[Federal Register Volume 78, Number 152 (Wednesday, August 7, 2013)]
[Rules and Regulations]
[Pages 48234-48281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18838]



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Vol. 78

Wednesday,

No. 152

August 7, 2013

Part II





Department of Health and Human Services





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Center for Medicare & Medicaid Services





42 CFR Part 418





Medicare Program; FY 2014 Hospice Wage Index and Payment Rate Update; 
Hospice Quality Reporting Requirements; and Updates on Payment Reform; 
Final Rule

  Federal Register / Vol. 78 , No. 152 / Wednesday, August 7, 2013 / 
Rules and Regulations  

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 418

[CMS-1449-F]
RIN 0938-AR64


Medicare Program; FY 2014 Hospice Wage Index and Payment Rate 
Update; Hospice Quality Reporting Requirements; and Updates on Payment 
Reform

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Final rule.

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SUMMARY: This final rule updates the hospice payment rates and the wage 
index for fiscal year (FY) 2014, and continues the phase out of the 
wage index budget neutrality adjustment factor (BNAF). Including the FY 
2014 15 percent BNAF reduction, the total 5 year cumulative BNAF 
reduction in FY 2014 will be 70 percent. The BNAF phase-out will 
continue with successive 15 percent reductions in FY 2015 and FY 2016. 
This final rule also clarifies how hospices are to report diagnoses on 
hospice claims, and provides updates to the public on hospice payment 
reform. Additionally, this final rule changes the requirements for the 
hospice quality reporting program by discontinuing currently reported 
measures and implementing a Hospice Item Set with seven National 
Quality Forum (NFQ) endorsed measures beginning July 1, 2014, as 
proposed. Finally, this final rule will implement the hospice 
Experience of Care Survey on January 1, 2015, as proposed.

DATES: Effective Date: These regulations are effective on October 1, 
2013.

FOR FURTHER INFORMATION CONTACT:
Debra Dean-Whittaker, (410) 786-0848, for questions regarding the 
hospice experience of care survey.
Robin Dowell, (410) 786-0060, for questions regarding quality reporting 
for hospices and collection of information requirements.
Hillary Loeffler, (410) 786-0456, for general questions about hospice 
payment.
Katherine Lucas, (410) 786-7723 for questions regarding payment reform.
Anjana Patel, (410) 786-2120, for questions regarding the FY 2014 
hospice wage index and payment rates.
Kelly Vontran, (410) 786-0332, for questions on diagnosis reporting on 
hospice claims.

SUPPLEMENTARY INFORMATION:
    Wage Index Addenda: In the past, the wage index addenda referred to 
in the preamble of our proposed and final rules were available in the 
Federal Register. However, the wage index addenda of the annual 
proposed and final rules will no longer be available in the Federal 
Register. Instead, these addenda will be available only through the 
internet on the CMS Web site at: (http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.) Readers who experience any 
problems accessing any of the wage index addenda related to the hospice 
payment rules that are posted on the CMS Web site identified above 
should contact Anjana Patel at 410-786-2120.

Table of Contents

I. Executive Summary
    A. Purpose
    B. Summary of the Major Provisions
    C. Summary of Costs, Benefits, and Transfers
II. Background
    A. Hospice Care
    B. History of the Medicare Hospice Benefit
    C. Services Covered by the Medicare Hospice Benefit
    D. Medicare Payment for Hospice Care
    1. Omnibus Budget Reconciliation Act of 1989
    2. Balanced Budget Act of 1997
    3. FY 1998 Hospice Wage Index Final Rule
    4. FY 2010 Hospice Wage Index Final Rule
    5. The Affordable Care Act
    6. FY 2012 Hospice Wage Index Final Rule
    E. Trends in Medicare Hospice Utilization
III. Summary of the Provisions of the Proposed Rule
    A. Diagnosis Reporting on Hospice Claims
    1. ICD-9-CM Coding Guidelines
    2. Use of Nonspecific, Symptom Diagnoses
    3. Use of ``Mental, Behavioral and Neurodevelopmental 
Disorders'' ICD-9-CM Codes
    4. Guidance on Coding of Principal and Other, Additional, and/or 
Co-Existing Diagnoses
    5. Transition to ICD-10-CM
    B. Hospice Quality Reporting Program
    C. FY 2014 Hospice Wage Index and Rates Update
    D. Update on Hospice Payment Reform and Data Collection
    E. Technical and Clarifying Regulatory Text Change
IV. Analysis and Responses to Public Comments
    A. Diagnosis Reporting on Hospice Claims
    1. ICD-9-CM Coding Guidelines
    2. Use of Nonspecific, Symptom Diagnoses
    3. Use of ``Mental, Behavioral and Neurodevelopmental 
Disorders'' ICD-9-CM Codes
    4. Guidance on Coding of Principal and Other, Additional, and/or 
Co-Existing Diagnoses
    5. Transition to ICD-10-CM
    B. The Hospice Quality Reporting Program
    1. Background and Statutory Authority
    2. Quality Measures for Hospice Quality Reporting Program and 
Data Submission Requirements for Payment Year FY 2014
    3. Quality Measures for Hospice Quality Reporting Program and 
Data Submission Requirements for Payment Year FY 2015 and Beyond
    4. Quality Measures for Hospice Quality Reporting Program for 
Payment Year FY 2016 and Beyond
    5. Public Availability of Data Submitted
    6. The CMS Hospice Experience of Care Survey for the FY 2017 
Payment Determination and That of Subsequent Fiscal Years
    7. Notice Pertaining to Reconsiderations Following APU 
Determinations
    C. FY 2014 Hospice Wage Index and Rates Update
    1. Hospice Wage Index
    2. FY 2014 Wage Index With an Additional 15 Percent Reduced 
Budget Neutrality Adjustment Factor (BNAF)
    3. Hospice Payment Update Percentage
    4. Final FY 2014 Hospice Payment Rates
    D. Update on Hospice Payment Reform and Data Collection
    1. Update on Reform Options
    a. Rebasing the Routine Home Care (RHC) Rate
    b. Site of Service Adjustment for Hospice Patients in Nursing 
Facilities
    2. Reform Research Findings
    3. Additional Data Collection
    E. Technical and Clarifying Regulatory Text Change
V. Collection of Information Requirements
VI. Regulatory Impact Analysis
    A. Statement of Need
    B. Overall Impact
    1. Introduction
    2. Detailed Economic Analysis
    3. Cost Allocation of Quality Reporting
    4. Alternatives Considered
    C. Accounting Statement
    D. Conclusion
    1. Regulatory Flexibility Act Analysis
    2. Unfunded Mandates Reform Act Analysis
VII. Federalism Analysis and Regulations Text

Acronyms

    Because of the many terms to which we refer by acronym in this 
final rule, we are listing the acronyms used and their corresponding 
meanings in alphabetical order below:

APU Annual Payment Update
BBA Balanced Budget Act of 1997
BLS Bureau of Labor Statistics
BMI Body Mass Index
BNAF Budget Neutrality Adjustment Factor
CAD Coronary Artery Disease
CAHPS[supreg] Consumer Assessment of Healthcare Providers and 
Systems
CBSA Core-Based Statistical Area
CCW Chronic Conditions Warehouse
CFR Code of Federal Regulations
CHC Continuous Home Care
CMS Centers for Medicare & Medicaid Services
COPD Chronic Obstructive Pulmonary Disease
CoPs Conditions of Participation

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CR Change Request
CVA Cerebrovascular Accident
CY Calendar Year
DME Durable Medical Equipment
FEHC Family Evaluation of Hospice Care
FR Federal Register
FY Fiscal Year
GAO Government Accountability Office
GIP General Inpatient Care
HCFA Healthcare Financing Administration
HHS Health and Human Services
HIS Hospice Item Set
HQRP Hospice Quality Reporting Program
ICD-9-CM International Classification of Diseases, Ninth Revision, 
Clinical Modification
ICD-10-CM International Classification of Diseases, Tenth Revision, 
Clinical Modification
IDG Interdisciplinary Group
IPPS Inpatient Prospective Payment System
IRC Inpatient Respite Care
LCD Local Coverage Determination
LUPA Low Utilization Payment Amount
MAP Measure Applications Partnership
MedPAC Medicare Payment Advisory Commission
MFP Multi-factor Productivity
MSA Metropolitan Statistical Area
NEC Not Elsewhere Classified
NF Long Term Care Nursing Facility
NPI National Provider Identifier
NQF National Quality Forum
OACT Office of the Actuary
OIG Office of Inspector General
OMB Office of Management and Budget
PEACE Prepare, Embrace, Attend, Communicate, and Empower
PRA Paperwork Reduction Act
PRRB Provider Reimbursement Review Board
QAPI Quality Assessment and Performance Improvement
RFA Regulatory Flexibility Act
RHC Routine Home Care
SBA Small Business Administration
SNF Skilled Nursing Facility
TEFRA Tax Equity and Fiscal Responsibility Act of 1982
TEP Technical Expert Panel

I. Executive Summary

A. Purpose

    This final rule updates the payment rates for hospice providers for 
fiscal year (FY) 2014 as required under section 1814 (i) of the Social 
Security Act (the Act). The updates incorporate the use of updated 
hospital wage index data, the 5th year of the 7-year Budget Neutrality 
Adjustment Factor (BNAF) phase-out, and an update to the hospice 
payment rates by the hospice payment update percentage. Additionally, 
this final rule clarifies diagnosis reporting on hospice claims, 
provides an update on hospice payment reform and additional data 
collection requirements, and makes changes to the quality reporting 
requirements for hospice providers.

B. Summary of the Major Provisions

    In this final rule we update the hospice payment rates for FY 2014 
by 1.7 percent as described in section IV.C.3. We also update the FY 
2014 hospice wage index with more current wage data, and the BNAF will 
be reduced by an additional 15 percent for a total BNAF reduction of 70 
percent as described in section IV.C.3. The August 6, 2009 FY 2010 
Hospice Wage Index final rule (74 FR 39384) finalized a 10 percent 
reduced BNAF for FY 2010 as the first year of a 7-year phase-out of the 
BNAF, to be followed by an additional 15 percent per year reduction in 
the BNAF in each of the next 6 years. The total BNAF phase-out will be 
complete by FY 2016. This final rule also clarifies diagnosis reporting 
on hospice claims, especially regarding the use of non-specific symptom 
diagnoses; provides an update on hospice payment reform and additional 
data collection requirements; and finalizes a technical regulations 
text change. Additionally, this final rule changes the requirements for 
the hospice quality reporting program by discontinuing currently 
reported measures and implementing a Hospice Item Set with seven 
National Quality Forum (NQF) endorsed measures beginning July 1, 2014, 
as proposed. Finally, this final rule will implement the hospice 
Experience of Care Survey on January 1, 2015, as proposed.

C. Summary of Costs, Benefits, and Transfers

------------------------------------------------------------------------
    Provision description                        Total
------------------------------------------------------------------------
FY 2014 Hospice Payment Rate   The overall economic impact of this final
 Update.                        rule is an estimated $160 million in
                                increased payments to hospices.
Costs for Hospices to Submit   The total cost to hospice providers, for
 Data.                          submitting data to the Hospice Item Set
                                starting in July 2014, is $14.3 million.
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II. Background

A. Hospice Care

    Coping with a life-limiting illness can be an overwhelming 
experience, physically, emotionally and spiritually, for both the 
person and his or her family. Recognition that the care needs at end-
of-life are different from other health care needs is a foundation of 
the Medicare Hospice Benefit. Hospice is a compassionate care 
philosophy and practice for those who are terminally ill. It is a 
holistic approach to treatment that recognizes that the impending death 
of an individual warrants a change from curative to palliative care. 
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'' (42 
CFR 418.3). Palliative care is at the core of hospice philosophy and 
care practices. The person beginning hospice care, or his or her 
representative, needs to understand that his or her illness is no 
longer responding to medical interventions to cure or slow the 
progression of disease and then must choose to stop further curative 
attempts while palliative care continues and intensifies, as needed, 
for continued symptom management. As we stated in the June 5, 2008 
Hospice Conditions of Participation final rule (73 FR 32088), 
palliative care is an approach that ``optimizes quality of life by 
anticipating, preventing, and treating suffering.'' The goal of 
palliative care in hospice is to improve the quality of life of 
individuals and their families facing the issues 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. In addition, palliative care in hospice includes 
coordinating care services, reducing unnecessary diagnostics or 
ineffective therapies, and offering ongoing conversations with 
individuals and their families about changes in the disease and shifts 
in the plan of care to meet the changing needs with disease progression 
as the individual approaches the end-of-life.
    Medicare hospice care is palliative care for individuals with a 
prognosis of living 6 months or less if the terminal illness runs its 
normal course. As generally accepted by the medical community, the term 
``terminal illness'' refers to an advanced and progressively 
deteriorating illness, and the illness is diagnosed as incurable. When 
an individual is terminally ill, many health problems are brought on by 
underlying

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condition(s), as bodily systems are interdependent. In the June 5, 2008 
Hospice Conditions of Participation final rule (73 FR 32088), we stated 
``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.'' As referenced in our regulations at 42 CFR 
418.22(b)(1), to be eligible for Medicare hospice services, the 
beneficiary's attending physician (if any) and the hospice medical 
director must certify that the individual is terminally ill, that is, 
the individual's prognosis is for a life expectancy of 6 months or less 
if the terminal illness runs its normal course as defined in section 
1861(dd)(3)(A) of the Act and our regulations at Sec.  418.3. The 
certification of terminal illness must include a brief narrative 
explanation of the clinical findings that supports a life expectancy of 
6 months or less as part of the certification and recertification forms 
as stated in Sec.  418.22(b)(3).
    The goal of hospice care is to make the hospice patient as 
physically and emotionally comfortable as possible, with minimal 
disruption to normal activities, while remaining primarily in the home 
environment. Hospice care uses an interdisciplinary approach to deliver 
medical, nursing, social, psychological, emotional, and spiritual 
services through the use of a broad spectrum of professional and other 
caregivers and volunteers. While the goal of hospice care is to allow 
for the individual to remain in his or her home environment, 
circumstances during the end-of-life may necessitate short-term 
inpatient admission to a hospital, skilled nursing facility (SNF), or 
hospice facility for procedures necessary for pain control or acute or 
chronic symptom management that cannot be managed in any other setting. 
These acute hospice care services are to ensure that any new or 
worsening symptoms are intensively addressed so that the individual can 
return to his or her home environment under routine hospice care. 
Short-term, intermittent, inpatient respite services are also available 
to the family of the hospice patient when needed to relieve the family 
or other caregivers. Additionally, an individual can receive continuous 
home care during a period of crisis in which an individual requires 
primarily continuous nursing care to achieve palliation or management 
of acute medical symptoms so that the individual can remain at home. 
Continuous home care may be covered on a continuous basis for as much 
as 24 hours a day, and these periods must be predominantly nursing care 
per our regulations at Sec.  418.204. A minimum of 8 hours of care must 
be furnished on a particular day to qualify for the continuous home 
care rate (Sec.  418.302(e)(4)).

B. History of the Medicare Hospice Benefit

    Before the creation of the Medicare Hospice Benefit, hospice was 
originally run by volunteers who cared for the dying. During the early 
development stages of the Medicare Hospice Benefit, hospice advocates, 
working with legislators, were clear that they wanted a Medicare 
benefit available that provided all-inclusive care for terminally-ill 
individuals, provided pain relief and symptom management, and offered 
the opportunity to die with dignity in the comfort of one's home rather 
than in an institutional setting.\1\ As stated in the August 22, 1983 
proposed rule entitled ``Medicare Program; Hospice Care'' (48 FR 
38146), ``the hospice experience in the United States has placed 
emphasis on home care. It offers physician services, specialized 
nursing services, and other forms of care in the home to enable the 
terminally ill individual to remain at home in the company of family 
and friends as long as possible.'' The concept of a beneficiary 
``electing'' the hospice benefit and being certified as terminally ill 
were two key components in the legislation responsible for the creation 
of the Medicare Hospice Benefit (section 122 of the Tax Equity and 
Fiscal Responsibility Act of 1982 (TEFRA), (Pub. L. 97-248)). Section 
122 of TEFRA created the Medicare Hospice Benefit, which was 
implemented on November 1, 1983. Under section 1861(dd) of the Social 
Security Act (the Act), codified at 42 U.S.C. 1395x(dd), we provide 
coverage of hospice care for terminally ill Medicare beneficiaries who 
elected to receive care from a Medicare-certified hospice. Our 
regulations at Sec.  418.54(c) stipulate that the comprehensive hospice 
assessment must identify the patient's physical, psychosocial, 
emotional, and spiritual needs related to the terminal illness and 
related conditions, and address those needs 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: the nature and condition causing admission 
(including the presence or lack of objective data and subjective 
complaints); complications and risk factors that affect care planning; 
functional status; imminence of death; and severity of symptoms. The 
Medicare Hospice Benefit requires the hospice to cover all reasonable 
and necessary palliative care related to the terminal prognosis and 
related conditions, as described in the patient's plan of care. The 
December 16, 1983 Hospice final rule (48 FR 56008) requires hospices to 
cover care for interventions to manage pain and symptoms. Clinically, 
related conditions are any physical or mental conditions that are 
related to or caused by either the terminal illness or the medications 
used to manage the terminal illness.\2\ Additionally, the hospice 
Conditions of Participation at Sec.  418.56(b), hospice must provide 
all services necessary for the palliation and management of the 
terminal illness, related conditions and interventions to manage pain 
and symptoms. Therapy and interventions must be assessed and managed in 
terms of providing palliation and comfort without undue symptom burden 
for the hospice patient or family.\3\ For example, a hospice patient 
with lung cancer (the terminal illness) may receive inhalants for 
shortness of breath (related to the terminal condition). The patient 
may also suffer from metastatic bone pain (a related condition) and 
would be treated with opioid analgesics. As a result of the opioid 
therapy, the patient may suffer from constipation (an associated 
symptom) and require a laxative for symptom relief. It is often not a 
single diagnosis that represents the terminal prognosis of the patient, 
but the combined effect of several conditions that makes the patient's 
condition terminal. We are restating what we communicated in the 
December 16, 1983 Hospice final rule (48 FR 56010), regarding what is 
related versus unrelated to the terminal illness: ``. . . we believe 
that the unique physical condition of each terminally ill individual 
makes it necessary for these decisions to be made on a case-by-case 
basis. It is our general view that hospices are required to provide 
virtually all the care that is needed by terminally ill patients.'' 
Therefore, unless there is clear evidence that a

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condition is unrelated to the terminal prognosis, all services would be 
considered related. It is also the responsibility of the hospice 
physician to document why a patient's medical needs would be unrelated 
to the terminal prognosis.
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    \1\ Connor, Stephen (2007). Development of Hospice and 
Palliative Care in the United States. OMEGA. 561(1), p. 89-99.
    \2\ Harder, PharmD, CGP, Julia. (2012). To Cover or Not To 
Cover: Guidelines for Covered Medications in Hospice Patients. The 
Clinician. 7(2), p. 1-3.
    \3\ Paolini, DO, Charlotte. (2001). Symptoms Management at End 
of Life. JAOA. 101(10). p. 609-615.
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    The fundamental premise upon which the hospice benefit was designed 
was the ``revocation'' of traditional curative care and the 
``election'' of hospice care for end-of-life symptom management and 
maximization of quality of life, as stated in the December 16,1983 
Hospice final rule (48 FR 56008). After electing hospice care, the 
patient typically returns to the home from an institutionalized setting 
or remains in the home, to be surrounded by family and friends, and to 
prepare emotionally and spiritually for death while receiving expert 
symptom management and other supportive services. Election of hospice 
care also includes waiving the right to Medicare payment for curative 
treatment for the terminal prognosis, and instead receiving palliative 
care to manage pain or symptoms.
    The benefit was originally designed to cover hospice care for a 
finite period of time that roughly corresponded to a life expectancy of 
6 months or less. Initially, beneficiaries could receive three election 
periods: Two 90-day periods and one 30-day period. Currently, Medicare 
beneficiaries can elect hospice care for two 90-day periods and an 
unlimited number of subsequent 60-day periods; however, the expectation 
remains that beneficiaries have a life expectancy of 6 months or less 
if the terminal illness runs its normal course.

C. Services Covered by the Medicare Hospice Benefit

    One requirement for coverage under the Medicare Hospice Benefit is 
that hospice services must be reasonable and necessary for the 
palliation and management of the terminal illness and related 
conditions. Section 1861(dd)(1) of the Act establishes the services 
that are to be rendered by a Medicare certified hospice program. These 
covered services include: Nursing care; physical therapy; occupational 
therapy; speech-language pathology therapy; medical social services; 
home health aide services (now called hospice aide services); physician 
services; homemaker services; medical supplies (including drugs and 
biologics); medical appliances; counseling services (including dietary 
counseling); short-term inpatient care (including both respite care and 
procedures necessary for pain control and acute or chronic symptom 
management) in a hospital, nursing facility, or hospice inpatient 
facility; continuous home care during periods of crisis and only as 
necessary to maintain the terminally ill individual at home; and any 
other item or service which is specified in the plan of care and for 
which payment may otherwise be made under Medicare, in accordance with 
Title XVIII of the Act.
    Section 1814(a)(7)(B) of the Act requires that a written plan for 
providing hospice care to a beneficiary who is a hospice patient be 
established before care is provided by, or under arrangements made by, 
that hospice program and that the written plan be periodically reviewed 
by the beneficiary's attending physician (if any), the hospice medical 
director, and an interdisciplinary group (described in section 
1861(dd)(2)(B) of the Act).
    The services offered under the hospice benefit must be available, 
as needed, to beneficiaries 24 hours a day, 7 days a week (section 
1861(dd)(2)(A)(i) of the Act). Upon the implementation of the hospice 
benefit, the Congress expected hospices to continue to use volunteer 
services, though these services are not to be reimbursed (see Section 
1861(dd)(2)(E) of the Act and 48 FR 38149). The hospice 
interdisciplinary group should be comprised of paid hospice employees 
as well as hospice volunteers, as stated in the August 22, 1983 Hospice 
proposed rule (48 FR 38149). This expectation is in line with the 
history of hospice and philosophy of holistic, comprehensive, 
compassionate, end-of-life care.
    The National Hospice Study was initiated in 1980 through a grant 
sponsored by the Robert Wood Johnson and John A. Hartford Foundations 
and CMS (formerly, the Health Care Financing Administration (HCFA)). 
The study was conducted between October 1980 and March 1983. The study 
summarized the hospice care philosophy as the following:
     Patient and family know of the terminal condition.
     Further medical treatment and intervention are indicated 
only on a supportive basis.
     Pain control should be available to patients as needed to 
prevent rather than to just ameliorate pain.
     Interdisciplinary teamwork is essential in caring for 
patient and family.
     Family members and friends should be active in providing 
support during the death and bereavement process.
     Trained volunteers should provide additional support as 
needed.
    In the August 22, 1983 Hospice proposed rule (48 FR 38149), we 
stated ``the hospice benefit and the resulting Medicare reimbursement 
is not intended to diminish the voluntary spirit of hospices''.

D. Medicare Payment for Hospice Care

    Sections 1812(d), 1813(a)(4), 1814(a)(7), 1814(i), and 1861(dd) of 
the Act, and our regulations in part 418, establish eligibility 
requirements, payment standards and procedures, define covered 
services, and delineate the conditions a hospice must meet to be 
approved for participation in the Medicare program. Part 418, subpart 
G, provides for a per diem payment in one of four prospectively-
determined rate categories of hospice care (routine home care, 
continuous home care, inpatient respite care, and general inpatient 
care), based on each day a qualified Medicare beneficiary is under 
hospice care (once the individual has elected it). This per diem 
payment is to include all of the hospice services needed to manage the 
beneficiaries' care, as required by section 1861(dd)(1) of the Act. 
There has been little change in the hospice payment structure since the 
benefit's inception. The per diem rate based on level of care was 
established in 1983, and this payment structure remains today with some 
adjustments, as noted below:
1. Omnibus Budget Reconciliation Act of 1989
    Section 6005(a) of the Omnibus Budget Reconciliation Act of 1989 
(Pub. L 101-239) amended section 1814(i)(1)(C) of the Act and provided 
for the following two changes in the methodology concerning updating 
the daily payment rates: (1) Effective January 1, 1990, the daily 
payment rates for routine home care and other services in included in 
hospice care were increased to equal 120 percent of the rates in effect 
on September 30, 1989; and (2) the daily payment rate for routine home 
care and other services included in hospice care for fiscal years 
beginning on or after October 1, 1990, were the payment rates in effect 
during the previous Federal fiscal year increased by the hospital 
market basket percentage increase.
2. Balanced Budget Act of 1997
    Section 4441(a) of the Balanced Budget Act of 1997 (BBA) (Pub. L 
105-33) amended section 1814(i)(1)(C)(ii)(VI) of the Act to establish 
updates to hospice rates for FYs 1998 through 2002. Hospice rates were 
updated by a factor equal to the hospital market basket percentage 
increase, minus 1 percentage point. Payment rates for FYs from 2002 
have been updated according to section 1814(i)(1)(C)(ii)(VII) of the 
Act, which states that the update to the

[[Page 48238]]

payment rates for subsequent FYs will be the hospital market basket 
percentage increase for the FY. The Social Security Act requires us to 
use the inpatient hospital market basket to determine hospice payment 
rates.
3. FY 1998 Hospice Wage Index Final Rule
    In the August 8, 1997 FY 1998 Hospice Wage Index final rule (62 FR 
42860), we implemented a new methodology for calculating the hospice 
wage index based on the recommendations of a negotiated rulemaking 
committee. The original hospice wage index was based on 1981 Bureau of 
Labor Statistics hospital data and had not been updated since 1983. In 
1994, because of disparity in wages from one geographical location to 
another, the Hospice Wage Index Negotiated Rulemaking Committee was 
formed to negotiate a new wage index methodology that could be accepted 
by the industry and the government. This Committee was comprised of 
representatives from national hospice associations; rural, urban, large 
and small hospices, and multi-site hospices; consumer groups; and a 
government representative. The Committee decided that in updating the 
hospice wage index, aggregate Medicare payments to hospices would 
remain budget neutral to payments calculated using the 1983 wage index, 
to cushion the impact of using a new wage index methodology. To 
implement this policy, a BNAF would be computed and applied annually to 
the pre-floor, pre-reclassified hospital wage index when deriving the 
hospice wage index, subject to a wage index floor.
4. FY 2010 Hospice Wage Index Final Rule
    Inpatient hospital pre-floor and pre-reclassified wage index 
values, as described in the August 8, 1997 Hospice Wage Index final 
rule are subject to either a budget neutrality adjustment or 
application of the wage index floor. Wage index values of 0.8 or 
greater are adjusted by the budget neutrality adjustment factor (BNAF). 
Starting in FY 2010, a 7-year phase-out of the BNAF began (August 6, 
2009 FY 2010 Hospice Wage Index final rule (74 FR 39384), with a 10 
percent reduction in FY 2010, and additional 15 percent reduction for a 
total of 25 percent in FY 2011, an additional 15 percent reduction for 
a total 40 percent in FY 2012, and an additional 15 percent reduction 
for a total of 55 percent in FY 2013. The phase-out will continue with 
an additional 15 percent reduction for a total reduction of 70 percent 
in FY 2014, an additional 15 percent reduction for a total reduction of 
85 percent in FY 2015, and an additional 15 percent reduction for 
complete elimination in FY 2016. We note that the BNAF is an 
adjustment, which increases the hospice wage index value. Therefore, 
the BNAF reduction is a reduction in the amount of the BNAF increase 
applied to the hospice wage index value. It is not a reduction in the 
hospice wage index value, or in the hospice payment rates.
5. The Affordable Care Act
    Starting with FY 2013 (and in subsequent FYs), the market basket 
percentage update under the hospice payment system referenced in 
sections 1814(i)(1)(C)(ii)(VII) and 1814(i)(1)(C)(iii) of the Act will 
be annually reduced by changes in economy-wide productivity, as 
specified in section 1886(b)(3)(B)(xi)(II) of the Act, as amended by 
section 3132(a) of the Patient Protection and Affordable Care Act of 
2010 (Pub. L. 111-148) as amended by the Health Care and Education 
Reconciliation Act of 2010 (Pub. L. 111-152) (the Affordable Care 
Act)). In FY 2013 through FY 2019, the market basket percentage update 
under the hospice payment system will be reduced by an additional 0.3 
percentage point (although for FY 2014 to FY 2019, the potential 0.3 
percentage point reduction is subject to suspension under conditions as 
specified in section 1814(i)(1)(C)(v) of the Act).
    In addition, sections 1814(i)(5)(A) through (C) of the Act, as 
amended by section 3132(a) of the Affordable Care Act, require hospices 
to begin submitting quality data, based on measures to be specified by 
the Secretary, for FY 2014 and subsequent fiscal years. Beginning in FY 
2014, hospices which fail to report quality data will have their market 
basket update reduced by 2 percentage points.
    Section 1814(a)(7)(D)(i) of the Act was amended by section 3132 
(b)(2)(D)(i) of the Affordable Care Act, and requires, effective 
January 1, 2011, that a hospice physician or nurse practitioner have a 
face-to-face encounter with an individual to determine continued 
eligibility of the individual for hospice care prior to the 180th-day 
recertification and each subsequent recertification and attest that 
such visit took place. When implementing this provision, we decided 
that the 180th-day recertification and subsequent recertifications 
corresponded to the recertification for a beneficiary's third or 
subsequent benefit periods (August 4, 2011 FY 2012 Hospice Wage Index 
final rule (76 FR 47314)).
    Further, section 1814(i)(6) of the Act, as amended by section 
3132(a)(1)(B) of the Affordable Care Act, authorizes the Secretary to 
collect additional data and information determined appropriate to 
revise payments for hospice care and other purposes. The types of data 
and information suggested in the Affordable Care Act would capture 
accurate resource utilization, which could be collected on claims, cost 
reports, and possibly other mechanisms, as the Secretary determines to 
be appropriate. The data collected may be used to revise the 
methodology for determining the payment rates for routine home care and 
other services included in hospice care, no earlier than October 1, 
2013, as described in section 1814(i)(6)(D) of the Act. In addition, we 
are required to consult with hospice programs and the Medicare Payment 
Advisory Commission (MedPAC) regarding additional data collection and 
payment revision options.
6. FY 2012 Hospice Wage Index Final Rule
    When the Medicare Hospice Benefit was implemented, the Congress 
included an aggregate cap on hospice payments, which limits the total 
aggregate payments any individual hospice provider can receive in a 
year. The Congress stipulated that a ``cap amount'' be computed each 
year. The cap amount was set at $6,500 per beneficiary when first 
enacted in 1983 and is adjusted annually by the change in the medical 
care expenditure category of the consumer price index for urban 
consumers from March 1984 to March of the cap year (section 
1814(i)(2)(B) of the Act). The cap year is defined as the period from 
November 1st to October 31st. As we stated in the August 4, 2011 FY 
2012 Hospice Wage Index final rule (76 FR 47308 through 47314), for the 
2012 cap year and subsequent cap years, the hospice aggregate cap will 
be calculated using the patient-by-patient proportional methodology, 
within certain limits. We will allow existing hospices the option of 
having their cap calculated via the original streamlined methodology, 
also within certain limits. New hospices will have their cap 
determinations calculated using the patient-by-patient proportional 
methodology. The patient-by-patient proportional methodology and the 
streamlined methodology are two different methodologies for counting 
beneficiaries when calculating the hospice aggregate cap. A detailed 
explanation of these methods is found in the August 4, 2011 FY 2012 
Hospice Wage Index final rule (76 FR 47308 through 47314). If a 
hospice's total

[[Page 48239]]

Medicare reimbursement for the cap year exceeded the hospice aggregate 
cap, then the hospice would have to repay the excess back to Medicare.

