
----------------------------------------------------------------------------------------------------------------
V. Collection of Information
Under the Paperwork Reduction Act of 1995, we are required to
provide 30-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness in
carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection burden on
the affected public, including automated collection techniques.
Therefore, we are soliciting public comment on each of these issues
for the following sections of this document that contain information
collection requirements.
Condition of Participation: Patient's Rights (Sec. 418.52)
Section 418.52(a)(1) states that a hospice must provide the patient
or representative with verbal and written notice of the patient's right
and responsibilities. The notification must be presented in a manner
and language consistent with the patient's ability to comprehend the
information. Section 418.52(a)(2) requires a hospice to inform and
distribute written information on its policies concerning advance
directives. The information must include a description of applicable
State laws. Section 418.52(a)(3) states that a hospice must obtain the
patient's or representative's signature confirming that he or she has
received a copy of the notice of rights.
The burden associated with the notification requirements contained
in Sec. 418.52(a) is the time and effort necessary for a hospice to:
develop the notification form; provide, both verbally and in writing,
the patient or the patient's representative with a notice of patient's
rights; inform and distribute information pertaining to its policies on
advance directives and applicable State laws; obtain signatures from
either the patient or representative confirming receipt of a copy of
the notice of rights. There are 2,872 hospices that must comply with
the aforementioned requirements. We estimate that it will take each
hospice 8 hours to develop the form and 5 minutes to meet the
requirements in Sec. 418.52(a)(1-3). We estimate that each hospice
will on average provide 303 notifications per year for a total one time
burden of 22,976 hours and annual burden of 72,518 hours.
Section 418.52(b) sets out the right of the patients to exercise
these patient rights and requires hospices to show respect for property
and person. Specifically, Sec. 418.52(b)(4)(i) states that a hospice
is accountable for ensuring
[[Page 32185]]
that all alleged violations involving mistreatment, neglect or verbal,
mental, sexual, and physical abuse, including injuries of unknown
source, and misappropriation of patient property by anyone furnishing
services on behalf of the hospice are reported immediately to the
hospice administrator. Section 418.52(b)(4)(ii) requires a hospice to
immediately investigate all alleged violations involving anyone
furnishing services on behalf of the hospice and immediately take
preventative action to avoid additional violations. As part of the
investigation, the hospice must document and maintain all records
associated with the alleged violations in accordance with established
procedures. Section 418.52(b)(4)(iv) further requires that a hospice
report all confirmed violations to the State and local bodies having
jurisdiction within 5 working days of becoming aware of the violation.
The burden associated with the recordkeeping and reporting
requirements described in Sec. 418.52(b) is the time and effort
necessary to report all alleged violations to the hospice
administrator, to conduct and document an investigation and to maintain
record of the documented investigation. There is also burden associated
with reporting all verified allegations to the State and local bodies
that have jurisdiction. We anticipate that each of the 2,872 hospices
will investigate, document, and report 15 violations per year. We
estimate that it will take each hospice 60 minutes per event to satisfy
the requirements contained in Sec. 418.52(b). The estimated annual
burden associated with the requirements contained in Sec. 418.52(b) is
43,080 hours.
Condition of Participation: Initial and Comprehensive Assessment of the
Patient (Sec. 418.54)
Section 418.54 contains the information collection requirements
associated with the initial and comprehensive assessment of the
patient. Section 418.54(a) requires a hospice to conduct the initial
patient assessment within 48 hours after the patient or representative
elects the hospice benefit. Section 418.54(b) states that the hospice
IDG must complete the patient's comprehensive assessment no later than
5 calendar days after the patient or representative elects the hospice
benefit. Section 418.54(c) sets out the content of the assessment.
Section 418.54(d) requires that the comprehensive patient assessment be
updated as needed based on the patient's condition, but no less
frequently than every 15 days.
The burden associated with the requirements in Sec. 418.54 is the
time and effort necessary to document and maintain the patient
assessment. While these requirements are subject to the PRA, the
associated burden is exempt as stated in 5 CFR 1320.3(b)(2); conducting
patient assessments is a usual and customary business practice. The
time, effort, and financial resources necessary to comply with a
collection of information that would be incurred by a person in the
normal course of their activities are considered to be usual and
customary and is exempt from the PRA.
Condition of Participation: Interdisciplinary Group Care Planning and
Coordination of Services (Sec. 418.56)
Section 418.56(a) requires a hospice that has more than one IDG to
designate a group to establish policies governing the day-to-day
provision of hospice care and services. The burden associated with this
requirement is the time and effort necessary to draft, implement, and
maintain the policies governing the day-to-day provision of hospice
care services. While this requirement is subject to the PRA, the burden
is considered to be usual and customary and is exempt as stated under 5
CFR 1320.3(b)(2).
Section 418.56(b) requires all hospice care and services furnished
to patients and their families to follow an established plan of care
established by the hospice IDG and the patient's caregivers. In
addition, a hospice must ensure that each patient and the primary
caregiver(s) receive education and training provided by the hospice.
The education and training must be specific to the individual's
responsibilities with respect to the care and services outlined in the
plan of care. The burden associated with this requirement is the time
and effort associated with educating and training the patient and
patient caregiver(s). This requirement is currently approved under OMB
control number 0938-0302. The expiration date for the approval is
August 31, 2009.
Section 418.56(c) requires hospices to develop an individualized
written plan of care for each patient. The plan of care must contain
the information described in Sec. 418.56(c)(1)-(6). Section 418.56(d)
states that the hospice interdisciplinary team must review, revise, and
document the individualized plan of care as frequently as the patient's
condition warrants, but no less frequently than every 15 days. The
burden associated with these requirements is the time and effort
associated with drafting, reviewing, revising, and maintaining the plan
of care. This requirement is currently approved under OMB control
number 0938-0302, with an expiration date of August 31, 2009.
Section 418.56(e) describes the standard for the coordination of
hospice services. Specifically, it states that a hospice must develop
and maintain a system of communication and integration to ensure the
information contained in Sec. 418.56(e)(1)-(5). The burden associated
with this requirement is the time and effort required to develop and
maintain the system of communication in accordance with the hospice's
policies and procedures. While this requirement is subject to the PRA,
the associated burden is considered to be usual and customary as stated
in 5 CFR 1320.3(b)(2).
Condition of Participation: Quality Assessment and Performance
Improvement (Sec. 418.58)
Section 418.58 states that a hospice must develop, implement, and
maintain an effective, ongoing, hospice-wide data-driven quality
assessment and performance improvement (QAPI) program. In addition, the
hospice must maintain documentary evidence of its quality assessment
and performance improvement program and be able to demonstrate its
operation to CMS. Section 418.58(a) describes the required scope of the
QAPI program. Specifically, Sec. 418.58(a)(1) discusses the
documentation requirements. The QAPI program must be able to
demonstrate measurable improvement in indicators related to improved
palliative outcomes and hospice services. Section 418.58(a)(2) states
that the hospice must measure, analyze, and track quality indicators.
Section 418.58(b)(2) states that a hospice must use the data to
monitor the effectiveness and safety of services and quality of care.
As part of the monitoring process, the data must be used to identify
improvement opportunities. The data must also be used to assist in the
prioritization of the aforementioned opportunities for improvement.
Section 418.58(c)(2) states that as part of performance improvement
activities, a hospice must track adverse patient events, analyze their
causes, and implement preventative actions and mechanisms that include
feedback and learning throughout the hospice. Section 418.58(c)(3)
requires a hospice to measure its success and track performance in its
performance improvement initiatives to ensure that the improvements are
continuous.
Section 418.58(d) discusses that standard for performance
improvement projects. Hospices are responsible for developing,
implementing, and evaluating performance improvement projects. Section
418.58(d)(2) requires
[[Page 32186]]
hospices to document their performance improvement projects, the reason
for conducting each project, and the measurable progress achieved as a
result of the projects.
The burden associated with the requirements contained in Sec.
418.58 is the time and effort necessary to develop, draft, and
implement a QAPI program. As part of the QAPI program, there is also
burden associated with recording quality data for performance
improvement initiatives. We estimate that for all 2,872 hospices, 1
hour per hospice will be required to comply with the documentation of
the domains and measures, 91 hours per hospice for data entry and 48
hours to aggregate the data. This is an annual burden of 140 hours per
hospice to meet the requirement of this section. The estimated annual
burden associated with the requirements in Sec. 418.58 is 402,080
hours annually.
Condition of Participation: Infection Control (Sec. 418.60)
Section 418.60(a) requires hospices to maintain and document an
effective infection control program. The goal of the program is to
protect patients, families, visitors, and hospice staff by preventing
and controlling infectious and communicable diseases. Section 418.60(b)
provides the standard for effective hospice infection control programs.
Section 418.60(c) describes the standard for education with respect to
infection control. Hospices must provide infection control education to
employees, contracted providers, patients, and family members and other
care givers.
The burden associated with the requirements in Sec. 418.60(a)-(c)
is the time and effort associated with developing, implementing,
documenting, and maintaining an effective infection control program.
There is also burden associated with providing infection control
education. While these requirements are subject to the PRA, the burden
is exempt as stated in 5 CFR 1320.3(b)(2). The existence of an
effective infection control program is a usual and customary business
practice in the hospice care industry.
Condition of Participation: Core Services (Sec. 418.64)
Section 418.64 states that hospices may contract for the physician
services contained in Sec. 418.64(a). A hospice may also enter into a
written agreement with another Medicare-certified hospice program for
the provision of the core services. The burden associated with these
requirements is the time and effort necessary to develop, draft, sign,
and maintain contracts and written agreements. The burden associated
with these requirements is exempt from the PRA as stated in 5 CFR
1320.3(b)(2); the use of contracted physicians and the use of written
agreements between two Medicare certified hospice programs for the
provision of core services constitutes a usual and customary business
practice.
Section 418.64(d) describes the standard for counseling services.
Hospices are required to make counseling services available to patients
and families to provide comfort and assistance with coping and stress
management associated with the dying process. Specifically, section
Sec. 418.64(d)(1)(iv) states that as part of bereavement counseling, a
hospice must develop a bereavement plan of care that notes the kind of
bereavement services to be offered and the frequency of service
delivery. Section 418.64(d)(3) states that a hospice must provide an
assessment of the patient's and family's spiritual needs, provide
spiritual counseling to meet those needs in a manner that is accepted
by the patient and family and is consistent with their respective
beliefs, facilitate visits by individuals that can meet the patient's
spiritual needs, and advise the patient and family of the availability
of the aforementioned bereavement counseling services. We believe the
requirements in Sec. 418.64(d) are usual and customary business
practices; and therefore, the burden is not subject to the PRA as
stipulated in 5 CFR 1320.3(b)(2).
Condition of Participation: Nursing Services--Waiver of Requirement
That Substantially All Nursing Services Be Routinely Provided Directly
by a Hospice (Sec. 418.66)
Section 418.66(a) allows CMS to waive the requirement in Sec.
418.64(b) that a hospice provide nursing services directly, if the
hospice is located in a nonurbanized area. To obtain a waiver, the
hospice must provide evidence to CMS that it made good faith efforts to
hire a sufficient number of nurses to provide services. As part of CMS'
review process, the hospice must meet the criteria outlined in Sec.
418.66(a)(1)-(3). To obtain an extension for a currently approved
waiver, a hospice must submit its request to CMS prior to the
expiration of the waiver period and certify that the conditions under
which the hospice originally requested the waiver have not changed. The
burden associated with this requirement is the time and effort
associated with a hospice demonstrating good faith efforts for its
staffing process and submitting a certified extension request to CMS
stating that the circumstances that caused the original waiver request
have not changed. We believe this requirement and the associated burden
is exempt from the PRA under 5 CFR 1320.3(c)(4). We believe the
requirement will affect less than 10 entities on an annual basis.
Waiver of Requirement--Physical Therapy, Occupational Therapy, Speech-
Language Pathology, and Dietary Counseling (Sec. 418.74)
Section 418.74(a) allows CMS to waive the requirement for providing
physical therapy, occupational therapy, speech-language pathology, and
dietary counseling services (as needed) on a 24-hour basis for hospices
located in non-urbanized areas. In addition, CMS can waive the
requirement that a hospice provide dietary counseling directly. To
obtain a waiver, a hospice must provide evidence to CMS that it made
good faith efforts to meet the requirements for the aforementioned
services prior to submitting a waiver request. As part of CMS' review
process, a hospice's waiver request must meet the criteria outlined in
Sec. 418.74(a)(1)-(2). To obtain an extension for a currently approved
waiver as stated in Sec. 418.74(d), a hospice must submit its request
to CMS prior to the expiration of the waiver period and certify that
the conditions under which the hospice originally requested the waiver
have not changed. The burden associated with this requirement is the
time and effort associated with a hospice demonstrating good faith
efforts for its staffing process and submitting a certified extension
request to CMS stating that the circumstances that caused the original
waiver request have not changed. We believe this requirement and the
associated burden is exempt from the PRA under 5 CFR 1320.3(c)(4). We
believe the requirement will affect less than 10 entities on an annual
basis.
Condition of Participation: Hospice Aide and Homemaker Services (Sec.
418.76)
Section 418.76(b) outlines the standard for the content and
duration of hospice aide classroom and supervised practical training. A
hospice aide training program must meet the criteria in Sec.
418.76(b)(1)-(3). Section 418.76(b)(4) requires that a hospice maintain
documentation demonstrating that its training program meets the
requirement of the standard contained in Sec. 418.76(b). We estimate
that it will take each hospice 5 minutes to document and maintain
records that its hospice aide training program met all of the
requirements contained in this
[[Page 32187]]
section, for a total annual burden of 239 hours.
Section 418.76(c) describes the standard for competency
evaluations. In particular, Sec. 418.76(c)(5) states that a hospice
must maintain documentation that all individuals furnishing hospice
aide services on behalf of a hospice successfully completed a
competency evaluation program. The competency evaluation program must
meet the requirements specified under Sec. 418.76(b)(3). The burden
associated with this requirement is the time and effort necessary to
maintain documentation that demonstrates all individuals furnishing
hospice aide services on behalf of a hospice successfully completed a
competency evaluation program. We estimate it will take each hospice 5
minutes to meet this requirement, for a total annual burden of 239
hours.
Section 418.76(d) discusses the standard for in-service training.
Hospices are required to maintain documentation that all hospice aides
have received at least 12 hours of in-service training during each 12-
month period. The burden associated with this requirement is the time
and effort necessary to document and maintain record of the required
in-service training. We estimate it will take each hospice 2 hours
annually to meet this requirement. The estimate total annual burden for
this requirement is 5,744 hours.
Section 418.76(g) describes the standard for hospice aide
assignments and duties. Specifically, Sec. 418.76(g)(1) states that
written patient care instructions for a hospice aide must be drafted by
a registered nurse responsible for the supervision of a hospice aide.
The burden associated with this requirement is the time and effort
necessary for a registered nurse responsible for supervising a hospice
aide to draft written patient care instructions for the hospice aide.
We believe this is a usual and customary business practice and is
thereby exempt from the PRA under 5 CFR 1320.3(b)(2).
Section 418.76(h) explains the standard for the supervision of
hospice aides. In particular, Sec. 418.76(h)(1)(i) stated that a
registered nurse must make an onsite visit to a patient's home no less
frequently than every 14 days to assess and document the quality of
care and services provided by the hospice care aide and to ensure that
the services ordered by the hospice's IDG meet the patient's needs. The
burden associated with this requirement is the time and effort
necessary for a nurse to conduct an onsite evaluation of a hospice care
aide in the patient's home, to document the quality of care provided by
the hospice care aide, and to evaluate the services ordered by the IDG
to ensure that they are consistent with the patient's needs. We believe
this is a usual and customary business practice and is thereby exempt
from the PRA under 5 CFR 1320.3(b)(2).
Section 418.76(h)(2) states that a registered nurse must also make
an annual onsite visit to the location to the location where a patient
is receiving care to observe and evaluate each aide while he or she is
performing care. Section 418.76(h)(3) details the contents of the
registered nurse's assessment required in 418.76(h)(3). The burden
associated with this requirement is the time and effort necessary for a
registered nurse to make an annual on site visit to observe and
evaluate each hospice aide while they perform care. In addition, they
must document the evaluation. We estimate to meet this requirement that
5 supervisory visits will be conducted on an annual basis per hospice
with a total of 14,360 visits annually. We believe it will take each
nurse 5 minutes to document the onsite visit. The estimated total
annual burden associated with this requirement is 1,197 hours.
Section 418.76(i)(1) contains the standard for individuals
furnishing Medicaid personal care aide-only services under a Medicaid
personal care benefit. Prior to furnishing personal care services, an
individual must demonstrate competency in the services they are
required to furnish. The burden associated with this requirement is the
time and effort necessary to demonstrate competency. While this
requirement is subject to the PRA, we believe the associated burden is
exempt stated in 5 CFR 1320.3(b)(2). We believe this is a usual and
customary business practice.
Section 418.76(k)(2) requires the instructions for homemaker duties
to be prepared by a member of the hospice IDG. The burden associated
with this requirement is the time and effort necessary for a member of
the IDG to develop and draft instructions for homemaker duties. We
believe this is a usual and customary business practice and is thereby
exempt from the PRA under 5 CFR 1320.3(b)(2).
Section 418.76(k)(3) states that homemakers must report all
concerns about the patient or family to the member of the IDG who is
coordinating the homemaker's services. The burden associated with this
requirement is the time and effort needed for the homemaker to report
all concerns. We believe the burden is exempt as stated in 5 CFR
1320.3(b)(2); this is a usual and customary business practice.
Conditions of Participation--Volunteers (Sec. 418.78)
Section 418.78(a) states that a hospice must document, maintain,
and provide volunteer orientation and training that is consistent with
hospice industry standards. We estimate on average that a hospice would
provide orientation and training six times per year; we estimate that
it will take no longer than five minutes to document each orientation
section for a total of 30 minutes per year per hospice. The total
annual burden associated with this requirement is 1,436 hours.
Section 418.78(c) requires hospices to document and demonstrate
viable and ongoing efforts to recruit and retain volunteers. The burden
associated with this requirement is the time and effort necessary to
document and demonstrate the recruitment and retention efforts. We
estimate that it will take each hospice 3 hours to document and
demonstrate its recruitment and retention efforts, for a total annual
burden of 8,616 hours.
The cost-saving standard in Sec. 418.78(d) requires hospices to
document the cost savings achieved through the use of volunteers. We
estimate that complying with this requirement will take 3 hours per
hospice per year, or 8,616 annual hours.
Section 418.78(e) requires hospices to document and maintain
records on the use of volunteers for patient care and administrative
services, including the type of services and time worked. The burden
associated with this requirement is the time and effort necessary to
document and maintain the volunteer records. We estimate that recording
these examples would take approximately 600 hours per hospice for a
total annual burden of 1,723,200 hours.
Condition of Participation: Organization and Administration of Services
(Sec. 418.100)
Section 418.100(e) describes the standard for professional
management responsibilities. A hospice that has a written agreement
with another agency, individual, or organization to furnish any
services under arrangement, must retain administrative and financial
management, and oversight of staff and services for all arranged
services, to ensure the provision of quality care. The burden
associated with this requirement is the time and effort necessary to
develop, draft, execute and maintain the written agreements. We believe
these written agreements are part of the usual and customary business
practices of
[[Page 32188]]
hospices and are thereby exempt from the PRA under 5 CFR 1320.3(b)(2).
Section 418.100(f)(2) states that a hospice must continually
monitor and manage all services provided at all of its locations. The
burden associated with this requirement is the time and effort
necessary to monitor and manage all of the services provided at all of
its locations. The burdens associated with this requirement is
considered to be usual and customary as stated in 5 CFR 1320.3(b)(2)
and is thereby exempt from the PRA.
Section 418.100(g) describes the standard for training. In
particular, Sec. 418.100(g)(2) requires a hospice to provide an
initial orientation for each employee that addresses the employee's
specific job duties. Section 418.100(g)(3) requires a hospice to have
written policies and procedures describing its method(s) of assessment
of competency. In addition, the hospice must maintain a written
description of the in-service training provided during the previous 12
months. The burden associated with the requirements of this section is
considered to be usual and customary under 5 CFR 1320.3(b)(2); usual
and customary burdens are exempt from the PRA.
Condition of Participation: Medical Director (Sec. 418.102)
Section 418.102(b) requires hospice medical directors or physician
designees to review the clinical information for each hospice patient
and provide written certification that it is anticipated that the
patient's life expectancy is 6 months or less if the illness runs its
normal course. Prior to making a certification statement, the medical
director or physician designee must consider the issues discussed in
Sec. 418.102(b)(1)-(5). Section 418.102(c) states that before the
recertification period for each patient, as described in Sec.
418.21(a), the medical director or physician designee must review the
patient's clinical information.
The burden associated with the requirements contained in Sec.
418.102(b)-(c) is the time and effort necessary to review the written
certification. We estimate this process requires 10 minutes per
patient. We estimate the burden for each hospice to be 50 hours
annually. The total annual burden associated with the requirements of
this section is 143,600 hours.
Condition of Participation: Clinical Records (Sec. 418.104)
Section 418.104 requires a hospice to maintain a clinical record
for each patient. The required contents of the record are listed in
Sec. 418.104(a). The burden associated with the requirement is the
time and effort necessary to document and maintain the information
listed in Sec. 418.104(a). The maintenance of clinical records is a
usual and customary business practice; the burden associated with
maintaining a clinical record is exempt form the PRA under 5 CFR
1320.3(b)(2).
Section 418.104(b) requires that all of the entries in a clinical
record be authenticated. The entries must be legible, clear, complete,
and consistent with hospice policy. The burden associated with this
requirement is considered to be usual and customary under 5 CFR
1320.3(b)(2). This usual and customary burden is therefore exempt from
the PRA.
Section 418.104(d) describes the standard for the retention of
records. Clinical records must be retained for 6 years after the death
or discharge of the patient, unless State law stipulates a longer
period of time. If the hospice discontinues operation, hospice policies
must provide for retention and storage of clinical records. The burden
associated with these requirements is the time and effort necessary to
maintain records for 6 years after the death or discharge of the
patient, and to draft, implement, and maintain the record retention
policy in the event that the HHA discontinues operation. While this
requirement is subject to the PRA, we believe the associated burden is
exempt as stated in 5 CFR 1320.3(b)(2). The development and maintenance
of a record retention policy is a usual and customary business
practice.
Section 418.104(f) describes the standard for the retrieval of
clinical records. Clinical records, whether in hard copy or electronic
form, must be made readily available on request by an appropriate
authority. The burden associated with this requirement is the time and
effort required to disclose a clinical record to an appropriate
authority. While this requirement is subject to the PRA, we believe the
associated burden is exempt as stated in 5 CFR 1320.3(b)(2). Making
clinical records available to the appropriate authority is part of the
survey and certification process and imposes no additional burden as a
usual and customary business practice.
Condition of Participation: Drugs, Controlled Drugs and Biologicals,
Medical Supplies, and Durable Medical Equipment (Sec. 418.106)
Section 418.106(b) describes the standard for the ordering of
drugs. In particular, Sec. 418.106(b)(2)(ii) states that the
individual receiving a drug order must record and sign it immediately
and have the prescribing person sign it in accordance with State and
Federal regulations. The burden associated with this requirement is the
time and effort necessary for the recipient of the order record and
sign the order and to have the prescribing person sign the
prescription. The burden associated with this requirement is exempt
under both 5 CFR 1320.3(b)(2) and 5 CFR 1320.3(b)(3). As defined in 5
CFR 1320.3(b)(2), this process is a usual and customary business
practice. As defined in 5 CFR 1320.3(b)(3), a State requirement would
exist even in the absence of the Federal requirement. The associated
burden is thereby exempt from the PRA.
Section 418.106(c)(2) states that a hospice that provides inpatient
care directly in its own facility must have a written policy in place
that promotes dispensing accuracy. Additionally, this section requires
that a hospice that provides inpatient care directly must maintain
current and accurate records of the receipt and disposition of all
controlled drugs. The burden associated with this requirement is the
time and effort necessary to develop, draft, implement, and maintain a
written policy that promotes dispensing accuracy and to maintain
controlled drug records. The existence of this type of policy and these
records are usual and customary business practices. The burden
associated with this section is exempt from the PRA under 5 CFR
1320.3(b)(2).
Section 418.106(e) discusses the standard for labeling, disposing
and storing of drugs and biologicals. Specifically, Sec.
418.106(e)(2)(i) states that a hospice must have a written policy for
the management and disposal of controlled drugs in the patient's home.
As required by Sec. 418.106(e)(2)(i)(A), a hospice must provide a copy
of the written policy required in Sec. 418.106(e)(2)(i) to the
patient, and his/her representative and family. Additionally, the
hospice must discuss the hospice policy for managing the safe use and
disposal of controlled drugs with the patient or representative and the
family in a language and manner they can understand to ensure that
these parties are educated regarding the safe use and disposal of
controlled drugs, as required by Sec. 418.106(e)(2)(i)(B). Section
418.106(e)(2)(i)(C) requires a hospice to document in a patient's
clinical record that the written policy for managing controlled drugs
was provided and discussed. Section 418.106(e)(2)(ii) states that a
hospice maintain current and accurate records of the receipt and
disposition of all controlled drugs.
[[Page 32189]]
The burden associated with the requirements contained in Sec.
418.106(e)(2) is the time and effort necessary to provide a written
copy of the policy on the management and disposal of controlled drugs
in the patient's home to the patient representative and family. There
is also some burden associated with the hospice explaining the policy
to the patient or representative and the family. In addition, there is
a burden associated with documenting in the patient's clinical record
that the written policy for managing and controlled drugs was provided
and discussed. We believe the burden associated with the aforementioned
requirements is exempt from the PRA under 5 CFR 1320.3(b)(2), as they
are part of the usual and customary business practice for hospices.
Section 418.106(e)(3)(ii) states that the hospice pharmacist and
the hospice administrator are required to immediately investigate any
discrepancies in the acquisition, storage, dispensing, administration,
disposal, or return of controlled drugs. The event must be reported to
the appropriate State authority. A written account of the investigation
must be made available to State and Federal officials if required by
law or regulation. The burden associated with this requirement is
exempt under both 5 CFR 1320.3(b)(2) and 5 CFR 1320.3(h)(6). As defined
in 5 CFR 1320.3(b)(2), documenting an investigation and reporting the
investigation to the appropriate State authority is a usual and
customary business practice. Additionally, the burden associated with
making a written account of the investigation available to State and
Federal officials upon request is exempt from the PRA under 5 CFR
1320.3(h)(6); the information will be collected from individual
hospices on a case by case basis. As stated under in 5 CFR
1320.3(h)(6), information collection requests addressed to a single
``person'' as defined in 5 CFR 1320.3(b)(4), are exempt from the PRA.
Section 418.106(f)(1) states that a hospice must ensure that repair
and routine maintenance policies are developed in situations when a
manufacturer's recommendation for a piece of equipment is nonexistent.
Section 418.106(f)(2) requires a hospice to ensure that the patient,
family, and other caregivers receive instruction in the safe use of
durable medical equipment and supplies. After providing instruction,
the patient, family, and/or caregiver must be able to demonstrate the
appropriate use of durable medical equipment. The burden associated
with the requirements in Sec. 418.106(f)(1)-(2) is the time and effort
necessary to develop, draft, implement, and maintain repair and routine
maintenance policies. There is also burden associated with providing
proper instruction on the use of durable medical equipment to patient,
family members, and caregivers. As defined in 5 CFR 1320.3(b)(2),
providing proper instruction on the use of durable medical equipment to
patient, family members, and caregivers is a usual and customary
business practice.
Condition Of Participation--Short-Term Inpatient Care (Sec. 418.108)
Section 418.108(c) requires the use of a written agreement if a
hospice has an arrangement with a facility to provide short-term
inpatient care. At a minimum, the agreement must address the issues
outlined in Sec. 418.108(c)(1)-(6). The burden associated with this
requirement is the time and effort necessary to develop, draft,
execute, and maintain the written agreement. While this requirement is
subject to the PRA, the burden is exempt under 5 CFR 1320.2(b)(2). The
use of the written agreements between facilities is a usual and
customary business practice.
Condition Of Participation: Hospices That Provide Inpatient Care
Directly (Sec. 418.110)
Section 418.110(c)(1)(ii) states that a hospice must have a written
disaster preparedness plan in effect to manage emergencies that might
compromise the hospice's ability to provide care. Additionally, the
plan must be periodically reviewed. The burden associated with this
requirement is the time and effort necessary to develop, draft,
implement, maintain, and periodically review the disaster preparedness
plan. Section 418.110(c)(2) requires hospices to develop procedures for
managing physical plant issues.
The burden associated with the requirements in Sec. 418.108(c) is
the time and effort necessary to draft, implement, maintain, and review
the facility's disaster preparedness plans and procedures to address
physical plant issues. While these requirements are subject to the PRA,
we believe the associated burden is exempt as stated in 5 CFR
1320.3(b)(2).
Section 418.110(m)(3)(i) specifies that the use of restraint and
seclusion must be used in accordance with a written modification to the
plan of care. The use of restraint and seclusion must be implemented in
accordance with safe and appropriate restraint and seclusion techniques
as determined by hospice policy in accordance with State law. The
burden associated with this requirement is the time and effort
necessary to modify the plan of care in writing to include the
physician order for restraint and seclusion.
Section 418.110(m)(4) states that the use or restraint or seclusion
must be done in accordance with a physician's orders. There is a burden
associated with creating a physician's order. However, we believe the
burden associated with the aforementioned requirements is exempt from
the PRA under 5 CFR 1320.3(b)(2), as they are part of the usual and
customary business practice for hospices.
Section 418.110(m)(7)(ii) states that prior to writing a new order
for the use of restraint or seclusion, a physician must see and assess
the patient. The burden associated with this requirement is the time
and effort necessary for the ordering physician to see and assess the
patient.
Section 418.110(m)(15) states that when restraint or seclusion is
used, a patient's clinical record must contain the documentation
outlined in Sec. 418.110(m)(15)(i)-(v). The burden associated with
this requirement is the time and effort necessary to compile the
documentation specified in Sec. 418.110(m)(15)(i)-(v) in the patient's
clinical record. We estimate the collective burden associated with the
requirements contained in 418.110(m)(3)(i), 418.110(m)(7)(ii), and
418.110(m)(15) to be 45 minutes per event per hospice for a total of
8,702 events annually. The annual burden associated with the
aforementioned information collection requirements is 6,527 hours.
Section 418.110(n) discusses the standard for restraint or
seclusion staff training requirements. Specifically, Sec.
418.110(n)(1) states that all patient care staff working in the hospice
inpatient facility must be trained and able to demonstrate competency
in the application of restraints, implementation of seclusion,
monitoring, assessment and providing care for a patient in restraint or
seclusion. Section 418.110(n)(4) states that a hospice must document in
the personnel records that each employee successfully completed the
restraint and seclusion training and demonstrated competency. We
estimate that it will take 96 hours to comply with these requirements.
The estimated total annual burden associated with these requirements is
275,512 hours.
Section 418.110(o) states that hospices must report deaths
associated with the use of restraint or seclusion. The hospice staff
must document in the
[[Page 32190]]
decedents clinical record the date and time the death was reported to
CMS. We cannot accurately estimate the number of deaths that would
occur annually as a result of restraint or seclusion. However, we
believe the number is less than 10 per year. While this requirement is
subject to the PRA, we believe the burden is exempt under 5 CFR
1320.3(c)(4), as it would affect less than 10 entities.
Condition of Participation: Hospices That Provide Hospice Care To
Residents of a SNF/NF or ICF/MR (Sec. 418.112)
Section 418.112(c) discusses the requirement that a hospice and
SNF/NF or ICF/MR must have a written agreement that specifies the
provision of hospice services in the facility. The agreement must be
signed by authorized representatives of the hospices and the SNF/NF or
ICF/MR prior to the provision of hospice care services. At a minimum,
the written agreements must address the issues listed in Sec.
418.112(c)(1)-(8). The burden associated with this requirement is the
time and effort necessary to develop, draft, sign, and maintain the
written agreement. However, the use of this type of written agreement
is a usual and customary business practice; the associated burden is
exempt from the PRA under 5 CFR 1320.3(b)(2).
Section 418.112(d) discusses the standard for the hospice plan of
care. A written plan of care must be established and maintained in
consultation with SNF/NF or ICF/MR representatives. The burden
associated with this requirement is discussed in detail under our
discussion of Sec. 418.56(c).
Condition of Participation: Personnel Qualifications (Sec. 418.114)
Section 418.114(d)(1) requires hospices to obtain criminal
background checks on all hospice employees who have direct patient
contact or access to patient records. Additionally, all hospice
contracts must require that all contracted entities obtain criminal
background checks on contracted employees who have direct patient
contact or access to patient records. The burden associated with this
requirement is the time and effort necessary to conduct background
checks and the time and effort necessary to develop, draft, and
maintain contracts that require all contracted staff to obtain
background checks. While this requirement is subject to the PRA, we
believe the associated burden is exempt as stated in 5 CFR
1320.3(b)(2). While fulfilling these requirements, a hospice will not
incur any burden above and beyond its usual and customary business
practice.
Table XX.--Estimated Annual Reporting and Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
Total annual
Regulation section(s) OMB control No. Respondents Responses burden (hours)
----------------------------------------------------------------------------------------------------------------
Sec. 418.52(a)...................... 0938-New................ 2,872 870,216 72,518
Sec. 418.52(b)...................... 0938-New................ 2,872 43,080 43,080
Sec. 418.56(b-c).................... 0938-0302............... 2,874 2,874 9,930,912
Sec. 418.58......................... 0938-New................ 2,872 2,872 402,080
Sec. 418.76(b)(4)................... 0938-New................ 2,872 2,872 239
Sec. 418.76(c)...................... 0938-New................ 2,872 2,872 239
Sec. 418.76(d)...................... 0938-New................ 2,872 2,872 5,744
Sec. 418.76(h)(2)................... 0938-New................ 2,872 14,360 1,197
Sec. 418.78(a)...................... 0938-New................ 2,872 2,872 1,436
Sec. 418.78(c)...................... 0938-New................ 2,872 2,872 8,616
Sec. 418.78(d)...................... 0938-New................ 2,872 2,872 8,616
Sec. 418.78(e)...................... 0938-New................ 2,872 2,872 1,723,200
Sec. 418.102(b-c)................... 0938-New................ 2,872 2,872 143,600
Sec. 418.110(m)(15)................. 0938-New................ 2,872 8,702 6,527
Sec. 418.110(n)(1-4)................ 0938-New................ 2,872 2,872 275,512
���������������������������������������
Total............................. ........................ 2,874 967,952 12,623,516
----------------------------------------------------------------------------------------------------------------
We have submitted a copy of this final rule to OMB for its review
of the information collection requirements contained within this
document. These requirements are not effective until they are approved
by OMB.
VI. Regulatory Impact Analysis
A. Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866 (September 1993, Regulatory Planning and Review), the
Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354),
section 1102(b) of the Social Security Act, the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which
merely reassigns responsibility of duties) directs agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major rules with
economically significant effects ($110 million or more in any 1 year).
This is not a major rule, since the overall economic impact for all
proposed new Conditions of Participation is estimated to be $40.7
million in the first year.
The RFA requires agencies to analyze options for regulatory relief
of small entities. For purposes of the RFA, small entities include
small businesses, nonprofit organizations, and small government
jurisdictions. Individuals and States are not included in the
definition of a small entity. For purposes of the RFA, most hospices
(approximately 82% of Medicare certified facilities) are considered to
be small entities, either by virtue of their nonprofit or government
status or by having revenues of less than $12.5 million in any one year
(for details, see the Small Business Administration's regulation that
sets forth size standards for health care industries at 65 FR 69432).
We estimate there are approximately 2,872 hospices with average
admissions of approximately 303 patients per hospice (based on the
number of patients in 2005 divided by the number of hospices in 2005).
The National Hospice and Palliative Care
[[Page 32191]]
Organization (Facts and Figures--2005 Findings) estimates that 82.4
percent of hospice patients are Medicare beneficiaries; thus we have
not considered other sources of revenue in this analysis.
We certify that this rule would not have a significant impact on a
substantial number of small entities because the cost of this rule is
less than 1 percent of total hospice Medicare revenue. According to the
CMS 2005 national expenditure data, Medicare paid $8.2 billion to
providers for hospice care in FY 2005. We estimate this rule will cost
hospices approximately $40.7 million or approximately $32,223 per
average hospice (operating its own inpatient unit and requiring the
supervisory services of an MSW) in the first year. An average hospice
that does not operate its own inpatient unit and does not need to hire
an MSW, accounting for the vast majority of hospices, will expend
$11,151 to comply with this final rule in the first year. While we
understand that a few very small hospices (described below) may expend
a larger percentage of their revenue to comply with this rule, we
believe that this group of hospices is quite small.
We understand that there are different sizes of hospices and that
the burden for hospices of different sizes will vary. Therefore, we
have assessed the burden for hospices that are smaller than the
statistically average hospice used for calculations in part B of this
section, Anticipated Effects on Hospices. The smaller hospices have
been broken up into two categories based on the number of routine home
care days, the most common level of hospice care provided. The
categories are group 1 hospices providing 0 to 1,754 routine home care
days, and group 2 hospices providing 1,755 to 4,373 routine home care
days. Group 1 hospices, averaging 67 patients per year, would spend
approximately $18,980 or $5,980, depending on the need to hire and MSW
supervisor, to comply with these regulations. The average hospice in
this group received $229,406 from Medicare for routine home care days
under the 2005 hospice payment rates. Group 2 hospices, averaging 167
patients per year, would spend approximately $21,191 or $8,191, also
depending on the need to hire an MSW supervisor, to comply with these
regulations. The average hospice in this group received $571,945 from
Medicare for routine home care days under the 2005 rates.
The time and cost burden for these providers is less than that of
the average hospice used in part B of this section because a portion of
the burden associated with these regulations is directly related to
patient care and the staff necessary to provide care. Therefore, a
consistently smaller patient census leads to reduced burden because the
smaller hospices have less staff, complete less data collection and
less patient rights orientation etc. These estimates of the annual
burden for smaller hospices make only minor adjustments to the
estimated quality assessment and performance improvement burden
described in part B of this section in the area of patient level data
collection. Additionally, these figures do not include the time and
cost burden estimates associated with a hospice inpatient facility
because it is very uncommon for a hospice with a small annual patient
census to operate its own inpatient facility. We estimate that the
financial burden for group 1 hospices would be approximately 8.25 or
2.5 percent of the payment received for routine home care days,
depending on whether or not the hospice needs to hire an MSW
supervisor. For group 2 hospices, the financial burden would be 3.75 or
1.5 percent of the payment received for routine home care days, also
depending on whether or not the hospice needs to hire an MSW
supervisor. Since employing an MSW is considered the standard within
the hospice industry, we believe that very few group 1 and 2 hospices
will incur the additional expense of hiring an MSW above their present
level of staffing (see B., Anticipated Effects on Hospices, Personnel
qualifications for a more detailed discussion). These percentages do
not include amounts paid by Medicare for continuous home care days,
respite care days, and regular inpatient care days. The percentages
also do not include amounts paid by Medicaid, private insurers, and
individual patients, which account for approximately 18 percent of
hospice revenue. Additionally, these percentages do not include
additional income from fundraising, donations, foundations, etc. that
hospices routinely use to finance operations and programs. Therefore,
we believe that the actual cost incurred by a group 1 or a group 2
hospice accounts for a significantly smaller portion of hospice's
overall revenue, and does not have a significant impact on a
substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 604 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a metropolitan
statistical area and has fewer than 100 beds. We believe that this rule
would not have a significant impact on the operations of a substantial
number of small rural hospitals, since there are few hospice programs
in those facilities. Section 202 of the Unfunded Mandates Reform Act of
1995 also requires that agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any one year
of $100 million in 1995 dollars, updated annually for inflation. That
threshold level is currently approximately $127 million. This final
rule does not contain mandates that will impose spending costs on
State, local, or tribal governments in the aggregate, or by the private
sector of $127 million.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a final rule that imposes
substantial direct compliance costs on State or local governments,
preempts State law, or otherwise has Federalism implications. This rule
has no Federalism implications.
B. Anticipated Effects on Hospices
As described in the preamble, this final rule contains both new
provisions and provisions that are carried over from the existing
hospice regulations. For purposes of this section, we have assessed the
impact of all provisions that may present a burden to a hospice.
Within this section, we have made several assumptions and estimates
in order to assess the time that it would take for a hospice to comply
with the provisions and the associated costs of compliance. We have
detailed these assumptions and estimates in the table below. We have
also detailed many, but not all, of the standards within each CoP, and
have noted whether or not there is an impact for each. However, the
requirements contained in many provisions are already standard medical
or business practices. These requirements would, therefore, not provide
additional burden to hospice providers.
Our assumptions are based on the idea of an average hospice, culled
from national averages. While we understand that there is no average
hospice, the idea of an average hospice allows us to quantify the
impact of this final rule on a hospice's resources. For purposes of
this section only, we describe an average hospice as one that is:
Freestanding;
Not-for-profit;
[[Page 32192]]
26 day median length of stay (NHPCO Facts & Figures 2005);
303 annual admissions;
40 employees and volunteers;
27% of patients residing in a SNF/NF, ICF/MR or assisted living
facility; and
Table 1.--Assumptions and Estimates Used Throughout the Impact Analysis
Section
------------------------------------------------------------------------
------------------------------------------------------------------------
of Medicare hospices nationwide..................... 2,872
of hospice patients nationwide...................... 869,201
of patients per average hospice..................... 303
Hourly rate of registered nurse............................... $35
Hourly rate of office employee................................ $14
Hourly rate of administrator.................................. $49
Hourly rate of home health aide............................... $19
Hourly rate of MSW............................................ $25
Hourly rate of pharmacist..................................... $56
Hourly rate of clinical manager............................... $36
Hourly rate of QAPI coordinator............................... $35
Hourly rate of medical director............................... $114
------------------------------------------------------------------------
Note: All salary estimates include benefits package worth 30% of the
fringe base salary.
Patient Rights (Sec. 418.52)
The final rule expands on the informed consent section (Sec.
418.62) of the current rule, recognizing that hospice patients are
entitled to certain rights that must be protected and preserved, and
that all patients must be able to freely exercise those rights.
(a) Standard: Notice of Rights. A hospice is required to provide
patients or their representatives with written and verbal notice of the
patient's rights and responsibilities during the initial assessment
visit. A hospice is also required to document that the notice of rights
was provided by obtaining the patient's or representative's signature.
A hospice must also inform and distribute written information to the
patient regarding its policies on advance directives. We estimate that
it will take eight hours on a one-time basis for a hospice to develop a
patient rights form, at a cost of $392, based on the assumption that an
administrator will develop the form. We estimate that it will take
approximately five minutes per patient to incorporate this information
into the existing informed consent process. At the average hourly rate
for a registered nurse, it will cost $2.92 per patient to fulfill the
requirement.
8 hours x $49 an hour = $392
$35 hour/60 minutes = $0.58 minute x 5 minutes = $3
(b) Standard: Exercise of rights and respect for property and
person. A hospice is required to investigate and document all
allegations of abuse, unexplained injuries, and misappropriations of
patient property involving hospice employees and contractors. Hospice
employees and contractors must report alleged patient rights violations
to the hospice administrator, and must report verified violations to
appropriate State and local bodies having jurisdiction. A hospice must
also take action to correct problems once they are identified.
We expect that a hospice administrator will investigate alleged
patient rights violations. We estimate that as many as 5% (15) of an
average hospice's patients would require a one-hour-long
investigational session, for a total of 15 hours per hospice. The cost
for the entire hospice industry would be $2,110,920 a year, while the
cost for an average hospice would be $735 a year.
15 investigations per hospice x 1 hour per investigation = 15 hours
per hospice
$49 hour x 15 hours per hospice = $735 per average hospice
15 hours per hospice x 2872 hospices = 43,080 hours nationwide
$735 per average hospice x 2872 hospices = $2,110,920
(c) Standard: Rights of the patient. There is no burden associated
with this standard.
Table 2.--Patient Rights Burden Assessment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Time per Cost per
Standard patient hospice Total time Cost per average Total cost
(minutes) (hours) (hours) patient hospice
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop form (1st year)................................. N/A 8 22,976 N/A $392 $1,125,824
Notice of rights (annual)............................... 5 25.25 72,433 $3 885 2,538,130
Exercise of rights (annual)............................. N/A 15 43,080 N/A 735 2,110,920
-----------------------------------------------------------------------------------------------
Totals.............................................. 5 48.25 138,489 3 2,012 4,649,379
--------------------------------------------------------------------------------------------------------------------------------------------------------
Comprehensive Patient Assessment (Sec. 418.54)
(a) Standard: Initial assessment and (b) Standard: Timeframe for
completion of the comprehensive assessment. The existing rule (Sec.
418.58(c)) requires the hospice to assess the patient's needs and to
state in detail the scope and frequency of services needed. The final
rule goes beyond this by specifying the time for completing the
assessment, the factors to be included in the assessment, and the time
for updating the assessment. However, we do not believe this will add
any additional burden, since this section of the proposed rule reflects
the contemporary standard practice of hospice programs.
(c) Standard: Content of the comprehensive assessment. The
assessment must identify the physical, psychosocial, emotional, and
spiritual needs related to the terminal illness and related conditions
that must be addressed in order to promote a hospice patient's well-
being, comfort and dignity throughout the dying process. The assessment
will include factors such as the patient's physical and nutritional
needs, pain status, and psychological state. The assessment will also
address complications and risk factors, functional status, imminence of
death, severity of symptoms, drug profile and bereavement. This differs
from the current rule in that it describes what must be included in the
assessment. The factors of the comprehensive assessment were identified
by the hospice industry and reflect standard industry practice.
(d) Standard: Update of the comprehensive assessment. Updates of
the patient's comprehensive assessment must be conducted at least every
15 days or as frequently as the condition of the patient requires. The
current regulation allows the plan of care to determine the frequency
of updates. However, due to the rapidly changing status of hospice
patients, it is standard practice for a hospice to update a patient
assessment at least every 15 days, and often more frequently. This 15-
day requirement is also in line with the recertification periods, at
which time a hospice must review the patient's clinical information to
determine whether a patient continues to be terminally ill with a
prognosis of 6 months or less if the illness runs its usual course.
This new standard simply codifies current industry practice and does
not present a burden.
(e) Standard: Patient outcome measures. The comprehensive
[[Page 32193]]
assessment must include consistent, pre-determined data elements that
allow for the measurement of patient care outcomes. (Note: There is no
data reporting element.) We believe this standard will pose a burden on
the hospice provider. However, the burden of collecting information
related to these outcome measures is calculated as part of a hospice's
quality assessment and performance improvement program.
Interdisciplinary Group, Care Planning and Coordination of Services
(Sec. 418.56)
The final rule makes several changes to the existing rule to
improve patient care and lessen burden.
(a) Standard: Approach to service and delivery. This standard
describes the members of the IDG and its role in patient care planning
and delivery. There is no burden associated with this standard.
(b) Standard: Plan of care and (c) Standard: Content of the plan of
care. This section describes the general content areas of each
patient's plan of care. The items that are required under the final
rule are already included in the standard industry patient plan of
care.
(d) Standard: Review of the plan of care. The existing rule states
that a patient's plan of care must be reviewed at intervals specified
in the initial plan of care. The final rule requires that the plan of
care be reviewed at least every 15 days. Several commenters noted that
documenting an update to a patient's plan of care takes 1-2 hours of a
nurse's time per update. We agree that updating a patient's plan of
care requires a fair amount of nursing time. However, we do not believe
that requiring a hospice to update a patient's plan of care on a
regularly scheduled and as needed basis will present a burden because
these are already standard practices within the hospice industry.
Quality Assessment and Performance Improvement (Sec. 418.58)
The quality assessment and performance improvement (QAPI)
requirement builds off of the existing quality assurance requirement.
Indeed, quality assurance is already part of standard hospice practice.
This rule requires a data-driven approach to assessing and improving
quality in all aspects of hospice care, from clinical services to
staffing to contracts, that enables hospices to develop a clear
understanding of their strengths and weaknesses in a wide variety of
areas. However, at this time we do not prescribe the precise areas that
each hospice must examine, nor do we prescribe the precise mechanisms
for these examinations. Rather, we provide a basic outline of what QAPI
is and how we expect it to function in the hospice environment. Each
hospice is free to decide how to implement the QAPI requirement in a
manner that reflects its own unique needs and goals.