E. Trends in Medicare Hospice Utilization

    Since the implementation of the hospice benefit in 1983, and 
especially within the last decade, there has been substantial growth in 
hospice utilization. The number of Medicare beneficiaries receiving 
hospice services has grown from 513,000 in FY 2000 to over 1.3 million 
in FY 2012. Similarly, Medicare hospice expenditures have risen from 
$2.9 billion in FY 2000 to $14.7 billion in FY 2012. Our Office of the 
Actuary (OACT) projects that hospice expenditures are expected to 
continue to increase by approximately 8 percent annually, reflecting an 
increase in the number of Medicare beneficiaries, more beneficiary 
awareness of the Medicare Hospice Benefit for end-of-life care, and a 
growing preference for care provided in home and community-based 
settings. However, this increased spending is partly due to an 
increased average lifetime length of stay for beneficiaries, from 54 
days in 2000 to 86 days in FY 2010, an increase of 59 percent.
    There have also been noted changes in the diagnosis patterns among 
Medicare hospice enrollees, with a growing percentage of beneficiaries 
with non-cancer diagnoses. Specifically, there were notable increases 
between 2002 and 2007 in neurologically-based diagnoses, including 
various dementia diagnoses. Additionally, there have been significant 
increases in the use of non-specific, symptom-classified diagnoses, 
such as ``debility'' and ``adult failure to thrive.'' In FY 2012, both 
``debility'' and ``adult failure to thrive'' were in the top five 
claims-reported hospice diagnoses and were the first and third most 
common hospice diagnoses, respectively (see Table 2 below).

                 Table 2--The Top Twenty Principal Hospice Diagnoses, FY 2002, FY 2007, FY 2012
----------------------------------------------------------------------------------------------------------------
                  Rank                    ICD-9/Reported principal diagnosis   Total patients      Percentage
----------------------------------------------------------------------------------------------------------------
                                       Year: 2002 Total Patients = 663,406
----------------------------------------------------------------------------------------------------------------
1.......................................  162.9 Lung Cancer.................            73,769                11
2.......................................  428.0 Congestive Heart Failure....            45,951                 7
3.......................................  799.3 Debility Unspecified........            36,999                 6
4.......................................  496 COPD..........................            35,197                 5
5.......................................  331.0 Alzheimer's Disease.........            28,787                 4
6.......................................  436 CVA/Stroke....................            26,897                 4
7.......................................  185 Prostate Cancer...............            20,262                 3
8.......................................  783.7 Adult Failure To Thrive.....            18,304                 3
9.......................................  174.9 Breast Cancer...............            17,812                 3
10......................................  290.0 Senile Dementia, Uncomp.....            16,999                 3
11......................................  153.0 Colon Cancer................            16,379                 2
12......................................  157.9 Pancreatic Cancer...........            15,427                 2
13......................................  294.8 Organic Brain Synd Nec......            10,394                 2
14......................................  429.9 Heart Disease Unspecified...            10,332                 2
15......................................  154.0 Rectosigmoid Colon Cancer...             8,956                 1
16......................................  332.0 Parkinson's Disease.........             8,865                 1
17......................................  586 Renal Failure Unspecified.....             8,764                 1
18......................................  585 Chronic Renal Failure (End                 8,599                 1
                                           2005).
19......................................  183.0 Ovarian Cancer..............             7,432                 1
20......................................  188.9 Bladder Cancer..............             6,916                 1
----------------------------------------------------------------------------------------------------------------
                                      Year: 2007 Total Patients = 1,039,099
----------------------------------------------------------------------------------------------------------------
1.......................................  799.3 Debility Unspecified........            90,150                 9
2.......................................  162.9 Lung Cancer.................            86,954                 8
3.......................................  428.0 Congestive Heart Failure....            77,836                 7
4.......................................  496 COPD..........................            60,815                 6
5.......................................  783.7 Adult Failure To Thrive.....            58,303                 6
6.......................................  331.0 Alzheimer's Disease.........            58,200                 6
7.......................................  290.0 Senile Dementia Uncomp......            37,667                 4
8.......................................  436 CVA/Stroke....................            31,800                 3
9.......................................  429.9 Heart Disease Unspecified...            22,170                 2
10......................................  185 Prostate Cancer...............            22,086                 2
11......................................  174.9 Breast Cancer...............            20,378                 2
12......................................  157.9 Pancreas Unspecified........            19,082                 2
13......................................  153.9 Colon Cancer................            19,080                 2
14......................................  294.8 Organic Brain Syndrome NEC..            17,697                 2
15......................................  332.0 Parkinson's Disease.........            16,524                 2
16......................................  294.10 Dementia In Other Diseases             15,777                 2
                                           w/o Behav. Dist..
17......................................  586 Renal Failure Unspecified.....            12,188                 1
18......................................  585.6 End Stage Renal Disease.....            11,196                 1
19......................................  188.9 Bladder Cancer..............             8,806                 1
20......................................  183.0 Ovarian Cancer..............             8,434                 1
----------------------------------------------------------------------------------------------------------------
                                      Year: 2012 Total Patients = 1,328,651
----------------------------------------------------------------------------------------------------------------
1.......................................  799.3 Debility Unspecified........           161,163                12
2.......................................  162.9 Lung Cancer.................            89,636                 7
3.......................................  783.7 Adult Failure To Thrive.....            86,467                 7
4.......................................  428.0 Congestive Heart Failure....            84,333                 6

[[Page 48240]]

 
5.......................................  496 COPD..........................            74,786                 6
6.......................................  331.0 Alzheimer's Disease.........            64,199                 5
7.......................................  290.0 Senile Dementia, Uncomp.....            56,234                 4
8.......................................  429.9 Heart Disease Unspecified...            32,081                 2
9.......................................  436 CVA/Stroke....................            31,987                 2
10......................................  294.10 Dementia In Other Diseases             27,417                 2
                                           w/o Behavioral Dist..
11......................................  174.9 Breast Cancer...............            22,421                 2
12......................................  153.9 Colon Cancer................            22,197                 2
13......................................  157.9 Pancreatic Cancer...........            22,007                 2
14......................................  332.0 Parkinson's Disease.........            21,183                 2
15......................................  185 Prostate Cancer...............            21,042                 2
16......................................  294.8 Other Persistent Mental Dis.-           17,762                 1
                                           classified elsewhere.
17......................................  585. 6 End Stage Renal Disease....            17,545                 1
18......................................  518.81 Respiratory Failure........            12,962                 1
19......................................  294.11 Dementia In Other Diseases             11,751                 1
                                           w/Behavioral Dist..
20......................................  188.9 Bladder Cancer..............            10,511                 1
----------------------------------------------------------------------------------------------------------------
Source: FY 2002, 2007, and 2012 hospice claims data from the Chronic Conditions Warehouse (CCW), accessed on
  February 14 and February 20, 2013.
Note(s): The frequencies shown represent beneficiaries that had a least one claim with the specific ICD-9 code
  reported as the principal diagnosis. Beneficiaries could be represented multiple times in the results if they
  have multiple claims during that time period with different principal diagnoses.

III. Summary of the Provisions of the Proposed Rule

    The May 10, 2013 FY 2014 hospice proposed rule (78 FR 27823) 
included the following clarifications, proposals, and updates:
     Diagnosis reporting on claims;
     Proposed update to the Hospice Quality Reporting Program;
     FY 2014 Rate Update;
     Update on Hospice Payment Reform and Data Collection; and
     Technical and Clarifying Regulations Text Change.

A. Diagnosis Reporting on Claims

    The FY 2014 Hospice Wage Index and Payment Rate Update proposed 
rule clarified appropriate diagnosis reporting on hospice claims. No 
proposals were made regarding diagnosis coding. These clarifications 
are not to preclude any clinical judgment in determining a 
beneficiary's eligibility for hospice services. Eligibility for hospice 
services is based on meeting the eligibility requirements as stated in 
Sec.  418.20 of our regulations: ``an individual must be--
    (a) Entitled to Part A of Medicare; and
    (b) Certified as being terminally ill in accordance with Sec.  
418.22.''
1. ICD-9-CM Coding Guidelines
    The hospice benefit covers all care for the terminal illness, 
related conditions, and for the management of pain and symptoms. HIPAA, 
federal regulations, and the Medicare hospice claims processing manual 
all require that ICD-9-CM Coding Guidelines be applied to the coding 
and reporting of diagnoses on hospice claims. Regarding diagnosis 
reporting on hospice claims, we clarified in our July 27, 2012 FY 2013 
Hospice Wage Index notice (77 FR 44247 through 44248) that all 
providers are required to code and report the principal diagnosis as 
well as all coexisting and additional diagnoses related to the terminal 
condition or related conditions to more fully describe the Medicare 
patients they are treating.
2. Use of Nonspecific Symptom Diagnoses
    The proposed rule included additional diagnosis clarifications to 
address current and ongoing diagnosis reporting patterns noted on 
hospice claims, more specifically the use of nonspecific, symptom 
diagnoses and certain dementia diagnoses. In the proposed rule, we 
clarified that the ICD-9-CM codes of ``debility'' and ``adult failure 
to thrive'' listed in the ICD-9-CM Coding Guidelines under the 
classification, ``Symptoms, Signs, and Ill-defined Conditions'', are 
not to be used as principal diagnoses when a related definitive 
diagnosis has been established or confirmed by the provider. Therefore, 
in the proposed rule, we clarified that ``debility'' and ``adult 
failure to thrive'' should not be used as principal hospice diagnoses 
on the hospice claim form. When reported as a principal diagnosis, 
these would be considered questionable encounters for hospice care, and 
the claim would be returned to the provider for a more definitive 
principal diagnosis. ``Debility'' and ``adult failure to thrive'' could 
be reported on the hospice claim as other, additional, or coexisting 
diagnoses. The principal diagnosis reported should be the condition 
determined by the certifying hospice physician(s) as the diagnosis most 
contributory to the terminal decline.
3. Use of ``Mental, Behavioral and Neurodevelopmental Disorders'' ICD-
9-CM Codes
    The proposed rule also clarified the ICD-9-CM Coding Guidelines for 
certain dementia codes that are reported on hospice claims. There are 
several, but not all, codes that fall under the classification, 
``Mental, Behavioral and Neurodevelopmental Disorders,'' that encompass 
multiple dementia diagnoses that are frequently reported principal 
hospice diagnoses on hospice claims, but are not appropriate principal 
diagnoses per ICD-9-CM Coding Guidelines.
4. Guidance on Coding of Principal and Other, Additional, and/or Co-
Existing Diagnoses
    In the proposed rule, we reiterated that diagnosis reporting on the 
hospice claims should include the appropriate selection of principal 
diagnoses as well as the other, additional and coexisting diagnoses 
related to the terminal illness. In the July 27, 2012 FY 2013 Hospice 
Wage Index notice (77 FR 44247), we provided in-depth information 
regarding longstanding, existing ICD-9-CM Coding Guidelines. We also 
discussed related versus unrelated diagnosis reporting on claims and 
clarified that ``all of a patient's coexisting or additional 
diagnoses'' related to the terminal illness or related conditions 
should be reported on the hospice claim. Based on analysis of 
preliminary claims data from the first quarter of FY 2013 (October 1, 
2012 through December 31, 2012), 72 percent

[[Page 48241]]

of providers still only report one diagnosis on the hospice claim. This 
hospice diagnosis data is comparable to the hospice diagnosis data 
reported in the July 27, 2012 FY 2013 Hospice Wage Index notice (77 FR 
44242), in which we stated that over 77 percent of the hospice claims 
reported only a principal diagnosis.
    Information on a patient's related and unrelated diagnoses should 
already be included as part of the hospice comprehensive assessment and 
appropriate interventions for the palliation and management of the 
terminal illness and related conditions should be incorporated into the 
patient's plan of care, as determined by the hospice interdisciplinary 
group (IDG).
5. Transition to ICD-10-CM
    The proposed rule reminded the hospice industry that ICD-10-CM will 
replace the ICD-9-CM on October 1, 2014. A critical issue associated 
with the transition to ICD-10-CM involves the matter of crosswalking 
between the ICD-9-CM and ICD-10-CM code sets. The term ``crosswalking'' 
is generally defined as the act of mapping or translating a code in one 
code set to a code or codes in another code set. (The terms 
``crosswalking'' and ``mapping'' are sometimes used interchangeably.) 
Understanding crosswalking will be important to physicians during the 
transition phase when learning which new ICD-10 code to use in place of 
an ICD-9 code. We provided information regarding the crosswalks from 
ICD-9-CM to ICD-10-CM and this information is available for free and 
can be downloaded from the NCHS Web site, www.cdc.gov/nchs/icd/icd10cm.htm. Hospices should not substitute crosswalking for learning 
and fully implementing ICD-10-CM into their procedures. Additional 
information regarding the transition to ICD-10-CM is available through 
the CMS Web site at: http://www.cms.gov/Medicare/Coding/ICD10/index.html?redirect=/icd10.

B. Hospice Quality Reporting Program

     We proposed to eliminate two currently reported measures, 
the structural measure related to Quality Assurance and Performance 
Improvement (QAPI) and the NQF 0209 pain measure, and we 
offered an alternate proposal to retain the currently reported NQF 
0209 pain measure until a suitable comfort outcome measure is 
available as described in section III.B.3 of the FY 2014 hospice wage 
index and payment update proposed rule (78 FR 27835);
     We proposed to implement the Hospice Item Set (HIS), a 
standardized patient-level data collection vehicle, effective 7/1/2014 
and to utilize the seven NQF-endorsed measures derived from the HIS in 
the hospice quality reporting program as described in section III.B.4 
of the FY 2014 hospice wage index and payment update proposed rule (78 
FR 27836); and
     We proposed that hospices begin national implementation of 
the Hospice Experience of Care Survey by participating in a dry run in 
January 2015 through March 2015, and then, beginning in April 2015, 
conduct monthly implementation of the survey through December 2015 to 
meet the requirements of the 2017 annual payment update as described in 
section III.B.6 of the FY 2014 hospice wage index and payment update 
proposed rule (78 FR 27837).

C. FY 2014 Hospice Wage Index and Rates Update

    The proposed updates to the hospice rates for FY 2014 are as 
follows:
     Update the hospice wage index using the 2013 pre-floor, 
pre-reclassified hospital wage index as discussed in section III.C.1 of 
the FY 2014 hospice wage index and rate update proposed rule (78 FR 
27839);
     Update the hospice wage index taking into account the 
application of the hospice floor or budget neutrality adjustment factor 
reduced an additional 15 percent, for a BNAF phase-out of 70 percent as 
finalized in the FY 2010 hospice wage index final rule (74 FR 39384), 
as discussed in section III.C.2 of the FY 2014 hospice wage index and 
rate update proposed rule (78 FR 27840); and
     Apply the hospice payment update percentage, as discussed 
in section III.C.3 of the FY 2014 hospice wage index and rate update 
proposed rule, to the FY 2013 hospice payment rates as discussed in 
section III.C.4 of the FY 2014 hospice wage index and rate update 
proposed rule (78 FR 27841 through 27842).

D. Update on Hospice Payment Reform and Data Collection

    We did not make any payment reform proposals or solicit comments on 
this section, but included updates and a discussion of payment reform 
activities, including:
     A discussion of reform options, including the U-shaped 
curve model, a tiered model that uses the U-shaped curve, a short-stay 
add-on payment, and case-mix adjustment.
     A discussion of rebasing a portion of the routine home 
care (RHC) payment rate; adjusting for current costs would reduce the 
FY 2014 RHC rate by 10.1 percent.
     A discussion of the Office of Inspector General (OIG) and 
MedPAC recommendations to reduce payments to hospices for RHC patients 
in nursing facilities, to account for duplication of aide services. The 
claims visit data on aide services revealed that hospice patients in 
nursing facilities receiving more visits, but shorter visits than 
patients at home; however, on average, hospice patients in nursing 
facilities receive 22 percent more minutes of aide care than hospice 
patients at home.
     A discussion of reform research findings related to cost 
reports and general inpatient care (GIP), and a link to the Abt Hospice 
Study Technical Report and an Abt review of the literature.
     A summary of comments received from a December, 2012 CMS 
Web site posting about additional data collection on hospice claims; a 
forthcoming Change Request will finalize the data collection this 
summer.
     An update on the status of the hospice cost report 
revisions, which were published as part of a Paperwork Reduction Act 
notice in the Federal Register on April 29, 2013.

E. Technical and Clarifying Regulations Text Change

    We proposed a technical change to correct an erroneous cross 
reference in our regulations text at Sec.  418.311, as discussed in 
section III.E of the FY 2014 Hospice Wage Index and Rate Update 
proposed rule (78 FR 27847).

IV. Analysis and Responses to Public Comments

    We received approximately 125 comments, many of which contained 
multiple comments, on the FY 2014 hospice wage index and payment rate 
update proposed rule. We received comments from various trade 
associations, private insurers, individual hospices, hospitals, 
physicians, medical directors, nurses, visiting nurses associations, 
home health agencies, hospice volunteers, and individuals. We 
appreciate the numerous thoughtful and insightful comments received and 
believe that communication and collaboration between CMS and all 
hospice stakeholders is imperative. The comments received and our 
responses to these comments are grouped by subject area and are 
summarized below.

[[Page 48242]]

A. Diagnosis Reporting on Hospice Claims

    We made no new proposals regarding ICD-9-CM Coding Guidelines in 
the FY 2014 Hospice Wage Index and Payment Rate Update proposed rule. 
However, we did make clarifications regarding ICD-9-CM Coding 
Guidelines for the selection of principal diagnoses and additional 
diagnoses. These clarifications are not to preclude any clinical 
judgment in determining a beneficiary's eligibility for hospice 
services. Eligibility for hospice services is based on meeting the 
eligibility requirements as stated in Sec.  418.20 of our regulations: 
``. . . an individual must be--
    (a) Entitled to Part A of Medicare; and
    (b) Certified as being terminally ill in accordance with Sec.  
418.22.''
    Specifically, we clarified the following:
     ``Debility'' or ``adult failure to thrive'' should not be 
used as a principal hospice diagnosis on the hospice claim form per 
ICD-9-CM Coding Guidelines. ``Debility'' and/or ``adult failure to 
thrive'' may be used as another, additional, or coexisting diagnosis on 
the hospice claim form. If ``debility'' or ``adult failure to thrive'' 
is reported as the principal diagnosis on the hospice claim forms, 
these claims will be returned to the provider for more definitive 
coding.
     Dementia codes classified under ``Mental, Behavioral and 
Neurodevelopmental Disorders'' are among the top twenty hospice claims 
reported diagnoses. Many of these codes are not appropriate as 
principal diagnoses because of manifestation/etiology guidelines or 
sequencing conventions under the ICD-9-CM Coding Guidelines. Particular 
attention must be paid to dementia diagnoses which are found under two 
separate ICD-9-CM classifications: ``Mental, Behavioral, and 
Neurodevelopmental Disorders'' and ``Diseases of the Nervous System and 
Sense Organs.'' There are also dementia codes that are classified under 
``Diseases of the Nervous System and Sense Organs'' that also have 
sequencing conventions and, therefore, are not appropriate as principal 
diagnoses on the hospice claim.
     We provided ICD-9-CM coding guidance regarding the coding 
of principal and other, additional, and/or coexisting diagnoses. The 
principal diagnosis should reflect the condition to be chiefly 
responsible for the services provided. ICD-9-CM Coding Guidelines 
specify that the circumstances of an inpatient hospital admission 
diagnosis are to be used in determining the selection of a principal 
diagnosis. ICD-9-CM Coding Guidelines also state to ``code all 
documented conditions at the time of the encounter/visit, and require 
or affect patient care treatment or management.'' The principal 
diagnosis reported on the hospice claim form should be determined by 
the hospice as the diagnosis most contributory to the terminal 
prognosis.
     Hospice providers are expected to report all coexisting or 
additional diagnoses related to the terminal illness and related 
conditions on the hospice claim to be in compliance with existing 
policy, and provide data needed for evaluating potential hospice 
payment reform methodologies.
     We reminded providers of the transition to ICD-10-CM, 
which will replace ICD-9-CM on October 1, 2014.
     Crosswalking from ICD-9-CM to ICD-10-CM is important for 
providers in understanding the transition between these two code sets.
    We received 109 comments on diagnosis reporting on hospice claims, 
which are summarized below according to subsection.
1. ICD-9-CM Coding Guidelines
    The hospice benefit covers all care for the terminal illness and 
related conditions, including the management of pain and symptoms. 
HIPAA, federal regulations, and the Medicare hospice claims processing 
manual all require that ICD-9-CM Coding Guidelines be applied to the 
coding and reporting of diagnoses on hospice claims. Regarding 
diagnosis reporting on hospice claims, we clarified in our July 27, 
2012 FY 2013 Hospice Wage Index notice (77 FR 44247 through 44248) that 
all providers should code and report the principal diagnosis as well as 
all coexisting and additional diagnoses related to the terminal 
condition or related conditions to more fully describe the Medicare 
patients they are treating.
    Comment: Several commenters expressed concern that the coding 
clarification would require that hospices have a professional coder for 
coding claims, which would create a financial burden on hospice 
providers. Some commenters believed that we were asking hospices to 
hire professional coders. Other commenters thought that we were asking 
physicians to spend time determining the proper ICD-9-CM code for the 
claim.
    Response: We did not state in the FY 2014 hospice wage index and 
payment update proposed rule that any hospice provider would be 
expected or required to have a professional coder to complete the 
coding on the hospice claims. Our discussion of the coding guidelines 
in the proposed rule was to assist hospice providers in complying with 
longstanding policies. In our regulations at 45 CFR 162.1002, the 
Secretary adopted the ICD-9-CM code set, including The Official ICD-9-
CM Guidelines for Coding and Reporting. The CMS' Hospice Claims 
Processing Manual (Pub 100-04, chapter 11) requires that hospice claims 
include other diagnoses ``as required by ICD-9-CM Coding Guidelines''. 
In the proposed rule, we provided guidance from the ICD-9-CM Official 
Guidelines for Coding and Reporting to highlight coding guidelines for 
principal and other diagnosis selection, as well as the various coding 
and sequencing conventions found therein. This clarification of the 
coding guidelines was in response to the monitoring of diagnostic 
reporting patterns noted on hospice claims, especially in regards to 
the reporting of only one diagnosis and the use of diagnoses not 
appropriate as principal diagnoses per the ICD-9-CM Coding Guidelines. 
We believe there are ample, available resources in regards to the ICD-
9-CM Coding Guidelines to support hospice providers who choose not to 
have a professional coder complete their hospice claims, including the 
links provided within the proposed rule. These free resources are 
available at the following links: http://www.cms.gov/Medicare/Coding/ICD9ProviderDiagnosticCodes/index.html?redirect=/ICD9ProviderDiagnosticCodes/, http://www.cms.gov/medicare-coverage-database/staticpages/icd-9-code-lookup.aspx, or on the CDC's Web site 
at: http://www.cdc.gov/nchs/data/icd9/icd9cm_guidelines_2011.pdf.
    Additionally, more information regarding guidance for hospice 
claims coding can be found in the CMS' Hospice Claims Processing manual 
(Pub 100-04, chapter 11) available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c11.pdf. Finally, while 
hospice physicians use their clinical judgment to determine the 
principal diagnosis and related conditions, we do not require them to 
determine to the actual codes associated with those diagnoses for 
inclusion on the hospice claim. Hospices have the flexibility to 
determine how to take the physicians' information about diagnoses and 
translate it into the appropriate codes on the claim.
2. Use of Non-Specific, Symptom Diagnoses
    The proposed rule included additional diagnosis clarifications to 
address current and ongoing diagnosis

[[Page 48243]]

reporting patterns noted on hospice claims, more specifically the use 
of nonspecific, symptom diagnoses and certain dementia diagnoses. In 
the proposed rule, we clarified that the ICD-9-CM codes of ``debility'' 
and ``adult failure to thrive'' are listed in the ICD-9-CM Coding 
Guidelines under the classification, ``Symptoms, Signs, and Ill-defined 
Conditions'', and are not to be used as principal diagnoses when a 
related definitive diagnosis has been established or confirmed by the 
provider. Therefore, in the proposed rule, we clarified that 
``debility'' and ``adult failure to thrive'' should not be used as 
principal hospice diagnoses on the hospice claim form. When reported as 
a principal diagnosis, these would be considered questionable 
encounters for hospice care, and the claim would be returned to the 
provider for a more definitive principal diagnosis. ``Debility'' and 
``adult failure to thrive'' could be reported on the hospice claim as 
other, additional, or coexisting diagnoses. The principal diagnosis 
reported should be the condition determined by the certifying hospice 
physician(s) as the diagnosis most contributory to the terminal 
decline.
    Comment: We received numerous comments in support of or 
acknowledging the need for these diagnostic clarifications and 
enforcement of existing coding guidelines. Several commenters 
acknowledged understanding the need to identify a principal hospice 
diagnosis when a patient has multiple diagnoses instead of using 
``debility'' or ``adult failure to thrive.'' Another commenter stated 
that their hospice program has tried to avoid the use of ``debility'' 
as a principal hospice diagnosis and agreed that this diagnosis has 
been over-used nationally; several commenters acknowledged that there 
has been ``sloppy diagnosing'' with the use of ``debility'' and ``adult 
failure to thrive.'' One commenter stated that the use of ``debility'' 
or ``adult failure to thrive'' is most often a ``failure to diagnose.'' 
One commenter stated that ``debility'' cannot be reported as a cause of 
the death on a death certificate in his state and that he had to select 
a different diagnosis for an immediate cause of death as well as a 
secondary, longer-term related cause. Several commenters asked what to 
expect regarding the application of the Local Coverage Determination 
(LCD) guidelines provided by the Home Health and Hospice Medicare 
Administrative Contractors.
    Response: We appreciate that some hospice providers are recognizing 
the issues regarding the inappropriate use of ``debility'' or ``adult 
failure to thrive'' as a principal hospice diagnosis reported on the 
hospice claim and are attempting to take steps to more fully describe 
their patient populations. We will continue to work with our Home 
Health and Hospice contractors to ensure that all LCDs will reflect 
these principal hospice diagnostic coding clarifications and that those 
eligible Medicare hospice beneficiaries will continue to have access to 
the benefits of hospice care. This collaboration will not be limited to 
the release of Change Requests, which can be found on our hospice Web 
site at http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Transmittals.html. Additionally, we encourage all 
interested stakeholders to participate in the CMS Home Health and 
Hospice Open Door Forums where questions, concerns and issues can be 
addressed with specialists within CMS. Information regarding Open Door 
Forums can be found on our Web site at http://www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/index.html.
    Comment: There were a number of commenters who expressed concern 
that no longer allowing the use of ``debility'' or ``adult failure to 
thrive'' as a principal hospice diagnosis would limit or prohibit 
access to hospice care for Medicare beneficiaries. Commenters stated 
that by not allowing these two diagnoses to be coded as a principal 
hospice diagnosis, they believed that beneficiaries would elect hospice 
later in their disease trajectories. Other commenters felt that 
eligible beneficiaries would not be admitted to hospice care at all 
because a single definitive terminal diagnosis could not be determined 
by the certifying physician. Other commenters stated that it is 
difficult to determine a single principal terminal diagnosis for 
beneficiaries with multiple chronic or coexisting conditions.
    Response: Patient-centered care is at the core of the Medicare 
hospice benefit. Our mission is to be effective stewards of public 
funds, and we are committed to strengthening and modernizing the 
nation's health care system to provide access to high quality care. We 
believe that Medicare beneficiaries who are approaching end-of-life are 
at their most vulnerable state and should be afforded the most 
comprehensive and responsible clinical judgment. Medicare beneficiaries 
who are hospice eligible should be fully informed by their health care 
providers, including hospice providers, as to their conditions 
contributing to their terminal decline and their treatment options for 
ongoing care. We are aware that diagnosing diseases and determining 
prognosis is not always a perfect science. Certifying physicians should 
use their best clinical judgment in determining the principal diagnosis 
and related conditions, based on the hospice comprehensive assessment 
and review of any and all other clinical documentation.
    It remains our belief that the goal of hospice care is to provide 
comprehensive, holistic, and individualized services to eligible 
Medicare beneficiaries. In order to receive these comprehensive hospice 
services, Medicare beneficiaries must be certified as terminally ill. 
This certification is based on the recommendation of the medical 
director in consultation with, or with input from, the beneficiary's 
attending physician (if any) and a comprehensive assessment of all body 
systems. The hospice regulations require that this certification be 
based on a variety of factors when making the clinical determination 
that a patient has a life expectancy of 6 months or less, should the 
illness run its normal course. The regulations in Sec.  418.25(b), 
Admission to hospice care, state, ``In reaching a decision to certify 
that the patient is terminally ill, the hospice medical director must 
consider at least the following information:
     Diagnosis of the terminal condition of the patient.
     Other health conditions, whether related or unrelated to 
the terminal condition.
     Current clinical relevant information supporting all 
diagnoses.''
    Based on this certification and the Medicare beneficiary's election 
of the hospice benefit, initial and ongoing comprehensive assessments 
are conducted to establish and maintain the hospice plan of care. A 
comprehensive hospice plan of care starts with accurate and thorough 
assessment and identification of the conditions (including diseases and 
symptoms) contributing to the terminal prognosis. This comprehensive 
plan of care is to include all the services and care needed for the 
management and palliation of the terminal illness and related 
conditions. This hospice plan of care is to include the following, per 
the Hospice Conditions of Participation:
     Interventions to manage pain and symptoms;
     A detailed statement of the scope and frequency of 
services necessary to meet the specific patient and family needs;
     Measurable outcomes anticipated from implementing and 
coordinating the plan of care;

[[Page 48244]]

     Drugs and treatment necessary to meet the needs of the 
patient;
     Medical supplies and appliances to meet the needs of the 
patient; and,
     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 (Sec.  418.56(c)).
    A hallmark clinical characteristic of both ``debility'' and ``adult 
failure to thrive'' is the presence of multiple primary conditions. 
According to ICD 9 Coding Guidelines, codes that fall under the 
classification ``Symptoms, Signs, and other Ill-defined Conditions'', 
such as ``debility'' and ``adult failure to thrive'', can only be used 
as a principal diagnosis when a related definitive diagnosis has not 
been established or confirmed by the provider. The individual diagnosed 
with ``debility'' or ``adult failure to thrive'' may have multiple 
comorbid conditions that individually, may not deem the individual to 
be terminally ill. However, the collective presence of these multiple 
comorbid conditions will contribute to the terminal prognosis of the 
individual. Additionally, Medicare beneficiaries waive their right to 
Medicare payment for curative treatments under the Medicare Hospice 
Benefit; hospice providers are clinically and ethically responsible for 
ensuring that eligible Medicare beneficiaries are made fully aware of 
all of the conditions contributing to their terminal decline so they 
can make the informed decision as to which treatment approaches they 
would like to pursue.
    As ``debility'' and ``adult failure to thrive'' are nonspecific, 
ill-defined, symptom diagnoses, they should not be reported as 
principal diagnosis. Rather, the condition that the hospice medical 
director determines is most contributory to the terminal prognosis 
should be reported as the principal diagnosis on the hospice claim and 
all other related conditions to the terminal prognosis should be 
reported as additional diagnoses. Therefore, the claim should include 
not only a principal diagnosis, but all other related diagnoses as 
well, to more fully describe the clinical picture of the terminally ill 
individual. In fact, reporting all of the related conditions that are 
contributing to the terminal prognosis on the hospice claim may also 
further support the eligibility for hospice services. Therefore, we do 
not believe that these coding clarifications will or should create any 
limitations or barriers to accessing Medicare hospice services by 
eligible Medicare beneficiaries, as coding on claims occurs after the 
beneficiary is fully informed and has chosen to elect and access 
hospice services. In fact, adherence to the ICD-9-CM Coding Guidelines 
should promote access to appropriate and comprehensive hospice 
services. Medicare beneficiaries should always expect the right care at 
the right time and care that best suits their individual clinical 
status as well as their treatment preferences. Further, some medical 
experts have argued that these non-specific, ill-defined terms should 
be abandoned because they do not assist in the thoughtful evaluation of 
patients who may have treatable, underlying conditions.\4\ We are 
clarifying these coding guidelines so that hospice providers can be 
more intentional about addressing all of the beneficiary's identified 
needs as he or she approaches end-of-life. One physician commenter 
stated that he reviews old records, calls attending physicians, and 
uses professional judgment to thoughtfully evaluate his patients for 
hospice care.
---------------------------------------------------------------------------

    \4\ Pacala, J.T., Sullivan, G.M. eds. Geriatrics Review 
Syllabus: A Core Curriculum in Geriatric Medicine. 7th ed. New York: 
American Geriatrics Society; 2010.
---------------------------------------------------------------------------

    Analysis conducted by our hospice payment reform contractor, Abt 
Associates, of Medicare hospice beneficiaries with ``debility'' or 
``adult failure to thrive'' reported as their principal hospice 
diagnosis, but no reported secondary diagnoses in FY 2012 revealed that 
over 50 percent of these hospice beneficiaries had seven or more 
chronic conditions and 75 percent had four or more chronic conditions 
as identified in the Chronic Condition Data Warehouse. The Chronic 
Condition Data Warehouse is a research database that includes Medicare, 
Medicaid assessments and Part D drug event data to support research 
designed to improve the quality of care and reduce cost and 
utilization. These chronic conditions include: Alzheimer's disease, 
non-Alzheimer's dementia, senile degeneration of the brain, congestive 
heart failure, chronic obstructive pulmonary disease, ischemic heart 
disease, chronic kidney disease, and various cancer diagnoses. While 
these conditions are labeled as chronic, many of these are often 
terminal conditions as well, while others are contributory to the 
terminal prognosis of the individual. See Table 3 below:

 Table 3--Chronic Conditions of Those Beneficiaries With ``Debility'' or
 ``Adult Failure To Thrive'' Reported as Principal Hospice Diagnosis but
              With No Secondary Diagnoses Reported, FY 2012
------------------------------------------------------------------------
                                                            Percent
------------------------------------------------------------------------
Percent of Beneficiaries with Anemia.................                 76
Percent of Beneficiaries with Alzheimer's Disease and                 66
 Related Disorders or Senile Dementia................
Percent of Beneficiaries with Rheumatoid Arthritis/                   66
 Osteoarthritis......................................
Percent of Beneficiaries with Ischemic Heart Disease.                 63
Percent of Beneficiaries with Depression.............                 55
Percent of Beneficiaries with Heart Failure..........                 53
Percent of Beneficiaries with Chronic Kidney Disease.                 43
Percent of Beneficiaries with Chronic Obstructive                     39
 Pulmonary Disease and Bronchiectasis................
Percent of Beneficiaries with Osteoporosis...........                 39
Percent of Beneficiaries with Alzheimer's Disease....                 38
Percent of Beneficiaries with Stroke.................                 34
Percent of Beneficiaries with Atrial Fibrillation....                 28
Percent of Beneficiaries with Hip/Pelvic Fracture....                 20
Percent of Beneficiaries with Asthma.................                 13
Percent of Beneficiaries with Acute Myocardial                         9
 Infarction..........................................
Percent of Beneficiaries with Breast Cancer..........                  7
Percent of Beneficiaries with Prostate Cancer........                  5
Percent of Beneficiaries with Colorectal Cancer......                  5
Percent of Beneficiaries with Lung Cancer............                  2

[[Page 48245]]

 
Percent of Beneficiaries with Endometrial Cancer.....                  1
------------------------------------------------------------------------
Source: FY 2012 hospice claims data from Chronic Conditions Warehouse
  (CCW), accessed on June 27, 2013. N = 184,924 hospice beneficiaries
  with principal diagnosis of ``debility'' or ``adult failure to
  thrive'' with no reported secondary diagnoses on the hospice claim.