In response to public comments stating that we underestimated the
impact of the QAPI CoP on the average hospice, we have significantly
revised our impact assessment methodology. Rather than describing the
impact in proportion to the impact that this same CoP had on hospitals,
we have described the impact in three general phases that we believe an
average hospice will go through. These phases are based off of our
experience in implementing the QAPI requirements of the proposed rule
in the Rural Hospice Demonstration project required by section 409 of
the MMA, and from discussions with hospice industry representatives who
are active in implementing QAPI programs nationwide. The description of
these phases, and the hour and dollar estimates that accompany them
were not available at the time that the proposed hospice rule was
published. We believe that this new information more accurately
reflects the hospice environment.
While we have outlined these phases below, we stress that a hospice
is not required to approach QAPI in this manner. We are not requiring a
hospice to collect data for a specific domain; use specific quality
measures, policies and procedures, or forms; submit data to an outside
body; or conduct a specified number of performance improvement
projects. A hospice may choose to implement a data-driven,
comprehensive QAPI program that meets the requirements of this rule in
any way that meets its individual needs. These phases described below
simply provide a framework for assessing the potential impact of the
QAPI requirement upon an average hospice.
In phase one, we believe that a hospice will:
Identify quality domains and measurements that reflect its
organizational complexity; involve all hospice services; affect
palliative outcomes, patient safety, and quality of care; focus on high
risk, high volume, or problem-prone areas; and track adverse patient
events;
Develop policies and procedures to ensure that data is consistently
collected, documented, retrieved, and analyzed in an accurate manner;
and
Educate hospice employees and contractors about the QAPI
requirement, philosophy, policies, and procedures.
In phase two, we believe that a hospice will:
Enter data into patient clinical records during patient assessments
and IDG meetings;
Aggregate data by collecting the same pieces of data from patient
clinical records and other sources (for example, human resource
records, pharmacy records, etc.);
Analyze the data that is aggregated through charts, graphs, and
various other methods to identify patterns, anomalies, areas of
concern, etc. that may be useful in targeting areas for improvement;
and
Develop, implement, and evaluate major and minor performance
improvement projects based on a thorough analysis of the data
collected.
In phase three, we believe that a hospice will:
Identify new domains and measures that may replace or be in
addition to the domains and measures already being monitored by the
hospice;
Develop and/or revise policies and procedures to accommodate the
new domains and measures; and
Educate hospice employees and contractors on the new domains and
measures, as well as the policies and procedures for them.
In addition to these three phases, a hospice will likely allocate
resources to an individual responsible for the general overall
coordination of its QAPI program. For simplicity, we refer to this
individual as the QAPI coordinator; however, a hospice is not required
to use this title.
Based on these three phases, we have anticipated the impact of the
QAPI requirement on a hospice's resources. In phase one, we anticipate
that a hospice will use 12 hours to identify quality domains and
measures. These hours will be distributed among the three members of
the hospice's QAPI committee. While we do not require a hospice to have
a QAPI committee, we believe that most hospices will choose to do so.
The hospice model is based on the idea of an interdisciplinary group of
people working together, and we believe that hospices will choose to
use this group decision-making model in the QAPI process as well. We
believe that the QAPI committee will include the QAPI coordinator, the
hospice administrator, and a clinical manager. We estimate that the
QAPI committee will meet four times quarterly for 1 hour each meeting
to identify appropriate quality domains and measures. The total cost
for an average hospice to identify the domains and measures, then, is
$480.
[[Page 32194]]
4 meetings x 1 hour per meeting x $35/hour for QAPI coordinator =
$140
4 meetings x 1 hour per meeting x $49/hour for administrator = $196
4 meetings x 1 hour per meeting x $36/hour for clinical manager =
$144
While we anticipate that a hospice will use resources to develop
policies and procedures and educate staff, we believe that these
activities are part of standard business practice and do not pose an
additional burden to a hospice. For example, a hospice already conducts
a regular in-service training program for its employees in accordance
with the in-service training requirement at existing Sec. 418.64. A
hospice can incorporate QAPI training into this existing in-service
training program with no associated increase in burden.
In phase two, we anticipate that a hospice will use 91 hours to
enter data (at the time of each assessment, 40.4 hours + at the time of
each IDG meeting, 50.5 hours), 48 hours to aggregate data, and 12 hours
to analyze data. Although thoroughly assessing a patient is already
standard practice, we believe that collecting quality measure data
during the patient assessment will be a new practice for many hospices.
We estimate that a hospice will spend 40.4 hours a year to collect
patient-level quality data during patient assessments, and that a
registered nurse is the most likely person to perform this data
collection.
4 minutes per patient assessment to collect quality data x 2
assessments per patient x 303 patients = 40.4 hours x $35/hr for a
registered nurse = $1,414
The QAPI CoP requires a hospice to use the quality data collected
during the patient assessment during the IDG meeting to monitor the
effectiveness of interventions in helping the patient and family
achieve desired outcomes. While a hospice IDG already makes decisions
based on the information contained in the patient's clinical record,
they may not be systematically documenting this analysis and its
results. We believe that documenting the results of the data analysis
(for example, any changes to the plan of care based on the specific
quality measure data) during the IDG meeting will require additional
time for each patient. We estimate that this activity will require 50.5
hours for an average hospice, based on an assumed five minutes per
patient to document quality measure analysis. We believe that the
registered nurse assigned to coordinate the patient's plan of care is
the individual most likely to document this information.
5 minutes per patient to document during IDG meeting x 2 IDG
meetings per patient x 303 patients = 50.5 hours x $35/hour for a
registered nurse = $1,768
In addition to using quality measure data on a patient level, a
hospice must gather the patient-level data and other data. Once
gathered, a hospice must organize the data in a meaningful way. We
estimate that, in order to ensure that the volume of gathered data is
manageable, a hospice will gather its data once a month. A hospice may
choose to gather data on a more or less frequent basis to suit its
needs and circumstances. Some hospices may choose to gather all
patient-level data, while others may choose to gather data from a
sample of all patient-level data. Likewise, some hospices may choose to
gather data from a wide variety of administrative files, while others
may choose to select only a few administrative data sources. There are
many combinations that a hospice may choose to use when it comes to
gathering data, and no single approach is considered preferable to
another. Given this variability, it is difficult to estimate how long
an average hospice may spend gathering and organizing data. For
purposes of this analysis only, we assume that an average hospice will
use four hours per month to gather data, for a total of 48 hours a
year. We believe that an office employee will perform the data
aggregation and organization.
4 hours a month to gather and organize data x 12 months = 48 hours x
$14/hr for an office employee = $672
Following data gathering and organization, a hospice must analyze
the data to identify trends, patterns, anomalies, areas of strength and
concern, etc. We believe that this data analysis will be done by the
QAPI committee described previously. In order to identify trends and
patterns, the committee would need to examine several months of data at
the same time. Therefore, we assume that the committee will meet once
every quarter to examine the data and make decisions based off of it.
We assume that these meetings will be one hour each, for a total cost
of $480.
4 meetings x 1 hour per meeting x $35/hour for QAPI coordinator =
$140
4 meetings x 1 hour per meeting x $49/hour for administrator = $196
4 meetings x 1 hour per meeting x $36/hour for clinical manager =
$144
Performance improvement projects follow all of the data entry,
gathering, organization, and analysis. A hospice must conduct projects
to improve its performance in areas where a weakness is identified.
Performance improvement projects must reflect the hospice's scope,
complexity, and past performance. They must also be data-driven, and
affect palliative outcomes, patient safety, and quality of care.
Although this final rule more clearly describes a performance
improvement project, its basis, and its purpose, are fundamentally the
same as the current requirement at Sec. 418.66, ``Quality assurance.''
That requirement states that, ``A hospice must * * * correct identified
problems and * * * revise hospice policies if necessary * * * [and]
[m]ake suggestions for improving patient care.'' Since a hospice
already makes an organized effort to improve patient care in all of its
facets, and since providing safe and effective care at all times for
all patients is the essential charge of all health care providers,
including hospices, we believe that conducting both major and minor
performance improvement projects is already a standard of practice
within the hospice industry. Therefore there is no additional burden
associated with this provision.
Phase three of the QAPI process builds upon the QAPI program that a
hospice already has in place. We estimate that a hospice will use three
hours a year to identify new domains and quality measures, and we
believe that the QAPI committee will perform this task. Just as in
phase one, we believe that the tasks of developing and/or updating the
hospice's policies and procedures and educating the hospice's staff and
contractors are standard practice within the hospice industry.
1 meeting x 1 hour per meeting x $35/hour for QAPI coordinator = $35
1 meeting x 1 hour per meeting x $49/hour for administrator = $49
1 meeting x 1 hour per meeting x $36/hour for clinical manager = $36
In order to ensure the adequate functioning of a hospice's QAPI
program, a hospice must designate an individual to be responsible for
its QAPI program. We estimate that a QAPI coordinator will spend 1.5
hours per week overseeing the QAPI program, performing various
functions as needed, for a total of 78 hours per year.
1.5 hours/week x 52 weeks = 78 hours x $35/hour = $2,730
[[Page 32195]]
Table 3.--Quality Assessment and Performance Improvement Burden Assessment
----------------------------------------------------------------------------------------------------------------
Time per
Standard hospice Total time Cost per Total cost
(hours) (hours) hospice
----------------------------------------------------------------------------------------------------------------
Identify domains and measures (1st year)........ 12 34,464 $480 $1,378,560
Enter data \1\ (1st year and annual)............ 91 261,352 3,182 9,138,704
Aggregate data \1\ (1st year and annual)........ 48 137,856 672 1,929,984
Data analysis (1st year and annual)............. 12 34,464 480 1,378,560
QAPI coordinator (1st year and annual).......... 78 224,016 2,730 7,840,560
Update domains and measures (annual)............ 3 8,616 120 344,640
---------------------------------------------------------------
Total 1st year.............................. 241 * 692,152 7,544 * 21,666,368
Total annually.............................. 232 * 666,304 7,184 * 20,632,448
----------------------------------------------------------------------------------------------------------------
* Note: The overall national estimates are based on the assumption that every hospice will begin to develop and
implement a QAPI program upon the effective date of this final rule. Anecdotal evidence suggests that many
hospices began developing and implementing QAPI programs upon publication of the proposed hospice rule, and
therefore will not be impacted to the same extent as we have estimated above. Thus, we expect that the actual
impact of this final requirement will be less than estimated in this section.
Infection Control (Sec. 418.60)
There is no specific existing requirement for infection control
other than what is briefly mentioned in the existing Sec. 418.100(i),
``Standard: Isolation areas.'' However, we believe that hospice
clinicians such as nurses, physicians, and therapists are already using
infection control practice as part of the current requirement that
hospice clinicians provide services to patients in accordance with
accepted standards of practice. It is an accepted standard of practice
to use infection control methods when caring for patients. This final
regulation reinforces those positive infection control practices and
addresses the serious nature of infectious and communicable diseases.
Infection control and standard precautions are long-standing clinical
practices that are standard throughout the medical industry.
This final CoP requires a hospice to continue to take specific and
appropriate actions to address the prevention and control of
infections, including patient, staff, and caregiver education. We
acknowledge that this is a new focus; however, we do not believe this
will add any regulatory burden, since this section of the final rule
reflects contemporary standard practice in hospice programs.
Core Services (Sec. 418.64)
The final rule allows core services to be provided under contract
in certain extraordinary or other non-routine circumstances as
described, allowing hospices more flexibility. One specific provision
allows a hospice to contract for highly specialized nursing services,
providing even more staffing flexibility. The option to contract out
for highly specialized nursing services allows a hospice to provide
such highly specialized services at a lower cost than if it directly
employed an individual(s) to perform such services. A hospice that
chooses to contract for core services or highly specialized nursing
services must have a contract with the entity providing the contracted
services. Negotiating, documenting and signing a business contract is
standard business practice and does not impose a burden.
(d) Standard: Counseling services. The final rule also requires a
hospice to offer bereavement services to appropriate residents of a
SNF/NF or ICF/MR. Residents of a facility often act as a patient's
family, providing care, support, and companionship throughout the
terminal illness. In such cases, we believe that it is appropriate for
a hospice to offer bereavement services to the affected residents in
the same manner that bereavement services are offered to a patient's
family. Since offering and subsequently providing bereavement services
to a patient's family is standard practice, we do not believe that
extending such services to those who act as a patient's family in a
SNF/NF or ICF/MR imposes an additional burden upon a hospice relative
to the burden of providing bereavement services to a patient's family.
Waiver of Requirement--Physical Therapy, Occupational Therapy, Speech-
Language Pathology, and Dietary Counseling (Sec. 418.74)
This waiver, currently implemented through a memorandum from CMS's
Center for Medicaid and State Operations, will reduce the compliance
burden on hospices located in non-urbanized areas. If the hospice
program demonstrates that recruitment efforts were unsuccessful, it may
request certain waivers with respect to PT, OT, speech-language
pathology, and dietary counseling. There have been no applications for
this waiver in the past 5 years; therefore we believe that the burden
is negligible.
Hospice Aide and Homemaker Services (Sec. 418.76)
Hospice aide and homemaker services are an integral part of hospice
care, yet they receive little attention in the current regulation.
These services are briefly addressed in Sec. 418.94 with a standard
regarding the supervision of home health aide services and a standard
regarding written patient care instructions. These two standards appear
in the final regulation, with some minor alterations. The final
regulation also adds several new requirements.
(b) Standard: Content and duration of hospice aide classroom and
supervised practical training; (c) Standard: Competency evaluation; (d)
Standard: In-service training.
These three standards describe the ways in which a hospice aide can
meet the qualification requirements. All of these standards require the
hospice to maintain documentation that each hospice aide meets these
qualifications. The burden associated with these standards is the time
to complete the required documentation. We estimate that it will take
five minutes to document the information and that an office employee
will complete this task. In addition, we have calculated the burden
based on an employee turnover rate of 30% (2002 NHPCO National Data Set
Summary Report), meaning that we expect that the average hospice would
replace 30% of its hospice aides in a given year, or roughly one
hospice aide a year based on the employment of 5 hospice aides. Based
on the above-mentioned estimates and assumptions, we estimate that will
cost an average hospice $1.17 to document that its hospice aides meet
the qualification
[[Page 32196]]
requirements, for a total cost of $3,360 nationwide.
$14 an hour for an office employee to document compliance/60 minutes
= $0.23 minute x 5 minutes per aide to document compliance = $1.17 x
1 document per year = $1.17 per hospice
$1.17 per hospice x 2,872 hospices = $3,360
5 min to document x 2872 hospices = 14,360/60min = 239 hours
(g) Standard: Hospice aide assignments and duties. The hospice aide
is required to report changes in the patient's needs to a registered
nurse, and complete appropriate records in compliance with the
hospice's policies and procedures. This new requirement reflects the
standard industry practice of maintaining communication between all
healthcare providers and maintaining a complete patient record.
(h) Standard: Supervision of hospice aides. This standard retains
the current rule's requirement that a registered nurse visit the
patient's home to assess hospice aide services every 14 days. This
standard also requires that a registered nurse visit the patient's home
annually or more frequently when there are care/performance issues,
when the aide is providing services in the home. We believe that
thoroughly supervising employees is standard practice and does not
increase burden.
(j) Standard: Homemaker qualifications. The final regulation
requires homemakers to complete a hospice orientation program
addressing the needs and concerns of patients and families coping with
a terminal illness. We believe that this standard does not impose any
additional regulatory burden because hospices train all of their
employees, including homemakers, to deal with the realities of hospice
care.
(k) Standard: Homemaker supervision and duties. A member of the IDG
is required to develop written instructions for the homemaker. We have
also added a requirement that a member of the IDG must coordinate and
supervise the homemaker services. We believe that providing patient
care instructions, coordinating care, and supervising homemakers are
usual and customary practice; therefore, this requirement would not
impose any additional regulatory burden.
Table 4.--Hospice Aide and Homemaker Services Burden Assessment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Cost per
Standard Time per aide hospice Total time Cost per aide average Total cost
(minutes) (minutes) (hours) hospice
--------------------------------------------------------------------------------------------------------------------------------------------------------
Documentation (based on 1 new hospice aide per year).... 5 5 239 $1.17 $1.17 $3,360
-----------------------------------------------------------------------------------------------
Totals.............................................. 5 5 239 1.17 1.17 3,360
--------------------------------------------------------------------------------------------------------------------------------------------------------
Organization and Administration of Services (Sec. 418.100)
The revised requirements for the organization and administration of
services are essentially the same as those in the previous conditions
of participation. We added a requirement to clarify the relationship
between the hospice governing body and the hospice administrator. This
clarification presents no burden for a hospice.
(f) Standard: Hospice multiple locations. We also added a
requirement that a hospice must apply to CMS to receive authorization
for the opening of a multiple location. This practice is currently
mandated through a June 1997 memorandum from CMS' Center for Medicaid
and State Operations. Requesting approval from CMS to provide services
to Medicare and Medicaid patients from a particular location is
standard practice in the industry and does not present a burden for a
hospice.
(g) Standard: Training. Finally, we added two employee training
requirements. First, we added a requirement that a hospice must provide
an initial orientation for each employee that addresses the employee's
specific job duties. Second, we added a specification for the
maintenance of in-service training records to help a hospice document
its compliance with the provision of in-service training requirement.
These additions reflect standard practice in the industry and present
no additional burden.
Medical Director (Sec. 418.102)
This rule includes a new requirement that a hospice must designate
a physician to assume the role and responsibilities of the medical
director when the medical director is not available. All hospices
routinely meet the medical needs of their patients 24 hours a day,
including the need for physician services. As such, they must already
have a physician available at all times. A single physician cannot
fulfill this 24-hour a day hospice physician role; therefore hospices
already have more than one physician available. We believe that
identifying the alternative physician as the physician designee, ready
and able to fulfill the medical director role in the medical director's
absence, does not pose a burden to a hospice.
(a) Standard: Medical director contract. We added a provision
permitting the medical director to work under a contractual
arrangement, reducing the program and hiring burden on the hospice. If
a hospice chooses to secure medical director services through a
contract, this rule requires the contract to specify the physician who
will serve as the medical director. Identifying a single individual to
serve as the hospice medical director is standard practice in the
hospice industry and does not present a burden.
(b) Standard: Initial certification of terminal illness and (c)
Standard: Recertification of the terminal illness. This rule codifies
the current standards of practice to which medical directors adhere for
certifying and recertifying a patient's terminally ill status.
(d) Standard: Medical director responsibility. This rule re-
codifies the requirement that the medical director or designee has
responsibility for the medical component of the hospice's patient care
program. It is standard practice for the hospice medical director to
lead, and thus bear responsibility for, the medical component of the
hospice's patient care services. Therefore, this re-codified provision
does not impose a burden upon a hospice.
Clinical Records (Sec. 418.104)
This rule adds specificity in regard to content, authentication,
retrievability, retention, and transfer of records. It requires a
hospice to include all relevant patient care information in each
patient's clinical record in order to facilitate communication and
coordination among all disciplines involved in a patient's care. It
also requires a hospice to ensure that clinical record entries are
legible, clear, complete, and authenticated in
[[Page 32197]]
accordance with its own policies. Furthermore, this rule requires a
hospice to protect and retain the information contained in the clinical
record in accordance with the Department's rules regarding personal
health information at 45 CFR parts 160 and 164. All of these
requirements reflect standard hospice practices and do not pose a
burden.
(e) Standard: Discharge or transfer of care. This rule requires a
hospice to prepare and send a comprehensive discharge summary for all
patients that are discharged alive. The discharge summary must include
a summary of the patient's stay, the patient's current plan of care,
the most recent physician orders, and any other documentation to aid in
post-discharge care of the patient. These are standard elements for
discharge summaries in the health care industry, including the hospice
industry. This rule also requires a hospice to send a copy of the
patient's clinical record to the provider assuming care of the patient,
if the provider assuming care requests a copy of the clinical record. A
comprehensive discharge summary should remove any reason for the
provider assuming care to request a copy of the patient's clinical
record. Therefore, we do not believe that this requirement will pose a
burden to a hospice. We believe that these discharge requirements
reflect standard industry practice and add no burden.
Drugs, Medical Supplies and Durable Medical Equipment (Sec. 418.106)
(a) Standard: Managing drugs and biologicals. We added a
requirement that a hospice must ensure that its IDG(s) confers with an
individual with education and training in drug management to ensure
that drugs and biologicals meet each patient's needs. A hospice may
meet this requirement in a variety of ways that is, by hiring or
contracting with a pharmacist(s), by contracting with a pharmacy
benefit management company, by hiring or contracting with a physician
or other clinician with the necessary education and training in drug
management (for example, a physician who is board certified in
palliative care once board certification is available in October 2008),
or by ensuring the appropriate education and training of one or more
existing hospice employees.
For purposes of our analysis only, we are estimating the impact of
this provision based on the assumption that an average hospice will
choose to use a pharmacist to meet this requirement. We have made this
assumption based on two factors. First, pharmacists are relatively
easier to access in most parts of the country as compared to clinicians
who have specialized drug management education and training. Second,
pharmacist services can be easily accessed by phone and electronic
communications through a local pharmacy or a pharmacy benefit
management company. Hospices are in no way required to use a pharmacist
to fulfill this role. We estimate that an average hospice already
spends $123,842 annually to provide drugs and biologicals for its
patients ($15.72 per patient day (dollar figure is not adjusted for
inflation) for drugs and biologicals based on 2001 Millman USA report
titled ``The Costs of Hospice Care: An Actuarial Evaluation of the
Medicare Hospice Benefit'' and consistent with the 2002 NHPCO National
Data Set). Based on discussions with the leading hospice pharmacy
benefit management company, for approximately this same price ($12-18
per patient day), a hospice may contract with a pharmacy benefit
management company to provide all drugs and biologicals for its
patients. In addition, the pharmacy benefit management company allows a
hospice IDG to speak with a pharmacist on a 24-hour basis to gather
information, input, and advice from the pharmacist regarding an
individual patient's drug and biological profile. Contracting with a
pharmacy benefit management company and utilizing its pharmacists
satisfies the new requirement without increasing a hospice's
expenditures beyond what it is currently spending to provide drugs and
biologicals alone. Since hospices currently have the option of
contracting with a pharmacy benefit management company to comply with
this requirement without increasing overall pharmacy costs, we do not
believe that this new requirement poses a burden to a hospice. As of
January 2008 approximately 1,600 hospices currently use the services of
pharmacy benefit management companies.
If a hospice decides not to use a pharmacy benefit management
company, it may also choose to employ or contract with a pharmacist(s)
for pharmacist advisement services. A hospice that chooses to use the
services of a pharmacist (or other individual with specialized
education and training in drug management) in lieu of a pharmacy
benefit management company retains the responsibility and flexibility
of managing the purchase of drugs and biologicals. We estimate that it
requires 30 minutes for an individual such as a pharmacist to initially
review a patient's drug and biologicals profile and advise the IDG
during the time of the patient's comprehensive assessment and
development of the plan of care. Additionally, we estimate that it
requires 15 minutes of a individual's time to review updates to the
patient's drug profile and advise the IDG about updates to the
patient's plan of care. Based on a 26 day median length of stay,
patients would likely receive two updates to their plans of care. Using
these estimates, a hospice would expend $56 per patient to secure
pharmacist advisement services. An average hospice would expend $16,968
annually to secure pharmacist advisement services for all of its
patients. We have not estimated the cost associated with a hospice
using an individual from another clinical discipline who has
specialized education and training in drug management because we are
unsure of what disciplines would be used in this role, depending upon
the needs of each hospice.
30 minute initial advisement per patient at $28 + 15 minute update
advisement per patient at $14 + 15 minute update advisement per
patient at $14 = $56 per patient for all pharmacists advisement
services
$56 per patient x 303 patients = $16,968
(b) Standard: Ordering of drugs, (c) Standard: Dispensing of drugs
and biologicals and (d) Standard: Administration of drugs and
biologicals. We added requirements governing the ordering, dispensing,
and administration of drugs and biologicals. Having written policies
and procedures in place to manage drugs and biologicals, and educating
patients and families about these policies and procedures is standard
practice in the hospice industry. Therefore, these requirements pose no
burden to a hospice.
(e) Standard: Labeling, disposing and storing of drugs and
biologicals. This standard requires a hospice to ensure safe labeling
of all drugs and biologicals in accordance with current standards of
practice. This standard also requires a hospice-operated inpatient
facility to investigate discrepancies involving controlled drugs and to
document an account of the investigation. Of the 2,533 deficiencies
issued by State surveyors in 1,161 surveys in 2006, two were
potentially related to controlled drug discrepancies. The 1,161 surveys
in 2006 represent approximately 30 percent of all hospices. Therefore,
we can expect that if all hospices were surveyed, six deficiencies
would be issued that are potentially related controlled drug
discrepancies. We do not expect a significant increase in
[[Page 32198]]
discrepancies, and estimate that six investigations would be conducted
and documented throughout the hospice industry.
The rule requires the hospice's pharmacist and administrator to
conduct controlled drug investigations. We estimate that a thorough
investigation, including an examination of the records of incoming and
outgoing drugs and biologicals, and report would require one hour per
incident. The entire industry would thus spend six hours annually at a
cost of $624 to fulfill this requirement. Maintaining inventory records
incoming and outgoing drugs and biologicals is a usual and customary
business practice and is not a burden.
$55 hour + $49 hour = $104 hour x 1 hour investigation = $104 per
investigation
$104 per investigation x 6 investigations = $624 industry wide
In addition, we added a requirement regarding documentation of
patient and family drug education. A hospice must document in the
patient's clinical record that it provided a copy of its controlled
drug policy to the patient and family at the time when a controlled
drug is first ordered. A hospice must also document that it discussed
the controlled drug policy with the patient and family. Documenting the
provision of the material and the education session requires
approximately five minutes, and will likely be completed by a
registered nurse. Fulfilling the requirement would cost $2.25 per
patient based upon the average hourly rate for a registered nurse.
$27 hour/60 minutes = $0.45 minute x 5 minutes = $2.25
$2.25 per patient x 303 patients = $682
$2.25 per patient x 303 patients x 2872 hospices = $1,957,986
(f) Standard: Use and maintenance of equipment and supplies. We
added a requirement that a hospice must ensure that manufacturer
recommendations for routine and preventive maintenance of equipment are
followed. If manufacturer recommendations do not exist, a hospice must
ensure that maintenance policies are developed. A hospice must also
ensure that the patient and family receive instruction regarding the
use of equipment and supplies, and that the patient and family can
safely demonstrate the use of the equipment and supplies. Hospices
already require their equipment and supply vendors to properly maintain
the equipment supplied to hospice patients. Therefore, we believe that
this maintenance requirement does not impose a burden. Additionally,
hospices already assure that patients and families can operate the
supplied equipment. When a patient and family safely and effectively
use equipment, the hospice does not need to continually send its staff
to the patient's home for equipment problems. Since this routine
education already occurs, benefiting both the patient and the hospice,
this requirement does not impose a burden.
The vast majority of hospices provide durable medical equipment and
supplies under contract with one or more vendors. For this reason, we
added a requirement that a hospice may only contract with a durable
medical equipment supplier that meets the Medicare DMEPOS Supplier
Standards at 42 CFR 424.57. We do not believe that this requirement
will compromise a hospice's ability to secure a contract or
significantly increase the cost of that contract because most vendors
choose to meet the Medicare Supplier Standards in order to furnish
equipment and supplies to Medicare beneficiaries. Therefore, there is
sufficient competition among vendors to provide high quality services
at a reasonable cost to hospices seeking contracts.
Table 5.--Drugs, Medical Supplies and Durable Medical Equipment Burden Assessment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per
Time per average Total industry Cost per Cost per Total industry
Standard patient hospiace time (hours) patient average cost
(minutes) (hours) hospice
--------------------------------------------------------------------------------------------------------------------------------------------------------
Drug Policy Education................................... 5 25.25 72,518 $2.25 $681.75 $1,957,986
Drug Discrepancy Investigation.......................... N/A N/A 6 N/A N/A 624
-----------------------------------------------------------------------------------------------
Total............................................... 5 25.25 72,524 2.25 681.75 1,958,610
--------------------------------------------------------------------------------------------------------------------------------------------------------
Short Term Inpatient Care (Sec. 418.108)
(b) Standard: Inpatient care for respite purposes. This rule allows
a hospice to contract for respite care with a facility that does not
have a registered nurse on-duty providing direct patient care 24-hours
a day. This provision will make it easier for hospices to contract with
long term care facilities.
(c) Standard: Inpatient care provided under arrangements. This rule
provides additional guidance with respect to the substance of the
written agreement between a hospice and an inpatient facility, which we
believe is a usual and customary business practice. Therefore, this
provision therefore does not increase regulatory burden.
(d) Standard: Inpatient care limitation and (e) Standard: Exemption
from limitation. This rule also maintains the 20 percent limitation on
inpatient days and the exemption to this limitation. These requirements
are statutory and have been in place since the inception of the
Medicare hospice benefit. They reflect the goal of the hospice movement
and benefit to keep patients in their home, where most patients prefer
to stay. Therefore, they are standard practice.
Hospices That Provide Inpatient Care Directly (Sec. 418.110)
(b) Standard: Twenty-four hour nursing services. This rule includes
the 24-hour nursing requirement from the existing rule. In short, a
hospice that provides general inpatient care directly must have a
registered nurse who provides direct patient care on each shift. This
requirement has been in place since the inception of the Medicare
hospice Conditions of Participation. As such, it is standard practice
and does not pose a burden.
(c) Standard: Physical environment through (l) Standard: Meal
service and menu planning. This rule requires a hospice to maintain a
safe physical environment in its inpatient facility. A hospice must:
Have and rehearse a disaster preparedness plan;
Manage all aspects of the building (that is, waste, water supply,
and ventilation);
Comply with applicable fire safety requirements;
Have a home-like atmosphere with sufficient space and amenities;
Have an adequate infection control program;
Have clean linens and properly handle soiled ones; and
Serve meals to meet patient needs.
These requirements are standard practice in hospice-operated
inpatient facilities and pose no additional burden.
(m) Standard: Restraint or seclusion, (n) Standard: Restraint or
seclusion staff training requirements and (o) Standard:
[[Page 32199]]
Death reporting requirements. This rule adds considerable detail in
regard to seclusion and restraint. This section is adapted from the
language of the Patient's Rights Condition of Participation for
hospitals published as a Final Rule in the Federal Register in December
2006, and codified at 42 CFR 482.13. While we anticipate that hospices
with their own inpatient facilities will be impacted by this rule, we
do not have the benefit of several key pieces of information. For
example, we do not have reliable data on the prevalence of restraint
and seclusion use, data on the volume of staff in inpatient hospices,
or data on the varying levels and qualifications of hospice staff who
may be involved in restraint and seclusion use. Factors such as size,
services rendered, staffing, and patient populations vary as well. We
are hesitant to make impact estimates in this final rule that may not
account for these and other unforeseen variations. Thus, we reserve the
right to provide estimates when feasible. Below we discuss the
anticipated effects on providers of the standards related to restraints
and seclusion.
(m) Standard: Restraint or seclusion. Standard 418.110(m) sets out
the patient's rights in the event he or she is restrained or secluded,
and limits when and by whom restraint or seclusion can be implemented.
We recognize that there will be some impact associated with performing
patient assessment and monitoring to ensure that seclusion and
restraint are only used when necessary and are implemented in a safe
and effective manner. However, patient assessment and monitoring are
standard components of patient care, and this requirement does not pose
a burden to a hospice.
Section 418.110(m)(6) requires that the medical director or
physician designee must be consulted as soon as possible if the
attending physician did not order the restraint or seclusion. Although
this may minimally increase burden to hospices, we believe it is a best
practice for patient safety.
We have added elements at Sec. 418.110(m)(14) that monitoring must
occur face-to-face by trained staff or by using both video and audio
equipment, when there is simultaneous use of restraint and seclusion.
We have added elements at Sec. 418.110(m)(15) regarding the
documentation that must be included in the patient's medical record
when the patient is restrained or secluded, including the 1-hour face-
to-face medical and behavioral evaluation if restraint or seclusion is
used to manage violent or self-destructive behavior, the patient's
behavior and intervention used, alternatives or other less restrictive
interventions attempted (as applicable), the patient's condition or
symptom(s) that warranted restraint or seclusion use, and the patient's
response to the use of the restraint or seclusion intervention,
including the need for continued use of restraint or seclusion. We do
not believe additional burdens are imposed by this requirement since it
is a routine and customary practice to document the circumstances
surrounding such an event for comprehensiveness of patient care.
In response to the December 19, 1997 proposed rule that we
published concerning the use of seclusion and restraint in hospitals,
the National Association of Psychiatric Health Systems (NAPHS) supplied
data from fifty members for the time and cost of complying with the CMS
requirements that a physician evaluate a patient face-to-face within 1
hour of the initiation of restraint or seclusion. The NAPHS stated
their respondents reported it took an estimated 30 minutes to 1 hour to
document all the specific elements required by CMS after a restraint or
seclusion episode. This included several elements unique to the rule
such as physician notification if the restraint was ordered by someone
other than the patient's attending physician.
We believe that the time associated with documenting seclusion or
restraint episode in a hospice is similar to that in a hospital. Thus,
our burden estimate is based on a median timeframe (that is, 45
minutes) that we believe it takes to complete the required
documentation in the patient's clinical record. However, since we are
unable to estimate the prevalence of restraint and seclusion, we can
not apply this estimate to assess the associated burden across
hospices.
(n) Standard: Restraint or seclusion staff training requirements.
Standard 418.110(n) identifies the training requirements for all staff
involved in the use of seclusion and restraint in the hospice inpatient
facility. While we have tried to minimize the burden which will be
placed on hospices in order to meet this requirement, we believe it is
important for the provision of safe and effective restraint or
seclusion use. We require that before staff apply restraints, implement
seclusion, perform associated monitoring and assessment of the
restrained or secluded patient, or provide care for a restrained or
secluded patient, the staff must be trained and able to demonstrate
competency in the performance of these actions. The staff training
requirements address the following broad areas: Training intervals,
training contents, trainer requirements, and trainer documentation.
To reduce burden and create a reasonable requirement while assuring
patient safety, we have mandated that only those staff who are involved
in the application of restraint or seclusion or performing associated
monitoring and assessment of, or providing care for restrained or
secluded patients have this training. While we expect physicians to be
trained in the proper use of restraint or seclusion, we do not expect
that they will be trained with the other hospice staff. Thus, we have
not included physicians in the burden associated with these
requirements. Instead, we require the remaining hospice staff who have
direct contact with patients must be trained in restraint or seclusion
use.
In this final rule, we have specified broad topics to be covered in
training, and have not required that staff be trained by an outside
organization. We believe that in-house training may be more economical
than sending staff off-site for instruction. However, hospices have the
option of sending either selected or all staff to outside training if
they believe that this is warranted.
Thus, we have based our burden estimate on having the actual number
of trainers attend the training from an outside organization one time.
We believe that most hospices would, in turn, have these trained
individuals function as program developers and trainers of the
appropriate hospice staff. We believe in most instances this
professional will be a registered nurse.
Train-the-trainer programs are the way many hospices provide staff
instruction. The four day instructor certification program given by the
Crisis Prevention Institute (CPI, INC.) costs $1,200 dollars in tuition
plus travel, lodging, and participant salary (HYPERLINK ``http://www.crisisprevention.com'' www.crisisprevention.com).
We estimate, on average, that roundtrip travel for each nurse will
cost approximately $400 to cover the need for either local or distant
travel, lodging for each nurse will costs approximately $120 per night
x 3 nights, and the meals and incidental expenses (M&IE) will be
approximately $50 per day depending upon the location within the
designated state. Thus, we anticipate the cost to train one nurse would
be $3,280. If all 906 hospices (estimate based on March 2006 Hospice
Facts & Statistics report from the Hospice Association of America that
31.54 percent of hospices have their own inpatient facilities) with
inpatient facilities were to send one
[[Page 32200]]
nurse to such training, the total cost for the 906 hospices would be
$2,971,680.
$1,200 for instructor certification program + $400 airfare + $360
for 3 days lodging + $200 for 4 days M&IE + $1120 for nurse salary
at $35 per hour x 8 hours per day x 4 days = $3,280 per nurse per
hospice inpatient facility.
$3,280 per nurse per hospice x 906 hospices = $2,971,680
We believe that hospices will add seclusion and restraint training
onto their existing in-service training programs. The train-the-trainer
program described above will provide hospices with the necessary
personnel and materials to implement a staff-wide seclusion and
restraint training program. We estimate that developing this staff-wide
training program will require 40 hours of the trainer's time on a one-
time basis for all affected hospices, at a cost of $1,400 per hospice
inpatient facility.
We require that each individual who will potentially be involved in
restraint and seclusion of a patient have training in the proper
techniques. According to the NAPHS, initial training in de-escalation
techniques, restraint and seclusion policies and procedures, and
restraint and seclusion techniques range from 7 to 16 hours of staff
and instructor time.
Using data from a March 2006 Hospice Association of America report,
there were 116,148 total hospice employees and volunteers in 2005. Of
these employees and volunteers, 32,412 employees and volunteers were
nurses and physicians. Thus the average hospice operating its own
inpatient facility has 11 nurse and physician employees and volunteers.
We realize that some hospices will have more or less employees and
volunteers to train. Based on one nurse trainer conducting an 8 hour
training course for 11 hospice inpatient employees and volunteers, we
estimate that this requirement will cost $3,360.
8 trainer hours at $35/hr = $280
88 trainee hours at $35/hr = $3080
$280 trainer cost + $3080 trainee costs = $3,360
We require that each individual will receive annual updates to the
training and that the annual training will also be documented. Again,
according to NAPHS, annual updates are about 4 hours of staff and
instructor time per each employee who has direct patient contact.
Again, an average size hospice has 11 employees who have direct patient
contact that must to be trained in de-escalation techniques. Therefore,
we estimate that it will cost $1,680 annually to update each person's
training.
4 trainer hours at $35/hr = $140
44 trainee hours at $35/hr = $1540
$140 trainer costs + $1540 trainee costs = $1,680
Additionally, we required recordkeeping for documenting in each
trained individual's personnel record that he or she has successfully
completed training. We estimate that it will take the trainer 5 minutes
per trainee to document each participant's completion of the training.
As described above, we estimate that 11 hospice employees and
volunteers will be trained.
5 minutes per trainee x 11 trainees = 55 minutes annually
55 minutes x $35/hr = $32 annually
55 minutes per hospice x 906 hospices = 830.5 hours industry wide
830.5 hours industry wide x $35/hr = $29,067.5 industry wide
Finally, we require that each hospice revise its training program
annually as needed. We estimate this task, completed by the trainer, to
take approximately 4 hours annually per hospice.
4 hours x $35/hr = $140 per hospice
$140 per hospice x 906 hospices = $126,840 industry wide
(o) Standard: Death reporting requirements. This requirement
applies to all deaths associated with the use of restraint or seclusion
throughout the hospice inpatient facility. A hospice must report to CMS
each death that occurs while a patient is in restraint or seclusion at
the hospice inpatient facility, each death that occurs within 24 hours
after the patient has been removed from restraint or seclusion, and the
hospice must report each death known to the hospice that occurs within
1 week after restraint or seclusion where it is reasonable to assume
that the use of restraint seclusion contributed directly or indirectly
to a patient's death.
Each death referenced in this section must be reported to CMS by
telephone no later than the close of business the next business day
following knowledge of the patient's death. We have no data from which
to base an estimate on the number of deaths in hospice that may be
related to the use of seclusion and restraint. However, based on a lack
of family complaints to State agencies or CMS we believe such deaths to
be a rare occurrence. Although our goal is to ensure the safe and
appropriate use of seclusion and restraint and reduce associated
deaths, we are aware that the actual number of reported deaths from
seclusion and restraint may increase due to these reporting
requirements.
Thus, we anticipate there will be burden associated with this
requirement due to the increased number of deaths that will be reported
by the hospice industry. Given the lack of historical data, we assume
the number of reports certainly should average less than one per
hospice inpatient facility per year. Thus, we believe the impact
associated with this provision (that is, making a telephone call and
filling in a written report) to be negligible.
Table 6.--Hospices That Provide Inpatient Care Directly Burden Assessment (One Time)
----------------------------------------------------------------------------------------------------------------
Total
Cost per
Standard Time per average Total time average of hospice Total cost
hospice (hours) hospice inpatient
facilities
----------------------------------------------------------------------------------------------------------------
4 day trainer training............. 32 hours............. 16,896 $3,280 906 $2,971,680
Staff training program development. 40 hours............. 21,120 1,400 906 1,268,400
Staff training...................... 96 hours............. 50,688 3,360 906 3,044.160
Staff training records............. 55 minutes........... 830.5 32 906 29,068
=========================
Totals 1st year................. 169 hours............ 89,535 $8,072 906 $7,313,308
----------------------------------------------------------------------------------------------------------------
[[Page 32201]]
Table 7.--Hospices That Provide Inpatient Care Directly Burden Assessment (Annual)
----------------------------------------------------------------------------------------------------------------
Total
Cost per
Standard Time per average Total time of hospice average Total cost
hospice (hours) inpatient hospice
facilities
----------------------------------------------------------------------------------------------------------------
Staff training update............... 48 hours............. 43,488 906 $1,680 $1,522,080
Staff training records.............. 55 minutes........... 830.5 906 32 29,068
=========================
Staff training program update....... 4 hours.............. 3,624 906 140 126,840
Totals annually................. 53 hours............. 47,943 906 1,852 1,677,988
----------------------------------------------------------------------------------------------------------------
Hospices That Provide Hospice Care to Residents of a SNF/NF or ICF/MR
(Sec. 418.112)
(c) Standard: Written agreement. This rule establishes the minimum
content of the written agreement that a hospice provider must have with
a SNF/NF or ICF/MR if the hospice is caring for a resident of the
facility. Establishing a contract with another provider to coordinate
patient care is standard practice and does not pose a burden to a
hospice that chooses to care for patients in these settings.
(d) Standard: Hospice plan of care. This rule also includes several
requirements for a patient's plan of care that are in addition to the
plan of care requirements in Sec. 418.56(b), (c), and (d). If a
hospice patient is a resident of a SNF/NF or ICF/MR, the hospice plan
of care for the patient must reflect the participation of the hospice,
the facility, the patient, and the family to the extent possible. In
addition, the hospice plan of care must identify which provider (the
hospice or the facility) is responsible for each activity identified in
the plan of care. Any changes in the hospice plan of care must be
discussed by the hospice with the patient or representative, and
facility representatives. The hospice must approve all changes to the
hospice plan of care before the changes are implemented.
(e) Standard: Coordination of services. In addition to the plan of
care requirements, we added a coordination of services standard. This
new standard requires a hospice to designate an IDG member to
coordinate a patient's care with facility representatives, and
communicate with facility representatives and other health care
providers. The standard also requires the hospice IDG to communicate
with all physicians involved in the care of a particular patient. These
communication and coordination requirements are essential to providing
safe, quality patient care.
Any additional effort by hospice personnel to meet these
requirements will, we believe, be offset by the reduced costs
associated with the provision of more effective and efficient patient
care. For example, by communicating and coordinating with a facility, a
hospice can avoid situations where duplicative or contradictory orders
are issued by the hospice physician and the facility physician. If
duplicative orders are avoided, the hospice may be able to eliminate
the duplicative service, thereby decreasing hospice expenditures while
maintaining quality patient care. If contradictory orders are avoided,
a hospice can avoid furnishing care that is rendered ineffective by the
opposing care furnished by the facility. This, too, would decrease
hospice expenditures, while at the same time improving the patient's
well being.
Furthermore, the standard requires a hospice to provide a facility
with specified information about the patient's care. With the exception
of the election and advanced directives forms, certification forms, and
physician orders, all of the specified information is routinely
provided to a patient's caregiver(s). Since the facility is the
caregiver, providing this information presents no burden to a hospice.
We estimate that providing the facility with the election and advanced
directives forms, certification forms, and physician orders for each
patient would cost $2.33 per patient, based on 10 minutes of an office
employee's time to fax the required documents to the facility.
According to a March 2006 report from the Hospice Association of
America (``Hospice Facts & Statistics''), 27.19 percent of hospice
patients nationwide resided in a SNF or other long term care facility.
Therefore, we estimate that hospices will provide forms to SNFs/NFs and
ICFs/MR for 236,336 hospice patients residing in those facilities. We
also estimate that the average hospice will provide care to 82 patients
residing in a SNF/NF or ICF/MR (236,336 patients nationwide / 2,872
hospices).
82 patients in a facility x 10 minutes per patient to provide forms
/ 60 minutes = 13.7 hours per hospice
13.7 hours x office employee at $14/hr = $192
10 minutes per patient x 236,336 patients nationwide / 60 minutes =
39,389 hours industry wide
39,389 hours x $14/hr = $551,446
$551,446/236,336 patients = $2.33 per patient
(f) Standard: Orientation and training of staff. Finally, this rule
requires a hospice to assure the orientation of SNF/NF and ICF/MR staff
caring for hospice patients. Staff orientation must address the
following topics: hospice philosophy; hospice policies regarding
patient comfort methods, pain control, and symptom management;
principles about death and dying; individual responses to death;
patient rights; appropriate forms; and record keeping requirements. As
many commenters noted, not every hospice will conduct the orientation
itself because several hospices may serve residents of a single
facility. Rather, many hospices will rely on the orientation already
provided by another hospice. We do not know exactly how many hospices
serve patients residing in a SNF/NF or ICF/MR, or how many of those
facilities are served by multiple hospices. Therefore, we cannot
estimate the number of hospices that will conduct orientation sessions
for SNF/NF and ICF/MR staff. We believe that any burden associated with
orienting SNF/NF and ICF/MR will be minimal because hospices already
orient patients and families/caregivers about many of the topics
covered in this standard (that is, hospice philosophy and principles
about death and dying). Since the SNF/NF or ICF/MR staff act as the
patient's care giver, orienting them would be very similar to orienting
the patient's family/caregiver.
[[Page 32202]]
Table 8.--Hospices That Provide Hospice Care to Residents of a SNF/NF or ICF/MR Burden Assessment
----------------------------------------------------------------------------------------------------------------
Time per
Time per average Total time Cost per Cost per
Standard patient hospice (hours) patient average Total cost
(minutes) (hours) hospice
----------------------------------------------------------------------------------------------------------------
Providing forms to facility....... 10 13.7 39,389 $2.33 $192 $551,446
-----------------------------------------------------------------------------
Totals........................ 10 13.7 39,389 2.33 192 551,446
----------------------------------------------------------------------------------------------------------------
Personnel Qualifications (Sec. 418.114)
(b) Standard: Personnel qualifications for certain disciplines and
(c) Standard: Personnel qualifications when no State licensing,
certification or registration requirements exist. The final rule
establishes personnel qualifications for a variety of positions within
a hospice. In particular, this rule establishes the personnel
qualifications for hospice social workers. A social worker in a hospice
must meet one of the following qualifications:
Have a Master of Social Work (MSW) degree from a school of
social work accredited by the Council on Social Work Education and one
year of experience in a health care setting;
Have a baccalaureate degree in social work (BSW) from a
school of social work accredited by the Council on Social Work
Education and one year of experience in a health care setting; or
Have a baccalaureate degree in psychology, sociology, or
other field related to social work and at least one year of social work
experience in a health care setting.
If a hospice chooses to employ a social worker with a baccalaureate
degree in social work, psychology, sociology, or other field related to
social work, the services of the baccalaureate social worker (BSW) must
be provided under the supervision of a social worker with an MSW from a
school of social work accredited by the Council on Social Work
Education and one year of experience in a health care setting. The MSW
supervisor role is that of an active advisor, consulting with the BSW
on assessing the needs of patients and families, developing and
updating the social work portion of the plan of care, and delivering
care to patients and families. This supervision may occur in person,
over the telephone, through electronic communication, or any
combination thereof.