    Comment: Several commenters stated that ``Debility'' is an 
allowable principal diagnosis under ICD-9-CM Coding Guidelines if there 
is no established or confirmed definitive diagnosis.
    Response: While the ICD-9-CM Coding Guidelines state ``codes that 
describe symptoms, signs, as opposed to diagnoses, are acceptable for 
reporting purposes when a related definitive diagnosis has not been 
established (confirmed) by the provider,'' we believe that in 
encompassing the true nature of the holistic hospice philosophy, these 
ill-defined diagnoses are not appropriate as the principal diagnosis on 
the hospice claim where an individual has typically had multiple health 
care encounters that have eventually led to their election of hospice 
services and physician certification as being terminally ill. In the FY 
2014 Hospice Wage Index and Payment Rate Update proposed rule (78 FR 
27831), we clarified that if any or all of these multiple primary 
conditions (as characterized under ``debility'' and ``adult failure to 
thrive'') have been or are being treated, or if medications have been 
prescribed for the patient to treat or manage any or all of these 
multiple primary conditions, we believe that these conditions meet the 
criteria of being established and/or confirmed by the beneficiary's 
health care provider and, thus, ``debility'' or ``adult failure to 
thrive'' would not be appropriate as the principal hospice diagnosis 
per ICD-9-CM Coding Guidelines. For those beneficiaries who have not 
had multiple health care encounters prior to hospice election, it is 
that much more important that certifying physicians make a thoughtful 
evaluation of all of the conditions contributing to an individual's 
terminal prognosis. The physician is responsible for making sure that 
the individual electing hospice care is fully aware of all treatment 
options available in order for that individual to make the most 
informed treatment decisions.
    Comment: Several commenters noted that hospice eligibility is based 
on the prognosis and not the diagnosis, and some expressed concern as 
to why CMS is so focused on the diagnosis.
    Response: To address the comments regarding the focus on diagnosis 
rather than prognosis, eligibility for hospice services under the 
Medicare Hospice Benefit has always been based on the prognosis of the 
individual, not diagnosis, since the implementation of the Medicare 
Hospice Benefit in 1983. As stated in the proposed rule on August 22, 
1983, ``The regulations would specify, consistent with the requirements 
of sections 1812 and 1814(a)(8) of the Act, that to be eligible for 
Medicare coverage of hospice care, an individual must be entitled to 
Medicare Part A, and must be certified as terminally ill'' (48 FR 
38147). These criteria have not changed, and we believe that all 
eligible individuals will continue to have access to the Medicare 
Hospice Benefit. However, certifications and recertifications of 
hospice eligibility are statutory requirements for coverage and 
payment. The content of the certifications and recertifications must 
conform to the following requirements at Sec.  418.22(b), Content of 
certification. These requirements include, but are not limited to the 
following:
     The certification must specify that the individual's 
prognosis is for a life expectancy of six months or less if the 
terminal illness runs its normal course.
     Clinical information and other documentation that support 
the medical prognosis must be in the medical record with the written 
certification.
     The physician must include a brief narrative explanation 
of the clinical findings that supports a life expectancy of 6 months or 
less as part of the certification and recertification forms or as an 
addendum to these forms. On hospice claims however, we are not seeing 
the level of completeness of diagnosis reporting as is required for the 
certification and recertifications. As stated in the proposed rule, 
data analysis of preliminary hospice claims data from the first quarter 
of FY 2013 (October 1, 2012 through December 31, 2012) showed that over 
72 percent of providers only report one diagnosis on the hospice claim. 
Further, analysis of third quarter FY 2013 data (April 1, 2013 through 
June 30, 2013 as of July 1, 2013) showed that 69 percent of providers 
still only report one diagnosis on the hospice claim. The hospice 
claims processing manual (IOM Publication 100-04) states that 
principal and other diagnosis codes are to be reported on the hospice 
claims form per ICD-9-CM Coding Guidelines.
    Comment: Some commenters felt that the only reason for the focus on 
diagnosis is for CMS to ``save money'' while shifting costs to the 
elderly and that the per diem reimbursement is being unbundled with 
these coding clarifications.
    Response: The goal of any clarification of longstanding, existing 
policies such as those relating to ICD-9-CM Coding Guidelines is to 
more fully describe Medicare beneficiaries who are receiving hospice 
care. We are also accountable for maintaining the integrity and fiscal 
viability of the Medicare Trust Funds. Diagnosis information on claims 
is also important as we move forward with hospice payment reform. 
Section 3132(a) of the Affordable Care Act for hospice payment reform 
requires that payment reforms occur no earlier than October 1, 2013, 
and that the revisions to the payments implemented result in the same 
estimated amount of aggregate expenditures for hospice care in the 
fiscal year that the revisions are implemented as would have been made 
for such care in such fiscal year if such revisions had not been 
implemented. That means any monies saved from any implemented reform 
model must go back into the hospice benefit. The goal of hospice 
payment reform is to ensure appropriate distribution of Medicare Trust 
Funds by better aligning payments with resource use, to pay more 
accurately.
    However, there has been some concern, as noted by the Office of the 
Inspector General, that some hospices are not providing the full range 
of required hospice services, most notably drugs, through their per 
diem reimbursement to Medicare hospice beneficiaries (OIG Report A-06-
10-00059, June, 2012). Data analysis conducted by our hospice payment 
reform contractor, Abt Associates, identified that some hospice-related 
drugs for Medicare hospice beneficiaries are being submitted through 
Part D prescription programs instead of being covered under the 
Medicare Hospice Benefit as required by the statute. In 2010, 773,168 
Medicare hospice

[[Page 48246]]

beneficiaries were enrolled in Part D. Of these individuals, almost 15 
percent received over 334,000 analgesic prescriptions through Part D 
during hospice enrollment totaling $13,000,430. See Figure (1) below.
[GRAPHIC] [TIFF OMITTED] TR07AU13.000

    This total covered only one drug class. During 2010, Medicare 
hospice beneficiaries received 5,878,425 prescriptions of all classes 
totaling $351,750,202. These drug classes encompassed other hospice-
related drugs including medications for nausea, shortness of breath, 
anxiety, constipation, diarrhea, depression, as well as disease-
specific medications for the reported principal hospice diagnosis. We 
continue to conduct ongoing analysis regarding the claims for Medicare 
hospice beneficiaries to ensure that hospice providers are covering the 
required services, drugs, supplies, and DME as required by our 
regulations at 42 CFR 418.200, 418.202, and 418.204.
    The hospice reimbursement structure has been a bundled per diem 
rate since the implementation of the Medicare Hospice Benefit. It is 
not our intent to ``unbundle'' any of the services required to be 
provided by hospices. However, as shown in the above figure, it is 
evident that many drugs used for hospice pain management are being 
``unbundled'' from the hospice per diem rate, and this is a concerning 
trend that we do not support.
    Therefore, we continue to support the ICD-9-CM Coding Guidelines 
and stand by the ICD-9-CM coding clarifications in the proposed rule. 
These coding guidelines are longstanding policies that we have 
reiterated in past rules and notices. No new proposals are being made; 
rather we are ensuring that these existing policies are being adhered 
to. As such, ``debility'' and ``adult failure to thrive'' are not 
allowable as reportable principal diagnoses on the hospice claims. 
However, we recognize that this may be a paradigm shift for some 
hospices in the way they have coded in the past. Therefore, in 
recognizing the process and systems changes that need to be put in 
place, claims received with these codes in the principal diagnosis 
field will be returned to the provider for more definitive coding of 
the principal diagnosis and additional diagnoses, effective for claims 
dated on or after October 1, 2014. This will not affect claims 
submitted before October 1, 2014. ``Debility'' and ``adult failure to 
thrive'' may be reported on the hospice claims as additional diagnoses 
in the appropriate claim fields.
    Although claims will not be returned to the provider until the 
start of FY 2015, we remind hospices that they are currently, and have 
always been, required to code all related diagnoses in the additional 
coding fields on the hospice claim and thus should be doing so now. We 
will continue to monitor and analyze hospice claims data and may make 
further clarifications in the future if necessary. In addition to the 
principal diagnosis field, the paper UC-04 claim form has up to 17 
additional diagnosis fields and the electronic 837I 5010 claim form has 
up to 24 additional diagnosis fields allowing for adequate space for 
the coding all conditions related to the beneficiary's terminal 
prognosis.
    Comment: Many comments were also received with specific clinical 
scenarios regarding beneficiaries with a reported hospice diagnosis of 
``debility'' or ``adult failure to thrive.'' These comments went on to 
list these beneficiaries' comorbidities including COPD, atrial 
fibrillation, congestive heart failure, and stroke, to name a few.

[[Page 48247]]

Other comments included clinical presentations, rather than specific 
diagnoses, and felt that ``debility'' or ``adult failure to thrive'' 
were the only appropriate diagnoses that could be assigned. These 
commenters also report that they were unable to determine the principal 
terminal diagnosis for these beneficiaries as the individual conditions 
did not meet criteria for being terminally ill per LCDs. Finally, 
additional commenters asked about quantifying comorbidities and whether 
Medicare guidelines for eligibility would be updated to support 
comorbidities as terminal diagnoses.
    Response: As referenced in our regulations at Sec.  418.22(b)(1), 
to be eligible for Medicare hospice services, the beneficiary's 
attending physician (if any) and the hospice medical director must 
certify that the individual is terminally ill, that is, the 
individual's prognosis is for a life expectancy of 6 months or less if 
the terminal illness runs its normal course as defined in section 
1861(dd)(3)(A) of the Act and set out at in Sec.  418.22. Therefore, 
eligibility under the Medicare Hospice Benefit is based on the 
prognosis of the individual and not only a single diagnosis or multiple 
diagnoses. As generally accepted by the medical community, the term 
``terminal illness'' refers to an advanced and progressively 
deteriorating illness and the illness is diagnosed as incurable. When 
an individual is terminally ill, many health problems are brought on by 
underlying condition(s), as bodily systems are interdependent, meaning 
that there are multiple conditions, and hence diagnoses, contributing 
to the terminal prognosis. In the proposed rule, we said that the ICD-
9-CM Coding Guidelines, referring to the selection of the principal 
diagnosis, state to list the diagnosis which is ``chiefly responsible 
for the services provided and to list additional codes that describe 
any coexisting conditions.'' We clarified that the principal diagnosis 
listed should be determined by the certifying hospice physician(s) as 
the diagnosis most contributory to the terminal prognosis. Furthermore, 
ICD-9-CM Coding Guidelines state that when there are two or more 
interrelated conditions (such as diseases in the same ICD-9-CM chapter 
or manifestations characteristically associated with a certain disease) 
potentially meeting the definition of principal diagnosis, either 
condition may be sequenced first, unless the circumstances of the 
admission, the therapy provided, the Tabular List, or the Alphabetic 
Index indicate otherwise. In the unusual instance when two or more 
diagnoses equally meet the criteria for principal diagnosis as 
determined by the circumstances of admission, diagnostic workup and/or 
therapy provided, and the Alphabetic Index, Tabular List, or other 
coding guidelines do not provide sequencing direction, any one of the 
diagnoses may be sequenced first. The ICD-9-CM Coding Guidelines are 
clear that all conditions contributing to the need for services should 
be listed.
    One commenter provided the following clinical scenario regarding an 
individual with a hospice claims-reported principal diagnosis of 
``debility:''

    ``A patient has dilated cardiomyopathy and arrhythmia and has a 
functional classification of NYHA Class III as he has symptoms with 
activity but not at rest. He also has pulmonary fibrosis causing 
shortness of breath with activity. His PPS has declined to 50 
percent in the last 3 months and he now needs to use a walker and 
the assistance for one person ambulating <10 ft. His weight has 
declined by 10 percent in the last six months, and he states that 
his appetite has decreased to eating breakfast and drinking two 
supplements during the day. He has been hospitalized two times in 
the past year for pneumonia and was hospitalized last month for 
arrhythmia requiring medication adjustments. He does not want 
further hospitalizations.''

    In this scenario, there are multiple conditions listed, including 
dilated cardiomyopathy, arrhythmia and pulmonary fibrosis. Though any 
of these conditions, individually, may not deem the individual as 
terminally ill, the progressive nature of these diseases as well as the 
collective presence of these multiple comorbid conditions will 
contribute to the terminal prognosis of the individual. We are 
clarifying that in a scenario such as this, the certifying physician 
would select the condition he or she feels is most contributory to the 
terminal prognosis, based on information in the comprehensive 
assessment, other relevant clinical information supporting all 
diagnoses, and his or her best clinical judgment. We are clarifying 
that this principal diagnosis, along with the other related diagnoses, 
would be included on the hospice claim. The physician's clinical 
judgment does not negate the fact that there must be a basis for 
hospice certification. A hospice needs to be certain that the 
physician's clinical judgment can be supported by clinical information 
and other documentation that provide a basis for the certification of a 
life expectancy of six months or less if the illness runs its normal 
course.
    Additionally, the LCDs state that the terminal illness eligibility 
guidelines provided therein are applicable to all hospice patients 
regardless of diagnosis. The LCD guidelines are intended to be used to 
identify any Medicare beneficiary whose current clinical status and 
anticipated progression of disease is more likely than not to result in 
a life expectancy of six months or less. LCDs are utilized to determine 
eligibility for Medicare hospice services and not to determine the 
appropriate diagnoses to code on hospice claims.
    The eligibility requirements for Medicare hospice services were 
stated above in a previous response. Eligibility under the Medicare 
Hospice Benefit is based on the prognosis of the individual and these 
criteria are not specific to or limited by any one condition, multiple 
conditions or presence of comorbidities. Rather, the certification of 
terminal illness is based in the unique clinical picture of the 
individual that is reflected in the comprehensive assessment and other 
clinical records and documentation that deems the person as having a 
life expectancy of six months or less, should the illness run its 
normal course. Therefore, the Medicare Hospice Benefit eligibility 
requirements will not change as a result of the clarifications in the 
proposed rule. We believe that the certifying physicians have the best 
clinical experience, competence and judgment to make the determination 
that an individual is terminally ill. We continue to require the 
reporting of all related comorbidities, regardless of the quantity, in 
the hospice clinical record and on the hospice claims.
    Comment: We received several comments regarding whether the 
reported principal diagnosis on the Certificate of Terminal Illness 
needs to be changed for current hospice beneficiaries where 
``debility'' or ``adult failure to thrive'' was reported as the 
principal terminal condition.
    Response: The regulations at Sec.  418.22(b) state that that the 
certification include--(1) The certification must specify that the 
individual's prognosis is for a life expectancy of 6 months or less if 
the terminal illness runs its normal course; (2) Clinical information 
and other documentation that support the medical prognosis must 
accompany the certification and must be filed in the medical record 
with the written certification as set forth in paragraph (d)(2) of this 
section. Initially, the clinical information may be provided verbally, 
and must be documented in the medical record and included as part of 
the hospice's eligibility assessment; (3) The physician must include a 
brief narrative explanation of the clinical findings that supports a 
life expectancy of 6 months or less as part of the

[[Page 48248]]

certification and recertification forms, or as an addendum to the 
certification and recertification forms; (4) The physician or nurse 
practitioner who performs the face-to-face encounter with the patient 
described in paragraph Sec.  418.22(a)(4) must attest in writing that 
he or she had a face-to-face encounter with the patient, including the 
date of that visit. The attestation of the nurse practitioner or a non-
certifying hospice physician shall state that the clinical findings of 
that visit were provided to the certifying physician for use in 
determining continued eligibility for hospice care; and (5) All 
certifications and recertifications must be signed and dated by the 
physician(s), and must include the benefit period dates to which the 
certification or recertification applies.
    Certifications (of which the narrative is a part) are based on 
prognosis, not diagnosis as described above in the Code of Federal 
Regulations. Claims should include a principal diagnosis and all 
related diagnoses which form the prognosis. Certifications are 
completed no more than 15 days prior to the start of the benefit 
period. A new certification is not required simply because a 
beneficiary's principal diagnosis changes nor do benefit periods or 
election status change simply because a principal diagnosis changes.
    Comment: We received some comments expressing concern that no 
longer allowing the use of ``debility'' and ``adult failure to thrive'' 
as principal hospice diagnoses would mean that Medicare hospice 
beneficiaries would be forced into a Medicare ``cookie cutter'' mold 
diagnosis. Several commenters stated that this would mean expensive 
diagnostic testing and/or hospitalizations to determine the terminal 
condition. Some commenters question what the expectations are for those 
people who are just ``dying of old age'' and some asked if CMS would 
rather see ``otherwise healthy but elderly patients experience multiple 
hospital admissions and nursing home stays.'' Another commenter stated 
that doctors may feel compelled to ``make-up'' diagnoses to satisfy 
this coding clarification. One commenter asked if all codes under the 
classification of ``Symptoms, Signs, and Ill-defined Conditions'' are 
included in these clarifications.
    Response: As stated above, these ICD-9-CM coding clarifications do 
not preclude the clinical judgment of the certifying physician(s) 
regarding the hospice eligibility of any given Medicare beneficiary; 
rather, they are to ensure that all principal and diagnoses related to 
the terminal prognosis are captured on the Medicare hospice claims to 
more accurately describe hospice beneficiaries receiving the services, 
drugs, supplies, and DME hospices are required to cover under the 
regulations at Sec.  418.200, Sec.  418.202, and Sec.  418.204. A non-
specific, ill-defined symptom diagnosis such as ``debility'' and 
``adult failure to thrive'' is more of a catch-all diagnosis in that a 
wide variety of principal and/or comorbid conditions contribute to 
these syndromes. Given the complexity of a hospice patient, with 
multiple conditions often contributing to the terminal prognosis, we 
are stating that all diagnoses contributing to (that is, related to) 
the terminal prognosis of the individual are to be reported on the 
hospice claims in order to account for the individual needs of each and 
every Medicare hospice beneficiary.
    In evaluating an individual for hospice eligibility, and especially 
when evaluating an individual who has the clinical characteristics 
found under ``debility'' or ``adult failure to thrive'', ``medical 
history is probably more important than physical examination or 
laboratory testing as failure to thrive commonly occurs over the course 
of months and common diagnostic testing has generally been done 
previously.\5\ '' Therefore, it is our belief that an individual who 
has elected hospice care and has been determined to be terminally ill 
by a certifying physician has more than likely already been assessed, 
treated and evaluated by health care providers, not limited to just 
hospice providers, prior to coming to the decision to elect hospice 
services and waive the right to Medicare payment for other curative 
services. Having all related conditions reported on the hospice claim 
form, and not just a single diagnosis, such as an ill-defined, symptom 
diagnosis, will ensure that hospices are aware of and provide all of 
the expert care, including services, drugs, supplies, and DME, that a 
Medicare hospice beneficiary requires as he or she approaches end-of-
life.
---------------------------------------------------------------------------

    \5\ Verdery, R. (1997). Clinical Evaluation of Failure to Thrive 
in Older People. Clinics in Geriatric Medicine. 13(4), 769-778.
---------------------------------------------------------------------------

    In the rare event that no single definitive terminal diagnosis (or 
diagnoses) can be determined by the certifying physician, whether from 
lack of clinical documentation or patient refusal for diagnostic work-
up, then the expectation would be that all conditions that are present 
at the time of hospice certification that deem the individual as 
terminally ill would be reported on the hospice claim. One example 
provided by a commenter is as follows:

    An 85 year old patient with dysphagia, decreased oral intake, 
malnutrition, weight loss, BMI of 18.6 upon admission, decreasing 
functional status, progressed from a walker to chair to bed in less 
than six months, but with no underlying diagnoses. This patient was 
determined to be terminally ill by the certifying physician and this 
patient was entered into hospice services.

    In this example, while no organ-based diagnosis could be confirmed 
by the certifying physician, the clinical record reflects that this 
patient was suffering from malnutrition, dysphagia, and decreased 
functional status and muscle weakness.
    Eligibility for hospice services is not limited by only disease-
specific ICD-9-CM codes. There are ICD-9-CM codes for all of the 
clinical presentations listed above. This clinical scenario has been 
documented in the comprehensive assessment, and there is a clinical 
history of this patient's decline. CMS's expectation is to code these 
clinical presentations on the claim as they are listed in the clinical 
record. The condition the physician feels is most contributory to the 
terminal prognosis would be reported first on the hospice claim form, 
along with all other related conditions. There appears to be some 
confusion and disconnect from the comments received regarding the 
coding expectations. The rationale for these clarifications is not to 
limit or prohibit access to hospice services, and we expect hospice 
providers to render the hospice care needed for those eligible 
individuals. We are only clarifying to code this level of specificity 
on the hospice claim form so we have an accurate clinical picture of 
those Medicare beneficiaries that are receiving hospice care under 
their Medicare Hospice Benefit. This expectation for specificity in 
claims coding is found in every other health care setting for Medicare 
beneficiaries--inpatient, outpatient, home health, skilled nursing 
facilities, acute rehabilitation facilities and in long term care 
hospitals. Hospices are expected to follow the same level of 
specificity especially given the complexity of the hospice patient 
population.
    We recognize that this may be a great departure from the way some 
hospice providers have been accustomed to coding on hospice claims. 
Ongoing analysis of the hospice claims reveals that a majority of 
hospices are coding a single terminal diagnosis. However, eligibility 
should always have been based on the terminal prognosis of the patient, 
and this prognosis would typically involve more than one diagnosis. 
Specifically, as stated previously, analysis of third quarter FY

[[Page 48249]]

2013 data (April 1, 2013 through June 30, 2013 as of July 1, 2013) 
showed that 69 percent of providers still only report one diagnosis on 
the hospice claim. Prognosis, as many commenters have noted, is based 
on a multitude of clinical processes. We expect hospices to code these 
multiple clinical processes. This may be difficult for some providers 
to accept as they may not understand how malnutrition, anemia, or 
depression, for example, could be reported as a principal hospice 
diagnosis. However, many commenters provided clinical scenarios in 
which their patients had one or all of these clinical presentations 
that was contributing to the terminal prognosis of the individual. We 
expect hospice providers to take a holistic approach to diagnostic 
coding on the claims form, reporting the principal diagnosis and all 
related diagnoses.
    According to Sec.  418.22(b)(3), Content of certification, ``The 
physician must include a brief narrative explanation of the clinical 
findings that supports a life expectancy of six months or less as part 
of the certification and recertification forms; or as an addendum to 
the certification and recertification forms.'' Note that ``clinical 
findings'' are included in the determination of terminal prognosis, and 
hospice eligibility is not limited by or to a single diagnosis or 
diagnostic test result(s). Therefore, expensive diagnostic testing or 
hospitalizations are not a requirement for determining whether an 
individual meets Medicare hospice eligibility criteria if the 
individual's clinical circumstances are evident in that the conditions 
present contribute to the terminal prognosis of the individual. 
Oftentimes, if an individual has reported a past, resolved problem in 
their medical history, and that problem could cause the symptom 
syndromes of ``debility'' or ``adult failure to thrive'', that problem 
is the most likely one underlying the patient's presentation.\6\ The 
expectation remains that hospice providers, using their best clinical 
judgment, knowledge, and expertise, will ``paint'' a detailed picture 
of their patients to more fully describe Medicare hospice patients.
---------------------------------------------------------------------------

    \6\ Verdery, R. (1997). Clinical Evaluation of Failure to Thrive 
in Older People. Clinics in Geriatric Medicine. 13(4), 769-778.
---------------------------------------------------------------------------

    If a Medicare beneficiary is reported to be ``dying of old age'' or 
``otherwise healthy, but elderly,'' we believe that characterization of 
the beneficiary's condition is inconsistent with classifying the 
individual as terminally ill. Eligibility criteria for the Medicare 
Hospice Benefit do not include an age requirement, and advanced age 
alone is inadequate documentation of terminal prognosis.
    It is normal clinical practice for health care providers to fully 
inform their patients about their health status. An eligible 
beneficiary who is considering hospice, and who has not seen a doctor 
in years, should be fully informed by the potential hospice provider 
about the conditions contributing to their terminal prognosis and their 
palliative treatment options for ongoing care.
    Often, many other treatable health conditions could be contributing 
to the clinical characteristics associated with ``debility'' and 
``adult failure to thrive.'' \7\ These conditions may include: 
Alzheimer's Disease, depression, primary anorexia, diabetes, cancer, 
chronic lung disease, stroke, chronic urinary tract infections, chronic 
steroid use, medication reactions, just to name a few. Any eligible 
individual (or representative) who is electing hospice under the 
Medicare Hospice Benefit must acknowledge that he or she has been given 
a full understanding of the palliative rather than the curative nature 
of hospice care, as it relates to the individual's terminal illness 
(Sec.  418.24(b)(2)). Upon electing the Medicare hospice benefit, an 
eligible patient acknowledges his/her understanding that Medicare will 
no longer pay for curative treatment for the terminal illness and 
related conditions, and thus the patient is essentially waiving 
curative treatment under Medicare, and instead elects to receive 
palliative care to manage pain or symptoms. It is the hospice 
provider's responsibility to ensure that the individual is fully 
informed and acknowledges understanding that he or she is essentially 
waiving curative treatment and electing only palliative care, so the 
individual (or representative) can make his or her own informed 
decision.
---------------------------------------------------------------------------

    \7\ Verdery, R. (1997). Clinical Evaluation of Failure to Thrive 
in Older People. Clinics in Geriatric Medicine. 13 (4), 769-778.
---------------------------------------------------------------------------

    The expectation remains that all conditions (hence, diagnoses) that 
are contributing to (that is, related to) the terminal prognosis of the 
individual would be reported on the hospice claims to fully represent 
the individual's clinical status and the hospice interventions that are 
being provided to address the individual's needs.
    We do not endorse ``making up'' a diagnosis in order for hospice 
claims submission. We believe that beneficiaries' physicians are in the 
best clinical position to determine those conditions that are 
contributing to the terminal prognosis of their patients. We expect 
that they will use responsible decision making to determine the 
diagnosis contributing most to the terminal prognosis utilizing the 
information from the clinical records and the comprehensive 
assessments. While the ICD-9-CM Coding Guidelines for ``Symptoms, Signs 
and Ill-defined Conditions'' do apply for all codes under this ICD-9-CM 
classification, we are currently focusing on the two most frequently 
reported hospice claims diagnoses from this classification, 
``debility'' and ``adult failure to thrive.'' However, we will continue 
to monitor the diagnostic coding patterns on hospice claims for any 
further issues or clarifications that may be needed in this regard.
    Comment: A few commenters suggested, for those cases reported with 
``debility'' or ``adult failure to thrive'' as the principal diagnosis, 
there should be a mandatory medical review rather than these patients 
not receiving hospice care or to only ``punish'' those that have abused 
``debility.'' One commenter suggested that CMS limit the number of 
patients per hospice with ``debility'' and ``adult failure to thrive'' 
with a 3 percent cap.
    Response: As noted previously, ``debility'' and ``failure to 
thrive'' comprised 20 percent of the Medicare hospice population in FY 
2012. This is a substantial number of individuals that hospice 
providers are saying have no other diagnoses or conditions that could 
be determined or confirmed. Conducting mandatory medical reviews on 
each and every one of these cases would require substantial 
administrative burden and costs. Rather, we are not stating that 
individuals with the clinical manifestations of ``debility'' and 
``adult failure to thrive'' are ineligible for hospice services under 
the Medicare Hospice Benefit. Eligibility is determined by the 
certifying physician and based on the review of the clinical records 
and comprehensive assessment. These clarifications are to ensure that 
hospice providers are fully describing their Medicare hospice patients, 
which should assist them in fully understanding and treating all of the 
conditions contributing to the terminal prognosis and not just a single 
terminal diagnosis.
    It is our belief that hospice providers would not support having 
another cap requirement regarding their census populations. We 
recognize there are many new and ongoing requirements that hospice 
providers must fulfill in addition to providing high-quality, end-of-
life care for Medicare beneficiaries.