Social workers with a baccalaureate degree from a school of social
work accredited by the Council on Social Work Education and who are
employed by the hospice before the effective date of this final rule
are exempted from the MSW supervision requirement. Therefore, if a
hospice currently employs a BSW, it is not required to hire an MSW to
supervise the BSW. If a hospice hires a new social worker with a
baccalaureate degree and one year of experience in a health care
setting, then the new baccalaureate social worker must be supervised by
an MSW who has one year of experience in a health care setting.
The impact associated with this social work qualification
requirement is the expense of employing an MSW to supervise a BSW. By
virtue of the personnel qualifications for social workers in hospice
that have been in effect since 1983, all hospices are already required
to have, at minimum, a social worker with a baccalaureate degree in
social work from a school of social work accredited by the Council on
Social Work Education. Therefore, all hospices should qualify for the
exemption for MSW supervision described above.
We are aware that many hospices already employ at least one MSW to
provide direct patient care. In fact, when tracking the number of
social workers serving hospice patients, the Hospice Association of
America only reports the number of MSWs (6,177 in 2005) working in the
hospice industry, rather than the number of BSWs, precisely because an
MSW is the standard level of care within hospice. Thus, we believe that
the number of hospices currently solely relying on BSWs is relatively
low. We do not know the precise number of hospices without an MSW. For
purposes of this estimate only, we assume that 33 percent of hospices
(944) rely solely on BSWs to provide social work services to patients.
Of the 944 hospices without an MSW, we estimate that 25 percent will
hire a social worker after the effective date of this rule (based on a
25% social worker turnover rate described in the ``Hospice Salary &
Benefits Report 2006-2007'' issued by the Hospital & Healthcare
Compensation Service and the ``2002 NHPCO National Data Set Summary
Report''). Therefore, an estimated 236 hospices a year would be
required to employ an MSW on a part-time basis to supervise the
services of a BSW.
Based on information from the ``Hospice Facts & Statistics 2006''
report, the ``Assuring the Sufficiency of Frontline Workforce: A
National Study of Licensed Social Workers'' report, and the ``Licensed
Social Workers in the United States, 2004'' report, we estimate that
the annual compensation for a full-time, supervisory, MSW working in
the hospice industry is $52,811 ($25/hr). Furthermore, we estimate that
a hospice would employ an MSW for 10 hours a week to supervise the care
and services provided by a BSW. As such, we estimate that an affected
hospice would spend $13,000 annually to employ a part-time supervisory
MSW to meet the requirements of this rule.
10 hours per week for MSW at $25/hour x 52 weeks = $13,000
$13,000 x 236 hospices = $3,068,000
10 hours per week x 52 weeks = 520 hours annually
520 hours x 236 hospices = 122,720 hours industry wide
(d) Standard: Criminal background checks. Additionally, this final
rule requires a background check for each employee providing direct
patient contact or accessing patient records. In 2006, 40 states
required criminal background checks for hospice employees. In these
states, approximately 92,920 hospice employees already received a
criminal background check, thus greatly reducing the overall potential
burden. We estimate that hospices that have not previously performed
background checks, accounting for approximately 23,228 hospice
employees, will each obtain 40 criminal background checks initially.
Each background check request form will take 6 minutes to prepare and
send, for a total of 4 hours per hospice the first year. For each year
thereafter, we estimate that hospices in states that do not require
background checks will complete background checks on approximately 10
new employees per year, for a total of 1 hour per affected hospice per
year, and 582 hours nationally per year.
116,148 employees in 2005 according to National Association for Home
Care 2005 Hospice Facts and Statistics/50 states = 2,323 average
number of employees per
[[Page 32203]]
state x 40 states already requiring background checks = 92,920
already required to have background checks
116,148 total employees - 92,920 already required to have background
checks = 23,228 employees not already required to have background
checks
116,148 employees/2,872 hospices in 2005 = 40 employees per average
hospice
40 employees x 6 minutes per check = 4 hours per hospice
23,228 employees x 6 minutes per check = 2,323 hours nationwide
2,872 hospices nationwide/50 states = 57.4 average number of
hospices per state x 10 states not currently requiring background
checks = 574 affected hospices.
574 affected hospice x 10 new employees requiring background checks
per year x 6 minutes per check/60 minutes = 96 hours
We researched a wide variety of agencies that perform criminal
background checks and determined that the average cost for an
individual background check is $17.00 plus $1 for 6 minutes of clerical
time per background check to process the paper work. We understand that
some agencies or states may charge more or less than this fee to
conduct a background check. In addition, some hospices may choose to
conduct more extensive background checks that may cost more.
We are not requiring that hospices conduct a specific type of
background check (that is, State or Federal) or obtain such a check
from a specific source (that is, State police or FBI). The flexibility
of the requirement will allow hospices to identify the most cost
efficient method of meeting the requirement.
$18 per check x 40 employees requiring checks = $720
$18 per check x 23,228 employees not already requiring checks =
$418,104
$18 per check x 10 new employees requiring checks = $180.00 per
hospice
$180 per hospice x 574 affected hospices = $103,320
Table 9.--Personnel Qualifications Burden Assessment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per average Total of Total cost per
Standard hospice Total industry time affected hospices average hospice Total industry cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
MSW supervisor..................... 520 hours............ 122,720 hours........ 236................. $13,000............. $3,068,000
Criminal background check.......... 1st year--4 hours-- 1st year--2,323 574................. 1st year--$720-- 1st year--$418,104--
annually 1 hour. hours--annually 96 annually $180. annually $103,320
hours.
--------------------------------------------------------------------------------------------------------------------
Total.......................... 1st year--524 hours-- 1st year--125,043 N/A................. 1st year--$13,720-- 1st Year--
Annually 521 hours. hours--Annually Annually $13,180. $3,486,104--Annually
122,816 hours. $3,171,320
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliance with Federal, State, and Local Laws and Regulations Related
to the Health and Ssafety of Patients (Sec. 418.116)
This final condition of participation requires that the hospice
operate and furnish services in compliance with applicable Federal,
State, and local laws and regulations related to the health and safety
of patients. We do not believe this will add any regulatory burden,
since this section of the final rule reflects current requirements and
contemporary standard practice in hospice.
Table 10.--Total Burden Assessment for All Requirements in the First Year CoP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total time per Total time per Total industry Total cost per Total cost per Total industry
patient average hospice time patient average hospice cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Patient rights.................. 5 minutes......... 48.25 hours....... 138,489 hours.... $3................ 2,012 4,649,379
QAPI............................ N/A............... 241 hours......... 692,152 hours.... N/A.............. 7,544 21,666,368
Hospice aide.................... N/A............... 5 minutes......... 239 hours........ N/A.............. 1.17 3,360
Drugs and DME................... 5 minutes......... 25.25 hours....... 72,524 hours..... 2.25............. 681.75 1,958,610
Inpatient care directly......... N/A............... 169 hours......... 89,535 hours..... N/A.............. 8,072 7,313,308
SNF/NF or ICF/MR................ 10 minutes........ 13.7 hours........ 39,389 hours..... 2.33............. 192 551,446
Personnel qualifications........ N/A............... 524 hours.......... 125,043 hours.... N/A.............. 13,720 3,486,104
-----------------------------------------------------------------------------------------------------------------------
Total....................... 20 minutes........ 1,021.3 hours..... 1,157,371 hours.. 7.58............. *32,222.92 40,754,007
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Includes cost of operating an inpatient facility and hiring a MSW supervisor. Most hospices will not incur these expenses. Therefore, this rule will
cost most hospices $11,151 in the first year.
We believe that the burden associated with this rule is reasonable
and necessary to ensure the health and safety of all hospice patients.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and budget.
2. Effects on other providers:
Effects on other providers: We do not expect this regulation to
affect any other provider.
List of Subjects in 42 CFR Part 418
Health Facilities, Hospice Care, Medicare, Incorporation by
reference, Reporting and record keeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services amends 42 CFR Chapter IV as set forth below:
[[Page 32204]]
PART 418--HOSPICE CARE
0
1. The authority citation for part 418 continues to read as follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
Subpart A--General Provision and Definitions
0
2. Section 418.2 is revised to read as follows:
Sec. 418.2 Scope of the part.
This part establishes requirements and the conditions of
participation that hospices must meet, and be in compliance with, in
order to participate in the Medicare program. Subpart A of this part
sets forth the statutory basis and scope and defines terms used in this
part. Subpart B of this part specifies the eligibility requirements and
the benefit periods. Subpart C of this part specifies the conditions of
participation that hospice providers must meet regarding patient and
family care. Subpart D of this part specifies the organizational
environment that hospice providers must meet as conditions of
participation. Subpart E is reserved for future use. Subpart F
specifies coinsurance amounts applicable to hospice care.
0
3. Section 418.3 is amended by:
0
a. Revising the definitions of ``Bereavement counseling,''
``Employee,'' ``Hospice,'' ``Physician,'' ``Representative,'' and
``Terminally ill''; and
0
b. Adding the definitions of ``Clinical note,'' ``Comprehensive
assessment,'' ``Dietary counseling,'' ``Hospice care,'' ``Initial
assessment,'' ``Licensed professional'' ``Multiple location,''
``Palliative care,'' ``Physician designee,'' ``Restraint,'' and
``Seclusion.''
The revisions and additions read as follows:
Sec. 418.3 Definitions.
For the purposes of this part--
* * * * *
Bereavement counseling means emotional, psychosocial, and spiritual
support and services provided before and after the death of the patient
to assist with issues related to grief, loss, and adjustment.
* * * * *
Clinical note means a notation of a contact with the patient and/or
the family that is written and dated by any person providing services
and that describes signs and symptoms, treatments and medications
administered, including the patient's reaction and/or response, and any
changes in physical, emotional, psychosocial or spiritual condition
during a given period of time.
Comprehensive assessment means a thorough evaluation of the
patient's physical, psychosocial, emotional and spiritual status
related to the terminal illness and related conditions. This includes a
thorough evaluation of the caregiver's and family's willingness and
capability to care for the patient.
Dietary counseling means education and interventions provided to
the patient and family regarding appropriate nutritional intake as the
patient's condition progresses. Dietary counseling is provided by
qualified individuals, which may include a registered nurse, dietitian
or nutritionist, when identified in the patient's plan of care.
Employee means a person who: (1) Works for the hospice and for whom
the hospice is required to issue a W-2 form on his or her behalf; (2)
if the hospice is a subdivision of an agency or organization, an
employee of the agency or organization who is assigned to the hospice;
or (3) is a volunteer under the jurisdiction of the hospice.
Hospice means a public agency or private organization or
subdivision of either of these that is primarily engaged in providing
hospice care as defined in this section.
Hospice care means a comprehensive set of services described in
1861(dd)(1) of the Act, identified and coordinated by an
interdisciplinary group to provide for the physical, psychosocial,
spiritual, and emotional needs of a terminally ill patient and/or
family members, as delineated in a specific patient plan of care.
Initial assessment means an evaluation of the patient's physical,
psychosocial and emotional status related to the terminal illness and
related conditions to determine the patient's immediate care and
support needs.
Licensed professional means a person licensed to provide patient
care services by the State in which services are delivered.
Multiple location means a Medicare-approved location from which the
hospice provides the same full range of hospice care and services that
is required of the hospice issued the certification number. A multiple
location must meet all of the conditions of participation applicable to
hospices.
Palliative care means patient and family-centered care that
optimizes quality of life by anticipating, preventing, and treating
suffering. Palliative care throughout the continuum of illness involves
addressing physical, intellectual, emotional, social, and spiritual
needs and to facilitate patient autonomy, access to information, and
choice.
Physician means an individual who meets the qualifications and
conditions as defined in section 1861(r) of the Act and implemented at
Sec. 410.20 of this chapter.
Physician designee means a doctor of medicine or osteopathy
designated by the hospice who assumes the same responsibilities and
obligations as the medical director when the medical director is not
available.
Representative means an individual who has the authority under
State law (whether by statute or pursuant to an appointment by the
courts of the State) to authorize or terminate medical care or to elect
or revoke the election of hospice care on behalf of a terminally ill
patient who is mentally or physically incapacitated. This may include a
legal guardian.
Restraint means--(1) Any manual method, physical or mechanical
device, material, or equipment that immobilizes or reduces the ability
of a patient to move his or her arms, legs, body, or head freely, not
including devices, such as orthopedically prescribed devices, surgical
dressings or bandages, protective helmets, or other methods that
involve the physical holding of a patient for the purpose of conducting
routine physical examinations or tests, or to protect the patient from
falling out of bed, or to permit the patient to participate in
activities without the risk of physical harm (this does not include a
physical escort); or
(2) A drug or medication when it is used as a restriction to manage
the patient's behavior or restrict the patient's freedom of movement
and is not a standard treatment or dosage for the patient's condition.
Seclusion means the involuntary confinement of a patient alone in a
room or an area from which the patient is physically prevented from
leaving.
Terminally ill means that the individual has a medical prognosis
that his or her life expectancy is 6 months or less if the illness runs
its normal course.
0
4. Subparts C and D are revised and Subpart E is removed and reserved
to read as follows:
Subpart C--Conditions of Participation: Patient Care
Sec.
418.52 Condition of participation: Patient's rights.
418.54 Condition of participation: Initial and comprehensive
assessment of the patient.
[[Page 32205]]
418.56 Condition of participation: Interdisciplinary group, care
planning, and coordination of services.
418.58 Condition of participation: Quality assessment and
performance improvement.
418.60 Condition of participation: Infection control.
418.62 Condition of participation: Licensed professional services.
CORE SERVICES
418.64 Condition of participation: Core services.
418.66 Condition of participation: Nursing services waiver of
requirement that substantially all nursing services be routinely
provided directly by a hospice.
NON-CORE SERVICES
418.70 Condition of participation: Furnishing of non-core services.
418.72 Condition of participation: Physical therapy, occupational
therapy, and speech-language pathology.
418.74 Waiver of requirement--Physical therapy, occupational
therapy, speech-language pathology and dietary counseling.
418.76 Condition of participation: Hospice aide and homemaker
services.
418.78 Condition of participation: Volunteers.
Subpart D--Conditions of Participation: Organizational Environment
418.100 Condition of participation: Organization and administration
of services.
418.102 Condition of participation: Medical director.
418.104 Condition of participation: Clinical records.
418.106 Condition of participation: Drugs and biologicals, medical
supplies, and durable medical equipment.
418.108 Condition of participation: Short-term inpatient care.
418.110 Condition of participation: Hospices that provide inpatient
care directly.
418.112 Condition of participation: Hospices that provide hospice
care to residents of a SNF/NF or ICF/MR.
418.114 Condition of participation: Personnel qualifications.
418.116 Condition of participation: Compliance with Federal, State,
and local laws and regulations related to the health and safety of
patients.
Subpart E--[Removed and Reserved]
Subpart C--Conditions of Participation: Patient Care
Sec. 418.52 Condition of participation: Patient's rights.
The patient has the right to be informed of his or her rights, and
the hospice must protect and promote the exercise of these rights.
(a) Standard: Notice of rights and responsibilities.
(1) During the initial assessment visit in advance of furnishing
care the hospice must provide the patient or representative with verbal
(meaning spoken) and written notice of the patient's rights and
responsibilities in a language and manner that the patient understands.
(2) The hospice must comply with the requirements of subpart I of
part 489 of this chapter regarding advance directives. The hospice must
inform and distribute written information to the patient concerning its
policies on advance directives, including a description of applicable
State law.
(3) The hospice must obtain the patient's or representative's
signature confirming that he or she has received a copy of the notice
of rights and responsibilities.
(b) Standard: Exercise of rights and respect for property and
person. (1) The patient has the right:
(i) To exercise his or her rights as a patient of the hospice;
(ii) To have his or her property and person treated with respect;
(iii) To voice grievances regarding treatment or care that is (or
fails to be) furnished and the lack of respect for property by anyone
who is furnishing services on behalf of the hospice; and
(iv) To not be subjected to discrimination or reprisal for
exercising his or her rights.
(2) If a patient has been adjudged incompetent under state law by a
court of proper jurisdiction, the rights of the patient are exercised
by the person appointed pursuant to state law to act on the patient's
behalf.
(3) If a state court has not adjudged a patient incompetent, any
legal representative designated by the patient in accordance with state
law may exercise the patient's rights to the extent allowed by state
law.
(4) The hospice must:
(i) Ensure that all alleged violations involving mistreatment,
neglect, or verbal, mental, sexual, and physical abuse, including
injuries of unknown source, and misappropriation of patient property by
anyone furnishing services on behalf of the hospice, are reported
immediately by hospice employees and contracted staff to the hospice
administrator;
(ii) Immediately investigate all alleged violations involving
anyone furnishing services on behalf of the hospice and immediately
take action to prevent further potential violations while the alleged
violation is being verified. Investigations and/or documentation of all
alleged violations must be conducted in accordance with established
procedures;
(iii) Take appropriate corrective action in accordance with state
law if the alleged violation is verified by the hospice administration
or an outside body having jurisdiction, such as the State survey agency
or local law enforcement agency; and
(iv) Ensure that verified violations are reported to State and
local bodies having jurisdiction (including to the State survey and
certification agency) within 5 working days of becoming aware of the
violation.
(c) Standard: Rights of the patient. The patient has a right to the
following:
(1) Receive effective pain management and symptom control from the
hospice for conditions related to the terminal illness;
(2) Be involved in developing his or her hospice plan of care;
(3) Refuse care or treatment;
(4) Choose his or her attending physician;
(5) Have a confidential clinical record. Access to or release of
patient information and clinical records is permitted in accordance
with 45 CFR parts 160 and 164.
(6) Be free from mistreatment, neglect, or verbal, mental, sexual,
and physical abuse, including injuries of unknown source, and
misappropriation of patient property;
(7) Receive information about the services covered under the
hospice benefit;
(8) Receive information about the scope of services that the
hospice will provide and specific limitations on those services.
Sec. 418.54 Condition of participation: Initial and comprehensive
assessment of the patient.
The hospice must conduct and document in writing a patient-specific
comprehensive assessment that identifies the patient's need for hospice
care and services, and the patient's need for physical, psychosocial,
emotional, and spiritual care. This assessment includes all areas of
hospice care related to the palliation and management of the terminal
illness and related conditions.
(a) Standard: Initial assessment. The hospice registered nurse must
complete an initial assessment within 48 hours after the election of
hospice care in accordance with Sec. 418.24 is complete (unless the
physician, patient, or representative requests that the initial
assessment be completed in less than 48 hours.)
(b) Standard: Timeframe for completion of the comprehensive
assessment. The hospice interdisciplinary group, in consultation with
the individual's attending physician (if any), must complete the
comprehensive assessment no later than
[[Page 32206]]
5 calendar days after the election of hospice care in accordance with
Sec. 418.24.
(c) Standard: Content of the comprehensive assessment.
The comprehensive assessment must identify the physical,
psychosocial, emotional, and spiritual needs related to the terminal
illness that must be addressed in order to promote the hospice
patient's well-being, comfort, and dignity throughout the dying
process. The comprehensive assessment must take into consideration the
following factors:
(1) The nature and condition causing admission (including the
presence or lack of objective data and subjective complaints).
(2) Complications and risk factors that affect care planning.
(3) Functional status, including the patient's ability to
understand and participate in his or her own care.
(4) Imminence of death.
(5) Severity of symptoms.
(6) Drug profile. A review of all of the patient's prescription and
over-the-counter drugs, herbal remedies and other alternative
treatments that could affect drug therapy. This includes, but is not
limited to, identification of the following:
(i) Effectiveness of drug therapy.
(ii) Drug side effects.
(iii) Actual or potential drug interactions.
(iv) Duplicate drug therapy.
(v) Drug therapy currently associated with laboratory monitoring.
(7) Bereavement. An initial bereavement assessment of the needs of
the patient's family and other individuals focusing on the social,
spiritual, and cultural factors that may impact their ability to cope
with the patient's death. Information gathered from the initial
bereavement assessment must be incorporated into the plan of care and
considered in the bereavement plan of care.
(8) The need for referrals and further evaluation by appropriate
health professionals.
(d) Standard: Update of the comprehensive assessment.
The update of the comprehensive assessment must be accomplished by
the hospice interdisciplinary group (in collaboration with the
individual's attending physician, if any) and must consider changes
that have taken place since the initial assessment. It must include
information on the patient's progress toward desired outcomes, as well
as a reassessment of the patient's response to care. The assessment
update must be accomplished as frequently as the condition of the
patient requires, but no less frequently than every 15 days.
(e) Standard: Patient outcome measures. (1) The comprehensive
assessment must include data elements that allow for measurement of
outcomes. The hospice must measure and document data in the same way
for all patients. The data elements must take into consideration
aspects of care related to hospice and palliation.
(2) The data elements must be an integral part of the comprehensive
assessment and must be documented in a systematic and retrievable way
for each patient. The data elements for each patient must be used in
individual patient care planning and in the coordination of services,
and must be used in the aggregate for the hospice's quality assessment
and performance improvement program.
Sec. 418.56 Condition of participation: Interdisciplinary group, care
planning, and coordination of services.
The hospice must designate an interdisciplinary group or groups as
specified in paragraph (a) of this section which, in consultation with
the patient's attending physician, must prepare a written plan of care
for each patient. The plan of care must specify the hospice care and
services necessary to meet the patient and family-specific needs
identified in the comprehensive assessment as such needs relate to the
terminal illness and related conditions.
(a) Standard: Approach to service delivery. (1) The hospice must
designate an interdisciplinary group or groups composed of individuals
who work together to meet the physical, medical, psychosocial,
emotional, and spiritual needs of the hospice patients and families
facing terminal illness and bereavement. Interdisciplinary group
members must provide the care and services offered by the hospice, and
the group, in its entirety, must supervise the care and services. The
hospice must designate a registered nurse that is a member of the
interdisciplinary group to provide coordination of care and to ensure
continuous assessment of each patient's and family's needs and
implementation of the interdisciplinary plan of care. The
interdisciplinary group must include, but is not limited to,
individuals who are qualified and competent to practice in the
following professional roles:
(i) A doctor of medicine or osteopathy (who is an employee or under
contract with the hospice).
(ii) A registered nurse.
(iii) A social worker.
(iv) A pastoral or other counselor.
(2) If the hospice has more than one interdisciplinary group, it
must identify a specifically designated interdisciplinary group to
establish policies governing the day-to-day provision of hospice care
and services.
(b) Standard: Plan of care. All hospice care and services furnished
to patients and their families must follow an individualized written
plan of care established by the hospice interdisciplinary group in
collaboration with the attending physician (if any), the patient or
representative, and the primary caregiver in accordance with the
patient's needs if any of them so desire. The hospice must ensure that
each patient and the primary care giver(s) receive education and
training provided by the hospice as appropriate to their
responsibilities for the care and services identified in the plan of
care.
(c) Standard: Content of the plan of care. The hospice must develop
an individualized written plan of care for each patient. The plan of
care must reflect patient and family goals and interventions based on
the problems identified in the initial, comprehensive, and updated
comprehensive assessments. The plan of care must include all services
necessary for the palliation and management of the terminal illness and
related conditions, including the following:
(1) Interventions to manage pain and symptoms.
(2) A detailed statement of the scope and frequency of services
necessary to meet the specific patient and family needs.
(3) Measurable outcomes anticipated from implementing and
coordinating the plan of care.
(4) Drugs and treatment necessary to meet the needs of the patient.
(5) Medical supplies and appliances necessary to meet the needs of
the patient.
(6) The interdisciplinary group's documentation of the patient's or
representative's level of understanding, involvement, and agreement
with the plan of care, in accordance with the hospice's own policies,
in the clinical record.
(d) Standard: Review of the plan of care. The hospice
interdisciplinary group (in collaboration with the individual's
attending physician, if any) must review, revise and document the
individualized plan as frequently as the patient's condition requires,
but no less frequently than every 15 calendar days. A revised plan of
care must include information from the patient's updated comprehensive
assessment and must note the patient's progress toward outcomes and
goals specified in the plan of care.
(e) Standard: Coordination of services. The hospice must develop
and maintain
[[Page 32207]]
a system of communication and integration, in accordance with the
hospice's own policies and procedures, to--
(1) Ensure that the interdisciplinary group maintains
responsibility for directing, coordinating, and supervising the care
and services provided.
(2) Ensure that the care and services are provided in accordance
with the plan of care.
(3) Ensure that the care and services provided are based on all
assessments of the patient and family needs.
(4) Provide for and ensure the ongoing sharing of information
between all disciplines providing care and services in all settings,
whether the care and services are provided directly or under
arrangement.
(5) Provide for an ongoing sharing of information with other non-
hospice healthcare providers furnishing services unrelated to the
terminal illness and related conditions.
Sec. 418.58 Condition of participation: Quality assessment and
performance improvement.
The hospice must develop, implement, and maintain an effective,
ongoing, hospice-wide data-driven quality assessment and performance
improvement program. The hospice's governing body must ensure that the
program: Reflects the complexity of its organization and services;
involves all hospice services (including those services furnished under
contract or arrangement); focuses on indicators related to improved
palliative outcomes; and takes actions to demonstrate improvement in
hospice performance. The hospice must maintain documentary evidence of
its quality assessment and performance improvement program and be able
to demonstrate its operation to CMS.
(a) Standard: Program scope. (1) The program must at least be
capable of showing measurable improvement in indicators related to
improved palliative outcomes and hospice services.
(2) The hospice must measure, analyze, and track quality
indicators, including adverse patient events, and other aspects of
performance that enable the hospice to assess processes of care,
hospice services, and operations.
(b) Standard: Program data. (1) The program must use quality
indicator data, including patient care, and other relevant data, in the
design of its program.
(2) The hospice must use the data collected to do the following:
(i) Monitor the effectiveness and safety of services and quality of
care.
(ii) Identify opportunities and priorities for improvement.
(3) The frequency and detail of the data collection must be
approved by the hospice's governing body.
(c) Standard: Program activities. (1) The hospice's performance
improvement activities must:
(i) Focus on high risk, high volume, or problem-prone areas.
(ii) Consider incidence, prevalence, and severity of problems in
those areas.
(iii) Affect palliative outcomes, patient safety, and quality of
care.
(2) Performance improvement activities must track adverse patient
events, analyze their causes, and implement preventive actions and
mechanisms that include feedback and learning throughout the hospice.
(3) The hospice must take actions aimed at performance improvement
and, after implementing those actions, the hospice must measure its
success and track performance to ensure that improvements are
sustained.
(d) Standard: Performance improvement projects. Beginning February
2, 2009 hospices must develop, implement, and evaluate performance
improvement projects.
(1) The number and scope of distinct performance improvement
projects conducted annually, based on the needs of the hospice's
population and internal organizational needs, must reflect the scope,
complexity, and past performance of the hospice's services and
operations.
(2) The hospice must document what performance improvement projects
are being conducted, the reasons for conducting these projects, and the
measurable progress achieved on these projects.
(e) Standard: Executive responsibilities. The hospice's governing
body is responsible for ensuring the following:
(1) That an ongoing program for quality improvement and patient
safety is defined, implemented, and maintained, and is evaluated
annually.
(2) That the hospice-wide quality assessment and performance
improvement efforts address priorities for improved quality of care and
patient safety, and that all improvement actions are evaluated for
effectiveness.
(3) That one or more individual(s) who are responsible for
operating the quality assessment and performance improvement program
are designated.
Sec. 418.60 Condition of participation: Infection control.
The hospice must maintain and document an effective infection
control program that protects patients, families, visitors, and hospice
personnel by preventing and controlling infections and communicable
diseases.
(a) Standard: Prevention. The hospice must follow accepted
standards of practice to prevent the transmission of infections and
communicable diseases, including the use of standard precautions.
(b) Standard: Control. The hospice must maintain a coordinated
agency-wide program for the surveillance, identification, prevention,
control, and investigation of infectious and communicable diseases
that--
(1) Is an integral part of the hospice's quality assessment and
performance improvement program; and
(2) Includes the following:
(i) A method of identifying infectious and communicable disease
problems; and
(ii) A plan for implementing the appropriate actions that are
expected to result in improvement and disease prevention.
(c) Standard: Education. The hospice must provide infection control
education to employees, contracted providers, patients, and family
members and other caregivers.
Sec. 418.62 Condition of participation: Licensed professional
services.
(a) Licensed professional services provided directly or under
arrangement must be authorized, delivered, and supervised only by
health care professionals who meet the appropriate qualifications
specified under Sec. 418.114 and who practice under the hospice's
policies and procedures.
(b) Licensed professionals must actively participate in the
coordination of all aspects of the patient's hospice care, in
accordance with current professional standards and practice, including
participating in ongoing interdisciplinary comprehensive assessments,
developing and evaluating the plan of care, and contributing to patient
and family counseling and education; and
(c) Licensed professionals must participate in the hospice's
quality assessment and performance improvement program and hospice
sponsored in-service training.
Core Services
Sec. 418.64 Condition of participation: Core services.
A hospice must routinely provide substantially all core services
directly by hospice employees. These services must be provided in a
manner consistent with acceptable standards of practice. These services
include nursing services, medical social services, and counseling. The
hospice may contract for physician services as specified in paragraph
(a) of this section. A hospice
[[Page 32208]]
may use contracted staff, if necessary, to supplement hospice employees
in order to meet the needs of patients under extraordinary or other
non-routine circumstances. A hospice may also enter into a written
arrangement with another Medicare certified hospice program for the
provision of core services to supplement hospice employee/staff to meet
the needs of patients. Circumstances under which a hospice may enter
into a written arrangement for the provision of core services include:
Unanticipated periods of high patient loads, staffing shortages due to
illness or other short-term temporary situations that interrupt patient
care; and temporary travel of a patient outside of the hospice's
service area.
(a) Standard: Physician services. The hospice medical director,
physician employees, and contracted physician(s) of the hospice, in
conjunction with the patient's attending physician, are responsible for
the palliation and management of the terminal illness and conditions
related to the terminal illness.
(1) All physician employees and those under contract, must function
under the supervision of the hospice medical director.
(2) All physician employees and those under contract shall meet
this requirement by either providing the services directly or through
coordinating patient care with the attending physician.
(3) If the attending physician is unavailable, the medical
director, contracted physician, and/or hospice physician employee is
responsible for meeting the medical needs of the patient.
(b) Standard: Nursing services. (1) The hospice must provide
nursing care and services by or under the supervision of a registered
nurse. Nursing services must ensure that the nursing needs of the
patient are met as identified in the patient's initial assessment,
comprehensive assessment, and updated assessments.
(2) If State law permits registered nurses to see, treat, and write
orders for patients, then registered nurses may provide services to
beneficiaries receiving hospice care.
(3) Highly specialized nursing services that are provided so
infrequently that the provision of such services by direct hospice
employees would be impracticable and prohibitively expensive, may be
provided under contract.
(c) Standard: Medical social services. Medical social services must
be provided by a qualified social worker, under the direction of a
physician. Social work services must be based on the patient's
psychosocial assessment and the patient's and family's needs and
acceptance of these services.
(d) Standard: Counseling services. Counseling services must be
available to the patient and family to assist the patient and family in
minimizing the stress and problems that arise from the terminal
illness, related conditions, and the dying process. Counseling services
must include, but are not limited to, the following:
(1) Bereavement counseling. The hospice must:
(i) Have an organized program for the provision of bereavement
services furnished under the supervision of a qualified professional
with experience or education in grief or loss counseling.
(ii) Make bereavement services available to the family and other
individuals in the bereavement plan of care up to 1 year following the
death of the patient. Bereavement counseling also extends to residents
of a SNF/NF or ICF/MR when appropriate and identified in the
bereavement plan of care.
(iii) Ensure that bereavement services reflect the needs of the
bereaved.
(iv) Develop a bereavement plan of care that notes the kind of
bereavement services to be offered and the frequency of service
delivery. A special coverage provision for bereavement counseling is
specified in Sec. 418.204(c).
(2) Dietary counseling. Dietary counseling, when identified in the
plan of care, must be performed by a qualified individual, which
include dietitians as well as nurses and other individuals who are able
to address and assure that the dietary needs of the patient are met.
(3) Spiritual counseling. The hospice must:
(i) Provide an assessment of the patient's and family's spiritual
needs.
(ii) Provide spiritual counseling to meet these needs in accordance
with the patient's and family's acceptance of this service, and in a
manner consistent with patient and family beliefs and desires.
(iii) Make all reasonable efforts to facilitate visits by local
clergy, pastoral counselors, or other individuals who can support the
patient's spiritual needs to the best of its ability.
(iv) Advise the patient and family of this service.
Sec. 418.66 Condition of participation: Nursing services--Waiver of
requirement that substantially all nursing services be routinely
provided directly by a hospice.
(a) CMS may waive the requirement in Sec. 418.64(b) that a hospice
provide nursing services directly, if the hospice is located in a non-
urbanized area. The location of a hospice that operates in several
areas is considered to be the location of its central office. The
hospice must provide evidence to CMS that it has made a good faith
effort to hire a sufficient number of nurses to provide services. CMS
may waive the requirement that nursing services be furnished by
employees based on the following criteria:
(1) The location of the hospice's central office is in a non-
urbanized area as determined by the Bureau of the Census.
(2) There is evidence that a hospice was operational on or before
January 1, 1983 including the following:
(i) Proof that the organization was established to provide hospice
services on or before January 1, 1983.
(ii) Evidence that hospice-type services were furnished to patients
on or before January 1, 1983.
(iii) Evidence that hospice care was a discrete activity rather
than an aspect of another type of provider's patient care program on or
before January 1, 1983.
(3) By virtue of the following evidence that a hospice made a good
faith effort to hire nurses:
(i) Copies of advertisements in local newspapers that demonstrate
recruitment efforts.
(ii) Job descriptions for nurse employees.
(iii) Evidence that salary and benefits are competitive for the
area.
(iv) Evidence of any other recruiting activities (for example,
recruiting efforts at health fairs and contacts with nurses at other
providers in the area).
(b) Any waiver request is deemed to be granted unless it is denied
within 60 days after it is received.
(c) Waivers will remain effective for 1 year at a time from the
date of the request.
(d) If a hospice wishes to receive a 1-year extension, it must
submit a request to CMS before the expiration of the waiver period, and
certify that the conditions under which it originally requested the
initial waiver have not changed since the initial waiver was granted.
Non-Core Services
Sec. 418.70 Condition of participation: Furnishing of non-core
services.
A hospice must ensure that the services described in Sec. 418.72
through Sec. 418.78 are provided directly by the hospice or under
arrangements made by the hospice as specified in Sec. 418.100. These
services must be provided in a manner consistent with current standards
of practice.
[[Page 32209]]
Sec. 418.72 Condition of participation: Physical therapy,
occupational therapy, and speech-language pathology.
Physical therapy services, occupational therapy services, and
speech-language pathology services must be available, and when
provided, offered in a manner consistent with accepted standards of
practice.
Sec. 418.74 Waiver of requirement--Physical therapy, occupational
therapy, speech-language pathology, and dietary counseling.
(a) A hospice located in a non-urbanized area may submit a written
request for a waiver of the requirement for providing physical therapy,
occupational therapy, speech-language pathology, and dietary counseling
services. The hospice may seek a waiver of the requirement that it make
physical therapy, occupational therapy, speech-language pathology, and
dietary counseling services (as needed) available on a 24-hour basis.
The hospice may also seek a waiver of the requirement that it provide
dietary counseling directly. The hospice must provide evidence that it
has made a good faith effort to meet the requirements for these
services before it seeks a waiver. CMS may approve a waiver application
on the basis of the following criteria:
(1) The hospice is located in a non-urbanized area as determined by
the Bureau of the Census.
(2) The hospice provides evidence that it had made a good faith
effort to make available physical therapy, occupational therapy,
speech-language pathology, and dietary counseling services on a 24-hour
basis and/or to hire a dietary counselor to furnish services directly.
This evidence must include the following:
(i) Copies of advertisements in local newspapers that demonstrate
recruitment efforts.
(ii) Physical therapy, occupational therapy, speech-language
pathology, and dietary counselor job descriptions.
(iii) Evidence that salary and benefits are competitive for the
area.
(iv) Evidence of any other recruiting activities (for example,
recruiting efforts at health fairs and contact discussions with
physical therapy, occupational therapy, speech-language pathology, and
dietary counseling service providers in the area).
(b) Any waiver request is deemed to be granted unless it is denied
within 60 days after it is received.
(c) An initial waiver will remain effective for 1 year at a time
from the date of the request.
(d) If a hospice wishes to receive a 1-year extension, it must
submit a request to CMS before the expiration of the waiver period and
certify that conditions under which it originally requested the waiver
have not changed since the initial waiver was granted.
Sec. 418.76 Condition of participation: Hospice aide and homemaker
services.
All hospice aide services must be provided by individuals who meet
the personnel requirements specified in paragraph (a) of this section.
Homemaker services must be provided by individuals who meet the
personnel requirements specified in paragraph (j) of this section.
(a) Standard: Hospice aide qualifications. (1) A qualified hospice
aide is a person who has successfully completed one of the following:
(i) A training program and competency evaluation as specified in
paragraphs (b) and (c) of this section respectively.
(ii) A competency evaluation program that meets the requirements of
paragraph (c) of this section.
(iii) A nurse aide training and competency evaluation program
approved by the State as meeting the requirements of Sec. 483.151
through Sec. 483.154 of this chapter, and is currently listed in good
standing on the State nurse aide registry.
(iv) A State licensure program that meets the requirements of
paragraphs (b) and (c) of this section.
(2) A hospice aide is not considered to have completed a program,
as specified in paragraph (a)(1) of this section, if, since the
individual's most recent completion of the program(s), there has been a
continuous period of 24 consecutive months during which none of the
services furnished by the individual as described in Sec. 409.40 of
this chapter were for compensation. If there has been a 24-month lapse
in furnishing services, the individual must complete another program,
as specified in paragraph (a)(1) of this section, before providing
services.
(b) Standard: Content and duration of hospice aide classroom and
supervised practical training. (1) Hospice aide training must include
classroom and supervised practical training in a practicum laboratory
or other setting in which the trainee demonstrates knowledge while
performing tasks on an individual under the direct supervision of a
registered nurse, or a licensed practical nurse, who is under the
supervision of a registered nurse. Classroom and supervised practical
training combined must total at least 75 hours.
(2) A minimum of 16 hours of classroom training must precede a
minimum of l6 hours of supervised practical training as part of the 75
hours.
(3) A hospice aide training program must address each of the
following subject areas:
(i) Communication skills, including the ability to read, write, and
verbally report clinical information to patients, care givers, and
other hospice staff.
(ii) Observation, reporting, and documentation of patient status
and the care or service furnished.
(iii) Reading and recording temperature, pulse, and respiration.
(iv) Basic infection control procedures.
(v) Basic elements of body functioning and changes in body function
that must be reported to an aide's supervisor.
(vi) Maintenance of a clean, safe, and healthy environment.
(vii) Recognizing emergencies and the knowledge of emergency
procedures and their application.
(viii) The physical, emotional, and developmental needs of and ways
to work with the populations served by the hospice, including the need
for respect for the patient, his or her privacy, and his or her
property.
(ix) Appropriate and safe techniques in performing personal hygiene
and grooming tasks, including items on the following basic checklist:
(A) Bed bath.
(B) Sponge, tub, and shower bath.
(C) Hair shampoo (sink, tub, and bed).
(D) Nail and skin care.
(E) Oral hygiene.
(F) Toileting and elimination.
(x) Safe transfer techniques and ambulation.
(xi) Normal range of motion and positioning.
(xii) Adequate nutrition and fluid intake.
(xiii) Any other task that the hospice may choose to have an aide
perform. The hospice is responsible for training hospice aides, as
needed, for skills not covered in the basic checklist, as described in
paragraph (b)(3)(ix) of this section.
(4) The hospice must maintain documentation that demonstrates that
the requirements of this standard are met.
(c) Standard: Competency evaluation. An individual may furnish
hospice aide services on behalf of a hospice only after that individual
has successfully completed a competency evaluation program as described
in this section.
(1) The competency evaluation must address each of the subjects
listed in paragraph (b)(3) of this section. Subject areas specified
under paragraphs (b)(3)(i), (b)(3)(iii), (b)(3)(ix), (b)(3)(x) and
(b)(3)(xi) of this section must be
[[Page 32210]]
evaluated by observing an aide's performance of the task with a
patient. The remaining subject areas may be evaluated through written
examination, oral examination, or after observation of a hospice aide
with a patient.
(2) A hospice aide competency evaluation program may be offered by
any organization, except as described in paragraph (f) of this section.
(3) The competency evaluation must be performed by a registered
nurse in consultation with other skilled professionals, as appropriate.
(4) A hospice aide is not considered competent in any task for
which he or she is evaluated as unsatisfactory. An aide must not
perform that task without direct supervision by a registered nurse
until after he or she has received training in the task for which he or
she was evaluated as ``unsatisfactory,'' and successfully completes a
subsequent evaluation. A hospice aide is not considered to have
successfully completed a competency evaluation if the aide has an
``unsatisfactory'' rating in more than one of the required areas.
(5) The hospice must maintain documentation that demonstrates the
requirements of this standard are being met.
(d) Standard: In-service training. A hospice aide must receive at
least 12 hours of in-service training during each 12-month period. In-
service training may occur while an aide is furnishing care to a
patient.
(1) In-service training may be offered by any organization, and
must be supervised by a registered nurse.
(2) The hospice must maintain documentation that demonstrates the
requirements of this standard are met.
(e) Standard: Qualifications for instructors conducting classroom
and supervised practical training. Classroom and supervised practical
training must be performed by a registered nurse who possesses a
minimum of 2 years nursing experience, at least 1 year of which must be
in home care, or by other individuals under the general supervision of
a registered nurse.
(f) Standard: Eligible competency evaluation organizations. A
hospice aide competency evaluation program as specified in paragraph
(c) of this section may be offered by any organization except by a home
health agency that, within the previous 2 years:
(1) Had been of compliance with the requirements of Sec. 484.36(a)
and (b) of this chapter.
(2) Permitted an individual that does not meet the definition of a
``qualified home health aide'' as specified in Sec. 484.36(a) of this
chapter to furnish home health aide services (with the exception of
licensed health professionals and volunteers).
(3) Had been subjected to an extended (or partial extended) survey
as a result of having been found to have furnished substandard care (or
for other reasons at the discretion of CMS or the State).
(4) Had been assessed a civil monetary penalty of $5,000 or more as
an intermediate sanction.
(5) Had been found by CMS to have compliance deficiencies that
endangered the health and safety of the home health agency's patients
and had temporary management appointed to oversee the management of the
home health agency.
(6) Had all or part of its Medicare payments suspended.
(7) Had been found by CMS or the State under any Federal or State
law to have:
(i) Had its participation in the Medicare program terminated.
(ii) Been assessed a penalty of $5,000 or more for deficiencies in
Federal or State standards for home health agencies.
(iii) Been subjected to a suspension of Medicare payments to which
it otherwise would have been entitled.
(iv) Operated under temporary management that was appointed by a
governmental authority to oversee the operation of the home health
agency and to ensure the health and safety of the home health agency's
patients.
(v) Been closed by CMS or the State, or had its patients
transferred by the State.
(g) Standard: Hospice aide assignments and duties.
(1) Hospice aides are assigned to a specific patient by a
registered nurse that is a member of the interdisciplinary group.
Written patient care instructions for a hospice aide must be prepared
by a registered nurse who is responsible for the supervision of a
hospice aide as specified under paragraph (h) of this section.
(2) A hospice aide provides services that are:
(i) Ordered by the interdisciplinary group.
(ii) Included in the plan of care.
(iii) Permitted to be performed under State law by such hospice
aide.
(iv) Consistent with the hospice aide training.
(3) The duties of a hospice aide include the following:
(i) The provision of hands-on personal care.
(ii) The performance of simple procedures as an extension of
therapy or nursing services.
(iii) Assistance in ambulation or exercises.
(iv) Assistance in administering medications that are ordinarily
self-administered.
(4) Hospice aides must report changes in the patient's medical,
nursing, rehabilitative, and social needs to a registered nurse, as the
changes relate to the plan of care and quality assessment and
improvement activities. Hospice aides must also complete appropriate
records in compliance with the hospice's policies and procedures.
(h) Standard: Supervision of hospice aides. (1) A registered nurse
must make an on-site visit to the patient's home:
(i) No less frequently than every 14 days to assess the quality of
care and services provided by the hospice aide and to ensure that
services ordered by the hospice interdisciplinary group meet the
patient's needs. The hospice aide does not have to be present during
this visit.
(ii) If an area of concern is noted by the supervising nurse, then
the hospice must make an on-site visit to the location where the
patient is receiving care in order to observe and assess the aide while
he or she is performing care.
(iii) If an area of concern is verified by the hospice during the
on-site visit, then the hospice must conduct, and the hospice aide must
complete a competency evaluation in accordance with Sec. 418.76(c).
(2) A registered nurse must make an annual on-site visit to the
location where a patient is receiving care in order to observe and
assess each aide while he or she is performing care.
(3) The supervising nurse must assess an aide's ability to
demonstrate initial and continued satisfactory performance in meeting
outcome criteria that include, but is not limited to--
(i) Following the patient's plan of care for completion of tasks
assigned to the hospice aide by the registered nurse.
(ii) Creating successful interpersonal relationships with the
patient and family.
(iii) Demonstrating competency with assigned tasks.
(iv) Complying with infection control policies and procedures.
(v) Reporting changes in the patient's condition.
(i) Standard: Individuals furnishing Medicaid personal care aide-
only services under a Medicaid personal care benefit. An individual may
furnish personal care services, as defined in Sec. 440.167 of this
chapter, on behalf of a hospice agency.
(1) Before the individual may furnish personal care services, the
individual must be found competent by the State (if regulated by the
State) to furnish those services. The individual only
[[Page 32211]]
needs to demonstrate competency in the services the individual is
required to furnish.
(2) Services under the Medicaid personal care benefit may be used
to the extent that the hospice would routinely use the services of a
hospice patient's family in implementing a patient's plan of care.
(3) The hospice must coordinate its hospice aide and homemaker
services with the Medicaid personal care benefit to ensure the patient
receives the hospice aide and homemaker services he or she needs.
(j) Standard: Homemaker qualifications. A qualified homemaker is--
(1) An individual who meets the standards in Sec. 418.202(g) and
has successfully completed hospice orientation addressing the needs and
concerns of patients and families coping with a terminal illness; or
(2) A hospice aide as described in Sec. 418.76.
(k) Standard: Homemaker supervision and duties.
(1) Homemaker services must be coordinated and supervised by a
member of the interdisciplinary group.
(2) Instructions for homemaker duties must be prepared by a member
of the interdisciplinary group.
(3) Homemakers must report all concerns about the patient or family
to the member of the interdisciplinary group who is coordinating
homemaker services.
Sec. 418.78 Conditions of participation--Volunteers.
The hospice must use volunteers to the extent specified in
paragraph (e) of this section. These volunteers must be used in defined
roles and under the supervision of a designated hospice employee.
(a) Standard: Training. The hospice must maintain, document, and
provide volunteer orientation and training that is consistent with
hospice industry standards.
(b) Standard: Role. Volunteers must be used in day-to-day
administrative and/or direct patient care roles.
(c) Standard: Recruiting and retaining. The hospice must document
and demonstrate viable and ongoing efforts to recruit and retain
volunteers.
(d) Standard: Cost saving. The hospice must document the cost
savings achieved through the use of volunteers. Documentation must
include the following:
(1) The identification of each position that is occupied by a
volunteer.
(2) The work time spent by volunteers occupying those positions.
(3) Estimates of the dollar costs that the hospice would have
incurred if paid employees occupied the positions identified in
paragraph (d)(1) of this section for the amount of time specified in
paragraph (d)(2) of this section.
(e) Standard: Level of activity. Volunteers must provide day-to-day
administrative and/or direct patient care services in an amount that,
at a minimum, equals 5 percent of the total patient care hours of all
paid hospice employees and contract staff. The hospice must maintain
records on the use of volunteers for patient care and administrative
services, including the type of services and time worked.
Subpart D--Conditions of participation: Organizational Environment
Sec. 418.100 Condition of Participation: Organization and
administration of services.
The hospice must organize, manage, and administer its resources to
provide the hospice care and services to patients, caregivers and
families necessary for the palliation and management of the terminal
illness and related conditions.
(a) Standard: Serving the hospice patient and family.