[[Page 48250]]

Therefore, it is not our intent, at this time, to implement any new cap 
requirements or ``punishments'' on hospice providers with these coding 
clarifications. We expect that hospice providers will continue to 
assess and evaluate their own organizational policies and processes to 
ensure that they are able to meet requirements and to continue to meet 
the needs of their patients.
    Comment: One commenter stated, ``The need to document secondary 
diagnoses is recognized. It was actually commonly done in the pre-
electronic record (EMR) days, but got lost by many hospices with 
limitations in software systems''. One commenter stated that barriers 
existed with electronic medical record systems that did not allow 
additional diagnoses to flow to the claim. These commenters went on to 
say that many of these barriers have been removed and that the majority 
of hospice providers are either now in compliance with the requirement 
to include multiple diagnoses or are in the process of implementing 
procedures and technology in order to be in compliance. One commenter 
stated that their hospice software vendor has not developed a process 
to allow for inclusion of related diagnoses on their claims forms. This 
commenter went on further to say that it would be an obstacle for 
hospice providers to make software changes to comply with the ICD-9-CM 
coding clarifications regarding the reporting of related diagnoses. 
Several commenters stated that the occurrence of reporting a principal 
diagnosis of ``debility'' or ``adult failure to thrive'' is uncommon.
    Response: We appreciate the comment regarding the common hospice 
practice of including secondary diagnoses in the past. While we 
understand that software systems may pose some obstacles in reporting 
more than one diagnosis on the hospice claim, we also believe that this 
practice of reporting the conditions contributing to (that is, related 
to) the terminal prognosis is one that has been communicated since the 
implementation of the hospice benefit. The expectation is for this 
practice to continue and for hospice providers to be active in ensuring 
that their processes and systems promote the hospice philosophy of 
holistic, comprehensive care and the intent of the Medicare Hospice 
Benefit in supporting that access for the Medicare population.
    As mentioned in the proposed rule, there are hospice providers who 
are reporting more than just the principal diagnosis, so it appears 
that there are electronic systems currently in place that allow for the 
inclusion of multiple diagnoses. However, data analysis of hospice 
claims continues to show that the majority of hospice providers (69 
percent of hospice providers, as stated in previous responses) continue 
to report only one diagnosis on hospice claims. Additionally, software 
systems are typically designed with end user input so we believe those 
software systems that only allow one diagnosis were because those 
hospices communicated to the software vendors that their needs for 
claims coding were to include only one diagnosis. We expect hospices to 
articulate to the vendors the requirements of the software that 
complies with our requirements. Furthermore, we have reiterated in past 
notices and rules regarding our expectation of the inclusion of the 
principal hospice diagnosis as well as all related conditions. As 
mentioned previously, in addition to the principal diagnosis field, the 
paper UC-04 claim form has up to 17 additional diagnosis fields, and 
the electronic 837I 5010 claim form has up to 24 additional diagnosis 
fields allowing for adequate space for the coding all conditions 
contributing to (that is, related to) the beneficiary's terminal 
condition. Therefore, we believe that we have provided ample notice and 
time for hospice providers to evaluate their claims software systems to 
make the necessary systems adjustments for the inclusion of all related 
diagnoses. However, we also recognize that this will require some 
software systems adjustments for several hospice providers, and we are 
sensitive to those time requirement needs. To address the comments 
regarding the rare occurrences of the use of ``debility'' or ``adult 
failure to thrive'' as a principal diagnosis, a review of 2011 and 2012 
data from the Chronic Condition Warehouse revealed the following 
information (See Table 4 and Table 5):

 Table 4--Percentage of Hospice Providers Ever Reporting ``Debility'' or
 ``Adult Failure To Thrive'' as the Principal Hospice Diagnosis With No
                      Reported Secondary Diagnoses
------------------------------------------------------------------------
                     Condition                      FY 2011 %  FY 2012 %
------------------------------------------------------------------------
Debility..........................................       89.3       88.9
Adult Failure to Thrive...........................       87.3       87.6
------------------------------------------------------------------------
Source: FY 2011 and FY 2012 Claims from Chronic Conditions Warehouse
  (CCW). Accessed on 7/19/13.


  Table 5--Percentage of Claims With ``Debility'' or ``Adult Failure To
   Thrive'' as Reported Principal Diagnosis With No Reported Secondary
                                Diagnoses
------------------------------------------------------------------------
                                                     FY 2011    FY 2012
                     Condition                         (%)        (%)
------------------------------------------------------------------------
Debility..........................................      11.96      12.07
Adult Failure to Thrive...........................       7.55       7.83
------------------------------------------------------------------------
Source: FY 2011 and FY 2012 Claims data from Chronic Conditions
  Warehouse (CCW). Accessed on 7/19/13.

    This data indicates that the majority of hospice providers are 
reporting ``debility'' and ``adult failure to thrive'' as a principal 
hospice diagnosis, thus this is not a rare occurrence as commenters 
have stated. Additionally, claims with ``debility'' or ``adult failure 
to thrive'' as the reported principal hospice diagnosis accounted for 
almost 20 percent of total hospice claims for both FY 2011 and FY 2012.
    Comment: We received several comments regarding hospice claims with 
a principal diagnosis of ``debility'' or ``adult failure to thrive'' 
being returned to the provider immediately for more definitive coding. 
Some expressed that CMS is ``jumping the gun'' by announcing that 
claims would be returned to the provider before the comment period is 
over and were concerned that claims would starting returning upon 
publication of the proposed rule. Several commenters expressed concern 
regarding the ``denial of claims payment'' for claims received with 
``debility'' or ``adult failure to thrive'' reported as the principal 
diagnosis.
    Response: We apologize for any confusion that may have resulted 
from our statement in the FY 2014 Hospice Wage Index and Payment Rate 
Update proposed rule regarding claims being returned to providers for 
more definitive coding. We stated in the proposed rule: ``. . . we 
would clarify that ``debility'' and ``adult failure to thrive'' would 
not be used as principal diagnoses of the hospice claim form. When 
reported as a principal diagnosis, these would be considered 
questionable encounters for hospice care, and the claims would be 
returned to the provider, not denied, for a more definitive principal 
diagnosis.'' We did not specify any time frame for these claims or the 
effective date of implementation. The intent was not to immediately 
return claims to the provider upon publication of the proposed rule, 
and the returned claim is not a denial of the claim, but a request for 
a more definitive and appropriate

[[Page 48251]]

principal diagnosis. ``Debility'' and ``adult failure to thrive'' could 
be reported on the hospice claim as other, additional, or coexisting 
diagnoses. We understand that this is a shift from the way some hospice 
providers have coded in the past and that there needs to be adequate 
time to ensure that all clinical and electronic processes are in place 
and functioning as not to create unnecessary administrative burden in 
an accelerated time frame.
    Comment: There were several comments questioning what is considered 
related or unrelated to the terminal condition. One commenter stated 
that it is difficult to determine if a diagnosis is related to the 
terminal condition with an example given stating that renal failure may 
or may not be related to congestive heart failure. Another commenter, a 
hospice physician, provided a clinical scenario for a beneficiary with 
chronic obstructive pulmonary disease (COPD) as the principal 
diagnosis, but who also had coronary artery disease (CAD) and 
Parkinson's disease which the hospice considered unrelated comorbid 
conditions. The patient would only receive hospice services for care 
related to the lung disease (COPD). Another commenter expressed concern 
that including all of the related diagnoses on the hospice claim would 
mean that hospices would have additional costs incurred in covering all 
of the medications for the reported diagnoses.
    Response: It is our goal to maintain the integrity of hospice 
philosophy and the Medicare Hospice Benefit. The intent of the Medicare 
Hospice Benefit is to provide all-inclusive care for pain relief and 
symptom management for the terminal prognosis and related conditions, 
and offer the opportunity to die with dignity in the comfort of one's 
home rather than in an institutional setting. It is often not a single 
diagnosis that represents the terminal prognosis of the patient, but 
the combined effect of several conditions that makes the patient's 
prognosis terminal. In Sec.  418.54(c), the hospice Conditions of 
Participation stipulate that the comprehensive hospice assessment must 
identify the patient's physical, psychosocial, emotional, and spiritual 
needs related to the terminal illness and related conditions which 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: The 
nature and condition causing admission (including the presence or lack 
of objective data and subjective complaints); complications and risk 
factors that affect care planning; functional status; imminence of 
death; and severity of symptoms (Sec.  418.54(c)). The Medicare Hospice 
Benefit requires the hospice to cover all palliative care related to 
the terminal illness and related conditions. The hospice plan of care 
is established based on the review of the clinical records and the 
comprehensive hospice assessments in order to ensure that all care 
needs at the end-of-life are addressed. Section 1861(dd)(1) of the Act 
establishes the services that are to be rendered by a Medicare 
certified hospice program. These covered services include: Nursing 
care; physical therapy; occupational therapy; speech-language pathology 
therapy; medical social services; home health aide services (now called 
hospice aide services); physician services; homemaker services; medical 
supplies (including drugs and biologics); medical appliances; 
counseling services (including dietary counseling); short-term 
inpatient care (including both respite care and procedures necessary 
for pain control and acute or chronic symptom management) in a 
hospital, nursing facility, or hospice inpatient facility; continuous 
home care during periods of crisis and only as necessary to maintain 
the terminally ill individual at home; and any other item or service 
which is specified in the plan of care and for which payment may 
otherwise be made under Medicare, in accordance with Title XVIII of the 
Act.
    We recognize that there are conditions that are unrelated to the 
terminal condition of the individual. This is why there are the ongoing 
assessment requirements of the hospice beneficiaries and the 
collaboration with the hospice IDG--to ensure that the ongoing and 
changing needs of the hospice beneficiary are assessed and changes to 
the plan of care are made. However, in referring to the holistic intent 
of hospice philosophy and care, we wrote in the August 22, 1983 
proposed rule, ``. . . 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'' (48 FR 38147). In reviewing 
the many clinical scenarios provided by commenters and their 
interpretations of what they consider related versus unrelated, it is 
apparent that the majority refer to a ``related condition'' as one that 
is related only to the reported single, principal terminal diagnosis 
and not to the terminal prognosis. However, within those same comments, 
it was stated numerous times that hospice eligibility is related to the 
prognosis of the individual. One example provided from a hospice 
physician regarding a Medicare hospice beneficiary who had a reported 
principal terminal diagnosis of chronic obstructive pulmonary disease 
(COPD). This individual also had documented coronary artery disease 
(CAD) and Parkinson's disease. The provider stated that the CAD and the 
Parkinson's disease are unrelated to the COPD and that the patient 
would only receive hospice services for the COPD. This scenario and 
accompanying statement does not appear to encompass hospice philosophy 
of holistic care. Therefore, we are restating what we communicated in 
the December 16, 1983 Hospice final rule regarding what is related 
versus unrelated to the terminal illness: ``. . . [W]e believe that the 
unique physical condition of each terminally ill individual makes it 
necessary for these decisions to be made on a case-by-case basis. As 
stated in the December 16, 1983 Hospice final rule, . . . ``hospices 
are required to provide virtually all the care that is needed by 
terminally ill patients.'' (48 FR 56010). Therefore, unless there is 
clear evidence that a condition is unrelated to the terminal prognosis, 
all services would be considered related. It is also the responsibility 
of the hospice physician to document why a patient's medical need(s) 
would be unrelated to the terminal prognosis. We continue to reiterate 
that this determination of what is related versus unrelated to the 
terminal prognosis remains within the clinical expertise and judgment 
of the hospice medical director in collaboration with the IDG.
    Comment: Two commenters stated that the reference to the 1983 final 
rule preamble language quoted above, is casting aside language found in 
the Sec.  418.402, ``Individual liability for services that are not 
covered hospice care''. These comments went on to say that Sec.  
418.402 ``identified items as unrelated and not the responsibility of 
the hospice for `services received for the treatment of an illness or 
injury not related to the individual's terminal condition'.''
    Response: The referenced Sec.  418.402, ``Individual liability for 
services that are not considered hospice care'' states, ``Medicare 
payment to the hospice discharges an individual's liability for payment 
for all services, other than the hospice coinsurance amounts described 
in Sec.  418.400. . .'' This section goes on to state what payment 
liabilities a hospice beneficiary would be responsible for (not the 
hospice provider per the commenters) including ``. . . Medicare 
deductibles and

[[Page 48252]]

coinsurance payments and for the difference between the reasonable and 
actual charge on unassigned claims on other covered services that are 
not considered hospice care.'' Examples of non-hospice services are 
provided in this section including ``. . . Medicare services received 
for the treatment of an illness or injury not related to the 
individual's terminal condition.'' We have previously acknowledged that 
there are those rare circumstances in which a service may not be 
related to the patient's terminal prognosis and that this determination 
is to be done on a case-by-case basis by the hospice physician with 
input from the IDG. However, Sec.  418.402 refers to the liability 
limitations for the hospice beneficiary and does not refer to the 
liability to the hospice provider. To infer that this section is a 
confirmation of the liability limitations to the hospice provider would 
be incorrect.
    Comment: Several commenters stated that the hospice physician, 
along with input from the IDG, have a process in place to help 
determine related versus unrelated conditions and results in the 
holistic and comprehensive care their patients need. Other commenters 
explained that the software system utilized by their hospice agency 
marks conditions either as ``active'' (meaning, related) or 
``historical'' (meaning, unrelated). If a condition went from a 
historical state to an active state during the course of a hospice 
episode, then that condition was then considered related and treated 
accordingly under the hospice plan of care. Another commenter said that 
while some conditions are unrelated to the terminal condition, the 
clinical manifestations of these unrelated conditions are as such that 
they contribute to the individual's symptom burden, and the hospice 
provider still provides symptom management for these seemingly 
unrelated conditions to meet the patient's needs.
    Response: We applaud these hospices in providing a patient-centered 
approach and embracing the holistic hospice philosophy. These are all 
examples of hospice providers coming up with innovative ways to manage 
the needs of the hospice beneficiaries. These are reflections of the 
true intent of hospice philosophy that have been incorporated into the 
Medicare Hospice Benefit. We encourage all hospice providers to assess 
their operational processes and clinical and claims systems to be 
innovative in meeting the challenges of providing end-of-life care for 
the Medicare hospice beneficiaries as health care, in general, 
transitions to accountability and value-based models of care.
    Comment: One commenter stated that these diagnostic clarifications 
are a change in coverage policy and CMS must use a National Coverage 
Decision process to change coverage policy rather than through the 
preamble discussion of the proposed rule.
    Response: We continue to state that these coding clarifications are 
for hospice claims reporting only and are not a question of hospice 
eligibility or access to coverage. Eligibility to access the Medicare 
Hospice Benefit remains the same since the implementation of the 
benefit in 1983. To restate, eligibility for the Medicare Hospice 
Benefit is based on the individual being entitled to Part A of Medicare 
and being certified as terminally ill in accordance with Sec.  418.22. 
These eligibility requirements for coverage have not changed and are 
not changing in this rule. We expect hospice providers will not 
discharge, from hospice services, those beneficiaries who meet 
eligibility requirements but for whom they cannot determine a single, 
principal hospice diagnosis. If a Medicare beneficiary meets the 
eligibility requirements as stated in Sec.  418.20 and as referenced 
above, that Medicare beneficiary will have access to hospice services 
under the Medicare Hospice Benefit. The intent of these coding 
clarifications is to request more clarity and detail on the hospice 
claims to reflect a complete picture of the Medicare hospice population 
and the hospice services rendered and not to make any changes in 
coverage or eligibility policies. Therefore, we reject the comment that 
CMS must use the National Coverage Decision process.
    Comment: We received a few suggestions to help further 
clarification regarding diagnostic coding in the hospice setting. One 
commenter suggested that CMS work with the National Hospice and 
Palliative Care Organization (NHPCO) to develop guidelines regarding 
diagnostic coding for hospices. Another commenter suggested that CMS 
needs to guide standardization of the hospice industry. The American 
Academy of Hospice and Palliative Medicine (AAHPM) suggested 
collaboration with CMS to convene a Palliative Medicine and Hospice 
Coding and Documentation Learning Network to have ongoing dialogue 
regarding coding issues and suggestions for the hospice industry.
    Response: We appreciate the numerous thoughtful and insightful 
suggestions that have been provided in response to the diagnostic 
clarifications. CMS strives to involve all stakeholders in the 
collaborative process as health care navigates through the 21st century 
and health care reform provisions. We continue to have ongoing 
discussions with the industry, including the national hospice 
organizations, to remain aware of the issues that affect the hospice 
providers and impact Medicare beneficiaries. We believe that this 
communication and collaboration will reflect in our ongoing advocacy 
for the Medicare hospice beneficiaries to ensure accountability, 
responsibility and quality end-of-life care. We will continue to 
provide outcomes of these communications via Medicare Learning Network 
(MLN) articles and through our Open Door Forums to ensure that all 
Medicare stakeholders are kept informed of progress in maintaining the 
integrity of the Medicare Hospice Benefit.
    Final Decision: We will require these coding changes beginning on 
October 1, 2014. On or after October 1, 2014, any claims with 
``debility'' or ``adult failure to thrive'' in the principal diagnosis 
field will be returned to the provider for more definitive principal 
diagnosis coding. Claims submitted prior to October 1, 2014 with 
``debility'' or ``adult failure to thrive'' in the principle diagnosis 
field on the claim will not be returned to the provider, but we expect 
that hospice providers will code the principal hospice diagnosis 
according to the ICD-9-CM Coding Guidelines and the clarifications made 
herein. This should provide more than ample time for hospice providers 
to meet with clinical staff and their software vendors to ensure that 
these coding needs are addressed and processes put into place to ensure 
continuity of care and systems. These returned claims, based on the 
principal diagnoses of ``debility'' or ``adult failure to thrive,'' are 
not a denial of payment because of questionable eligibility; rather, 
these claims are being returned for additional clarity. Once 
resubmitted with diagnostic codes following the ICD-10-CM Coding 
Guidelines, these claims will be processed and paid accordingly. 
However, we expect hospice providers to transition immediately to more 
thoughtful coding practices in advance of this effective date.
3. Use of ``Mental, Behavioral and Neurodevelopmental Disorders'' ICD-
9-CM Codes
    In the proposed rule we discussed the use of hospice claims-
reported principal hospice diagnoses that fall under the ICD-9-CM 
classification, ``Mental, Behavioral and Neurodevelopmental 
Disorders.'' There are several codes that fall under this 
classification that

[[Page 48253]]

encompass multiple dementia diagnoses that are frequently reported 
principal hospice diagnoses on hospice claims, but are not appropriate 
principal diagnoses per ICD-9-CM Coding Guidelines. There are, however, 
other ICD-9-CM dementia codes, such as those for Alzheimer's disease 
and others, that fall under the ICD-9-CM classification, ``Diseases of 
the Nervous System and Sense Organs'' which are acceptable as principal 
diagnoses per ICD-9-CM coding guidelines.
    Comment: One commenter expressed concern that ``Lewy Body 
Dementia,'' ``Fronto-temporal Dementia'' and ``Vascular Dementia'' are 
no longer allowed as principal hospice diagnoses. Another commenter 
questioned what would be the recommendation if the hospice provider is 
unable to determine the cause of the dementia either from a lack of 
medical records or specific diagnostic work-up. One commenter asked if 
the LCD for ``Alzheimer's Disease and Related Disorders'' would be 
applicable to use for coding guidance.
    Response: In the FY 2014 Hospice wage index and payment rate update 
proposed rule (78 FR 27823), we did not state the specific dementia 
conditions and their corresponding ICD-9-CM codes that fall under 
various coding and sequencing conventions in the ICD-9-CM Coding 
Guidelines. There are many codes for dementia conditions, including the 
neurological causes as well as the clinical mental and behavioral 
manifestations of the underlying condition. These dementia conditions 
and ICD-9-CM codes are too numerous to list within the context of the 
proposed and final rules but are found in the ICD-9-CM Official 
Guidelines for Coding and Reporting manual. However, we clarified that 
dementia codes can be found under two classifications in the ICD-9-CM 
Official Guidelines for Coding and Reporting, ``Mental, Behavioral and 
Neurodevelopmental Disorders'' and ``Diseases of the Nervous System and 
Sense Organs.'' Per ICD-9-CM Coding Guidelines, several, but not all, 
of these ICD-9-CM dementia codes are considered manifestation codes, 
especially those dementia codes classified under ``Mental, Behavioral 
and Neurodevelopmental Disorders''. In accordance with the 2012 ICD-9-
CM Coding Guidelines, ``certain conditions have both an underlying 
etiology and multiple body system manifestations due to the underlying 
etiology. For such conditions, the ICD-9-CM has a coding convention 
that requires the underlying condition be sequenced first followed by 
the manifestation. Wherever such a combination exists, there is a ``use 
additional code'' note at the etiology code, and a ``code first'' note 
at the manifestation code. These instructional notes indicate the 
proper sequencing order of the codes, etiology followed by 
manifestation.'' In most cases, these manifestation codes will have in 
the code title, ``in diseases classified elsewhere'' or ``in conditions 
classified elsewhere.'' Codes with this in the title are a component of 
the etiology/manifestation convention. The codes with the phrase ``in 
diseases classified elsewhere'' or ``in conditions classified 
elsewhere'' in the title indicate that they are manifestation codes. 
``In diseases classified elsewhere'' or ``in conditions classified 
elsewhere'' codes are never permitted to be used as first listed or 
principal diagnosis codes and they must be listed following the 
underlying condition. However, there are manifestation codes that do 
not have ``in diseases classified elsewhere'' or ``in conditions 
classified elsewhere'' in their title. For such codes a ``use 
additional code'' note would still be present, and the rules for coding 
sequencing still apply. We noted that several dementia codes which are 
not allowable as principal diagnoses per ICD-9-CM coding guidelines are 
under the classification of ``Mental, Behavioral and Neurodevelopmental 
Disorders.'' According to the ICD-9-CM Coding Guidelines for ``Mental, 
Behavioral and Neurodevelopmental Disorders'', dementias that fall 
under this category are ``most commonly a secondary manifestation of an 
underlying causal condition.''
    Two of the most frequently reported dementia codes on hospice 
claims fall under this manifestation/etiology convention: ``dementia in 
conditions classified elsewhere with behavioral disturbance'' and 
``dementia in conditions classified elsewhere without behavioral 
disturbance''. Per ICD-9-CM Coding Guidelines, these codes are not 
acceptable as a reported principal diagnosis, and the underlying 
physical condition must be coded first. These codes can be used as 
additional or other diagnoses on the hospice claim. Additionally, two 
other frequently reported dementia codes on hospice claims have 
underlying disease-specific sequencing conventions: ``senile dementia, 
uncomplicated'' and ``other persistent mental disorders due to 
conditions classified elsewhere''. There are ICD-9-CM Coding Guidelines 
specific to each of these codes and these codes cannot be used as the 
principal diagnosis but can be reported as additional or other 
diagnoses on the hospice claim. Instructional notes regarding the 
sequencing convention for each of these codes can be found under each 
of these codes in the Tabular List within the ICD-9-CM Official 
Guidelines for Coding and Reporting. Therefore, it is imperative that 
hospice providers understand and follow ICD-9-CM Coding Guidelines and 
sequencing rules for all diagnoses and especially those noted above. We 
encourage hospice providers to pay particular attention to dementia 
coding as there are dementia codes found in more than one ICD-9-CM 
classification chapter, and there are multiple coding guidelines 
associated with these dementia conditions.
    The clarification of these coding guidelines is not to determine 
eligibility for hospice services, but rather, these guidelines are to 
assist with the proper coding sequences for the hospice claims. 
Eligibility for Medicare hospice services continues to be based on the 
prognosis of the individual based on the clinical judgment of the 
certifying physician that the individual has a life expectancy of 6 
months or less if the terminal condition runs its normal course. CMS 
does not make any recommendations as to what specific diagnoses to 
select from the ICD-9-CM Official Guidelines for Coding and Reporting 
for an individual beneficiary as these selections are to be determined 
by the certifying physician(s) based on the clinical record review and 
the comprehensive assessment. There are dementia diagnoses, including 
Alzheimer's Disease, Lewy-Body Dementia, fronto-temporal dementia, and 
senile degeneration of the brain, to name a few, that are allowable as 
principal diagnoses per ICD-9-CM Coding Guidelines and are located 
under the classification of ``Diseases of the Nervous System and Sense 
Organs'' in the ICD-9-CM Official Guidelines for Coding and Reporting 
manual.
    Some of the ICD-9-CM dementia diagnoses take into account that some 
dementia conditions may be unspecified in the event that a definitive 
diagnostic work-up was not or could not be performed. However, based on 
the present and historical clinical presentation of the individual, 
there are unspecified dementia diagnoses and corresponding ICD-9-CM 
codes that are acceptable as a principal diagnosis per ICD-9-CM Coding 
Guidelines. Most of these codes can be found under the classification, 
``Diseases of the Nervous System and Sense Organs.'' However, the 
expectation remains that the certifying physician will select the 
appropriate diagnoses and codes that determine the terminal prognosis 
of the

[[Page 48254]]

individual and that are most contributory to the terminal decline.
4. Guidance on Coding of Principal and Other, Additional, and/or Co-
existing Diagnoses
    In the FY 2014 Hospice Wage Index and Payment Rate Update proposed 
rule, we stated based on the ICD-9-CM Coding Guidelines, that the 
circumstances of an inpatient admission always govern the selection of 
principal diagnosis (78 FR 27833). The principal diagnosis is defined 
in the Uniform Hospital Discharge Data Set (UHDDS) as ``that condition 
established after study to be chiefly responsible for occasioning the 
admission of the patient to the hospital for care.'' In analyzing 
frequently reported principal hospice diagnoses, data analysis revealed 
differences between reported principal hospice diagnoses and reported 
principal hospital diagnoses in patients who elected hospice within 3 
days of discharge from the hospital. In addition, in the proposed rule 
we stated that our expectation is for hospice providers to report all 
coexisting or additional diagnosis related to the terminal prognosis 
and related conditions.
    Comment: Several commenters said that these statements could be 
interpreted to mean that the principal hospice diagnosis must always 
mirror the hospital diagnosis and while this is often the case, there 
are sometimes specific clinical scenarios in which this would not 
necessarily occur. The commenters requested further clarification so 
that hospice providers do not feel compelled to violate their own 
coding judgment just to replicate the inpatient hospital diagnoses 
based on ``mandates'' from CMS.
    Response: In our statements regarding the guidelines governing the 
selection of the principal hospice diagnosis, they were made to provide 
additional guidance on the selection of the principal diagnosis for 
hospice providers based on the ICD-9-CM Coding Guidelines. We recognize 
that the principal hospice diagnosis may not mirror the inpatient 
hospital diagnosis in certain circumstances. The scenario below, 
provided by a commenter, is an example:

    A patient was admitted to the hospital with a diagnosis of 
pneumonia. Upon diagnostic work-up, it was discovered that the 
patient had stage 4 lung cancer. The patient opted not to pursue 
curative treatment and was discharged to home with hospice services 
in place. The principal hospice diagnosis selected for this patient 
was lung cancer.

This would be an appropriate principal hospice diagnosis, though it was 
not the same as the primary hospital diagnosis. However, in the FY 2014 
hospice wage index and payment rate update proposed rule, we presented 
data analysis where the principal hospital diagnosis was a cancer 
diagnosis, but the hospice diagnosis was not. It would be expected 
that, in a cancer diagnosis, in which the individual received inpatient 
medical care for that diagnosis and was discharged home with hospice 
election within three days, that the principal hospice diagnosis would 
be the inpatient hospital diagnosis of cancer. However, to clarify, we 
are not requiring that the principal hospice diagnosis always must be 
the exactly the same as the inpatient hospital diagnosis. We continue 
to reiterate that the certifying physician, using his or her expert 
clinical judgment and supporting documentation from the clinical 
records and the comprehensive assessment(s), will determine the most 
appropriate principal diagnosis, along with other, additional related 
diagnoses, that are contributing to the terminal prognosis of the 
individual. Our purpose in providing these statements in the proposed 
rule was to remind providers of the ICD-9-CM Coding Guidelines which 
state, to list first the diagnosis shown in the medical record to be 
chiefly responsible for the services provided and to list additional 
codes that describe any coexisting conditions.
    Comment: One commenter questioned what the expectation is for the 
number of other, additional diagnoses that should be reported on the 
hospice claim. This commenter stated that it was not the hospice's 
standard to report diagnoses not related to the terminal prognosis on 
the hospice claim. Another commenter stated that hospice providers 
historically were ``cautioned for potential enticement by covering too 
many diagnoses.'' A few commenters expressed concern about how CMS may 
use additional information of the secondary and tertiary diagnoses for 
complex patients.
    Response: We do not require hospice's to report a specific number 
of diagnoses on the hospice claims. However, ICD-9-CM Coding Guidelines 
are specific in its instructions to providers to ``code all documented 
conditions at the time of the encounter/visit, and require or affect 
patient care treatment or management.'' Therefore, we expect that 
hospice providers will adhere to these guidelines in reporting the 
appropriate diagnoses to more fully describe the Medicare hospice 
beneficiaries receiving care and services needed to palliate and manage 
their terminal conditions, based on the information from the 
comprehensive assessment and individualized hospice plan of care. Our 
regulations at Sec.  418.200, hospices must provide all services 
reasonable and necessary for the palliation and management of the 
terminal illness and related conditions. As noted, we require hospices 
to provide virtually all the care that is needed by terminally ill 
patients. Therefore, unless there is clear evidence that a condition is 
unrelated to the terminal prognosis, all services would be considered 
related. It is also the responsibility of the hospice physician to 
document why a patient's medical need(s) would be unrelated to the 
terminal prognosis. We expect that hospice providers will use their 
best clinical judgment in determining which diagnoses and conditions 
are related to the terminal prognosis of the individual receiving 
hospice care and will report those diagnoses and conditions accordingly 
on the hospice claims.
    In response to the comment regarding the diagnosis not being 
available at the time of referral, we understand that a diagnosis may 
not be provided at the time of hospice referral given the sometimes 
acute nature of a hospice referral. However, upon the hospice 
physician's review of the comprehensive assessment along with the other 
clinical records, the expectation is that a diagnosis for hospice 
claims coding should be determined based on this review along with the 
hospice physician's best clinical judgment as to the condition most 
contributory to the terminal prognosis.
    Furthermore, the expectation is to provide the diagnostic codes on 
the claim to reflect the individual's clinical status regardless of the 
number of diagnoses to do so. There are an ample number of diagnosis 
fields on the hospice claims for reporting. Because the hospice 
reimbursement is a bundled per diem rate, there is no enticement for 
reporting too many. The goal of requesting all of the related diagnoses 
on the hospice claim is to have a more accurate picture of the Medicare 
hospice beneficiary population. This accurate picture of the Medicare 
hospice population will also help to ensure that any payment reform 
model that is considered is done so in a responsible and thoughtful 
manner to protect the viability, integrity, and intent of the Medicare 
Hospice Benefit and the care philosophy of the hospice industry.
5. Transition to ICD-10-CM
    In the FY 2014 Hospice Wage Index and Payment Rate Update proposed 
rule we reminded hospice providers of the upcoming transition from ICD-
9-CM to ICD-10-CM on October 1, 2014. We

[[Page 48255]]

provided additional information regarding the transition to ICD-10-CM 
that is available through the CMS Web site at: http://www.cms.gov/Medicare/Coding/ICD10/index.html?redirect=/icd10; and ICD-10-CM coding 
guidelines can be found on the CDC's Web site at www.cdc.gov/nchs/data/icd10/10cmguidelines2012.pdf.
    Comment: We received multiple comments asking to suspend the 
enforcement of the clarifications of ICD-9-CM Coding Guidelines until 
the implementation of ICD-10-CM. It was stated that the preparation for 
the transition to ICD-10-CM was burdensome enough for hospice 
providers.
    Response: The transition to ICD-10-CM has been discussed in 
previous hospice rules and notices, and the transition deadline for 
ICD-10-CM has already been pushed back until its current October 1, 
2014 implementation date to allow for providers to have adequate time 
to prepare their administrative processes and systems. Additionally, in 
our regulations at 45 CFR 162.1002, the Secretary adopted the ICD-9-CM 
code set, including The Official ICD-9-CM Guidelines for Coding and 
Reporting. The CMS' Hospice Claims Processing manual (Pub 100-04, 
chapter 11) requires that hospice claims include other diagnoses ``as 
required by ICD-9-CM Coding Guidelines''. Furthermore, these ICD-9-CM 
Coding Guidelines have been existing and longstanding policies that 
should be adhered to by all providers.
    Other health care providers in both the inpatient and outpatient 
settings are required to follow these coding guidelines, and 
enforcement of these policies has been part of their payment systems 
for years. The expectation for hospice providers to follow those same 
guidelines is imperative to ensure continuity and quality of care 
throughout a Medicare beneficiary's health care continuum. Therefore, 
we stand by our clarifications regarding the ICD-9-CM Coding Guidelines 
and ICD-10-CM Coding Guidelines. However, in response to the comments 
received regarding the additional time needed to implement these coding 
clarification changes within their software systems, we will require 
these coding changes beginning on October 1, 2014, when all hospice 
claims submitted on or after October 1, 2014 will be subject to having 
claims returned if presented for payment with incorrect codes.