The hospice must provide hospice care that--
(1) Optimizes comfort and dignity; and
(2) Is consistent with patient and family needs and goals, with
patient needs and goals as priority.
(b) Standard: Governing body and administrator. A governing body
(or designated persons so functioning) assumes full legal authority and
responsibility for the management of the hospice, the provision of all
hospice services, its fiscal operations, and continuous quality
assessment and performance improvement. A qualified administrator
appointed by and reporting to the governing body is responsible for the
day-to-day operation of the hospice. The administrator must be a
hospice employee and possess education and experience required by the
hospice's governing body.
(c) Standard: Services. (1) A hospice must be primarily engaged in
providing the following care and services and must do so in a manner
that is consistent with accepted standards of practice:
(i) Nursing services.
(ii) Medical social services.
(iii) Physician services.
(iv) Counseling services, including spiritual counseling, dietary
counseling, and bereavement counseling.
(v) Hospice aide, volunteer, and homemaker services.
(vi) Physical therapy, occupational therapy, and speech-language
pathology services.
(vii) Short-term inpatient care.
(viii) Medical supplies (including drugs and biologicals) and
medical appliances.
(2) Nursing services, physician services, and drugs and biologicals
(as specified in Sec. 418.106) must be made routinely available on a
24-hour basis 7 days a week. Other covered services must be available
on a 24-hour basis when reasonable and necessary to meet the needs of
the patient and family.
(d) Standard: Continuation of care. A hospice may not discontinue
or reduce care provided to a Medicare or Medicaid beneficiary because
of the beneficiary's inability to pay for that care.
(e) Standard: Professional management responsibility. A hospice
that has a written agreement with another agency, individual, or
organization to furnish any services under arrangement must retain
administrative and financial management, and oversight of staff and
services for all arranged services, to ensure the provision of quality
care. Arranged services must be supported by written agreements that
require that all services be--
(1) Authorized by the hospice;
(2) Furnished in a safe and effective manner by qualified
personnel; and
(3) Delivered in accordance with the patient's plan of care.
(f) Standard: Hospice multiple locations.
If a hospice operates multiple locations, it must meet the
following requirements:
(1) Medicare approval.
(i) All hospice multiple locations must be approved by Medicare
before providing hospice care and services to Medicare patients.
(ii) The multiple location must be part of the hospice and must
share administration, supervision, and services with the hospice issued
the certification number.
(iii) The lines of authority and professional and administrative
control must be clearly delineated in the hospice's organizational
structure and in practice, and must be traced to the location that
issued the certification number.
(iv) The determination that a multiple location does or does not
meet the definition of a multiple location, as set forth in this part,
is an initial determination, as set forth in Sec. 498.3.
(2) The hospice must continually monitor and manage all services
[[Page 32212]]
provided at all of its locations to ensure that services are delivered
in a safe and effective manner and to ensure that each patient and
family receives the necessary care and services outlined in the plan of
care, in accordance with the requirements of this subpart and subparts
A and C of this section.
(g) Standard: Training.
(1) A hospice must provide orientation about the hospice philosophy
to all employees and contracted staff who have patient and family
contact.
(2) A hospice must provide an initial orientation for each employee
that addresses the employee's specific job duties.
(3) A hospice must assess the skills and competence of all
individuals furnishing care, including volunteers furnishing services,
and, as necessary, provide in-service training and education programs
where required. The hospice must have written policies and procedures
describing its method(s) of assessment of competency and maintain a
written description of the in-service training provided during the
previous 12 months.
Sec. 418.102 Condition of participation: Medical director.
The hospice must designate a physician to serve as medical
director. The medical director must be a doctor of medicine or
osteopathy who is an employee, or is under contract with the hospice.
When the medical director is not available, a physician designated by
the hospice assumes the same responsibilities and obligations as the
medical director.
(a) Standard: Medical director contract. (1) A hospice may contract
with either of the following--
(i) A self-employed physician; or
(ii) A physician employed by a professional entity or physicians
group. When contracting for medical director services, the contract
must specify the physician who assumes the medical director
responsibilities and obligations.
(b) Standard: Initial certification of terminal illness. The
medical director or physician designee reviews the clinical information
for each hospice patient and provides written certification that it is
anticipated that the patient's life expectancy is 6 months or less if
the illness runs its normal course. The physician must consider the
following when making this determination:
(1) The primary terminal condition;
(2) Related diagnosis(es), if any;
(3) Current subjective and objective medical findings;
(4) Current medication and treatment orders; and
(5) Information about the medical management of any of the
patient's conditions unrelated to the terminal illness.
(c) Standard: Recertification of the terminal illness. Before the
recertification period for each patient, as described in Sec.
418.21(a), the medical director or physician designee must review the
patient's clinical information.
(d) Standard: Medical director responsibility. The medical director
or physician designee has responsibility for the medical component of
the hospice's patient care program.
Sec. 418.104 Condition of participation: Clinical records.
A clinical record containing past and current findings is
maintained for each hospice patient. The clinical record must contain
correct clinical information that is available to the patient's
attending physician and hospice staff. The clinical record may be
maintained electronically.
(a) Standard: Content. Each patient's record must include the
following:
(1) The initial plan of care, updated plans of care, initial
assessment, comprehensive assessment, updated comprehensive
assessments, and clinical notes.
(2) Signed copies of the notice of patient rights in accordance
with Sec. 418.52 and election statement in accordance with Sec.
418.24.
(3) Responses to medications, symptom management, treatments, and
services.
(4) Outcome measure data elements, as described in Sec. 418.54(e)
of this subpart.
(5) Physician certification and recertification of terminal illness
as required in Sec. 418.22 and Sec. 418.25 and described in Sec.
418.102(b) and Sec. 418.102(c) respectively, if appropriate.
(6) Any advance directives as described in Sec. 418.52(a)(2).
(7) Physician orders.
(b) Standard: Authentication. All entries must be legible, clear,
complete, and appropriately authenticated and dated in accordance with
hospice policy and currently accepted standards of practice.
(c) Standard: Protection of information. The clinical record, its
contents and the information contained therein must be safeguarded
against loss or unauthorized use. The hospice must be in compliance
with the Department's rules regarding personal health information as
set out at 45 CFR parts 160 and 164.
(d) Standard: Retention of records. Patient clinical records must
be retained for 6 years after the death or discharge of the patient,
unless State law stipulates a longer period of time. If the hospice
discontinues operation, hospice policies must provide for retention and
storage of clinical records. The hospice must inform its State agency
and its CMS Regional office where such clinical records will be stored
and how they may be accessed.
(e) Standard: Discharge or transfer of care. (1) If the care of a
patient is transferred to another Medicare/Medicaid-certified facility,
the hospice must forward to the receiving facility, a copy of--
(i) The hospice discharge summary; and
(ii) The patient's clinical record, if requested.
(2) If a patient revokes the election of hospice care, or is
discharged from hospice in accordance with Sec. 418.26, the hospice
must forward to the patient's attending physician, a copy of--
(i) The hospice discharge summary; and
(ii) The patient's clinical record, if requested.
(3) The hospice discharge summary as required in paragraph (e)(1)
and (e)(2) of this section must include--
(i) A summary of the patient's stay including treatments, symptoms
and pain management.
(ii) The patient's current plan of care.
(iii) The patient's latest physician orders. and
(iv) Any other documentation that will assist in post-discharge
continuity of care or that is requested by the attending physician or
receiving facility.
(f) Standard: Retrieval of clinical records. The clinical record,
whether hard copy or in electronic form, must be made readily available
on request by an appropriate authority.
Sec. 418.106 Condition of participation: Drugs and biologicals,
medical supplies, and durable medical equipment.
Medical supplies and appliances, as described in Sec. 410.36 of
this chapter; durable medical equipment, as described in Sec. 410.38
of this chapter; and drugs and biologicals related to the palliation
and management of the terminal illness and related conditions, as
identified in the hospice plan of care, must be provided by the hospice
while the patient is under hospice care.
(a) Standard: Managing drugs and biologicals.
(1) The hospice must ensure that the interdisciplinary group
confers with an individual with education and training in drug
management as defined in hospice policies and procedures and State law,
who is an employee of or
[[Page 32213]]
under contract with the hospice to ensure that drugs and biologicals
meet each patient's needs.
(2) A hospice that provides inpatient care directly in its own
facility must provide pharmacy services under the direction of a
qualified licensed pharmacist who is an employee of or under contract
with the hospice. The provided pharmacist services must include
evaluation of a patient's response to medication therapy,
identification of potential adverse drug reactions, and recommended
appropriate corrective action.
(b) Standard: Ordering of drugs.
(1) Only a physician as defined by section 1861(r)(1) of the Act,
or a nurse practitioner in accordance with the plan of care and State
law, may order drugs for the patient.
(2) If the drug order is verbal or given by or through electronic
transmission--
(i) It must be given only to a licensed nurse, nurse practitioner
(where appropriate), pharmacist, or physician; and
(ii) The individual receiving the order must record and sign it
immediately and have the prescribing person sign it in accordance with
State and Federal regulations.
(c) Standard: Dispensing of drugs and biologicals.
The hospice must--
(1) Obtain drugs and biologicals from community or institutional
pharmacists or stock drugs and biologicals itself.
(2) The hospice that provides inpatient care directly in its own
facility must:
(i) Have a written policy in place that promotes dispensing
accuracy; and
(ii) Maintain current and accurate records of the receipt and
disposition of all controlled drugs.
(d) Standard: Administration of drugs and biologicals.
(1) The interdisciplinary group, as part of the review of the plan
of care, must determine the ability of the patient and/or family to
safely self-administer drugs and biologicals to the patient in his or
her home.
(2) Patients receiving care in a hospice that provides inpatient
care directly in its own facility may only be administered medications
by the following individuals:
(i) A licensed nurse, physician, or other health care professional
in accordance with their scope of practice and State law;
(ii) An employee who has completed a State-approved training
program in medication administration; and
(iii) The patient, upon approval by the interdisciplinary group.
(e) Standard: Labeling, disposing, and storing of drugs and
biologicals.
(1) Labeling. Drugs and biologicals must be labeled in accordance
with currently accepted professional practice and must include
appropriate usage and cautionary instructions, as well as an expiration
date (if applicable).
(2) Disposing. (i) Safe use and disposal of controlled drugs in the
patient's home. The hospice must have written policies and procedures
for the management and disposal of controlled drugs in the patient's
home. At the time when controlled drugs are first ordered the hospice
must:
(A) Provide a copy of the hospice written policies and procedures
on the management and disposal of controlled drugs to the patient or
patient representative and family;
(B) Discuss the hospice policies and procedures for managing the
safe use and disposal of controlled drugs with the patient or
representative and the family in a language and manner that they
understand to ensure that these parties are educated regarding the safe
use and disposal of controlled drugs; and
(C) Document in the patient's clinical record that the written
policies and procedures for managing controlled drugs was provided and
discussed.
(ii) Disposal of controlled drugs in hospices that provide
inpatient care directly. The hospice that provides inpatient care
directly in its own facility must dispose of controlled drugs in
compliance with the hospice policy and in accordance with State and
Federal requirements. The hospice must maintain current and accurate
records of the receipt and disposition of all controlled drugs.
(3) Storing. The hospice that provides inpatient care directly in
its own facility must comply with the following additional
requirements--
(i) All drugs and biologicals must be stored in secure areas. All
controlled drugs listed in Schedules II, III, IV, and V of the
Comprehensive Drug Abuse Prevention and Control Act of 1976 must be
stored in locked compartments within such secure storage areas. Only
personnel authorized to administer controlled drugs as noted in
paragraph (d)(2) of this section may have access to the locked
compartments; and
(ii) Discrepancies in the acquisition, storage, dispensing,
administration, disposal, or return of controlled drugs must be
investigated immediately by the pharmacist and hospice administrator
and where required reported to the appropriate State authority. A
written account of the investigation must be made available to State
and Federal officials if required by law or regulation.
(f) Standard: Use and maintenance of equipment and supplies.
(1) The hospice must ensure that manufacturer recommendations for
performing routine and preventive maintenance on durable medical
equipment are followed. The equipment must be safe and work as intended
for use in the patient's environment. Where a manufacturer
recommendation for a piece of equipment does not exist, the hospice
must ensure that repair and routine maintenance policies are developed.
The hospice may use persons under contract to ensure the maintenance
and repair of durable medical equipment.
(2) The hospice must ensure that the patient, where appropriate, as
well as the family and/or other caregiver(s), receive instruction in
the safe use of durable medical equipment and supplies. The hospice may
use persons under contract to ensure patient and family instruction.
The patient, family, and/or caregiver must be able to demonstrate the
appropriate use of durable medical equipment to the satisfaction of the
hospice staff.
(3) Hospices may only contract for durable medical equipment
services with a durable medical equipment supplier that meets the
Medicare DMEPOS Supplier Quality and Accreditation Standards at 42 CFR
Sec. 424.57.
Sec. 418.108 Condition of participation: Short-term inpatient care.
Inpatient care must be available for pain control, symptom
management, and respite purposes, and must be provided in a
participating Medicare or Medicaid facility.
(a) Standard: Inpatient care for symptom management and pain
control. Inpatient care for pain control and symptom management must be
provided in one of the following:
(1) A Medicare-certified hospice that meets the conditions of
participation for providing inpatient care directly as specified in
Sec. 418.110.
(2) A Medicare-certified hospital or a skilled nursing facility
that also meets the standards specified in Sec. 418.110(b) and (e)
regarding 24-hour nursing services and patient areas.
(b) Standard: Inpatient care for respite purposes.
(1) Inpatient care for respite purposes must be provided by one of
the following:
(i) A provider specified in paragraph (a) of this section.
(ii) A Medicare or Medicaid-certified nursing facility that also
meets the standards specified in Sec. 418.110(f).
(2) The facility providing respite care must provide 24-hour
nursing services
[[Page 32214]]
that meet the nursing needs of all patients and are furnished in
accordance with each patient's plan of care. Each patient must receive
all nursing services as prescribed and must be kept comfortable, clean,
well-groomed, and protected from accident, injury, and infection.
(c) Standard: Inpatient care provided under arrangements. If the
hospice has an arrangement with a facility to provide for short-term
inpatient care, the arrangement is described in a written agreement,
coordinated by the hospice, and at a minimum specifies--
(1) That the hospice supplies the inpatient provider a copy of the
patient's plan of care and specifies the inpatient services to be
furnished;
(2) That the inpatient provider has established patient care
policies consistent with those of the hospice and agrees to abide by
the palliative care protocols and plan of care established by the
hospice for its patients;
(3) That the hospice patient's inpatient clinical record includes a
record of all inpatient services furnished and events regarding care
that occurred at the facility; that a copy of the discharge summary be
provided to the hospice at the time of discharge; and that a copy of
the inpatient clinical record is available to the hospice at the time
of discharge;
(4) That the inpatient facility has identified an individual within
the facility who is responsible for the implementation of the
provisions of the agreement;
(5) That the hospice retains responsibility for ensuring that the
training of personnel who will be providing the patient's care in the
inpatient facility has been provided and that a description of the
training and the names of those giving the training are documented; and
(6) A method for verifying that the requirements in paragraphs
(c)(1) through (c)(5) of this section are met.
(d) Standard: Inpatient care limitation. The total number of
inpatient days used by Medicare beneficiaries who elected hospice
coverage in a 12-month period in a particular hospice may not exceed 20
percent of the total number of hospice days consumed in total by this
group of beneficiaries.
(e) Standard: Exemption from limitation. Before October 1, 1986,
any hospice that began operation before January 1, 1975, is not subject
to the limitation specified in paragraph (d) of this section.
Sec. 418.110 Condition of participation: Hospices that provide
inpatient care directly.
A hospice that provides inpatient care directly in its own facility
must demonstrate compliance with all of the following standards:
(a) Standard: Staffing. The hospice is responsible for ensuring
that staffing for all services reflects its volume of patients, their
acuity, and the level of intensity of services needed to ensure that
plan of care outcomes are achieved and negative outcomes are avoided.
(b) Standard: Twenty-four hour nursing services. (1) The hospice
facility must provide 24-hour nursing services that meet the nursing
needs of all patients and are furnished in accordance with each
patient's plan of care. Each patient must receive all nursing services
as prescribed and must be kept comfortable, clean, well-groomed, and
protected from accident, injury, and infection.
(2) If at least one patient in the hospice facility is receiving
general inpatient care, then each shift must include a registered nurse
who provides direct patient care.
(c) Standard: Physical environment. The hospice must maintain a
safe physical environment free of hazards for patients, staff, and
visitors.
(1) Safety management.
(i) The hospice must address real or potential threats to the
health and safety of the patients, others, and property.
(ii) The hospice must have a written disaster preparedness plan in
effect for managing the consequences of power failures, natural
disasters, and other emergencies that would affect the hospice's
ability to provide care. The plan must be periodically reviewed and
rehearsed with staff (including non-employee staff) with special
emphasis placed on carrying out the procedures necessary to protect
patients and others.
(2) Physical plant and equipment. The hospice must develop
procedures for controlling the reliability and quality of--
(i) The routine storage and prompt disposal of trash and medical
waste;
(ii) Light, temperature, and ventilation/air exchanges throughout
the hospice;
(iii) Emergency gas and water supply; and
(iv) The scheduled and emergency maintenance and repair of all
equipment.
(d) Standard: Fire protection. (1) Except as otherwise provided in
this section--
(i) The hospice must meet the provisions applicable to nursing
homes of the 2000 edition of the Life Safety Code (LSC) of the National
Fire Protection Association (NFPA). The Director of the Office of the
Federal Register has approved the NFPA 101[supreg] 2000 edition of the
Life Safety Code, issued January 14, 2000, for incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy
of the code is available for inspection at the CMS Information Resource
Center, 7500 Security Boulevard, Baltimore, MD or at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federalregister/codeoffederalregulations/ibrlocations.html. Copies may be obtained from the National Fire
Protection Association, 1 Batterymarch Park, Quincy, MA 02269. If any
changes in the edition of the Code are incorporated by reference, CMS
will publish a notice in the Federal Register to announce the changes.
(ii) Chapter 19.3.6.3.2, exception number 2 of the adopted edition
of the LSC does not apply to hospices.
(2) In consideration of a recommendation by the State survey
agency, CMS may waive, for periods deemed appropriate, specific
provisions of the Life Safety Code which, if rigidly applied would
result in unreasonable hardship for the hospice, but only if the waiver
would not adversely affect the health and safety of patients.
(3) The provisions of the adopted edition of the Life Safety Code
do not apply in a State if CMS finds that a fire and safety code
imposed by State law adequately protects patients in hospices.
(4) Notwithstanding any provisions of the 2000 edition of the Life
Safety Code to the contrary, a hospice may place alcohol-based hand rub
dispensers in its facility if--
(i) Use of alcohol-based hand rub dispensers does not conflict with
any State or local codes that prohibit or otherwise restrict the
placement of alcohol-based hand rub dispensers in health care
facilities;
(ii) The dispensers are installed in a manner that minimizes leaks
and spills that could lead to falls;
(iii) The dispensers are installed in a manner that adequately
protects against access by vulnerable populations; and
(iv) The dispensers are installed in accordance with chapter
18.3.2.7 or chapter 19.3.2.7 of the 2000 edition of the Life Safety
Code, as amended by NFPA Temporary Interim Amendment 00-1(101), issued
by the Standards Council of the National Fire Protection Association on
April 15, 2004. The Director of the Office of the Federal
[[Page 32215]]
Register has approved NFPA Temporary Interim Amendment 00-1(101) for
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. A copy of the code is available for inspection at the CMS
Information Resource Center, 7500 Security Boulevard, Baltimore, MD or
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/codeoffederal_regulations/ibr_locations.html. Copies may be obtained
from the National Fire Protection Association, 1 Batterymarch Park,
Quincy, MA 02269. If any changes in the edition of the Code are
incorporated by reference, CMS will publish a notice in the Federal
Register to announce the changes.
(e) Standard: Patient areas. The hospice must provide a home-like
atmosphere and ensure that patient areas are designed to preserve the
dignity, comfort, and privacy of patients.
(1) The hospice must provide--
(i) Physical space for private patient and family visiting;
(ii) Accommodations for family members to remain with the patient
throughout the night; and
(iii) Physical space for family privacy after a patient's death.
(2) The hospice must provide the opportunity for patients to
receive visitors at any hour, including infants and small children.
(f) Standard: Patient rooms. (1) The hospice must ensure that
patient rooms are designed and equipped for nursing care, as well as
the dignity, comfort, and privacy of patients.
(2) The hospice must accommodate a patient and family request for a
single room whenever possible.
(3) Each patient's room must--
(i) Be at or above grade level;
(ii) Contain a suitable bed and other appropriate furniture for
each patient;
(iii) Have closet space that provides security and privacy for
clothing and personal belongings;
(iv) Accommodate no more than two patients and their family
members;
(v) Provide at least 80 square feet for each residing patient in a
double room and at least 100 square feet for each patient residing in a
single room; and
(vi) Be equipped with an easily-activated, functioning device
accessible to the patient, that is used for calling for assistance.
(4) For a facility occupied by a Medicare-participating hospice on
December 2, 2008, CMS may waive the space and occupancy requirements of
paragraphs (f)(2)(iv) and (f)(2)(v) of this section if it determines
that--
(i) Imposition of the requirements would result in unreasonable
hardship on the hospice if strictly enforced; or jeopardize its ability
to continue to participate in the Medicare program; and
(ii) The waiver serves the needs of the patient and does not
adversely affect their health and safety.
(g) Standard: Toilet and bathing facilities. Each patient room must
be equipped with, or conveniently located near, toilet and bathing
facilities.
(h) Standard: Plumbing facilities. The hospice must--
(1) Have an adequate supply of hot water at all times; and
(2) Have plumbing fixtures with control valves that automatically
regulate the temperature of the hot water used by patients.
(i) Standard: Infection control. The hospice must maintain an
infection control program that protects patients, staff and others by
preventing and controlling infections and communicable disease as
stipulated in Sec. 418.60.
(j) Standard: Sanitary environment. The hospice must provide a
sanitary environment by following current standards of practice,
including nationally recognized infection control precautions, and
avoid sources and transmission of infections and communicable diseases.
(k) Standard: Linen. The hospice must have available at all times a
quantity of clean linen in sufficient amounts for all patient uses.
Linens must be handled, stored, processed, and transported in such a
manner as to prevent the spread of contaminants.
(l) Standard: Meal service and menu planning. The hospice must
furnish meals to each patient that are--
(1) Consistent with the patient's plan of care, nutritional needs,
and therapeutic diet;
(2) Palatable, attractive, and served at the proper temperature;
and
(3) Obtained, stored, prepared, distributed, and served under
sanitary conditions.
(m) Standard: Restraint or seclusion. All patients have the right
to be free from physical or mental abuse, and corporal punishment. All
patients have the right to be free from restraint or seclusion, of any
form, imposed as a means of coercion, discipline, convenience, or
retaliation by staff. Restraint or seclusion may only be imposed to
ensure the immediate physical safety of the patient, a staff member, or
others and must be discontinued at the earliest possible time.
(1) Restraint or seclusion may only be used when less restrictive
interventions have been determined to be ineffective to protect the
patient, a staff member, or others from harm.
(2) The type or technique of restraint or seclusion used must be
the least restrictive intervention that will be effective to protect
the patient, a staff member, or others from harm.
(3) The use of restraint or seclusion must be--
(i) In accordance with a written modification to the patient's plan
of care; and
(ii) Implemented in accordance with safe and appropriate restraint
and seclusion techniques as determined by hospice policy in accordance
with State law.
(4) The use of restraint or seclusion must be in accordance with
the order of a physician authorized to order restraint or seclusion by
hospice policy in accordance with State law.
(5) Orders for the use of restraint or seclusion must never be
written as a standing order or on an as needed basis (PRN).
(6) The medical director or physician designee must be consulted as
soon as possible if the attending physician did not order the restraint
or seclusion.
(7) Unless superseded by State law that is more restrictive--
(i) Each order for restraint or seclusion used for the management
of violent or self-destructive behavior that jeopardizes the immediate
physical safety of the patient, a staff member, or others may only be
renewed in accordance with the following limits for up to a total of 24
hours:
(A) 4 hours for adults 18 years of age or older;
(B) 2 hours for children and adolescents 9 to 17 years of age; or
(C) 1 hour for children under 9 years of age; and
After 24 hours, before writing a new order for the use of restraint
or seclusion for the management of violent or self-destructive
behavior, a physician authorized to order restraint or seclusion by
hospice policy in accordance with State law must see and assess the
patient.