B. The Hospice Quality Reporting Program

1. Background and Statutory Authority
    Section 3004 of the Affordable Care Act amended the Act to 
authorize a quality reporting program for hospices. Section 
1814(i)(5)(A)(i) of the Act requires that beginning with FY 2014 and 
each subsequent FY, the Secretary shall reduce the market basket update 
by 2 percentage points for any hospice that does not comply with the 
quality data submission requirements with respect to that FY. Depending 
on the amount of the annual update for a particular year, a reduction 
of 2 percentage points could result in the annual market basket update 
being less than 0.0 percent for a FY and may result in payment rates 
that are less than payment rates for the preceding FY. Any reduction 
based on failure to comply with the reporting requirements, as required 
by section 1814(i)(5)(B) of the Act, would apply only for the 
particular FY involved. Any such reduction will not be cumulative and 
will not be taken into account in computing the payment amount for 
subsequent FYs.
    Section 1814(i)(5)(C) of the Act requires that each hospice submit 
data to the Secretary on quality measures specified by the Secretary. 
The data must be submitted in a form, manner, and at a time specified 
by the Secretary. Any measures selected by the Secretary must have been 
endorsed by the consensus-based entity which holds a contract regarding 
performance measurement with the Secretary under section 1890(a) of the 
Act. This contract is currently held by the NQF. However, section 
1814(i)(5)(D)(ii) of the Act provides that in the case of a specified 
area or medical topic determined appropriate by the Secretary for which 
a feasible and practical measure has not been endorsed by the 
consensus-based entity, the Secretary may specify measures that are not 
so endorsed as long as due consideration is given to measures that have 
been endorsed or adopted by a consensus-based organization identified 
by the Secretary. Section 1814(i)(5)(D)(iii) of the Act requires that 
the Secretary publish selected measures applicable with respect to FY 
2014 no later than October 1, 2012.
2. Quality Measures for Hospice Quality Reporting Program and Data 
Submission Requirements for Payment Year FY 2014
    The successful development of a Hospice Quality Reporting Program 
(HQRP) that promotes the delivery of high quality healthcare services 
is our paramount concern. We seek to adopt measures for the HQRP that 
promote efficient and safer care. Our measure selection activities for 
the HQRP takes into consideration input we receive from the Measure 
Applications Partnership (MAP), convened by the National Quality Forum 
(NQF), as part of a pre-rulemaking process that we have established and 
are required to follow under section 1890A of the Act. The MAP is a 
public-private partnership comprised of multi-stakeholder groups 
convened by the NQF for the primary purpose of providing input to CMS 
on the selection of certain categories of quality and efficiency 
measures, as required by section 1890A(a)(3) of the Act. By February 
1st of each year, the NQF must provide that input to CMS. Input from 
the MAP is located at: (http://www.qualityforum.org/Setting_Priorities/Partnership/Measure_Applications_Partnership.aspx). For 
more details about the pre-rulemaking process, see the FY 2013 IPPS/
LTCH PPS final rule (77 FR at 53376 (August 31, 2012)).
    We also take into account national priorities, such as those 
established by the National Priorities Partnership at (http://www.qualityforum.org/npp/), the HHS Strategic Plan http://www.hhs.gov/secretary/about/priorities/priorities.html), and the National Strategy 
for Quality Improvement in Healthcare located at (http://www.healthcare.gov/news/reports/nationalqualitystrategy032011.pdf). To 
the extent practicable, we have sought to adopt measures that have been 
endorsed by the national consensus organization, recommended by multi-
stakeholder organizations, and developed with the input of providers, 
purchasers/payers, and other stakeholders.
    As stated in the August 4, 2011 FY 2012 Hospice Wage Index final 
rule (76 FR 47302, 47320), to meet the quality reporting requirements 
for hospices for the FY 2014 payment determination as set forth in 
section 1814(i)(5) of the Act, we finalized the requirement that 
hospices report two measures:
     An NQF-endorsed measure that is related to pain 
management, NQF 0209. The data collection period for this 
measure was October 1, 2012 through December 31, 2012, and the data 
submission deadline was April 1, 2013. The data for this measure are 
collected at the patient level, but are reported to CMS in the 
aggregate for all patients cared for within the reporting period, 
regardless of payer.
     A structural measure that is not endorsed by NQF: 
Participation in a Quality Assessment and Performance Improvement 
(QAPI) program that

[[Page 48256]]

includes at least three quality indicators related to patient care. The 
data collection period for this measure was October 1, 2012 through 
December 31, 2012, and the data submission deadline was January 31, 
2013. Hospices are not asked to report their level of performance on 
these patient care related indicators, but simply to indicate that a 
QAPI program with patient care related indicators has been implemented.
    Hospices failing to report quality data before the specified 
deadline in 2013, will have their market basket update reduced by 2 
percentage points in FY 2014. Hospice programs will be evaluated for 
purposes of the quality reporting program based on whether or not they 
submit data, and not based on their performance level on required 
measures.
    For the FY 2014 payment determination, hospices were asked to 
provide identifying information, and then complete a web based data 
entry for the required measures. For hospices that could not complete 
the web based data entry, a downloadable data entry form was made 
available upon request. Electronic data submission will be required for 
the FY 2015 payment determination and beyond; there will be no other 
data submission method available.
3. Quality Measures for Hospice Quality Reporting Program and Data 
Submission Requirements for Payment Year FY 2015 and Beyond
    In the November 8, 2012 CY 2013 Home Health Prospective Payment 
System Rate Update final rule (77 FR 67068, 67133), to meet the quality 
reporting requirements for hospices for the FY 2015 payment 
determination and each subsequent year, as set forth in section 
1814(i)(5) of the Act, we finalized the requirement that hospices 
report two measures:
     The NQF-endorsed measure that is related to pain 
management, NQF 0209
     The structural measure: Participation in a Quality 
Assessment and Performance Improvement (QAPI) Program that includes at 
least three quality indicators related to patient care. We did not 
extend the requirement that hospices complete a check list of their 
patient care indicators and indicate the data sources they used for 
their quality indicators.
    In the proposed rule for FY2014 (78 FR 27823), we proposed that the 
structural measure related to QAPI indicators and the NQF 0209 
pain measure would not be required for the hospice quality reporting 
program beyond data submission for the FY 2015 payment determination. 
The original intent of the structural measure was for hospices to 
submit information about number, type, and data source of quality 
indicators used as a part of their QAPI Program. Data gathered as part 
of the structural measure were used to ascertain the breadth and 
context of existing hospice QAPI programs to inform future measure 
development activities including the data collection approach for the 
first year of required reporting (the reporting period which could 
result in payment reductions in FY 2014). To date, hospices have 
reported two cycles worth of structural measure data to CMS:
     Voluntary reporting period (submitted to CMS by January 
31, 2012)--For the voluntary reporting period hospices submitted free 
text data describing each quality indicator in their QAPI programs; 
data regarding number and data source of quality indicators were also 
submitted.
     FY 2014 (submitted to CMS by January 31, 2013)--For the FY 
2014 cycle, hospices submitted data about the topic areas of care 
addressed by quality indicators in their QAPI Programs, using a drop-
down menu checklist rather than free text, in order to reduce burden. 
Data regarding number and data source of quality indicators were also 
submitted. CMS has analyzed data from both reporting periods. Findings 
from the voluntary reporting period showed that hospices use quality 
indicators that address a wide range of patient care related topics and 
that there is great variation in how hospices collect and use 
``standardized'' quality indicators. The majority of reported 
indicators addressed patient safety and physical symptom management. 
Likewise, findings from analysis of the FY 2014 structural measure data 
reiterated findings from the voluntary reporting period.
    Other topics addressed included management of psychosocial aspects 
of care, bereavement and grief, communication, and care coordination. 
Overall, findings from both data collections of the structural measure 
have provided adequate information on hospice's patient care-related 
indicators making further reporting on the structural measure 
unnecessary.
    Comment: We received several comments in favor of the proposal to 
remove the structural measure requirement beyond data submission for 
the FY 2015 payment determination. There were no comments in opposition 
to removing the structural measure requirement after FY 2015. One 
commenter indicated that CMS should make clear that it was only 
removing the structural measure requirement, not the QAPI program 
requirement from the Conditions of Participation.
    Response: The results of the voluntary reporting period and the 
analysis of the FY 2014 structural measure data provided adequate 
information about hospices' patient care-related quality indicators. We 
are finalizing the proposal to remove the structural measure 
requirement beyond data submission for the FY 2015 payment 
determination. We are reiterating that the requirements regarding QAPI 
in the Conditions of Participation remain intact.
    As stated above, in the proposed rule, we proposed that the NQF 
0209 pain measure not be required for the hospice quality 
reporting program beyond data submission for the FY2015 payment 
determination. We determined that the NQF 0209 measure as it 
is currently collected and reported by hospices is not suitable for 
long term use as part of the Hospice Quality Reporting Program (HQRP). 
In making this decision, we considered findings from the Voluntary 
Reporting Period and the Hospice Item Set pilot. Since the publication 
of the proposed rule, we examined data from the first year of reporting 
on the measure (impacting FY 2014 APU determination). In addition, we 
considered stakeholder input including comments submitted during 
rulemaking, expert input from a Technical Expert Panel (TEP), and 
provider questions and comments submitted to the hospice quality help 
desk during the 2012/2013 data collection and reporting period. There 
are two central concerns with the NQF 0209 measure. First, the 
measure does not easily correspond with the clinical processes for pain 
management, resulting in variance in what hospices collect, aggregate, 
and report. This concern could potentially be addressed by extensive 
and ongoing provider training or standardizing data collection. 
However, even with extensive training and the use of a standardized 
item set during the pilot test, the data showed continued variance in 
implementation of the measure. Second, there is a high rate of patient 
exclusion due to patient ineligibility for the measure and patients' 
denying pain at the initial assessment. This high rate of patient 
exclusion from the measure results in a small denominator and creates 
validity concerns. These concerns cannot be addressed by training or 
standardizing data collection. We recognize the value of measuring 
hospices' ability to achieve patient comfort and the desire to include 
a patient outcome measure such

[[Page 48257]]

as the NQF 0209 in the HQRP. By removing the requirement that 
hospices submit the NQF 0209 measure, pain comfort will not be 
measured as part of the HQRP. However, we plan to require that hospices 
collect data on two other measures that address care for pain. The 
standardized item set that CMS has developed contains data elements to 
collect 7 quality measures endorsed by NQF for hospice. Among these are 
two process measures related to pain: the NQF 1634, Pain 
Screening, and NQF 1637, Pain Assessment. However, while these 
measures provide insight about screening and assessment of patients, 
they do not offer information about patient-reported comfort related to 
pain.
    In the proposed rule, an alternative proposal was made to retain 
NQF 0209 until a more suitable outcome measure was available 
for use in the HQRP, to maintain a focus on achieving patient comfort. 
We also recognize the importance of adherence to standardized data 
collection specifications when producing measures for public reporting. 
We intend to work toward the HQRP's future inclusion of an improved 
pain outcome measure. We solicited comment on the removal of the 
checklist and data source questions from the structural measure, and 
the removal of the NQF 0209 measure. We also solicited comment 
on the alternative proposal of maintaining NQF 0209 until 
another pain outcome measure is available.
    Comment: A large majority of comments received agreed with the 
proposal to remove the NQF 0209 pain measure from the HQRP 
because of the concerns with the measure as described above. Commenters 
stated that the measure is difficult to implement and does not 
correspond with clinical processes for pain management. One commenter 
suggested that there is not an issue with the data collection not 
corresponding to hospice clinical practice, but rather a learning curve 
phenomenon. Commenters also agreed that high rates of patient exclusion 
from the measure lead to validity issues. The majority of commenters 
were also against the alternate proposal to retain the NQF 
0209 until an alternate pain outcome measure is developed, 
citing that continuing to collect it would be an unnecessary burden on 
providers. Some also commented that discontinuing data collection for 
the NQF 0209 pain measure after the CY 2013 data collection 
period would permit hospices more time to focus on preparing for the 
implementation of the Hospice Item Set (HIS) and other requirements. A 
few commenters indicated that the NQF 0209 should be retained. 
Commenters in favor of retaining the measure stated that, though 
flawed, the measure has merit because it is an outcome measure. They 
also felt it has merit because it incorporates patient preferences for 
pain management and is meaningful to consumers. Commenters also stated 
that hospices invested a lot of time and energy to establish their data 
collection and submission processes for this measure. One commenter 
thought CMS should evaluate additional quarters of data submissions by 
hospices to fully evaluate the measure's validity before deciding 
whether to eliminate its use from the HQRP.
    Response: Since the release of the proposed rule, we have analyzed 
the NQF 0209 pain measure data from the FY 2014 hospice 
reporting cycle. Results from the analysis support our central concerns 
with the NQF 0209 pain measure as stated above. Due to 
exclusions, a very small percentage of patients admitted to hospice 
would be represented by this quality measure, suggesting validity 
issues with the measure. FY 2014 data analysis shows that data errors 
affected approximately one-third of all hospices' data submissions 
despite the use of warning and error messages in the data submission 
system. In addition, the data showed that approximately 30 percent of 
the patients who were asked the initial comfort question ended up in 
the measure denominator (the denominator is set by patients who said 
``yes'' to the initial comfort question). The data also showed that 
approximately 54 percent of hospices had 10 or fewer admissions during 
the data collection period (Q4 2012), indicating a denominator size 
problem that would affect the potential use of the measure for public 
reporting purposes in the future. We will post a document summarizing 
the findings related to the NQF 0209 measure on the cms.gov 
Web site at http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/index.html. The 
document includes findings from the Voluntary Reporting Period, the 
Hospice Item Set Pilot Test, and the FY 2014 national reporting of the 
NQF 0209 data. These three sources of information along with 
stakeholder comments during the public comment period were considered 
in finalizing the proposal to discontinue the requirement that hospices 
report the NQF 0209 measure beyond FY 2015. We understand that 
hospices may choose to use the NQF 0209 as part of their 
ongoing quality improvement efforts. However, we believe that 
continuing to require hospices to report the NQF 0209 measure 
beyond FY 2015 is inappropriate and burdensome. We agree that outcome 
measures are essential to the HQRP. We are committed to developing an 
improved pain outcome measure and we will work toward the HQRP's future 
inclusion of an improved pain outcome measure. Although we appreciate 
the value of including an outcome measure as part of the HQRP, based on 
the majority of comments received and FY 2014 NQF 0209 data 
analysis findings, we are finalizing the proposal to discontinue use of 
the NQF 0209 pain measure after FY 2015 reporting. We will not 
finalize the alternate proposal to retain the NQF 0209 until 
another pain outcome measure is available.
4. Quality Measures for Hospice Quality Reporting Program for Payment 
Year FY 2016 and Beyond
    As stated in the November 8, 2012 CY 2013 Home Health Prospective 
Payment System Rate Update final rule (77 FR 67068, 67133), we 
considered an expansion of the required measures to include additional 
measures endorsed by NQF. We also stated that to support the 
standardized collection and calculation of quality measures, collection 
of the needed data elements will require a standardized data collection 
instrument. We have developed and tested a hospice patient-level item 
set to be used by all hospices to collect and submit standardized data 
items about each patient admitted to hospice. We contracted with RTI 
International to support the development of the Hospice Item Set (HIS) 
for use as part of the HQRP. In developing the HIS, RTI focused on the 
NQF endorsed measures that had evidence of use and/or testing with 
hospice providers. Most of these measures were initially developed 
during the PEACE (Prepare, Embrace, Attend, Communicate, and Empower) 
Project, which was funded by CMS to develop and test an initial set of 
quality measures for use in hospice and palliative care. The PEACE 
project, which ended in 2008, resulted in the identification of 
recommended quality measure and data collection tools that hospice 
providers could use in their Quality Assessment and Performance 
Improvement (QAPI) programs to assess quality of care and target areas 
for improvement. Additional information on the PEACE project can be 
found at http://www.thecarolinascenter.org/default.aspx?pageid=24.
    Most of the measures endorsed by NQF are already widely in use by

[[Page 48258]]

hospices nationwide as part of their internal Quality Reporting and 
Performance Improvement (QAPI) programs. Data we received from hospices 
during the Voluntary Reporting Period in 2011 showed that hospices had 
implemented and were using the PEACE measures. Some of the PEACE 
measures were endorsed by NQF in February, 2012, and are listed below 
with their NQF endorsement numbers. The HIS standardizes the collection 
of the data elements that are needed to calculate seven of the NQF 
endorsed measures. The HIS was pilot tested during the early summer of 
2012. The primary objective of the pilot was to explore data collection 
methods and the feasibility of implementing a patient-level item set 
for possible future use as part of the HQRP.
    In developing the standardized HIS, we considered comments offered 
in response to the July 13, 2012 CY 2013 Home Health Prospective 
Payment System Rate Update proposed rule (77 FR 41548, 41573). We have 
included data items that support the following NQF endorsed measures 
for hospice:

 NQF 1617 Patients Treated with an Opioid who are 
Given a Bowel Regimen
 NQF 1634 Pain Screening
 NQF 1637 Pain Assessment
 NQF 1638 Dyspnea Treatment
 NQF 1639 Dyspnea Screening
 NQF 1641 Treatment Preferences
 NQF 1647 Beliefs/Values Addressed (if desired by the 
patient) (modified)
    To achieve a comprehensive set of hospice quality measures 
available for widespread use for quality improvement and informed 
decision making, and to carry out our commitment to develop a quality 
reporting program for hospices that uses standardized methods to 
collect data needed to calculate quality measures, we proposed the 
implementation of the HIS in July 2014. We believe that to support the 
standardized collection and calculation of any or all of the hospice 
quality measures listed above, it is necessary to use a standardized 
data collection mechanism. The HIS was developed specifically for this 
data collection purpose. The HIS Paperwork Reduction Act (PRA) package 
is posted on the PRA area of the CMS.gov Web site at: https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/index.html.
    We proposed that hospices begin the use and submission of the HIS 
in July 2014. To meet the quality reporting requirements for hospices 
for the FY 2016 payment determination and each subsequent year, we 
proposed regular and ongoing electronic submission of the HIS data for 
each patient admitted to hospice on or after July 1, 2014, regardless 
of payer. Hospices will be required to complete and submit an admission 
HIS and a discharge HIS for each patient. Hospices failing to report 
quality data via the HIS in 2014 will have their market basket update 
reduced by 2 percentage points in FY 2016. Hospice programs will be 
evaluated for purposes of the quality reporting program based on 
whether or not they submit data, not on their performance level on 
required measures.
    Comment: We received comments that were supportive of the 
implementation of the Hospice Item Set (HIS). Commenters agreed with 
the need for a standardized item set to collect patient level 
information that could be used to calculate the quality measures 
endorsed by the National Quality Forum (NQF) for hospice. However, 
commenters were concerned that the proposed July 1, 2014 date for 
starting submission of the HIS was too soon, and didn't allow for 
adequate time to prepare processes and systems for data collection, 
staff training, and other organizational preparations for 
implementation, particularly in the context of the other proposals in 
the rule such as the implementation of the hospice experience of care 
instrument. Commenters noted that vendors would have less than 12 
months to create software for providers to use to submit the HIS data. 
Commenters were concerned that there were too many changes coming in 
too short a time.
    Response: We appreciate the general support of standardized data 
collection and the Hospice Item Set (HIS). We are aware of the effort 
hospices and vendors will have to make to prepare for implementation of 
the HIS. The HIS pilot showed that implementing the HIS is feasible, 
and that hospices are most likely already collecting the information 
needed to complete the HIS data items. A draft version of the HIS 
technical data specifications was posted on the CMS Web site on May 24, 
2013. Based on other provider settings (for example, Home Health 
Agencies and Nursing Homes), it is our experience that when there are 
changes to the draft version of data specification the changes are 
minor and few, if any, compared to the final version of the technical 
data specifications. Thus, vendors have been provided with more than 
adequate time (greater than 12 months) to develop products for their 
clients. We expect vendors to begin reviewing the draft technical data 
specifications as soon as they are posted. We encourage vendors to 
submit questions and comments to the HIS technical email box: 
[email protected]. On July 16, 2013, CMS held a call 
specific for software developers and vendors regarding the HIS 
technical data specifications. We will hold additional vendor calls as 
needed to ensure that software vendors have the appropriate information 
to develop their own products for HIS. Software vendors should not be 
waiting for final technical data specifications to be posted to begin 
development of their own products. Therefore, we believe that vendors 
have been provided with adequate time and resources to meet the July 1, 
2014 implementation date of the HIS.
    CMS will provide free software for the HIS. We will make a beta 
version of the software available in May 2014 and the final version in 
June 2014. Providing a beta version for hospice agencies to download in 
May will allow their staff to become familiar with the functionality of 
the tool. We will provide training on the CMS HIS software and the 
submission process. We anticipate the training to occur in the spring 
of 2014. Furthermore, in cases where a hospice has purchased vendor 
software and the product is not available by July 1, 2014, the hospice 
may download the CMS software and submit records to the Quality 
Improvement and Evaluation System (QIES) Assessment and Submission 
Processing (ASAP) system as required. Thus, hospices will be able to 
comply with the July 1, 2014 implementation date of the HIS. We are 
finalizing implementation of the HIS on July 1, 2014.
    Comment: Several commenters expressed concern over the ``100 
percent submission requirement'' of the HIS and stated that exceptions 
for natural disasters and other extenuating circumstances should be 
allowed. In addition, a few commenters expressed concern that a hospice 
would be penalized if even one submission was missed, and that there 
needs to be a receipt process that would provide proof of data 
submission.
    Response: Submission of the HIS on all patients admitted to 
hospice, regardless of payer, is expected. As is common in other 
quality reporting programs, we will propose to make accommodations in 
the case of natural disaster or other extenuating circumstances in next 
year's rulemaking. In addition, the data submission system will include 
validation and receipt processes that will serve as evidence of 
submission.

[[Page 48259]]

    Comment: Some commenters indicated that they support the 
implementation of the HIS and the endorsed measures that can be 
calculated from the items on the HIS. However, while overall supportive 
of the measures and the HIS, they also indicated concern about the 
length of stay exclusion in the endorsed measures that will be 
calculated from the HIS. Commenters were also concerned that there were 
no outcome measures that will be calculated from the HIS. We also 
received a few comments indicating concern over other measure 
specifications (for example, additional exclusions for measures).
    Response: To comply with the requirements of the Affordable Care 
Act, CMS seeks to implement meaningful quality measures with 
demonstrated scientific acceptability that have been endorsed by an 
endorsing body, currently the NQF. Thus, we are somewhat, but not 
completely constrained by the availability of endorsed hospice quality 
measures. In addition, in selecting and implementing measures, we are 
constrained by the measures specifications of the endorsed measures. 
All of the measures that will be implemented are endorsed with a 7-day 
length of stay exclusion as part of the measure specifications. Section 
1841(i)(5)(D) of the Act requires us to be deferential to measures 
approved by an endorsing body such as the NQF. However, we agree that 
the length of stay exclusion in particular is of concern because it 
effectively excludes an important segment of hospice patients from the 
measures. We plan to analyze HIS data to continue to assess the 
scientific acceptability of the measures and are willing to work with 
measure developers and stewards to make modifications to measures where 
needed. In addition, we support the development of additional hospice 
quality measures, particularly outcome measures, and will seek 
opportunities to use outcome measures as they are developed and 
validated.
    Comment: We received a few comments indicating concern over the 
potential burden of the HIS on patients and families.
    Response: The HIS is a set of data elements that can be used to 
calculate 7 NQF endorsed quality measures. The HIS is not a patient 
assessment and it will not be administered to the patient and/or family 
or caregivers during the initial assessment visit. The HIS is not 
intended to replace a hospice's current initial patient assessment. The 
HIS pilot demonstrated that hospices use a variety of patient 
assessment forms during the initial patient assessment; all hospices 
were able to crosswalk items from their patient assessment forms to the 
HIS data elements, and complete the HIS items. Therefore, the HIS did 
not add items to the hospice's customary patient initial assessment, 
and did not present an additional burden to the patient and/or family 
or caregivers.
    Comment: A few commenters suggested removing the discharge HIS, 
indicating that the items on the discharge HIS are only administrative, 
and provide no additional value in terms of the quality measures while 
adding burden of completion to the hospice. Other commenters indicated 
that they were pleased to see the proposal of an admission and 
discharge HIS.
    Response: The discharge HIS is needed to provide an end date for 
the episode of care, and to establish the length of stay exclusion for 
patients whose hospice stay was less than 7 days. The discharge HIS 
items are minimal, but necessary for accurate records in the CMS data 
system and potentially for the providers' use with their own QAPI 
activities. Vendor software would pre-populate the majority of these 
items and the hospice would only code a few of the items on the 
discharge HIS; burden on hospices would be reduced as a result.
    Comment: A few commenters voiced concerns about potential ceiling 
effects with the NQF quality measures stating that measures may ``top 
out.'' Two commenters stated that NQF 1634 Pain Screening 
should not be considered for use in the quality reporting program, 
citing concerns about ceiling effects with the measure.
    Response: We recognize the commenters' concerns about the 
appropriateness of use of quality measures that have ``topped out,'' 
demonstrating ceiling effects. Ceiling effects on quality measures 
would indicate that there is little room for improvement on the 
particular quality measures across providers, rendering the measures of 
little use in measuring quality. There is currently no national data 
available to determine whether any of the proposed measures demonstrate 
ceiling effects. We will analyze data submitted to determine validity 
and reliability of measures, and part of this analysis will include 
analyzing for ceiling effects. We will determine appropriateness of 
measures for retention in the quality reporting program based on these 
analyses. We appreciate commenters' concerns about NQF 1634 
Pain Screening. However, NQF 1634 Pain Screening and NQF 
1637 Pain Assessment are paired measures meaning NQF 
1634 is necessary to generate the denominator for NQF 
1637.
    Comment: Two comments stated that items for the NQF 1641 
and 1647 should appear on the discharge HIS to meet measure 
specifications.
    Response: The NQF 1641 measure endorsement form does not 
specify a time window for the measure numerator. The commenters are 
correct that the NQF 1647 measure endorsement form does 
specify that the numerator criteria can be met any time during the 
period the patient is enrolled in the hospice program. We have 
consulted NQF about our proposal to capture the data on the admission 
HIS, and have received guidance that by limiting the time window in 
this way, we are proposing to use a ``modification of the NQF 
1647'' measure. We have opted to include the relevant items 
for both the NQF 1641 and the NQF 1647 on the 
Admission HIS, even though the measure specifications for the NQF 
1647 permit the numerator condition to be met at any time 
during the hospice episode of care. For multiple reasons, CMS has opted 
to include the NQF 1647 measure items as part of the Admission 
HIS, reflecting the initial period of time the patient is in hospice 
care. Addressing patients' values/beliefs and preferences for treatment 
by providing an opportunity for patients and families to discuss their 
preferences during the comprehensive assessment period is an important 
step in ensuring the delivery of hospice care that is patient and 
family-centered. Including the NQF 1647 measure items as part 
of the Admission HIS also aligns with the Conditions of Participation 
for hospices at Sec.  418.54(c), which state that 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. . . .'' We recognize that the 
discussion can take place at any time in the course of a patient's 
hospice care but believe the patient should be offered the opportunity 
to address these concerns in the early days of care when they are more 
likely to be able to do so. We consider it best practice. We have 
chosen this approach also because it allows the gathering of the data 
for the measure closer to ``real time'' in terms of usual hospice 
assessment and workflow and because this approach will likely improve 
accuracy and reduce burden to the provider. If these items were on the 
discharge HIS, hospices would have to review the entire episode of care 
documentation to find the

[[Page 48260]]

information needed to complete the relevant items on the HIS. We worked 
with the measure developer to ensure that the intent of the measure is 
still met with the HIS admission data collection. We will monitor the 
performance over time to inform future evaluation for maintenance of 
the measure's endorsement. We will proceed with the collection of the 
NQF 1641 measure and the modified NQF 1647 measure as 
part of the Admission HIS.
    Comment: We received a few comments regarding what should count 
towards the numerator for NQF 1641 (Treatment Preferences). 
Commenters suggested that review of advance directives count in the 
numerator for these items.
    Response: Discussion of patient preferences is important to ensure 
that care is individualized, patient and family centered, and 
consistent with patient and/or family preferences. The intent of the 
NQF 1641 measure is to ensure that hospices engage patients 
and families in opportunities to discuss their treatment preferences. 
Hospices meet the 1641 numerator requirements by asking the 
patient and/or family about their preferences and documenting that a 
discussion of preferences occurred, or by documenting that the patient 
and/or family did not wish to discuss their preferences. The measure 
endorsement forms clearly state that the measure is meant to capture 
evidence of communication and discussion. Prior to implementation of 
the HIS, we will provide hospices with guidance and training materials, 
including a detailed user guide.
    Comment: We received a comment that NQF 1641 (Treatment 
Preferences) does not mention cardiopulmonary resuscitation (CPR) or 
hospitalization.
    Response: The measure specifications as endorsed by NQF do not 
clearly define what constitutes preferences for life-sustaining 
treatment. As such, we included data items F2000 (CPR Preference) and 
F2200 (Hospitalization Preference) in the HIS to provide clarification 
and improve usability. These specifics are important to measure 
maintenance and development and does not stray from the measure 
specifications. We will provide guidance and training materials, 
including a detailed user guide for hospices prior to implementation of 
the HIS.
    Comment: For NQF 1647, one commenter questioned which 
hospice staff would be eligible to ask the patient about concerns 
related to beliefs and values to satisfy the numerator for the measure. 
This commenter questions if a social worker or bereavement staff member 
could collect the data or if it had to be a chaplain.
    Response: The measure specifications for NQF 1647 require 
documentation of a discussion between the patient and/or family and a 
member of the interdisciplinary team or clergy or pastoral worker, or 
documentation that the patient/family declined to discuss. We will 
provide guidance and training materials, including a detailed user 
guide, to hospices prior to implementation of the HIS.
    Comment: We received comments providing input about specific items 
on the HIS. Commenters offered suggestions on items in Sections A, F, 
I, J, N, and Z of the HIS.
    Response: We appreciate the comments received about specific items 
in the HIS. The items in Section A are a subset of those that appear 
and are standardized across data submission vehicles in multiple CMS 
quality reporting programs; they are needed for adequate record 
identification in CMS systems. Items in Sections F, I, J, and N are all 
necessary to establish the numerator and/or denominator; meet other 
measure specifications for the 7 NQF endorsed measures that can be 
calculated from the HIS; or for purposes of future potential risk 
adjustment to the measures.
    Comment: We received several comments regarding who the hospice 
must speak with about items in Section F (Preferences) to meet the 
numerator condition for the corresponding measures. A few commenters 
noted that not all patients have caregivers.
    Response: For items F2000, F2100, and F2200, the hospice must ask 
the patient or the patient's representative if the patient is unable to 
self-report. The responsible party may or may not be a family member or 
caregiver. We will provide guidance and training materials, including a 
detailed user guide to hospices prior to implementation of the HIS.
    Comment: We received several comments regarding Section I (Active 
Diagnoses) and item I0010 (Principal Diagnosis) that appears in this 
section. Some commenters felt the item did not include enough diagnoses 
to be useful and that principal diagnoses was not relevant to the 
measures. One commenter suggested that we obtain this data from claims 
or Program for Evaluating Payment Patterns Electronic Report (PEPPER) 
reports.
    Response: Disease processes and conditions impact service delivery. 
Cancer and dementia/Alzheimer's Disease are two of the most common 
principal diagnoses among hospice patients. We believe that this item 
is important for measure maintenance and development. The HIS applies 
to all payers, which is why CMS is not relying on claims or other 
available data sources. To limit the burden on hospice providers we 
chose to limit the diagnostic categories.
    Comment: We received comments that J0900 (Pain Screening) and J0910 
(Comprehensive Pain Assessment) went beyond the measures specifications 
for NQF 1634 and NQF 1637. Some commenters did not 
understand the purpose of J0900D (the patient's pain severity rating); 
others argued that J0900D should be removed from the item set because 
it incorrectly implies that a clinician's opinion of pain severity is 
an acceptable datum. Others questioned the inclusion of J0910C 
(Comprehensive Pain Assessment included).
    Response: The NQF  1634 and 1637 are ``paired measures''. 
The NQF 1634 forms the denominator for the NQF 1637 
measure. The measure specifications for NQF 1634 require that 
patients must be screened for the presence or absence of pain (and if 
present, a rating of its severity) using a standardized tool. The 
measure specifications do not require hospices to use one particular 
tool or clinical approach, in recognition of prior stakeholder input 
that indicated it is important to allow clinicians to select and use 
the appropriate screening tool on a case-by-case basis. The HIS is not 
a patient assessment; it is an item set designed to collect data 
elements that can be used to calculate NQF endorsed measures, including 
NQF 1634 and 1637. As a result, item J0900D is needed 
to establish whether or not the standardized screening tool selected 
and used by the clinician indicated that the patient had pain. Details 
of how to code item J0900D will be provided in the User Guide. CMS has 
involved the measure steward in developing that User Guide. J0900 D is 
also needed because it forms the denominator for NQF 1637, 
pain comprehensive assessment. The measure specifications for NQF 
1637 indicate that a comprehensive clinical assessment should 
include 5 of the following 7 characteristics of pain: location, 
severity, character, duration, frequency, what relieves or worsens the 
pain, and the effect on function or quality of life. J0910C provides a 
checklist of these 7 items and forms the numerator for NQF 
1637.
    Comment: We received several comments regarding J0900 (Pain 
Screening) and J0910 (Pain Assessment). Some commenters expressed that 
we

[[Page 48261]]

should provide more clarity on acceptable pain screening tools and 
determining patient pain severity. Regarding J0910C (Comprehensive Pain 
Assessment included), one commenter indicated that finding the elements 
of the comprehensive pain assessment in the medical record would be 
tedious.
    Response: The measure specifications for NQF 1634 (Pain 
Screening) require that patients must be screened for the presence or 
absence of pain (and if present, a rating of its severity) using a 
standardized tool. The HIS is not a patient assessment, and we do not 
want to be overly prescriptive in which standardized pain screening 
tools hospices use or how patient pain is rated. Thus, the items listed 
in J0900C (Type of standardized pain screening tool used) are not 
specific screening tools in and of themselves. Instead they are tools 
that may be utilized for the assessment of pain severity. Item J0910C 
(Comprehensive pain assessment included) helps form the numerator for 
NQF 1637 (Pain Assessment) and must be retained. We will 
provide guidance and training materials, including a detailed user 
guide to hospices prior to implementation of the HIS.
    Comment: We received comments on J2030 (Screening for Shortness of 
Breath) and J2040 (Treatment for Shortness of Breath). One commenter 
suggested that the respiratory screening should require evaluation of 
shortness of breath upon exertion. Another commenter questioned the 
purpose of J2040C (Type(s) of treatment for shortness of breath 
initiated).
    Response: The measure specifications for NQF 1639 (Dyspnea 
Screening) do not require that the respiratory screening include 
evaluation upon exertion. J2040C helps form the numerator for NQF 
1639. We believe that this item will improve usability by 
indicating the treatments/types of treatment that may be considered 
treatment for shortness of breath for purposes of the measure numerator 
condition. The HIS is not a patient assessment, and we do not want to 
be overly prescriptive in which screening tools hospices use, 
particularly for shortness of breath where there is no accepted 
standardized screening or assessment tool. We will provide guidance and 
training materials, including a detailed user guide to hospices prior 
to implementation of the HIS.
    Comment: One commenter wanted to know when N0520 (Bowel Regimen) 
required a response.
    Response: As noted on the draft HIS, providers will respond to the 
bowel items if a scheduled opioid and/or a PRN opioid is initiated or 
continued.
    Comment: We received several comments related to Section Z (Record 
Administration), particularly item Z0400 (Signature(s) of Person(s) 
Completing the Record). Commenters were unclear on the purpose of this 
section and how Z0400 should be completed.
    Response: The items in Section Z appear in and are standardized 
across data submission vehicles in multiple CMS quality reporting 
programs. This section allows providers to verify, internally, the 
individuals responsible for completing the HIS (that is the 
abstracters, not those completing the patient assessment). In 
accordance with processes used in other care settings, it is suggested 
that the signature page of Section Z be retained by the hospice in 
accordance with the hospice's policies and procedures related to 
patient information and clinical records.
    Comment: Several commenters inquired about future guidance and 
training on the HIS.
    Response: We will provide guidance and training materials, 
including a detailed user guide, to hospices prior to implementation of 
the HIS. We plan to provide Hospices with further information and 
details about use of the HIS. We will provide this information through 
venues such as postings on the Hospice Quality Reporting Program Web 
page, Open Door Forums, announcements in the CMS E-News, provider 
training, and National Provider calls. Electronic data submission will 
be required for HIS submission in CY 2014 and beyond; there will be no 
other data submission method available. We will make available 
submission software for the HIS to hospices at no cost. We will also 
provide reports to individual hospices on their performance on the 
measures calculated from data submitted via the HIS. The specifics of 
the reporting system and precisely when specific measures will be made 
available have not yet been determined. We will report to providers on 
the following measures on a schedule to be determined:

 NQF 1617 Patients Treated with an Opioid who are 
Given a Bowel Regimen
 NQF 1634 Pain Screening
 NQF 1637 Pain Assessment
 NQF 1638 Dyspnea Treatment
 NQF 1639 Dyspnea Screening
 NQF 1641 Treatment Preferences
 NQF 1647 Beliefs/Values Addressed (if desired by the 
patient)

                                             Table 6--Summary Tables
----------------------------------------------------------------------------------------------------------------
          Data collection                Data submission            APU Impact               Measure name
----------------------------------------------------------------------------------------------------------------
                                   Finalized in the CY 2013 HH PPS Final Rule
----------------------------------------------------------------------------------------------------------------
1/1/2013-12/31/2013................  4/1/2014...............  FY 2015 (10/1/2014)...  Structural/QAPI measure
                                                                                       NQF 0209.
----------------------------------------------------------------------------------------------------------------
                                          Finalized in this Final Rule
----------------------------------------------------------------------------------------------------------------
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Hospice and Palliative
                                                                                       Care--Pain Screening, NQF
                                                                                       1634.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Hospice and Palliative
                                                                                       Care--Pain Assessment,
                                                                                       NQF 1637.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Hospice and Palliative
                                                                                       Care--Dyspnea Screening,
                                                                                       NQF 1639.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Hospice and Palliative
                                                                                       Care--Dyspnea Treatment,
                                                                                       NQF 1638.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Patients Treated with an
                                                                                       Opioid who are Given a
                                                                                       Bowel Regimen, NQF 1617.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Hospice and Palliative
                                                                                       Care--Treatment
                                                                                       Preferences, NQF 1641.
7/1/2014-12/31/2014................  Rolling................  FY 2016 (10/1/2015)...  Beliefs/Values Addressed
                                                                                       (if desired by patient),
                                                                                       modified NQF 1647.
----------------------------------------------------------------------------------------------------------------


[[Page 48262]]

    As stated in the August 4, 2011 FY 2012 Hospice Wage Index final 
rule (76 FR 47302, 47320), we finalized that all hospice quality 
reporting periods subsequent to that for Payment Year FY 2014 will be 
based on a CY instead of a calendar quarter and for FY 2015 and beyond, 
the data submission deadline will be April 1st of each year. The 
implementation of the HIS in July 2014 will negate the CY data 
collection requirement and the April 1st data submission deadline. We 
will provide details on data collection and submission timing prior to 
implementation of the HIS.
5. Public Availability of Data Submitted
    Under section 1814(i)(5)(E) of the Act, the Secretary is required 
to establish procedures for making any quality data submitted by 
hospices available to the public. The procedures ensure that a hospice 
will have the opportunity to review the data regarding the hospice's 
respective program before it is made public. In addition, under section 
1814(i)(5)(E) of the Act, the Secretary is authorized to report quality 
measures that relate to services furnished by a hospice on the CMS Web 
site. We recognize that public reporting of quality data is a vital 
component of a robust quality reporting program and are fully committed 
to developing the necessary systems for public reporting of hospice 
quality data. We also recognize it is essential that the data made 
available to the public be meaningful and that comparing performance 
between hospices requires that measures be constructed from data 
collected in a standardized and uniform manner. The development and 
implementation of a standardized data set for hospices must precede 
public reporting of hospice quality measures. Once hospices have 
implemented the standardized data collection approach, we will have the 
data needed to establish the scientific soundness of the quality 
measures that can be calculated using the standardized data collection. 
It is critical to establish the reliability and validity of the 
measures prior to public reporting in order to demonstrate the ability 
of the measures to distinguish the quality of services provided. To 
establish reliability and validity of the quality measures, at least 
four quarters of data will need to be analyzed. Typically the first two 
quarters of data reflect the learning curve of the providers as they 
adopt a standardized data collection; these data are not used to 
establish reliability and validity. This means that the data from Q3 
and Q4 CY 2014 will not be used for assessing validity and reliability 
of the quality measures. Data collected by hospices during Q 1, 2 and 3 
CY 2015 will be analyzed starting in CY 2015. Decisions about whether 
to report some or all of the quality measures publicly will be based on 
the findings of analysis of the CY 2015 data. In addition, as noted, 
the Affordable Care Act requires that reporting be made public on a CMS 
Web site and that providers have an opportunity to review their data 
prior to public reporting. We will develop the infrastructure for 
public reporting, and provide hospices an opportunity to review their 
data. In light of all the steps required prior to data being publicly 
reported, we anticipate that public reporting will not be implemented 
in FY 2016. Public reporting may occur during the FY 2018 APU year, 
allowing ample time for data analysis, review of measures' 
appropriateness for use for public reporting, and allowing hospices the 
required time to review their own data prior to public reporting. We 
will announce the timeline for public reporting of data in future 
rulemaking. We welcome public comment on what we should consider when 
developing future proposals related to public reporting.
    Comment: We received a few comments regarding what should be 
considered in developing future proposals related to public reporting 
of hospice quality data. Commenters were in favor of public reporting, 
and indicated that they felt it was time to make this information 
available to consumers. Commenters also indicated that they appreciate 
the opportunity to review their data prior to the initiation of public 
reporting, and CMS's efforts to ensure that public reporting would not 
occur before adequate data analysis had taken place to establish the 
suitability of the measures for public reporting purposes. A few 
commenters suggested that outcome measures and measures from the family 
experiences of hospice care survey would be more meaningful for public 
reporting than the measures from the HIS. Several commenters had 
concerns about which of the NQF measures proposed would be appropriate 
for public reporting. Commenters noted that all of the NQF measures 
proposed were process measures and it may ``take effort'' for the 
public to understand the relationship of process measures to quality of 
care. One commenter stated that a comprehensive explanation of this 
relationship should be provided to the public.
    Response: We appreciate and recognize commenters' concerns about 
appropriateness of quality measures for public reporting. As stated in 
the proposed rule, we will analyze data for validity and reliability of 
quality measures and review measures' appropriateness for public 
reporting prior to determining which measures will be publicly 
reported. Moreover, we appreciate the suggestion to provide a 
comprehensive explanation of relationships between quality measures 
selected for public reporting and quality of care. We will consider 
this suggestion when developing processes, procedures and future 
proposals for public reporting. We also recognize the importance of 
outcome data, both for quality measurement and for public reporting. We 
also reiterate that we are committed to seeking opportunities to use 
outcome measures--both as part of the quality reporting program and for 
public report--as they are developed and become endorsed by NQF.
6. The CMS Hospice Experience of Care Survey for the FY 2017 Payment 
Determination and That of Subsequent Fiscal Years
Background
    In the CY 2013 Home Health Prospective Payment System Rate Update 
final rule (77 FR 67135), we stated that were considering the use of a 
patient/family experience of care survey in addition to other hospice 
quality of care (clinical) measures. We have developed a draft Hospice 
Experience of Care Survey questionnaire drawing heavily on 
questionnaires in the public domain such as the Family Evaluation of 
Hospice Care (FEHC). We are testing the draft survey in a national 
field test in fall 2013. The Hospice Experience of Care Survey will 
treat the dying patient and his or her informal caregivers (family 
members or friends) as the unit of care.
    Before the development of this survey, there was no official 
national standard experience of care survey that included standard 
survey administration protocols. The Hospice Experience of Care Survey 
will include detailed survey administration protocols which will allow 
for comparisons across hospices. The survey will focus on topics that 
are important to hospice users and for which informal caregivers are 
the best source for gathering this information. In addition, the 
``About You'' section of the instrument includes demographic 
characteristics of the patients and their caregivers which can be used 
to feed into case mix adjustments of the publicly reported data.

[[Page 48263]]

Description of the Survey
    The Hospice Experience of Care Survey will seek information from 
informal caregivers of patients who died while enrolled in hospices. We 
plan to field the questionnaires after the patient's death. Fielding 
timelines will be established to give the respondent some recovery time 
(two to three months), while simultaneously not delaying so long that 
the respondent is likely to forget details of the hospice experience. 
Caregivers will be presented with a set of standardized questions about 
their own experiences and the experiences of the patient in hospice 
care. During national implementation of this survey, hospices will be 
required to offer the survey, but individual caregivers will respond 
only if they voluntarily chose to do so.
    The Hospice Experience of Care Survey captures such topics as 
hospice provider communications with patients and family members, 
hospice provider care, and patient and family member characteristics. 
The survey will allow the informal caregiver (family member or friend) 
to provide an overall rating of the hospice care their patient 
received, and will ask if they will recommend ``this hospice'' to 
others.
    The Hospice Experience of Care Survey is following the principles 
used in the development of the Consumer Assessment of Healthcare 
Providers and Systems (CAHPS[supreg]) surveys. Therefore, we are--
     Obtaining input from consumers and stakeholders regarding 
how hospice patients perceive hospice care and what elements in hospice 
programs are of greatest importance to patients and informal 
caregivers.
     Drafting a version of the hospice questionnaire that will 
be cognitively tested with a small number of respondents in both 
English and Spanish. This type of testing will allow us to assess how 
respondents interpret and respond to individual questionnaire items.
     Providing a field test of the Hospice Experience of Care 
Survey instrument after the development of an initial questionnaire is 
completed. This field test will allow us to review survey 
implementation procedures and use statistical analysis of the survey 
results to select the final set of questions. In addition, it will 
allow us to select variables which may be used in the case mix 
adjustment of survey results for public reporting.
    The Hospice Experience of Care Survey, as well as the CAHPS[supreg] 
family of surveys, focuses on patient perspectives on the experience of 
care, rather than on patient satisfaction. CAHPS[supreg] data 
complements other data, including clinical measures. CAHPS[supreg] 
surveys are specifically intended to focus on issues where the patient 
(or in this case the caregiver) is the best source of information. We 
intend the Hospice Experience of Care Survey to have a similar focus. 
Once the survey is final, we will submit it for CAHPS[supreg] 
endorsement and National Quality Forum endorsement.
     We plan to move forward with a model of survey administration in 
which we will approve and train survey vendors to administer the survey 
on behalf of hospices. This will be very similar to the models that we 
use for Hospital CAHPS[supreg] (HCAHPS) and Home Health CAHPS[supreg] 
(HHCAHPS). Hospices will be required to contract with an approved 
survey vendor and to provide the sampling frame to the approved vendor 
on a monthly basis.
Participation Requirements for the Survey Begin in CY 2015 for the FY 
2017 Payment
    We proposed that we would begin required implementation of the 
survey in January 2015 in the FY 2014 Hospice Wage Index and Payment 
Rate Update; Hospice Quality Reporting Requirements; and Updates on 
Payment Reform proposed rule (78 FR 27823, published May 10, 2013). We 
are finalizing the proposed timeline due to the importance of the 
caregiver's voice. Beginning in first quarter of CY 2015, hospices will 
be required to conduct a dry run of the survey for at least one month 
in January 2015, February 2015, or March 2015. Beginning in April 2015, 
all hospices will be required to participate in the survey on an 
ongoing basis. The one ``dry run month,'' plus the nine months of April 
2015 to December 2015 participation, will be required to meet the pay 
for reporting requirement of the Hospice Quality Reporting Program for 
the FY 2017 annual payment update.
    Approved Hospice Experience of Care Survey vendors will submit data 
on the hospice's behalf to the CMS hospice patient experience of care 
survey data center. The deadlines for data submission have not yet been 
finalized. For the ``dry run'' the survey vendor would follow all the 
national implementation procedures, but the data would not be publicly 
reported. The dry run would provide hospices and their vendors with the 
opportunity to work together under ``test'' circumstances. We will 
allow exemptions for very small hospices. Hospices that have fewer than 
50 unduplicated or unique deceased patients in the period from January 
1, 2014 through December 31, 2014 will be exempt from the Hospice 
Experience of Care Survey data collection and reporting requirements 
for the FY 2017 payment determination. The hospices would be required 
to submit their patient counts for the period of January 1, 2014 
through December 31, 2014 to CMS. The due date for the participation 
exemption form will be stated in next year's rule. To qualify for the 
small size exemption, hospices will need to submit to CMS their patient 
counts annually for each future APU period.
    As part of the national implementation, we will develop technical 
specifications for vendors to follow and will issue a detailed survey 
guidelines manual prior to the dry run months.
    In addition, there will be a Web site devoted specifically to the 
Hospice Experience of Care Survey. It will include information and 
updates regarding survey implementation and technical assistance. 
Hospices interested in viewing similar model Web sites are encouraged 
to visit the HCAHPS Web site at www.hcahpsonline.org or the HHCAHPS Web 
site at https://homehealthcahps.org. On these Web sites, viewers can 
see and download the detailed manuals about the surveys (the Quality 
Assurance Guidelines for Hospital CAHPS[supreg] and the Protocols and 
Guidelines Manual for Home Health Care CAHPS[supreg]), as well as 
obtain information about the surveys' histories, data submission 
information, and survey updates.
    Consistent with our other implemented surveys, we will provide an 
email address and toll-free telephone number for technical assistance.
    The Affordable Care Act requires that beginning with FY 2014 and 
each subsequent FY, the Secretary shall reduce the market basket update 
by 2 percentage points for any hospice that does not comply with the 
quality data submission requirements with respect to the FY. Any such 
reduction would not be cumulative and would not be taken into account 
in computing the payment amount for subsequent FYs. In the November 8, 
2012 CY 2013 Home Health Prospective Payment System final rule (77 FR 
67068), it was stated that all hospice quality reporting periods 
subsequent to that for Payment Year 2014 would be based on a CY rather 
than on a FY. We are finalizing adding the Hospice Experience of Care 
Survey to the Hospice Quality Reporting Program requirements for the FY 
2017 payment determination. To meet the FY 2017 requirements, hospices 
would participate in a dry run for at least 1

[[Page 48264]]

month of the first quarter of CY 2015 (January 2015, February 2015, 
March 2015) and hospices must collect the survey data on a monthly 
basis for the months of April 1, 2015 through December 31, 2015 in 
order to qualify for the full APU.
    The following is a summary of the comments we received regarding 
the Hospice Experience of Care Survey proposal.
    Comment: We received a number of comments that the timeline for 
implementation of the Hospice Experience of Care Survey placed it too 
close in proximity to the implementation of the HIS items and that 
there should be a gap of at least 12 months between the HIS 
implementation and the survey implementation dates.
    Response: We carefully reviewed the comments asking for a delay in 
the timing of the national implementation of the Hospice Experience of 
Care Survey. However, we concluded that obtaining data from caregivers 
is so important that we cannot delay. As proposed we will begin with a 
dry run in the first quarter of 2015. Continuous data collection will 
begin April, 1, 2015 for the 2017 APU.
    Comment: We received comments that there are financial and 
administrative burdens on hospices participation in the Hospice 
Experience of Care Survey. Commenters also stated that the financial 
burden of participation would outweigh the 2 percent reduction in the 
annual payment update that would be given to non-participating 
hospices. We also received comments stating that this would require 
more staffing and the development of a process to handle the 
implementation of the survey and comments that this is a burden to 
small hospices. We received a comment asking if hospices can self-
administer the survey to save costs in implementing the hospice survey. 
In addition, we received a comment that the Family Evaluation of 
Hospice Care (FEHC) survey does not pose a financial burden to hospices 
because the FEHC survey is a benefit of National Hospice and Palliative 
Care Organization (NHPCO) membership.
    Response: We appreciate the comments concerning that the proposed 
survey is a financial burden to participating hospices. We are using 
the same survey implementation model that we use for other 
CAHPS[supreg] surveys where providers pay approved survey vendors to 
conduct the data collection on their behalf and CMS pays for the survey 
vendor training, technical support and assistance for hospices and 
their approved survey vendors, oversight of the approved survey 
vendors, the public reporting of the data, and the data analysis of the 
hospice survey data. Before national implementation begins in 2015, 
hospices are strongly encouraged to shop around for the best cost value 
for them before contracting with an approved survey vendor to conduct 
the Hospice Experience of Care Survey on their behalf. Hospices cannot 
self-administer the survey because we need to eliminate any potential 
bias in the administration of the survey. We do not believe that the 
annual burden to hospices will exceed the annual burden and costs that 
we see in the implementation of HHCAHPS. Basically, once national 
implementation starts, hospices will need to choose a vendor and 
contract with them, and then they will be responsible on a monthly 
basis to produce a file of all the caregivers (the persons on the 
records for the hospice patients) for hospice patients who died in the 
past month. We are not surveying people who have living hospice 
patients. We cannot fully comment on whether the survey costs to the 
individual hospice providers will outweigh the costs of the loss of 2 
percent of the APU. However, most survey costs will be much less than 
the loss of the 2 percent reduction in the APU. Small hospices serving 
50 or fewer patients in an annual period will complete (annually) a 
Participation Exemption Request Form so that they will not incur survey 
costs. The CMS hospice survey will require the approved survey vendors 
to implement the survey in accordance to a uniform set of protocols and 
guidelines to assure consistency in the survey administration, in the 
implementation of other CMS CAHPS[supreg] surveys, such as HCAHPS, and 
HHCAHPS.
    Comment: We received comments that the draft hospice experience of 
care survey instrument is too long and ``daunting'' to read and respond 
to.
    Response: This is a survey that is going to be used in a national 
field test in fall 2013. There are more questions in this test survey 
than we intend to keep in the final survey. We anticipate that we will 
eliminate questions that do not contribute to the composites measuring 
key areas of the hospice care experience. We do anticipate keeping all 
of the demographic questions, because they will be used to adjust the 
results for differences in the mix of patients across hospices and for 
analysis of disparities of care. It is important that the data are 
adjusted to ensure accurate comparisons across hospices. We actually 
anticipate that the final survey instrument will be significantly 
shorter than the FEHC, which has 54 items, and a shorter instrument 
will translate into lower vendor costs for the participating hospices. 
To give an example of this, the field test version of the HHCAHPS 
survey had 54 items and the final approved version of the survey that 
we use today, has 34 items.
    Comment: We received a comment expressing the preference that NHPCO 
be allowed to be a survey vendor for the Hospice Experience of Care 
Survey.
    Response: We will be using survey vendor eligibility criteria that 
are very similar or identical to our other CAHPS[supreg] surveys, and 
if NHPCO meets the stated survey vendor eligibility criteria then we 
welcome NHPCO to complete the survey vendor application for the hospice 
experience of care survey.
    Comment: We received comments that we are administering the survey 
too close to the death of the patient.
    Response: We thank you for this comment. We are sensitive that a 
survey about this issue will be difficult for the families and friends 
of their loved ones who have passed, especially in the first year 
following the deaths. We anticipate administering the survey about two 
or three months following the deaths of the hospice patients. We are 
hesitant about waiting too long following the deaths because the survey 
respondents may forget the details of the hospice experiences if the 
survey is administered too long following the deaths.
    Comment: We received several comments supporting CMS for developing 
a new survey instrument that is independent of existing hospice survey 
instruments, and that has the uniform survey implementation guidelines 
of the CAHPS[supreg] surveys.
    Response: We appreciate this support of the CMS survey instrument. 
We are following the CAHPS[supreg] guidelines and we will apply for 
CAHPS[supreg] endorsement as well as the endorsement of the National 
Quality Forum. Commenters supporting us noted that the final survey 
instrument will be shorter and that we will allow flexibilities in the 
implementation of the survey that will allow hospices to add their own 
questions, but that the core questions will be used for valid 
comparisons across hospices because we will define the protocols and 
guidelines for the implementation of the survey to create an equal 
implementation process for the survey.
    Comment: We received a comment that we cannot regulate payment 
based on what the living family members think of hospice care because 
it is not possible to make everyone happy and

[[Page 48265]]

asking about this experience post death seems odd and could result in a 
larger percentage of negative responses.
    Response: We appreciate this viewpoint. However, the survey itself 
does not focus on the death. It focuses on the hospice care and the 
details about the experience of care with the hospice. The survey's 
purpose is to provide useful information to other caregivers and 
families who are in the position of comparing hospices for the care of 
their loved ones.
    Comment: We received a comment that there are many family and 
friends at the time of the death but that they may not be present after 
the death when the survey goes out. We also received a comment that 
some hospices will send out multiple surveys to family members who had 
perceived good experiences, and conversely, will not send out surveys 
to family members who are mentally ill, or were not involved in the 
hospice patient's care, even if they were listed as the closest 
relative. We received a comment that the results may be skewed by the 
family member's degree of contact with the patient and hospice team.
    Response: We appreciate these sensitive comments concerning who 
will be the survey respondent. We propose to have a uniform standard 
for the designation of the survey respondent. We propose that the 
survey respondent will be the person who is listed in the hospice 
record as the primary caregiver or primary contact person for the 
hospice patient.
    Comment: We received a comment that surveys should not be sent more 
than two times to families as there is a need not to be too intrusive.
    Response: For the field test, we will have one survey mode, called 
the mixed mode that includes both a mail survey and telephone follow-up 
for non-respondents. If the survey respondent does not return the 
mailed questionnaire, then the survey respondent is called and asked to 
complete the telephone survey instrument. For national implementation 
of the survey, we will have three modes: Mail only, telephone only, and 
mixed. For the mail only mode, only two surveys are mailed to the 
sampled person. For the telephone only mode, there will be up to five 
call attempts to reach the sampled respondent, but once the sampled 
respondent answers the telephone and speaks with the telephone 
surveyor, the respondent will only be asked to complete the survey 
once.
    Comment: We received comments that rural hospices will be at a 
disadvantage paying for the Hospice Experience of Care Survey, and that 
there should not be a 2 percent reduction since hospices save money for 
Medicare.
    Response: We are requiring the survey for all hospices, to meet the 
goals of transparency for hospices regardless of their location. We 
believe that the burden to rural and urban hospices is equal, and we 
reiterate that small hospices serving 50 or fewer in a given year will 
be exempt from survey participation if they complete the survey's 
Participation Exemption Request form for each APU.
    Comment: We received a comment asking if CMS would require the 
survey to be available in other languages, such as Spanish.
    Response: Vendors will be required to offer the survey in English 
and Spanish. Hospices will be able to administer the survey in 
additional languages if needed for their patient populations; however, 
they must use the CMS official translations. We plan to make additional 
translations of the survey available as needed. If you would like to 
request a specific translation, please email CMS at 
[email protected].
    Comment: We received a comment stating that it is not clear whether 
hospices are given the full credit for survey participation regardless 
of the survey results.
    Response: We stated in the proposed rule that survey participation 
is required for the full APU; the data results are not part of the 
requirements for the APU. The survey requirement is part of the Hospice 
Quality Reporting Program; this is not a pay for performance program.
    Comment: We received a comment stating that their vendor for the 
FEHC notifies them immediately about negative comments that are 
received about their hospice. This commenter noted that there is no 
information in the proposed rule that describes how the comment section 
of the proposed survey will be used, or available to the hospice paying 
for survey service.
    Response: Hospices will still be able to have this arrangement with 
their respective vendors in the CMS Hospice Experience of Care Survey.
    Comment: We received a comment asking if hospices will be 
responsible for a certain response rate for the Hospice Experience of 
Care Survey.
    Response: No, hospices will not be responsible for a certain 
response rate for the Hospice Experience of Care Survey. However, all 
approved survey vendors must follow the survey administration protocols 
to implement the survey.
    Comment: We received a comment of support for the FEHC survey and 
questions about why CMS is mandating the new survey in place of the 
FEHC. We also received a comment that CMS should allow the FEHC to be 
substituted for the CMS Hospice Survey.
    Response: We respect the work that went into the FEHC; however, we 
cannot allow the FEHC to substitute for the CMS survey. To be useful to 
the public, Hospice Survey data must be comparable across hospices. Two 
different surveys would create inconsistencies among hospices that 
would not allow for direct comparisons. In addition, the FEHC was 
designed by and for a private entity. CMS must ensure that no private 
entity has a preferred relationship with the agency. The CMS survey was 
developed under the standards of the CAHPS[supreg] surveys and will be 
implemented with the rigorous guidelines of the CAHPS[supreg] surveys.
    Comment: A commenter stated that the dry run should be 3 months, 
instead of 1 month.
    Response: The requirement for the dry run is 1 month, but hospices 
are allowed to do 2 or 3 months, in the period of January through March 
2015.
    Comment: We received a comment that consideration needs to be given 
to the diverse audiences responding to the survey. Issues related to 
primary language, socioeconomic status, culture, and health literacy, 
may impact the completion of the survey and the responses to the survey 
questions.
    Response: We agree with this commenter and will adjust the survey 
results for respondent mix. We will also be offering multiple 
translations and different modes of survey administration so hospices 
can choose what meets their needs the best.
    Comment: We received a comment that consideration needs to be given 
to the smaller agency where one negative survey can skew the data 
results for that agency.
    Response: For other CAHPS[supreg] surveys, we have received 
comments about the comparability of the data for small providers with 
large providers. In the practice of statistics, it is established that 
the sample size in absolute numbers is more important than the 
proportion of the population surveyed. Surveying a sample of 300 will 
produce the same level of precision whether the sample large or small. 
The larger the sample, the less the variability is a provider's ratings 
over time. We will be proposing the required sample sizes for all 
hospices in next year's proposed rule. Small agencies will need to 
conduct census sampling if they do not qualify for the size exemption.