(ii) Each order for restraint used to ensure the physical safety of
the non-violent or non-self-destructive patient may be renewed as
authorized by hospice policy.
(8) Restraint or seclusion must be discontinued at the earliest
possible time, regardless of the length of time identified in the
order.
(9) The condition of the patient who is restrained or secluded must
be
[[Page 32216]]
monitored by a physician or trained staff that have completed the
training criteria specified in paragraph (n) of this section at an
interval determined by hospice policy.
(10) Physician, including attending physician, training
requirements must be specified in hospice policy. At a minimum,
physicians and attending physicians authorized to order restraint or
seclusion by hospice policy in accordance with State law must have a
working knowledge of hospice policy regarding the use of restraint or
seclusion.
(11) When restraint or seclusion is used for the management of
violent or self-destructive behavior that jeopardizes the immediate
physical safety of the patient, a staff member, or others, the patient
must be seen face-to-face within 1 hour after the initiation of the
intervention--
(i) By a--
(A) Physician; or
(B) Registered nurse who has been trained in accordance with the
requirements specified in paragraph (n) of this section.
(ii) To evaluate--
(A) The patient's immediate situation;
(B) The patient's reaction to the intervention;
(C) The patient's medical and behavioral condition; and
(D) The need to continue or terminate the restraint or seclusion.
(12) States are free to have requirements by statute or regulation
that are more restrictive than those contained in paragraph (m)(11)(i)
of this section.
(13) If the face-to-face evaluation specified in Sec.
418.110(m)(11) is conducted by a trained registered nurse, the trained
registered nurse must consult the medical director or physician
designee as soon as possible after the completion of the 1-hour face-
to-face evaluation.
(14) All requirements specified under this paragraph are applicable
to the simultaneous use of restraint and seclusion. Simultaneous
restraint and seclusion use is only permitted if the patient is
continually monitored--
(i) Face-to-face by an assigned, trained staff member; or
(ii) By trained staff using both video and audio equipment. This
monitoring must be in close proximity to the patient.
(15) When restraint or seclusion is used, there must be
documentation in the patient's clinical record of the following:
(i) The 1-hour face-to-face medical and behavioral evaluation if
restraint or seclusion is used to manage violent or self-destructive
behavior;
(ii) A description of the patient's behavior and the intervention
used;
(iii) Alternatives or other less restrictive interventions
attempted (as applicable);
(iv) The patient's condition or symptom(s) that warranted the use
of the restraint or seclusion; and the patient's response to the
intervention(s) used, including the rationale for continued use of the
intervention.
(n) Standard: Restraint or seclusion staff training requirements.
The patient has the right to safe implementation of restraint or
seclusion by trained staff.
(1) Training intervals. All patient care staff working in the
hospice inpatient facility must be trained and able to demonstrate
competency in the application of restraints, implementation of
seclusion, monitoring, assessment, and providing care for a patient in
restraint or seclusion--
(i) Before performing any of the actions specified in this
paragraph;
(ii) As part of orientation; and
(iii) Subsequently on a periodic basis consistent with hospice
policy.
(2) Training content. The hospice must require appropriate staff to
have education, training, and demonstrated knowledge based on the
specific needs of the patient population in at least the following:
(i) Techniques to identify staff and patient behaviors, events, and
environmental factors that may trigger circumstances that require the
use of a restraint or seclusion.
(ii) The use of nonphysical intervention skills.
(iii) Choosing the least restrictive intervention based on an
individualized assessment of the patient's medical, or behavioral
status or condition.
(iv) The safe application and use of all types of restraint or
seclusion used in the hospice, including training in how to recognize
and respond to signs of physical and psychological distress (for
example, positional asphyxia).
(v) Clinical identification of specific behavioral changes that
indicate that restraint or seclusion is no longer necessary.
(vi) Monitoring the physical and psychological well-being of the
patient who is restrained or secluded, including but not limited to,
respiratory and circulatory status, skin integrity, vital signs, and
any special requirements specified by hospice policy associated with
the 1-hour face-to-face evaluation.
(vii) The use of first aid techniques and certification in the use
of cardiopulmonary resuscitation, including required periodic
recertification.
(3) Trainer requirements. Individuals providing staff training must
be qualified as evidenced by education, training, and experience in
techniques used to address patients' behaviors.
(4) Training documentation. The hospice must document in the staff
personnel records that the training and demonstration of competency
were successfully completed.
(o) Standard: Death reporting requirements. Hospices must report
deaths associated with the use of seclusion or restraint.
(1) The hospice must report the following information to CMS:
(i) Each unexpected death that occurs while a patient is in
restraint or seclusion.
(ii) Each unexpected death that occurs within 24 hours after the
patient has been removed from restraint or seclusion.
(iii) Each death known to the hospice that occurs within 1 week
after restraint or seclusion where it is reasonable to assume that use
of restraint or placement in seclusion contributed directly or
indirectly to a patient's death. ``Reasonable to assume'' in this
context includes, but is not limited to, deaths related to restrictions
of movement for prolonged periods of time, or death related to chest
compression, restriction of breathing or asphyxiation.
(2) Each death referenced in this paragraph must be reported to CMS
by telephone no later than the close of business the next business day
following knowledge of the patient's death.
(3) Staff must document in the patient's clinical record the date
and time the death was reported to CMS.
Sec. 418.112 Condition of participation: Hospices that provide
hospice care to residents of a SNF/NF or ICF/MR.
In addition to meeting the conditions of participation at Sec.
418.10 through Sec. 418.116, a hospice that provides hospice care to
residents of a SNF/NF or ICF/MR must abide by the following additional
standards.
(a) Standard: Resident eligibility, election, and duration of
benefits. Medicare patients receiving hospice services and residing in
a SNF, NF, or ICF/MR are subject to the Medicare hospice eligibility
criteria set out at Sec. 418.20 through Sec. 418.30.
(b) Standard: Professional management. The hospice must assume
responsibility for professional management of the resident's hospice
services provided, in accordance with the hospice plan of care and the
hospice conditions of participation, and make
[[Page 32217]]
any arrangements necessary for hospice-related inpatient care in a
participating Medicare/Medicaid facility according to Sec. 418.100 and
Sec. 418.108.
(c) Standard: Written agreement. The hospice and SNF/NF or ICF/MR
must have a written agreement that specifies the provision of hospice
services in the facility. The agreement must be signed by authorized
representatives of the hospice and the SNF/NF or ICF/MR before the
provision of hospice services. The written agreement must include at
least the following:
(1) The manner in which the SNF/NF or ICF/MR and the hospice are to
communicate with each other and document such communications to ensure
that the needs of patients are addressed and met 24 hours a day.
(2) A provision that the SNF/NF or ICF/MR immediately notifies the
hospice if--
(i) A significant change in a patient's physical, mental, social,
or emotional status occurs;
(ii) Clinical complications appear that suggest a need to alter the
plan of care;
(iii) A need to transfer a patient from the SNF/NF or ICF/MR, and
the hospice makes arrangements for, and remains responsible for, any
necessary continuous care or inpatient care necessary related to the
terminal illness and related conditions; or
(iv) A patient dies.
(3) A provision stating that the hospice assumes responsibility for
determining the appropriate course of hospice care, including the
determination to change the level of services provided.
(4) An agreement that it is the SNF/NF or ICF/MR responsibility to
continue to furnish 24 hour room and board care, meeting the personal
care and nursing needs that would have been provided by the primary
caregiver at home at the same level of care provided before hospice
care was elected.
(5) An agreement that it is the hospice's responsibility to provide
services at the same level and to the same extent as those services
would be provided if the SNF/NF or ICF/MR resident were in his or her
own home.
(6) A delineation of the hospice's responsibilities, which include,
but are not limited to the following: Providing medical direction and
management of the patient; nursing; counseling (including spiritual,
dietary and bereavement); social work; provision of medical supplies,
durable medical equipment and drugs necessary for the palliation of
pain and symptoms associated with the terminal illness and related
conditions; and all other hospice services that are necessary for the
care of the resident's terminal illness and related conditions.
(7) A provision that the hospice may use the SNF/NF or ICF/MR
nursing personnel where permitted by State law and as specified by the
SNF/NF or ICF/MR to assist in the administration of prescribed
therapies included in the plan of care only to the extent that the
hospice would routinely use the services of a hospice patient's family
in implementing the plan of care.
(8) A provision stating that the hospice must report all alleged
violations involving mistreatment, neglect, or verbal, mental, sexual,
and physical abuse, including injuries of unknown source, and
misappropriation of patient property by anyone unrelated to the hospice
to the SNF/NF or ICF/MR administrator within 24 hours of the hospice
becoming aware of the alleged violation.
(9) A delineation of the responsibilities of the hospice and the
SNF/NF or ICF/MR to provide bereavement services to SNF/NF or ICF/MR
staff.
(d) Standard: Hospice plan of care. In accordance with Sec.
418.56, a written hospice plan of care must be established and
maintained in consultation with SNF/NF or ICF/MR representatives. All
hospice care provided must be in accordance with this hospice plan of
care.
(1) The hospice plan of care must identify the care and services
that are needed and specifically identify which provider is responsible
for performing the respective functions that have been agreed upon and
included in the hospice plan of care.
(2) The hospice plan of care reflects the participation of the
hospice, the SNF/NF or ICF/MR, and the patient and family to the extent
possible.
(3) Any changes in the hospice plan of care must be discussed with
the patient or representative, and SNF/NF or ICF/MR representatives,
and must be approved by the hospice before implementation.
(e) Standard: Coordination of services. The hospice must:
(1) Designate a member of each interdisciplinary group that is
responsible for a patient who is a resident of a SNF/NF or ICF/MR. The
designated interdisciplinary group member is responsible for:
(i) Providing overall coordination of the hospice care of the SNF/
NF or ICF/MR resident with SNF/NF or ICF/MR representatives; and
(ii) Communicating with SNF/NF or ICF/MR representatives and other
health care providers participating in the provision of care for the
terminal illness and related conditions and other conditions to ensure
quality of care for the patient and family.
(2) Ensure that the hospice IDG communicates with the SNF/NF or
ICF/MR medical director, the patient's attending physician, and other
physicians participating in the provision of care to the patient as
needed to coordinate the hospice care of the hospice patient with the
medical care provided by other physicians.
(3) Provide the SNF/NF or ICF/MR with the following information:
(i) The most recent hospice plan of care specific to each patient;
(ii) Hospice election form and any advance directives specific to
each patient;
(iii) Physician certification and recertification of the terminal
illness specific to each patient;
(iv) Names and contact information for hospice personnel involved
in hospice care of each patient;
(v) Instructions on how to access the hospice's 24-hour on-call
system;
(vi) Hospice medication information specific to each patient; and
(vii) Hospice physician and attending physician (if any) orders
specific to each patient.
(f) Standard: Orientation and training of staff. Hospice staff must
assure orientation of SNF/NF or ICF/MR staff furnishing care to hospice
patients in the hospice philosophy, including hospice policies and
procedures regarding methods of comfort, pain control, symptom
management, as well as principles about death and dying, individual
responses to death, patient rights, appropriate forms, and record
keeping requirements.
Sec. 418.114 Condition of participation: Personnel qualifications.
(a) General qualification requirements. Except as specified in
paragraph (c) of this section, all professionals who furnish services
directly, under an individual contract, or under arrangements with a
hospice, must be legally authorized (licensed, certified or registered)
in accordance with applicable Federal, State and local laws, and must
act only within the scope of his or her State license, or State
certification, or registration. All personnel qualifications must be
kept current at all times.
(b) Personnel qualifications for certain disciplines.
The following qualifications must be met:
(1) Physician. Physicians must meet the qualifications and
conditions as defined in section 1861(r) of the Act and implemented at
Sec. 410.20 of this chapter.
[[Page 32218]]
(2) Hospice aide. Hospice aides must meet the qualifications
required by section 1891(a)(3) of the Act and implemented at Sec.
418.76.
(3) Social worker. A person who--
(i)(A) Has a Master of Social Work (MSW) degree from a school of
social work accredited by the Council on Social Work Education; or
(B) Has a baccalaureate degree in social work from an institution
accredited by the Council on Social Work Education; or a baccalaureate
degree in psychology, sociology, or other field related to social work
and is supervised by an MSW as described in paragraph (b)(3)(i)(A) of
this section; and
(ii) Has 1 year of social work experience in a healthcare setting;
or
(iii) Has a baccalaureate degree from a school of social work
accredited by the Council on Social Work Education, is employed by the
hospice before December 2, 2008, and is not required to be supervised
by an MSW.
(4) Speech language pathologist. A person who meets either of the
following requirements:
(i) The education and experience requirements for a Certificate of
Clinical Competence in speech-language pathology granted by the
American Speech-Language-Hearing Association.
(ii) The educational requirements for certification and is in the
process of accumulating the supervised experience required for
certification.
(5) Occupational therapist. A person who--
(i)(A) Is licensed or otherwise regulated, if applicable, as an
occupational therapist by the State in which practicing, unless
licensure does not apply;
(B) Graduated after successful completion of an occupational
therapist education program accredited by the Accreditation Council for
Occupational Therapy Education (ACOTE) of the American Occupational
Therapy Association, Inc. (AOTA), or successor organizations of ACOTE;
and
(C) Is eligible to take, or has successfully completed the entry-
level certification examination for occupational therapists developed
and administered by the National Board for Certification in
Occupational Therapy, Inc. (NBCOT).
(ii) On or before December 31, 2009--
(A) Is licensed or otherwise regulated, if applicable, as an
occupational therapist by the State in which practicing; or
(B) When licensure or other regulation does not apply--
(1) Graduated after successful completion of an occupational
therapist education program accredited by the accreditation Council for
Occupational therapy Education (ACOTE) of the American Occupational
Therapy Association, Inc. (AOTA) or successor organizations of ACOTE;
and
(2) Is eligible to take, or has successfully completed the entry-
level certification examination for occupational therapists developed
and administered by the National Board for Certification in
Occupational Therapy, Inc., (NBCOT).
(iii) On or before January 1, 2008--
(A) Graduated after successful completion of an occupational
therapy program accredited jointly by the committee on Allied Health
Education and Accreditation of the American Medical Association and the
American Occupational Therapy Association; or
(B) Is eligible for the National Registration Examination of the
American Occupational Therapy Association or the National Board for
Certification in Occupational Therapy.
(iv) On or before December 31, 1977--
(A) Had 2 years of appropriate experience as an occupational
therapist; and
(B) Had achieved a satisfactory grade on an occupational therapist
proficiency examination conducted, approved, or sponsored by the U.S.
Public Health Service.
(v) If educated outside the United States--
(A) Must meet both of the following:
(1) Graduated after successful completion of an occupational
therapist education program accredited as substantially equivalent to
occupational therapist assistant entry level education in the United
States by one of the following:
(i) The Accreditation Council for Occupational Therapy Education
(ACOTE).
(ii) Successor organizations of ACOTE.
(iii) The World Federation of Occupational Therapists.
(iv) A credentialing body approved by the American Occupational
Therapy Association.
(v) Successfully completed the entry level certification
examination for occupational therapists developed and administered by
the National Board for Certification in Occupational Therapy, Inc.
(NBCOT).
(2) On or before December 31, 2009, is licensed or otherwise
regulated, if applicable, as an occupational therapist by the State in
which practicing.
(6) Occupational therapy assistant. A person who
(i) Meets all of the following:
(A) Is licensed or otherwise regulated, if applicable, as an
occupational therapy assistant by the State in which practicing, unless
licensure does apply.
(B) Graduated after successful completion of an occupational
therapy assistant education program accredited by the Accreditation
Council for Occupational Therapy Education (ACOTE) of the American
Occupational Therapy Association, Inc. (AOTA) or its successor
organizations.
(C) Is eligible to take or successfully completed the entry-level
certification examination for occupational therapy assistants developed
and administered by the National Board for Certification in
Occupational Therapy, Inc. (NBCOT).
(ii) On or before December 31, 2009--
(A) Is licensed or otherwise regulated as an occupational therapy
assistant, if applicable, by the State in which practicing; or any
qualifications defined by the State in which practicing, unless
licensure does not apply; or
(B) Must meet both of the following:
(1) Completed certification requirements to practice as an
occupational therapy assistant established by a credentialing
organization approved by the American Occupational Therapy Association.
(2) After January 1, 2010, meets the requirements in paragraph
(b)(6)(i) of this section.
(iii) After December 31, 1977 and on or before December 31, 2007--
(A) Completed certification requirements to practice as an
occupational therapy assistant established by a credentialing
organization approved by the American Occupational Therapy Association;
or
(B) Completed the requirements to practice as an occupational
therapy assistant applicable in the State in which practicing.
(iv) On or before December 31, 1977--
(A) Had 2 years of appropriate experience as an occupational
therapy assistant; and
(B) Had achieved a satisfactory grade on an occupational therapy
assistant proficiency examination conducted, approved, or sponsored by
the U.S. Public Health Service.
(v) If educated outside the United States, on or after January 1,
2008--
(A) Graduated after successful completion of an occupational
therapy assistant education program that is accredited as substantially
equivalent to occupational therapist assistant entry level education in
the United States by--
(1) The Accreditation Council for Occupational Therapy Education
(ACOTE).
(2) Its successor organizations.
(3) The World Federation of Occupational Therapists.
[[Page 32219]]
(4) By a credentialing body approved by the American Occupational
Therapy Association; and
(5) Successfully completed the entry level certification
examination for occupational therapy assistants developed and
administered by the National Board for Certification in Occupational
Therapy, Inc. (NBCOT).
(7) Physical therapist. A person who is licensed, if applicable, by
the State in which practicing, unless licensure does not apply and
meets one of the following requirements:
(i) Graduated after successful completion of a physical therapist
education program approved by one of the following:
(A) The Commission on Accreditation in Physical Therapy Education
(CAPTE).
(B) Successor organizations of CAPTE.
(C) An education program outside the United States determined to be
substantially equivalent to physical therapist entry level education in
the United States by a credentials evaluation organization approved by
the American Physical Therapy Association or an organization identified
in 8 CFR 212.15(e) as it relates to physical therapists.
(D) Passed an examination for physical therapists approved by the
State in which physical therapy services are provided.
(ii) On or before December 31, 2009--
(A) Graduated after successful completion of a physical therapy
curriculum approved by the Commission on Accreditation in Physical
Therapy Education (CAPTE); or
(B) Meets both of the following:
(1) Graduated after successful completion of an education program
determined to be substantially equivalent to physical therapist entry
level education in the United States by a credentials evaluation
organization approved by the American Physical Therapy Association or
identified in 8 CFR 212.15(e) as it relates to physical therapists.
(2) Passed an examination for physical therapists approved by the
State in which physical therapy services are provided.
(iii) Before January 1, 2008--
(A) Graduated from a physical therapy curriculum approved by one of
the following:
(1) The American Physical Therapy Association.
(2) The Committee on Allied Health Education and Accreditation of
the American Medical Association.
(3) The Council on Medical Education of the American Medical
Association and the American Physical Therapy Association.
(iv) On or before December 31, 1977 was licensed or qualified as a
physical therapist and meets both of the following:
(A) Has 2 years of appropriate experience as a physical therapist.
(B) Has achieved a satisfactory grade on a proficiency examination
conducted, approved, or sponsored by the U.S. Public Health Service.
(v) Before January 1, 1966--
(A) Was admitted to membership by the American Physical Therapy
Association;
(B) Was admitted to registration by the American Registry of
Physical Therapists; and
(C) Graduated from a physical therapy curriculum in a 4-year
college or university approved by a State department of education.
(vi) Before January 1, 1966 was licensed or registered, and before
January 1, 1970, had 15 years of fulltime experience in the treatment
of illness or injury through the practice of physical therapy in which
services were rendered under the order and direction of attending and
referring doctors of medicine or osteopathy.
(vii) If trained outside the United States before January 1, 2008,
meets the following requirements:
(A) Was graduated since 1928 from a physical therapy curriculum
approved in the country in which the curriculum was located and in
which there is a member organization of the World Confederation for
Physical Therapy.
(B) Meets the requirements for membership in a member organization
of the World Confederation for Physical Therapy.
(8) Physical therapist assistant. A person who is licensed,
registered or certified as a physical therapist assistant, if
applicable, by the State in which practicing, unless licensure does not
apply and meets one of the following requirements:
(i) Graduated from a physical therapist assistant curriculum
approved by the Commission on Accreditation in Physical Therapy
Education of the American Physical Therapy Association; or if educated
outside the United States or trained in the United States military,
graduated from an education program determined to be substantially
equivalent to physical therapist assistant entry level education in the
United States by a credentials evaluation organization approved by the
American Physical Therapy Association or identified at 8 CFR 212.15(e);
and
(ii) Passed a national examination for physical therapist
assistants.
(A) On or before December 31, 2009, meets one of the following:
(1) Is licensed, or otherwise regulated in the State in which
practicing.
(2) In States where licensure or other regulations do not apply,
graduated before December 31, 2009, from a 2-year college-level program
approved by the American Physical Therapy Association and after January
1, 2010, meets the requirements of paragraph (b)(8) of this section.
(3) Before January 1, 2008, where licensure or other regulation
does not apply, graduated from a 2-year college level program approved
by the American Physical Therapy Association.
(4) On or before December 31, 1977, was licensed or qualified as a
physical therapist assistant and has achieved a satisfactory grade on a
proficiency examination conducted, approved, or sponsored by the U.S.
Public Health Service.
(c) Personnel qualifications when no State licensing, certification
or registration requirements exist. If no State licensing laws,
certification or registration requirements exist for the profession,
the following requirements must be met:
(1) Registered nurse. A graduate of a school of professional
nursing.
(2) Licensed practical nurse. A person who has completed a
practical nursing program.
(d) Standard: Criminal background checks. (1) The hospice must
obtain a criminal background check on all hospice employees who have
direct patient contact or access to patient records. Hospice contracts
must require that all contracted entities obtain criminal background
checks on contracted employees who have direct patient contact or
access to patient records.
(2) Criminal background checks must be obtained in accordance with
State requirements. In the absence of State requirements, criminal
background checks must be obtained within three months of the date of
employment for all states that the individual has lived or worked in
the past 3 years.
Sec. 418.116 Condition of participation: Compliance with Federal,
State, and local laws and regulations related to the health and safety
of patients.
The hospice and its staff must operate and furnish services in
compliance with all applicable Federal, State, and local laws and
regulations related to the health and safety of patients. If State or
local law provides for licensing of hospices, the hospice must be
licensed.
(a) Standard: Multiple locations. Every hospice must comply with
the
[[Page 32220]]
requirements of Sec. 420.206 of this chapter regarding disclosure of
ownership and control information. All hospice multiple locations must
be approved by Medicare and licensed in accordance with State licensure
laws, if applicable, before providing Medicare reimbursed services.
(b) Standard: Laboratory services. (1) If the hospice engages in
laboratory testing other than assisting a patient in self-administering
a test with an appliance that has been approved for that purpose by the
FDA, the hospice must be in compliance with all applicable requirements
of part 493 of this chapter.
(2) If the hospice chooses to refer specimens for laboratory
testing to a reference laboratory, the reference laboratory must be
certified in the appropriate specialties and subspecialties of services
in accordance with the applicable requirements of part 493 of this
chapter.
Subpart E [Removed and Reserved]
Sec. 418.200 [Amended]
0
5. Section 418.200 is amended by revising the reference ``Sec.
418.58'' to read ``Sec. 418.56''.
Sec. 418.202 [Amended]
0
6. In Sec. 418.202, paragraph (e) is amended by revising the reference
``Sec. 418.98(b)'' to read ``Sec. 418.108(b)'' and paragraph (g) is
amended by revising the reference ``Sec. 418.94'' to read ``Sec.
418.76''.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program)
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: December 19, 2007.
Kerry Weems,
Acting Administrator, Centers for Medicare & Medicaid Services.
Approved: May 23, 2008.
Michael O. Leavitt,
Secretary.
[FR Doc. 08-1305 Filed 5-27-08; 4:00 pm]
BILLING CODE 4120-01-P