[[Page 48266]]

    Comment: We received a comment that CMS needs to know what its 
ultimate goal is of the surveys without losing sight of the goal 
itself.
    Response: The goals of the Hospice Experience of Care Survey are 
the same as the goals of our other CAHPS[supreg] surveys: (1) To 
produce comparable data on the caregiver's or loved one's' perspectives 
on care that allow objective and meaningful comparisons between 
hospices on domains that are important to consumers; (2) to create 
incentives for hospices to improve their quality of care through public 
reporting of survey results; and (3) to enhance public accountability 
in health care by increasing the transparency of the quality of the 
care provided in return for the public investments. CMS is serious 
about these three goals for all of our perspectives of care/
CAHPS[supreg] surveys, and we intend to never lose sight of their 
importance.
    Comment: We received a comment that the first portion of the survey 
is nearly identical to HHCAHPS, while the latter portion seems more 
representative of hospices. This commenter stated that questions 
regarding goals of care or the patient's plan of care were absent, two 
areas of particular importance for hospices. This commenter also noted 
that questions regarding after-hour response to needs were absent, an 
area known to create much anxiety for patients and families.
    Response: We reviewed both surveys side-by-side and disagree with 
this commenter about the similarity to HHCAHPS. We have some similar 
questions, but this is because in focus groups and later testing these 
issues were all raised by our testing participants. Also, we have many 
questions about care. We also have questions about after-hour response 
to needs. They are: ``While your family member was in hospice care, did 
you need to contact the hospice team during evenings weekends or 
holidays for questions or help with your family member's care?, and 
``How often did you get the help you needed from the hospice team 
during evenings, weekends, or holidays?
    Comment: We received a comment about transitioning from the current 
FEHC program to the CMS Hospice Survey.
    Response: We do not have any relationship to the FEHC program. 
Hospices can continue to continue to use the FEHC. However, the FEHC 
cannot be substituted for the CMS Hospice Experience of Care Survey. 
Hospices can conduct both surveys under specific conditions that will 
be detailed in the CMS Hospice Survey Guidelines Manual, which has not 
been written.
    Comment: We received a comment that the survey should meet the 
quality needs of individual hospices.
    Response: We hope that the survey will serve the quality needs of 
all hospices. However, hospices may have unique quality needs and 
hospices will be permitted to add their own additional questions to the 
standardized survey.
    Comment: We received comments that the caregiver of record is not 
always the best person to receive the survey.
    Response: We are aware the caregiver of record may not be the best 
person to receive the survey. However, because the hospice is likely to 
have contact information for this person, they are the best person for 
us to contact.
    Comment: We received comments expressing the concern that 
collecting demographic information from respondents could reduce 
response, especially from minority populations. In addition, commenters 
said that asking for this information could raise privacy and 
confidentiality concerns. We received a comment suggesting CMS redesign 
the Hospice Experience of Care Survey so that there were no survey 
questions about demographic characteristics. The commenter has received 
feedback that no one likes to answer those kinds of questions.
    Response: We ask for demographic information on surveys for two 
purposes: First, to allow us to make case mix adjustments so that 
hospices' survey responses can be compared fairly. We have not 
determined how case mix adjustments will be calculated for this survey, 
and therefore, need demographic variable to test different case mix 
adjustment variables. Second, we also need demographic information to 
allow for research on health care disparities between groups of people, 
including minorities. All sampling data, which will include these 
items, will be treated as private and confidential. The approved survey 
vendors who conduct these surveys will be responsible for maintaining 
the security, privacy and confidentiality of sampling information and 
survey results in accordance with HIPAA requirements. Above all, the 
completion of the survey is voluntary for all persons who receive the 
survey in the mail, or who are telephoned and are asked to complete the 
survey on the telephone. Any person who receives the survey, or who is 
telephoned and is asked to complete the survey, is free not to complete 
the survey.
    Comment: We received a comment that the survey data should be 
adjusted for length of hospice stay and for the care setting.
    Response: We will use the data from the field test to determine if 
the administrative data (such as length of stay and hospice setting) 
has an impact on the survey data results.
    Comment: We received comments that CMS should not exempt very small 
rural hospices from the requirements.
    Response: Besides the burden to these hospices, there is the issue 
of privacy to the respondents. In very small settings, it could be 
apparent who the survey respondents are. Also, there are sampling and 
reliability issues because the sample and the data could be very small.
    Comment: We received comments stating that it is going to be very 
difficult for survey respondents to complete the survey if their loved 
ones changed hospice settings.
    Response: At the beginning of the survey, respondents are 
instructed to reply to the questionnaire as pertaining to the last 
setting of hospice care.
    Comment: We received comments suggesting that CMS add questions to 
the survey. The suggested topics for added items include questions 
specifically relevant to veterans as well as questions about care 
planning, care goals, and volunteers.
    Response: One of the concerns often expressed to us is that the CMS 
Hospice Experience of Care Survey is too long. We intend to shorten the 
survey after the field test. In this context, we are reluctant to add 
still more questions to the core survey instrument. However, we know 
that it can be important for providers to ask questions that are not on 
the approved core survey instrument. Hospices will be permitted to add 
their own questions to the survey, following the required core set of 
questions.
    Comment: We had one comment that suggested the follow-up schedule 
for the field test of the Hospice Experience of Care Survey was too 
aggressive and would make family members or friends of the deceased 
feel harassed.
    Response: Our follow-up plan for the field test is very typical for 
professional mixed-mode surveys. We plan to mail a survey to the sample 
members. Sample members who have not responded within three weeks will 
receive follow-up telephone calls. We will make up to a maximum of five 
telephone calls, at different days and times, in an effort to reach the 
sample member. If we have not reached the sample member after five 
attempts, calls will be curtailed. If the sample member is reached but 
refuses to complete the survey, no more calls will be made. We will not

[[Page 48267]]

repeatedly call the sample member and ask for a response.

Summary of Final Rule Changes for the Hospice Experience of Care Survey

    As a result of these comments, we are finalizing the requirements 
as proposed. Hospices must participate in and report data from a dry 
run for at least 1 month in the first quarter of CY 2015 (January 2015, 
February 2015, or March 2015) with continuous monthly data collection 
beginning in April 1, 2015 and continuing through December 31, 2015.
7. Notice Pertaining to Reconsiderations Following APU Determinations
    At the conclusion of any given quality data reporting period, we 
will review the data received from each hospice during that reporting 
period to determine if the hospice has met the reporting requirements. 
Hospices that are found to be non-compliant with the reporting 
requirements set forth for that reporting cycle could receive a 
reduction in the amount of 2 percentage points to their annual payment 
update for the upcoming payment year.
    We are aware that there may be situations when a hospice has 
evidence to dispute a finding of non-compliance. We further understand 
that there may be times when a provider may be prevented from 
submitting quality data due to the occurrence of extraordinary 
circumstances beyond their control (for example, natural disasters). It 
is our goal not to penalize hospice providers in these circumstances or 
to unduly increase their burden during these times.
    Other CMS Quality Reporting Programs, such as Home Health Quality 
Reporting and Inpatient Quality Reporting, include an opportunity for 
providers to request a reconsideration pertaining to their APU 
determinations. We are aware of the potential need for providers to 
request reconsideration and that we will be making APU determinations 
for FY 2014 in the coming months. Therefore, to be consistent with 
other established quality reporting programs, we used the proposed rule 
to notify providers of our intent to provide a process that would allow 
hospices to request reconsiderations pertaining to their FY 2014 and 
subsequent years' payment determinations.
    Specifically, as part of the reconsideration process for hospices 
beginning with the FY 2014 payment determinations, hospices found to be 
non-compliant with the reporting requirements during a given reporting 
cycle would be notified of that finding. The purpose of this 
notification is to put hospices on notice of the following: (1) That 
they have been identified as being non-compliant with section 3004 of 
the Affordable Care Act for the reporting cycle in question; (2) that 
they would be scheduled to receive a reduction in the amount of 2 
percentage points to the annual payment update to the applicable fiscal 
year; (3) that they may file a request for reconsideration if they 
believe that the finding of non-compliance is erroneous, or that if 
they were non-compliant, they have a valid and justifiable excuse for 
this non-compliance; and, (4) that they must follow a defined process 
on how to file a request for reconsideration, which would be described 
in the notification.
    Upon the conclusion of our review of each request for 
reconsideration, we would render a decision. We could reverse our 
initial finding of non-compliance if: (1) The hospice provides proof of 
full compliance with the all requirements during the reporting period; 
or (2) the hospice was not able to comply with requirements during the 
reporting period, and it provides adequate proof of a valid or 
justifiable excuse for this non-compliance. We would uphold our initial 
finding of non-compliance if the hospice could not show any 
justification for non-compliance.

C. FY 2014 Hospice Wage Index and Rates Update

1. Hospice Wage Index
    The hospice wage index is used to adjust payment rates for hospice 
agencies under the Medicare program to reflect local differences in 
area wage levels based on the location where services are furnished. 
The hospice wage index utilizes the wage adjustment factors used by the 
Secretary for purposes of section 1886(d)(3)(E) of the Act for hospital 
wage adjustments and our regulations at Sec.  418.306(c) require each 
labor market to be established using the most current hospital wage 
data available, including any changes by the Office of Management and 
Budget (OMB) to the Metropolitan Statistical Areas (MSAs) definitions. 
We have consistently used the pre-floor, pre-reclassified hospital wage 
index when deriving the hospice wage index. In our August 4, 2005 FY 
2006 Hospice Wage Index final rule (70 FR 45130), we began adopting the 
revised labor market area definitions as discussed in the OMB Bulletin 
No. 03-04 (June 6, 2003). That bulletin announced revised definitions 
for MSAs and the creation of Core-Based Statistical Areas (CBSAs). The 
bulletin is available online at http://www.whitehouse.gov/omb/bulletins/b03-04.html. In the FY 2006 Hospice Wage Index final rule (70 
FR 45139), we implemented a 1-year transition policy using a 50/50 
blend of the CBSA-based wage index values and the MSA-based wage index 
values for FY 2006. The one-year transition policy ended on September 
30, 2006. For the FY 2007 hospice wage index and beyond, we have used 
CBSAs exclusively to calculate wage index values. OMB has published 
subsequent bulletins regarding CBSA changes. The OMB bulletins are 
available at http://www.whitehouse.gov/omb/bulletins/index.html.
    When adopting OMB's new labor market designations in FY 2006, we 
identified some geographic areas where there were no hospitals, and 
thus, no hospital wage index data, which to base the calculation of the 
hospice wage index. We also adopted the policy that, for urban labor 
markets without a hospital from which hospital wage index data could be 
derived, all of the CBSAs within the state would be used to calculate a 
statewide urban average pre-floor, pre-reclassified hospital wage index 
value to use as a reasonable proxy for these areas in our August 6, 
2009 FY 2010 Hospice Wage Index final rule (74 FR 39386). In FY 2014, 
the only CBSA without a hospital from which hospital wage data could be 
derived is 25980, Hinesville-Fort Stewart, Georgia.
    In our August 31, 2007 FY 2008 Hospice Wage Index final rule (72 FR 
50214), we implemented a new methodology to update the hospice wage 
index for rural areas without a hospital, and thus no hospital wage 
data. In cases where there was a rural area without rural hospital wage 
data, we used the average pre-floor, pre-reclassified hospital wage 
index data from all contiguous CBSAs to represent a reasonable proxy 
for the rural area. In our August 31, 2007 FY 2008 Hospice Wage Index 
final rule, we noted that we interpret the term ``contiguous'' to mean 
sharing a border (72 FR 50217). Currently, the only rural area without 
a hospital from which hospital wage data could be derived is Puerto 
Rico. However, our policy of imputing a rural pre-floor, pre-
reclassified hospital wage index based on the pre-floor, pre-
reclassified hospital wage index (or indices) of CBSAs contiguous to a 
rural area without a hospital from which hospital wage data could be 
derived does not recognize the unique circumstances of Puerto Rico. 
While we have not identified an alternative methodology for imputing a 
pre-floor, pre-reclassified hospital wage index for rural Puerto Rico, 
we will continue to

[[Page 48268]]

evaluate the feasibility of using existing hospital wage data and, 
possibly, wage data from other sources. For FY 2008 through FY 2013, we 
have used the most recent pre-floor, pre-reclassified hospital wage 
index available for Puerto Rico, which is 0.4047. In this final rule, 
for FY 2014, we will continue to use the most recent pre-floor, pre-
reclassified hospital wage index value available for Puerto Rico, which 
is 0.4047.
    For the FY 2014 Hospice Wage Index and Payment Rate Update proposed 
rule (78 FR 27840), we proposed to use the 2013 pre-floor, pre-
reclassified hospital wage index to derive the applicable wage index 
values for the FY 2014 hospice wage index. We proposed to continue to 
use the pre-floor, pre-reclassified hospital wage data as a basis to 
determine the hospice wage index values because hospitals and hospices 
both compete in the same labor markets, and therefore, experience 
similar wage-related costs. We believe the use of the pre-floor, pre-
reclassified hospital wage index data as a basis for the hospice wage 
index results in the appropriate adjustment to the labor portion of the 
costs. The FY 2014 hospice wage index values presented in this final 
rule were computed consistent with our pre-floor, pre-reclassified 
hospital wage index policy (that is, our historical policy of not 
taking into account Inpatient Prospective Payment System (IPPS) 
geographic reclassifications in determining payments for hospice). The 
2013 pre-floor, pre-reclassified hospital wage index does not reflect 
OMB's new area delineations, based on the 2010 Census, as outlined in 
OMB Bulletin 13-01, released on February 28, 2013. Moreover, the final 
FY 2014 pre-floor, pre-reclassified hospital wage index does not 
contain OMB's new area delineations because those changes were not 
published until the IPPS proposed rule was in advanced stages of 
development (78 FR 27552). CMS intends to propose changes to the FY 
2015 hospital wage index based on the newest CBSA changes in the FY 
2015 IPPS proposed rule. Therefore, if CMS incorporates OMB's new area 
delineations, based on the 2010 Census, in the FY 2015 hospital wage 
index, those changes would also be reflected in the FY 2016 hospice 
wage index.
    We received nine comments on our proposal to use the 2013 pre-
floor, pre-reclassified hospital wage index to derive the applicable 
wage index values for the FY 2014 hospice wage index, which are 
summarized below.
    Comment: Some commenters commented that is difficult to have the 
hospice wage index dependent on the hospital wage index due to the lack 
of data sometimes submitted by the hospital on their cost report data 
and the added responsibility for the hospice to monitor the hospital 
wage index. Some commented that the phase out of the BNAF will leave 
the hospice industry with an exceptionally imprecise and un-validated 
wage index with large geographic variations that cannot be defended by 
local wage pressures. Some commenters stated that CMS should actively 
seek the Congressional authority for granting hospices wage index 
parity with hospitals until an appropriate alternative wage index 
approach for hospices and other post-acute providers can be developed. 
One commenter asked CMS to re-evaluate the CBSA for Montgomery County, 
Maryland as it is considered a rural area at paid at a lower rate than 
all the surrounding counties.
    Response: The pre-floor, pre-reclassified hospital wage index was 
adopted in 1998 as the wage index from which the hospice wage index is 
derived by a committee of CMS (then Health Care Financing 
Administration) and industry representatives as part of a negotiated 
rulemaking effort. The Negotiated Rulemaking Committee considered 
several wage index options: (1) Continuing with Bureau of Labor 
Statistics data; (2) using updated hospital wage data; (3) using 
hospice specific data; and (4) using data from the physician payment 
system. The Committee determined that the pre-floor, pre-reclassified 
hospital wage index was the best option for hospice. Each hospice's 
labor market area is based on definitions of CBSAs issued by the Office 
of Management and Budget (OMB), not CMS. We note that section 3137(b) 
of the Affordable Care Act requires CMS to submit to Congress a report 
that includes a plan to reform the hospital wage index system. The 
report to Congress outlines the recent history of analysis and proposed 
reform to the Medicare wage index system. This report was submitted by 
the Secretary on April 11, 2012. The report can be found at: http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/Wage-Index-Reform.html. The latest information on 
hospital wage index reform is discussed in the ``Hospital Inpatient 
Prospective Payment Systems for Acute Care Hospitals and the Long-Term 
Care Hospital Prospective Payment System and Fiscal Year 2013 Rates;'' 
final rule, published August 31, 2012 in the Federal Register (77 FR 
53660-53664). We continue to believe that the pre-floor, pre-
reclassified hospital wage index, which is updated yearly and is used 
by many other CMS payment systems, is the most appropriate method 
available to account for geographic variances in labor costs for 
hospices. Regarding about the commenters concerns regarding the CBSA 
classification of Montgomery County, Maryland, it is important to note 
that the cities and counties which make up CBSAs are not determined by 
CMS, but instead are established by the Office of Management and Budget 
(OMB) and have been adopted by Medicare through notice and comment rule 
making. In our August 4, 2005 FY 2006 Hospice Wage Index final rule (70 
FR 45130), we began adopting the revised labor market area definitions 
as discussed in the OMB Bulletin No. 03-04 (June 6, 2003). In addition, 
in the FY 2006 Hospice Wage Index final rule (70 FR 45130), we 
implemented a 1-year transition policy using a 50/50 blend of the CBSA-
based wage index values and the MSA-based wage index values for FY 
2006. The one-year transition policy ended on September 30, 2006. For 
FY 2007 and beyond, we have used CBSAs exclusively to calculate wage 
index values. Moreover, we also note that under the hospice payment 
system, payments are wage-adjusted based on the location of the 
beneficiary.
    Final Decision: After carefully considering all of the comments 
that we received on our proposal to use the 2013 pre-floor, pre-
reclassified hospital wage index to derive the applicable wage index 
values for the FY 2014 hospice wage index, we are finalizing the 
proposal as discussed in the FY 2014 Hospice Wage Index and Payment 
Rate Update proposed rule.
2. FY 2014 Hospice Wage Index With an Additional 15 Percent Reduced 
Budget Neutrality Adjustment Factor (BNAF)
    This final rule will update the hospice wage index values for FY 
2014 using 2013 pre-floor, pre-reclassified hospital wage index. As 
described in the August 8, 1997 Hospice Wage Index final rule (62 FR 
42860), the pre-floor and pre-reclassified hospital wage index is used 
as the raw wage index for the hospice benefit. These raw wage index 
values are then subject to either a budget neutrality adjustment or 
application of the hospice floor to compute the hospice wage index used 
to determine payments to hospices. Pre-floor, pre-reclassified hospital 
wage index values below 0.8 are adjusted by either: (1) The hospice 
budget neutrality adjustment factor (BNAF); or (2) the hospice floor 
subject to a maximum wage index value of 0.8; whichever results in the 
greater value.

[[Page 48269]]

    The BNAF is calculated by computing estimated payments using the 
most recent, completed year of hospice claims data. The units (days or 
hours) from those claims are multiplied by the updated hospice payment 
rates to calculate estimated payments. For the FY 2014 Hospice Wage 
Index final rule, that means estimating payments for FY 2014 using 
units (days or hours) from FY 2012 hospice claims data, and applying 
the FY 2014 hospice payment rates. The FY 2014 hospice wage index 
values are then applied to the labor portion of the payments. The 
procedure is repeated using the same units from the claims data and the 
same payment rates, but using the 1983 Bureau of Labor Statistics 
(BLS)-based wage index instead of the updated raw pre-floor, pre-
reclassified hospital wage index (note that both wage indices include 
their respective floor adjustments). The total payments are then 
compared, and the adjustment required to make total payments equal is 
computed; that adjustment factor is the BNAF.
    The August 6, 2009 FY 2010 Hospice Wage Index final rule (74 FR 
39384) finalized a provision to phase out the BNAF over 7 years, with a 
10 percent reduction in the BNAF in FY 2010, and an additional 15 
percent reduction in each of the next 6 years, with complete phase out 
in FY 2016. Once the BNAF is completely phased out, the hospice floor 
adjustment would simply consist of increasing any wage index value less 
than 0.8 by 15 percent, subject to a maximum wage index value of 0.8. 
Therefore, in accordance with the FY 2010 Hospice Wage final rule (74 
FR 39384), the BNAF for FY 2014 will be reduced by an additional 15 
percent for a total BNAF reduction of 70 percent (10 percent from FY 
2010, an additional 15 percent from FY 2011, an additional 15 percent 
for FY 2012, an additional 15 percent for FY 2013 and an additional 15 
percent in FY 2014).
    The unreduced BNAF for FY 2014 is 0.061538 (or 6.1538 percent). A 
70 percent reduction to the BNAF is computed to be 0.018461 (or 1.8461 
percent). For FY 2014, this is mathematically equivalent to taking 30 
percent of the unreduced BNAF value, or multiplying 0.061538 by 0.30, 
which equals 0.018461 (1.8461 percent). The BNAF of 1.8461 percent 
reflects a 70 percent reduction in the BNAF. The 70 percent reduced 
BNAF (1.8461 percent) was applied to the pre-floor, pre-reclassified 
hospital wage index values of 0.8 or greater. The 10 percent reduced 
BNAF for FY 2010 was 0.055598, based on a full BNAF of 0.061775; the 
additional 15 percent reduced BNAF FY 2011 (for a cumulative reduction 
of 25 percent) was 0.045422, based on a full BNAF of 0.060562; the 
additional 15 percent reduced BNAF for FY 2012 (for a cumulative 
reduction of 40 percent) was 0.035156, based on a full BNAF of 
0.058593; the additional 15 percent reduced BNAF for FY 2013 (for a 
cumulative reduction of 55 percent) was 0.027197, based on a full BNAF 
of 0.060438; and the additional 15 percent reduced BNAF for FY 2014 
(for a cumulative reduction of 70 percent) is 0.018461, based on a full 
BNAF of 0.061538.
    Hospital wage index values which are less than 0.8 are subject to 
the hospice floor calculation. For example, if in FY 2013, County A had 
a pre-floor, pre-reclassified hospital wage index (raw wage index) 
value of 0.3994, we would perform the following calculations using the 
budget-neutrality factor (which for this example is an unreduced BNAF 
of 0.061538, less 70 percent, or 0.018461) and the hospice floor to 
determine County A's hospice wage index: Pre-floor, pre-reclassified 
hospital wage index value below 0.8 multiplied by 1+ 70 percent reduced 
BNAF: (0.3994 x 1.018461 = 0.4068); Pre-floor, pre-reclassified 
hospital wage index value below 0.8 multiplied by 1 + hospice floor: 
(0.3994 x 1.15 = 0.4593). Based on these calculations, County A's 
hospice wage index would be 0.4593.
    An Addendum A and Addendum B, with the FY 2014 wage index values 
for rural and urban areas, will not be published in the Federal 
Register. The FY 2014 wage index values for rural areas and urban areas 
are available via the internet at: http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html. The FY 2014 
hospice wage index set forth in this final rule includes the BNAF 
reduction and will be effective October 1, 2013 through September 30, 
2014.
    We received nine comments which referenced the BNAF reduction, and 
are summarized below.
    Comment: Several commenters continued to voice opposition to the 
BNAF reduction and were concerned about the impact of the elimination 
of BNAF phase-out.
    Response: The BNAF phase-out has already been finalized for the 
remaining years of the phase-out, as described in the FY 2010 Hospice 
Wage Index final rule (74 FR 39384). However, we are sensitive to the 
issues raised by commenters, especially the possible effects of the 
BNAF reduction. Our analysis reveals an overall growth in number of 
hospices since the start of the phase-out. We also note that the FY 
2014 hospice wage index includes a hospice floor calculation which 
benefits many rural providers. However, we will continue to monitor for 
unintended consequences associated with the BNAF phase-out.
3. Hospice Payment Update Percentage
    Section 4441(a) of the Balanced Budget Act of 1997 (BBA) amended 
section 1814(i)(1)(C)(ii)(VI) of the Act to establish updates to 
hospice rates for FYs 1998 through 2002. Hospice rates were to be 
updated by a factor equal to the market basket index, minus 1 
percentage point. Payment rates for FYs since 2002 have been updated 
according to section 1814(i)(1)(C)(ii)(VII) of the Act, which states 
that the update to the payment rates for subsequent FYs must be the 
market basket percentage for that FY. The Act requires us to use the 
inpatient hospital market basket to determine the hospice payment rate 
update. In addition, section 3401(g) of the Affordable Care Act 
mandates that, starting with FY 2013 (and in subsequent FYs), the 
hospice payment update percentage will be annually reduced by changes 
in economy-wide productivity as specified in section 
1886(b)(3)(B)(xi)(II) of the Act which is 0.5 percentage point for FY 
2014. In addition, section 3401(g) of the Affordable Care Act also 
mandates that in FY 2013 through FY 2019, the hospice payment update 
percentage will be reduced by an additional 0.3 percentage point 
(although for FY 2014 to FY 2019, the potential 0.3 percentage point 
reduction is subject to suspension under conditions specified in 
section 1814(i)(1)(C)(v) of the Act). In FY 2014 Hospice Wage Index and 
Payment Rate Update proposed rule (78 FR 27841), we proposed 1.8 
percent hospice payment update percentage which was based on a 2.5 
percent estimated inpatient hospital market basket update for FY 2014 
reduced by a 0.4 percentage point productivity adjustment and by 0.3 
percentage point as mandated by the Affordable Care Act. The final 
hospice payment update percentage for FY 2014 is 1.7 percent and is 
based on the final inpatient hospital market basket update for FY 2014 
of 2.5 percent reduced by a 0.5 percentage point productivity 
adjustment and by 0.3 percentage point as mandated by the Affordable 
Care Act. A detailed description of how the inpatient hospital market 
basket is derived is described in the FY 2014 IPPS Final Rule. Due to 
the requirements at 1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) of the 
Act, the inpatient hospital market basket update for FY 2014 of 2.5 
percent must be reduced by a productivity adjustment as mandated by 
Affordable Care Act (0.5 percentage point for FY 2014). The inpatient

[[Page 48270]]

hospital market basket for FY 2014 is reduced further by a 0.3 
percentage point, as mandated by the Affordable Care Act. In effect, 
the final hospice payment update percentage for FY 2014 is 1.7 percent.
    The labor portion of the hospice payment rates are as follows: for 
Routine Home Care, 68.71 percent; for Continuous Home Care, 68.71 
percent; for General Inpatient Care, 64.01 percent; and for Respite 
Care, 54.13 percent. The non-labor portion of the payment rates is as 
follows: for Routine Home Care, 31.29 percent; for Continuous Home 
Care, 31.29 percent; for General Inpatient Care, 35.99 percent; and for 
Respite Care, 45.87 percent.
4. Final FY 2014 Hospice Payment Rates
    Historically, the hospice rate update has been published through a 
separate administrative instruction issued annually in the summer to 
provide adequate time to implement system change requirements; however, 
starting in this FY 2014 rule and for subsequent FYs, we proposed in 
the FY 2014 Hospice Wage Index and Payment Rate Update proposed rule to 
use rulemaking as the means to finalize hospice payment rates. This 
change was proposed to be consistent with the rate update process in 
other Medicare benefits, and would provide rate information to hospices 
as quickly as, or earlier than, when rates are published in an 
administrative instruction.
    There are four payment categories that are distinguished by the 
location and intensity of the services provided. The base payments are 
adjusted for geographic differences in wages by multiplying the labor 
share, which varies by category, of each base rate by the applicable 
hospice wage index. A hospice is paid the routine home care rate for 
each day the beneficiary is enrolled in hospice, unless the hospice 
provides continuous home care, inpatient respite care, or general 
inpatient care. Continuous home care is provided during a period of 
patient crisis to maintain the patient at home, inpatient respite care 
is short-term care to allow the usual caregiver to rest, and general 
inpatient care is to treat symptoms that cannot be managed in another 
setting.
    The final FY 2014 payment rates will be the FY 2013 payment rates, 
increased by 1.7 percent, which is the final hospice payment update 
percentage for FY 2014 as discussed in section IV.C.3 above. The final 
FY 2014 hospice payment rates will be effective for care and services 
furnished on or after October 1, 2013, through September 30, 2014.

       Table 7--Final FY 2014 Hospice Payment Rates Updated by the Final Hospice Payment Update Percentage
----------------------------------------------------------------------------------------------------------------
                                                                                    Multiply by
                                                                                    the FY 2014
           Code                         Description                   FY 2013      final hospice   FY 2014 final
                                                                   Payment rates  payment update   payment rate
                                                                                  of 1.7 percent
----------------------------------------------------------------------------------------------------------------
651......................  Routine Home Care....................         $153.45         x 1.017         $156.06
652......................  Continuous Home Care Full Rate = 24            895.56         x 1.017          910.78
                            hours of care = 37.95 hourly rate.
655......................  Inpatient Respite Care...............          158.72         x 1.017          161.42
656......................  General Inpatient Care...............          682.59         x 1.017          694.19
----------------------------------------------------------------------------------------------------------------

    The Congress required in sections 1814(i)(5)(A) through (C) of the 
Act that hospices begin submitting quality data, based on measures to 
be specified by the Secretary. Beginning in FY 2014, hospices which 
fail to report quality data will have their market basket update 
reduced by 2 percentage points. In the August 4, 2011 FY 2012 Hospice 
Wage Index final rule (76 FR 47320 through 47324), we implemented a 
Hospice Quality Reporting Program (HQRP) as required by section 3004 of 
the Affordable Care Act. Hospices were required to begin collecting 
quality data in October 2012, and submit that quality data in 2013. 
Hospices failing to report quality data in 2013 will have their market 
basket update reduced by 2 percentage points in FY 2014.

Table 8--Final FY 2014 Hospice Payment Rates Updated by the Final Hospice Payment Update Percentage for Hospices
                                  That Do Not Submit the Required Quality Data
----------------------------------------------------------------------------------------------------------------
                                                                                    Multiply by
                                                                                    the FY 2014
                                                                                      hospice
                                                                                  payment update
                Code                         Description              FY 2013      percentage of      FY 2014
                                                                   Payment rates    1.7 percent    Payment rate
                                                                                      minus 2
                                                                                    percentage
                                                                                   points (-0.2)
----------------------------------------------------------------------------------------------------------------
651................................  Routine Home care..........         $153.45         x 0.997         $152.99
652................................  Continuous Home Care Full            895.56         x 0.997          892.87
                                      Rate = 24 hours of care =
                                      37.20 hourly rate.
655................................  Inpatient Respite Care.....          158.72         x 0.997          158.24
656................................  General Inpatient Care.....          682.59         x 0.997          680.54
----------------------------------------------------------------------------------------------------------------

    A Change Request with the finalized FY 2014 hospice payment rates, 
a finalized FY 2014 hospice wage index, the FY 2014 PRICER, and the 
hospice cap amount for the cap year ending October 31, 2013 will 
continue to be issued in the summer.
    We received two comments on our proposal to use rulemaking as the 
means to finalize hospice payment rates, which are summarized below.
    Comment: Commenters were supportive of CMS' proposal to use 
rulemaking as the means to finalize hospice payment rates followed by a 
change request with the finalized hospice payment rates, a finalized

[[Page 48271]]

hospice wage index, the PRICER for FY 2014.
    Response: We thank you for your support. We will finalize hospice 
payment rates as stated in the FY 2014 Hospice Wage Index and Payment 
Rate Update proposed rule (78 FR 27841).
    Comment: We also received several additional comments that 
expressed concern that hospice industry is being over regulated, while 
reimbursement is decreasing and examples given include the face-to-face 
regulation, data collection efforts, and quality initiatives. Several 
commenters are concerned that these regulations not only increase 
financial burden for hospice industry but also pull hospices away from 
patient care and keep hospice providers in the office to perform 
administrative duty to comply with regulations. Some commenters 
described a shortage of staff in some areas of the country, especially 
small hospices and in rural areas, and stated that the staff travel 
hours in rural areas to examine the patient, which is a burden itself 
because of travel distance. Several commenters stated that 
reimbursement is decreasing because of the continuing rate cuts 
resulting from the elimination of the budget neutrality adjustment 
factor, the cuts resulting from the productivity adjustment factor, and 
further rate reduction resulting from sequestration. A commenter stated 
that the proposed hospice payment update of 1.8 percent for 2014, 
coupled with other cuts is devastating.
    Response: We appreciate comments regarding sequestration cut, but 
it is outside the scope of this rule. As stated in FY 2013 Hospice Wage 
Index notice (77 FR 44245), section 3401(g) of the Affordable Care Act 
mandates that starting with FY 2013 (and in subsequent FYs), the market 
basket percentage update under the hospice payment system as described 
in section 1814(i)(1)(C)(ii)(VII) or section 1814(i)(1)(C)(iii) of the 
Act will be annually reduced by changes in economy-wide productivity as 
set out at section 1886(b)(3)(B)(xi)(II) of the Act. We do not have 
authority to change the application of economy-wide productivity 
adjustment as it is required by the statute. We are sensitive to 
concerns about hospices being overregulated and concerns expressed from 
rural hospices that the additional time and distance required to visit 
a rural patient adds significantly to their costs. We do not have the 
authority to change the hospice rates beyond the limits set out in the 
statute, but will consider the costs of rural providers in the context 
of broader hospice payment system reform. We will continue to monitor 
the impact of our regulations for any unintended consequences. As 
described in the Regulatory Impact Analysis (Section, VI), we note that 
the overall impact of this final rule is an estimated net increase in 
Federal payments to hospices of $160 million, or 1.0 percent, for FY 
2014.
    Final Decision: As stated in the FY 2014 Hospice Wage Index and 
Payment Rate Update proposed rule, we proposed to finalize hospice 
payment rates through rulemaking and we are finalizing this policy as 
proposed. A change request with the finalized FY 2014 hospice payment 
rates, a finalized FY 2014 hospice wage index, the FY 2014 PRICER, and 
the hospice cap year ending October 31, 2013 will continue to be issued 
in the summer.

D. Update on Hospice Payment Reform and Data Collection

    In 2010, the Congress amended section 1814(i)(6) of the Act with 
section 3132(a) of the Affordable Care Act. The amendment authorized 
the Secretary to collect additional data and information determined 
appropriate to revise payments for hospice care and for other purposes. 
The types of data and information described in the Act would capture 
resource utilization and other measures of cost, which can be collected 
on claims, cost reports, and possibly other mechanisms determined to be 
appropriate. The data collected may be used to revise the methodology 
for determining the payment rates for routine home care, and other 
services included in hospice care, no earlier than October 1, 2013 as 
described in section 1814(i)(6)(D) of the Act. In addition, we are 
required to consult with hospice programs and the Medicare Payment 
Advisory Commission (MedPAC) regarding additional data collection and 
payment revision options.
    The proposed rule contained three subsections which updated the 
public or discussed different aspects of hospice payment reform; there 
were no proposals in any of these three subsections.
1. Update on Reform Options
    Our hospice contractor, Abt Associates, continues to conduct 
research and analyses, to identify potential data collection needs, and 
to research and develop hospice payment model options. To date, we 
completed an environmental scan; a draft analytic plan; and convened 
technical advisory panel meetings under the initial contract with Abt 
in 2010. We are continuing with these efforts under a contract awarded 
in September 2011. In June 2012, we convened stakeholder meetings where 
research findings were presented on potential payment system 
vulnerabilities; utilization of the Medicare Hospice Benefit, including 
general inpatient care use during the period the beneficiary is 
enrolled in hospice care; analysis of hospice cost reports; and the 
effects of the face-to-face encounter requirement. These and other 
findings are described in the Abt Hospice Study Technical Report, which 
is available on the CMS Hospice Center Web page, at http://www.cms.gov/Center/Provider-Type/Hospice-Center.html.
    Additionally, we continue to conduct analyses of various payment 
reform model options under consideration. These models include a U-
shaped model of resource use, which MedPAC recommended that we adopt, 
as originally described in Chapter 6 of its March, 2009 report entitled 
``Report to the Congress: Medicare Payment Policy'' (available online 
at: http://www.medpac.gov/chapters/Mar09_Ch06.pdf). The report noted 
that the constancy of the per diem payment over the course of a hospice 
stay is misaligned with a hospice's costs during the stay. A hospice's 
costs typically follow a U-shaped curve, with higher costs at the 
beginning and end of a stay, and lower costs in the middle of the stay. 
This cost curve reflects hospices' higher service intensity at the time 
of the patient's admission and the time surrounding the patient's death 
(MedPAC, page 358). Payment under a U-shaped model would be higher at 
the beginning and end of a hospice stay and lower in the middle portion 
of the stay.
    Analysis conducted by Abt Associates found that very short hospice 
stays have a flatter curve than the U-shaped curve seen for longer 
stays and that average hospice costs are much higher. These short stays 
are less U-shaped because there is not a lower-cost middle period 
between the time of admission and the time of death. As such, we are 
also considering a tiered approach, with payment tiers based on the 
length of stay. For example, payment for stays of 5 days or less, which 
occurred for about 25 percent of hospice beneficiaries in 2011, could 
be made under a per diem system that accounts for the higher hospice 
costs, with no variation in the rate based on length of stay as would 
occur under a U-shaped model. Payment for longer stays, where costs 
follow more of a U-shape, could be made under a tier based on the U-
shaped payment model, where the per diem amount fluctuates depending 
upon whether the days billed are at the beginning, middle, or end of 
the stay.

[[Page 48272]]

    Another option is to analyze whether a short-stay add-on payment, 
similar to the home health Low Utilization Payment Amount (LUPA) add-
on, would improve payment accuracy if we retain the current per diem 
system. The LUPA add-on is made for home health patients who require 
four or fewer visits during the 60-day episode. These home health 
episodes are paid based on the visits actually furnished during the 
episode. For LUPA episodes that occur as the only episode or the first 
episode in a sequence of adjacent home health episodes for a given 
beneficiary, an increased payment is made to account for the front-
loading of costs (see http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/HomeHlthProspaymt.pdf for more information).
    Finally, as we collect more accurate diagnosis data, including data 
on related conditions, we will also evaluate whether case-mix should 
play a role in determining payments.
a. Rebasing the Routine Home Care (RHC) Rate
    In the proposed rule, we updated our review of the hospice RHC 
rate, but did not include any proposals to rebase the rate. Rebasing 
the RHC rate involves using the existing components that make up the 
rate, and recalculating based on more current data. RHC is the basic 
level of care under the Hospice benefit, where a beneficiary receives 
hospice care, but remains at home. With this level of care, hospice 
providers are reimbursed per day regardless of the volume or intensity 
of services provided to a beneficiary on any given day. It is 
anticipated that there would be days when a beneficiary does not 
require any services, as well as days when a beneficiary requires 
several visits from the hospice provider.
    When the hospice benefit was created in 1983, the RHC base payment 
rate was set using nine different components of cost from a relatively 
small set of hospices (n = 26) that were participating in a CMS hospice 
demonstration, as described in the December 16, 1983 Hospice final rule 
(48 FR 56008). The nine cost components were: nursing care ($16.25); 
home health aide ($12.74); social services/therapy ($3.23); home 
respite ($1.46); interdisciplinary group ($2.78); drugs ($1.18); 
supplies ($4.49); equipment ($1.13); and outpatient hospital therapies 
($2.99). The sum of all the components' costs equaled the base payment 
rate for RHC as stated in that 1983 hospice final rule. The original 
RHC rate was set at $46.25. In addition to RHC, we also established 
three other levels of care for hospice care from data obtained from the 
Medicare hospice demonstration project: Continuous Home Care (CHC), 
Inpatient Respite Care (IRC) and General Inpatient Care (GIP).
    It is CMS' intent to ensure that reimbursement rates under the 
Hospice benefit align as closely as possible with the average costs 
hospices incur when efficiently providing covered services to 
beneficiaries. As we continue to gather and analyze more data for 
payment reform, we have found evidence of a potential misalignment 
between the current RHC payment rate and the cost of providing RHC. One 
potential option to address this misalignment could be to rebase the 
hospice RHC rate, though we did not propose to do so in the proposed 
rule, so that the cost categories established in the rate reflect the 
changes in the utilization of hospice services provided for palliation 
and management of terminally ill patients. However, we are still 
evaluating data and did not propose any changes to address the 
misalignment.
    At this time, we do not have the data to support rebasing six of 
the nine cost components described in the 1983 final rule. Information 
on the utilization of drugs, supplies, and equipment is not available 
from hospice claims data, and the corresponding information that is 
available from cost reports, such as outpatient hospital therapies, is 
not sufficiently detailed to allow for rebasing. One approach to 
consider in more closely aligning RHC payments with costs is to rebase 
the three clinical service components (nursing, home health aide, 
social services/therapy) that currently comprise 69.7 percent of the 
RHC rate by calculating the average cost per day, weighted by the 
number of RHC days, for each of the three components using FY 2011 cost 
report data matched to FY 2011 claims data. As part of rebasing the RHC 
rate we would then inflate the 1983 cost per day for each of the six 
remaining components by a factor of 3.1704, which corresponds to the 
market basket increases between 1983 and 2011.\8\ We note that our cost 
report analysis thus far found that drug costs over the years have 
declined, and the other non-labor components are plateauing. A detailed 
methodology for rebasing the clinical service components of the RHC 
rate can be found in the Abt Hospice Study Technical Report which was 
published shortly after displaying the proposed rule, at http://www.cms.gov/Center/Provider-Type/Hospice-Center.html.
---------------------------------------------------------------------------

    \8\ The original RHC rate in 1983 was $46.25. The FY 2011 rate 
for RHC was $146.63. $146.63/46.25 = 3.1704.
---------------------------------------------------------------------------

    Using the methodology described above, the rebased amount for FY 
2011 would be $130.54 as described in Table 9 below.

  Table 9--Comparison of RHC Rate Cost Components From 1983 to FY 2011
------------------------------------------------------------------------
                                    1983 Final                 FY 2011
          RHC components            rule cost    Inflation     Cost per
                                     per day       factor        day
------------------------------------------------------------------------
Nursing Care.....................       $16.25          N/A       $56.54
Home Health Aide.................        12.74          N/A        19.24
Social Services/Therapy..........         3.23          N/A        10.29
Home respite.....................         1.46     x 3.1704         4.63
Interdisciplinary group..........         2.78     x 3.1704         8.81
Drugs............................         1.18     x 3.1704         3.74
Supplies.........................         4.49     x 3.1704        14.23
Equipment........................         1.13     x 3.1704         3.58
Outpatient Hospital Therapies....         2.99     x 3.1704         9.48
    Total........................        46.25  ...........      130.54
------------------------------------------------------------------------
Source: 1983 Final Rule and FY 2011 hospice cost report and claims data.

[[Page 48273]]

 
Note(s): The costs per day for the clinical services components (nursing
  care, home health aide and social services/therapy) were calculated
  based on the cost per minute for each discipline using cost report
  data multiplied by the RHC minutes for each discipline per RHC day
  from claims data to compute the cost of a discipline per RHC day. The
  average cost per day across all hospices in our sample was weighted by
  the number of RHC days. Of the 2,717 FY 2011 hospice cost reports for
  freestanding and facility-based hospices that were matched to FY 2011
  claims data, we excluded: (1) Cost reports with period less than 10
  months or greater than 14 months; (2) cost reports with missing
  information or negative reported values for total costs or payments;
  (3) providers in the highest and lowest percentile (1% and 99%) in
  costs per days across all levels of care; (4) the top and bottom 5% of
  provider margin; and (5) providers were excluded if the log payment to
  cost ratio was greater than the 90th or less than the 10th percentile
  of this value across all providers plus or minus 1.5 times the range
  between the 10th and 90th percentiles of this log ratio. The number of
  hospices remaining in our sample was 2,140 representing 73.1 percent
  of RHC days in 2011.

    For example, if we were to apply the rebased amounts for the 
clinical services components of RHC to FY 2014, we would inflate the FY 
2011 rebased amount to FY 2013 levels. We first inflated the FY 2011 
rebased rate by full hospital market basket of 3.0 percent for FY 2012. 
The FY 2012 rebased rate would be $134.46 ($130.54 x 1.03 = $134.46). 
We then inflated the FY 2012 rebased rate by full hospital market 
basket of 2.6 percent for FY 2013. The FY 2013 rebased rate would be 
$137.96 ($134.46 x 1.026 = $137.96). Finally, we inflated the rebased 
FY 2013 rate ($137.96) by applying the proposed hospice payment update 
percentage of 1.8 percent to calculate a FY 2014 rebased RHC rate. 
Therefore, the FY 2014 rebased rate would be $140.44, a 10.1 percent 
reduction in the FY 2014 proposed RHC payment rate of $156.21, or an 
estimated reduction in payments to hospices of $1.6 billion in FY 2014. 
Rebasing the clinical service components of the RHC payment is one of 
several approaches to hospice payment reform that CMS could consider 
for revising the RHC payment rate. As outlined in the Affordable Care 
Act, hospice payment reform must be done in a budget neutral manner. As 
rebasing is considered part of hospice payment reform, any savings 
achieved through the reduction of the RHC rate would need to be 
redistributed in a budget neutral manner.
b. Site of Service Adjustment for Hospice Patients in Nursing 
Facilities.
    As part of future hospice payment reform, we are considering an OIG 
recommendation to reduce payments to Medicare hospices for 
beneficiaries in nursing facilities who are receiving hospice care. The 
OIG's July 2011 report entitled ``Medicare Hospices that Focus on 
Nursing Facility Residents,'' (available at https://oig.hhs.gov/oei/reports/oei-02-10-00070.pdf) studied hospice patients in nursing 
facilities. This report noted the growth of hospice services provided 
to beneficiaries in nursing facilities, and discussed hospices that 
have a high percentage of their beneficiaries in nursing facilities. 
The OIG's report noted that the current payment structure provides 
incentives for hospices to seek out beneficiaries in nursing 
facilities, as these beneficiaries often receive longer but less 
complex care. The OIG noted that unlike private homes, nursing 
facilities are staffed with professional caregivers and are often paid 
by third-party payers, such as Medicaid. These facilities are required 
to provide personal care services, which are similar to hospice aide 
services that are paid for under the hospice benefit. To lessen this 
incentive, the OIG recommended that we reduce Medicare payments for 
hospice care provided in nursing facilities.
    In addition, the March 2012 Medicare Payment Advisory Commission 
(MedPAC) report entitled ``Report to Congress: Medicare Payment 
Policy'' noted that hospices with a higher share of their patients in 
nursing facilities have margins as high as 13.8 percent (pages 302 and 
303). MedPAC attributed these higher margins to possible efficiencies 
in the nursing home setting (multiple patients in a single setting, 
reduced driving time and mileage), and to reduced workload due to an 
overlap in aide services and supplies provided by the nursing facility.
    In response to both MedPAC's and OIG's concerns about possible 
duplication of aide services provided both by the hospice and the 
nursing facility, in the proposed rule we discussed an analysis of the 
number and length of aide visits per day using 2011 hospice claims 
data. Table 10 below describes the number and length of aide visits for 
RHC beneficiaries at home (including patients in an assisted living 
facility) compared to RHC beneficiaries in a long term care nursing 
facility (NF) or skilled nursing facility (SNF).

                           Table 10--Hospice Routine Home Care Aide Services, CY 2011
----------------------------------------------------------------------------------------------------------------
                                                   Sites of service                       Difference
                                         -----------------------------------------------------------------------
                                            Home Q5001/2     NF/SNF Q5003/4      NF/SNR-Home            %
----------------------------------------------------------------------------------------------------------------
Number of beneficiaries.................        769,640           302,004         (467,636)     ................
Total days..............................     58,637,171        22,946,972      (35,690,199)     ................
Total visits............................     16,625,635         8,501,366       (8,124,269)     ................
Total minutes...........................  1,223,254,095       584,825,520     (638,428,575)     ................
Visits per beneficiary..................             21.6              28.1               6.5               30.3
Minutes per visit.......................             73.6              68.8              (4.8)               6.5
Total visits/day........................              0.28              0.37              0.09              30.7
Total minutes/day.......................             20.86             25.49              4.62             22.2
----------------------------------------------------------------------------------------------------------------
Source: Abt Associates Hospice Claims Data File, CY 2011.

    Table 10 demonstrates that hospice patients in a NF/SNF receive 
more visits than patients at home, though the length of those visits is 
shorter. Average minutes per day shows that RHC patients in a NF/SNF 
had hospice aide services of longer duration (25.49 minutes) than RHC 
patients at home (20.86 minutes). The Medicare Conditions of 
Participation (CoPs) require that hospices provide services at the same 
level and to the same extent as those services would be provided if the 
NF/SNF resident were in his or her home. Hospices provide aide services 
to beneficiaries at home depending on the beneficiaries' needs. It 
seems reasonable to expect that a beneficiary who has a paid caregiver 
(that is, a NF/SNF aide) does not need as many services from the 
hospice aide, because those services are being provided by the paid 
caregiver. As described in the June 5, 2008 Hospice Conditions of 
Participation final rule (73

[[Page 48274]]

FR 32095), ``[h]ospice care is meant to supplement the care provided by 
the patient's caregiver.'' Given the presence of the paid caregiver in 
the NF/SNF, we would expect that on average, there would be fewer 
hospice aide services provided to hospice patients in a NF/SNF than to 
hospice patients at home.
    It is not clear why hospice patients in nursing facilities are 
receiving more minutes per day of aide services than hospice patients 
at home. We used regression analysis to control for age, gender, 
diagnosis, length of stay, and provider characteristics (ownership 
status, base, size, age of hospice, geographic location) when analyzing 
the visit data. However, we still found that significantly more aide 
services were provided to NF/SNF patients than to patients at home, 
even after controlling for patient and provider characteristics.
    The June 5, 2008 Hospice Conditions of Participation final rule (73 
FR 32088) preamble details the requirements related to aide services 
provided to hospice patients residing in a nursing facility. These 
requirements can also be found at Sec.  418.112(c)(4) through (5). The 
CoPs require a written agreement between the hospice and NF/SNF, which 
specifies that the NF/SNF should continue to provide the aide services 
that are provided prior to the hospice election, to meet the patient's 
needs at that same level of care as if the patient were at home. These 
services include providing 24 hour room and board care, meeting the 
patient's personal care needs, and to the degree permitted by State 
law, administering medications or therapies. There should be no 
reduction of NF/SNF aide services to a patient in anticipation of a 
future hospice election, or once the patient (or his/her 
representative) elects the hospice benefit. As such, hospice patients 
in nursing facilities should have much, if not most, of their need for 
aide services provided by the facility's aide. As stated previously, we 
would expect that, on average, the hospice aide would be providing 
fewer services to nursing facility patients than to patients at home.
    Table 10 suggests that the hospice aide may be replacing the 
facility aide, rather than supplementing or augmenting the care of the 
facility aide. Or, as the OIG and MedPAC identified, there could be an 
overlap in aide services when a hospice beneficiary is in a NF/SNF. It 
would not be appropriate for the Medicare Hospice Benefit to subsidize 
the nursing home benefit by providing aide services that the facility 
aide should provide. Section 1862(a)(1)(C) of the Social Security Act 
(the Act) forbids payment for any items or services which are not 
reasonable and necessary for the palliation and management of the 
terminal illness. Services which are not needed, or which are 
duplicative of those to be provided by the facility aide, would not be 
reasonable and necessary.
    In the proposed rule, we did not propose to make a site of service 
adjustment to reduce payments for RHC patients in a nursing facility. 
Any reform option considering reduced payments for RHC care provided to 
hospice patients in a NF or SNF should not result in a reduction in the 
services that hospice patients in NFs or SNFs receive, but would 
instead be a shifting of who provides those aide services; some of the 
services currently provided by the hospice aide would be provided by 
the facility aide as expected. As such, we do not expect that the 
quality of care to hospice patients in a NF/SNF would be diminished. If 
such a policy were to be finalized and implemented, it would be made in 
a budget neutral manner as required by the Affordable Care Act. In 
addition, we would monitor for any unintended consequences.
2. Reform Research Findings
    The proposed rule also included a discussion of a number of 
analyses we conducted to better understand hospice utilization and 
trends, to identify vulnerabilities in the payment system, and to 
develop and test models that would more accurately match hospice 
resource use with Medicare payments. We posted the Abt Hospice Study 
Technical Report on hospice payment reform on our hospice center Web 
page, located at: http://www.cms.gov/Center/Provider-Type/Hospice-Center.html. The report summarizes research findings related to 
resource use and payment system vulnerabilities.
    The report also includes a discussion of hospice cost report 
analyses. Overall, the total cost per election period has not 
significantly increased from 2007 to 2010, in real dollars. Inpatient 
costs constitute about 14 percent of hospice costs across freestanding 
hospice providers that reported inpatient costs. About one-third of 
providers reported no inpatient costs. It appeared that some providers 
with no inpatient costs were substituting continuous home care (CHC) 
for GIP, based on analysis of the proportion of CHC days. Visiting 
services (for example, direct labor costs for nurses, aides, social 
workers, counselors, and therapists) account for about two-thirds of 
hospice costs, and have trended upward from 2004 to 2010. Nursing care, 
hospice aides, and medical social services comprise 90 percent of 
visiting service costs.
    Other hospice service costs include non-labor costs such as drugs, 
durable medical equipment (DME), supplies, imaging, patient 
transportation, and outpatient services. These types of services 
represent about 20 to 25 percent of total hospice costs. Drugs, DME, 
and supplies account for 90 percent of these other hospice services 
costs. Drug costs have trended downward over time, while medical supply 
costs have remained steady. Finally, in examining non-reimbursable 
costs, we found that 26 percent of providers in 2010 showed no 
bereavement costs on their cost report, even though bereavement 
services are required by statute; it is unclear if bereavement services 
were not provided or if bereavement costs were not correctly reported.
    The report also describes an analysis of GIP utilization. In 2010 
through 2011, a quarter of all hospice beneficiaries had at least one 
GIP stay, with a quarter of those stays associated with cancer 
diagnoses. While most GIP stays were 2 days long, the average GIP 
length of stay was 5.66 days, reflecting a small number of extremely 
long GIP stays. Sixty-five percent of GIP stays were provided in a 
hospice inpatient unit. Almost 80 percent of hospices provided at least 
one GIP day in 2010 through 2011. Hospices that provided GIP tended to 
be older and larger.
    The Abt Hospice Study Technical Report also provides descriptive 
statistics for all beneficiaries and for 3 major sites of routine home 
care services. It includes visit data findings, including visits per 
day, visits per beneficiary, minutes per day, and minutes per 
beneficiary for key disciplines reported on hospice claims. 
Additionally, there are several figures which depict the U-shaped curve 
for key personnel by length of stay. The curves show that resource use 
tends to follow a U-shaped curve, but one which is higher at the 
beginning rather than at the end of the hospice stay. There was little 
evidence that strong differences in the U-shape exist across most 
subgroups (for example, freestanding vs. provider-based, ownership 
status, patient diagnosis).
    For more detailed information on these findings, and a description 
of the methods used, see the Abt Hospice Study Technical Report, which 
is posted on the hospice center Web page (http://www.cms.gov/Center/Provider-Type/Hospice-Center.html). We have also posted a review of 
pertinent hospice literature as of December 2012 on the hospice center 
Web page. This should be considered an evolving document, as Abt 
Associates updates

[[Page 48275]]

the review periodically. We encourage interested stakeholders to review 
this update on our progress. We will continue to collaborate with other 
federal experts regarding hospice payment reform research efforts and 
to update stakeholders on our progress on hospice payment reform.
3. Additional Data Collection
    Over the past several years, MedPAC, the Government Accountability 
Office (GAO), and the HHS Office of Inspector General (OIG) have also 
recommended that we collect more comprehensive data in order to better 
understand the utilization of the Medicare Hospice Benefit. In the 
proposed rule, we noted that in December 2012 we posted a document to 
our Hospice Center Web page (http://www.cms.gov/Center/Provider-Type/Hospice-Center.html) describing additional data collection which we are 
considering, and noting that cost report revisions are forthcoming. We 
received 65 comments about the claims data collection items under 
consideration, which are briefly summarized below.
     Line item visit data, including length of visit in 15-
minute increments, for hospice chaplains and counselors providing care 
to hospice beneficiaries. Commenters were supportive, but suggested we 
include phone calls by chaplains and counselors, and allow reporting of 
chaplain time spent officiating or attending beneficiary funerals, as 
this is part of their service to families. A few suggested that we have 
a separate category for Bereavement Counseling to acknowledge this 
requirement even if it is not subject to reimbursement. Several 
suggested we define ``other counselors.''
     Line item visit data, including length of visits in 15-
minute increments, for hospice staff providing care to hospice patients 
receiving GIP in a hospital or nursing facility, but not for hospice 
patients receiving GIP in a hospice facility. Our suggestion to collect 
GIP visit data did not include visits by non-hospice staff, and was 
focused on patients in a hospital or nursing facility only. Therefore, 
GIP visits to hospice patients in hospice inpatient facilities continue 
to be reported as weekly totals, without including the length of 
visits. Commenters were generally supportive, provided the visits were 
for hospice staff only. Several comments noted that this would be no 
more difficult than what already occurs when recording visits to 
patients' homes.
     The National Provider Identifier (NPI) of facilities where 
hospice patients are receiving care. Most commenters noted that it 
would not be difficult to get this information and enter it into their 
systems. A few commenters noted that sometimes patients are in more 
than one facility type during a claim period, but that there is only 
space for one NPI on the claim.
     Post-mortem visits on the calendar day of death. 
Commenters suggested we collect visit data for various timeframes after 
the time of death, rather than the calendar day of death, since many 
deaths occur late at night. They suggested we clarify what we mean by 
time of death (time death actually occurs, or time the death is 
pronounced). Several commenters suggested we gather post-mortem visit 
data regardless of level of care or site of service.
     Any durable medical equipment (DME) provided by the 
hospice. Some commenters indicated that this would be difficult to 
collect and record on claims. Many indicated that DME suppliers bill 
them monthly, and waiting for the DME invoice would cause a delay in 
submission of their claims. They also noted that it would take a great 
deal of lead time to set this up with suppliers and software vendors to 
track DME at the patient level. A few suggested that we use aggregate 
data on DME costs from the cost reports instead.
     Non-routine supplies provided by the hospice. Most 
commenters indicated that this would be difficult to collect and record 
on claims. A number of commenters wrote that their software does not 
accommodate such reporting, and that it would create an additional 
burden on clinical staff to track these items. Several mentioned that 
it would take some lead time to modify existing systems to enable 
hospices to track and report this information accurately. A few 
suggested we use aggregate data on non-routine supplies from the cost 
reports instead.
     Drugs (injectable, non-injectable, and over-the-counter) 
provided by the hospice. Most commenters indicated that this would be 
difficult to collect and record on claims. Several asked if injectable 
drugs include infusion pumps, which is considered DME. Several 
commenters noted that the hospice staff person is not always the person 
administering drugs, making tracking more complicated; they suggested 
focusing on the fills, rather than drugs administered. Some wrote that 
hospices get their drugs from multiple pharmacies, making reporting 
more difficult due to inconsistencies in pharmacy billing. Others wrote 
that their data systems are not able to track drugs by patient, and 
suggested that we use aggregate data from the cost reports instead. 
Some noted that they purchase some drugs in larger quantities, making 
reporting at the patient level more complicated. A few noted that this 
could be done, but said that hospices would need lead time to prepare 
systems to track and report at the patient level. One suggested that we 
specify what cost structure drug charges should be based upon, such as 
average wholesale price plus a percentage.
    In summary, commenters were largely supportive of our suggestions 
to collect additional visit and NPI data on claims. Many suggested 
collecting data on DME, supplies, and drugs from the cost reports, 
rather than at the patient level. Several commenters reminded us that 
their primary focus is patient care, and were concerned about the cost 
of such data collection. We appreciate the comments submitted, and will 
consider this input as we move forward towards implementing any new 
data collection for hospices. We issued Change Request 8358 on Friday, 
July 26, 2013 detailing the new data collection requirements.
    Section 3132(a)(1)(C) of the Affordable Care Act also authorizes us 
to collect more data on hospice cost reports. The revisions to the 
hospice cost report and its associated instructions are described in 
detail in a revision to the information collection request currently 
approved under OMB control number 0938-0758. As required by the 
Paperwork Reduction Act, we published the both 60-day and 30-day 
notices with comment periods in the Federal Register on April 29, 2013 
(78 FR 25089).
    The proposed rule did not solicit comments on our hospice payment 
reform updates and discussions, but we received 54 comments on this 
section. We thank the commenters for their input and we will consider 
the comments received as we move forward with hospice payment reform.

E. Technical and Clarifying Regulations Text Change

    We proposed to incorporate the following technical change to 
correct an erroneous cross reference in our regulations text.
Administrative Appeals (Sec.  418.311)
    A hospice that does not believe its payments have been properly 
determined may request a review from the intermediary or from the 
Provider Reimbursement Review Board (PRRB), depending on the amount in 
controversy. Section 418.311 details the procedures for appealing a 
payment decision and also refers to 42 CFR part 405, subpart R. The 
rationale for this appeals process was explained in the

[[Page 48276]]

August 22, 1983 Hospice proposed rule (48 FR 38146) and finalized in 
the December 16, 1983 Hospice final rule (48 FR 56008). Hospices are 
permitted to appeal computation of the payment limit or the amount due 
to the hospice to the PRRB if the amount in controversy is $10,000 or 
more.
    We made a technical correction in Sec.  418.311 to correct an 
erroneous reference to Sec.  405.1874. The published reference to Sec.  
405.1874 does not exist and was a typographic error. We are correcting 
this error by changing the referenced Sec.  405.1874 to Sec.  
405.1875--Administrator review. Section 405.1875 allows for the 
Administrator, at his or her discretion, to immediately review any 
decision of the Board as described in the August 22, 1983 proposed and 
December 16, 1983 final rules (48 FR 38159, and 48 FR 56019, 
respectively).
    We received no comments on this proposed technical correction, and 
are implementing the correction as proposed.

V. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-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.
    We solicited public comment on each of these issues for this 
section of this document that contains information collection 
requirements (ICRs).
    Section 1814(i)(5)(C) of the Act requires that each hospice submit 
data to the Secretary on quality measures specified by the Secretary. 
Such data must be submitted in a form and manner, and at a time 
specified by the Secretary. Under section 1814(i)(5)(D)(iii) of the 
Act, the Secretary must publish selected measures that will be 
applicable with respect to FY 2014 not later than October 1, 2012. In 
implementing the Hospice quality reporting program, we seek to collect 
measure information with as little burden to the providers as possible 
and which reflects the full spectrum of quality performance.
    We proposed and will implement a Hospice Experience of Care Survey 
to reflect the patients' families' and friends' perspectives of care in 
hospices. The 60-day notice for the field test of the survey was 
published on April 4, 2013 (78 FR 20323) under CMS-10475 (OCN 0938-
New). While we set out the requirements and burden estimates for the 
field study, it is too early to set out the requirements and burden 
estimates for the national implementation of the survey. We anticipate 
having the final survey instrument in 2014 and setting out the 
collection of information requirements and burden estimates in the 
proposed rule for CY 2015. We will implement the survey in 2015.
    In this final rule we are requiring implementation of a hospice 
patient-level item set to be used by all hospices to collect and submit 
standardized data on each patient admitted to hospice. This Hospice 
Item Set will be used to support the standardized collection of the 
requisite data elements to calculate quality measures. Hospices will be 
required to complete and submit an admission HIS and a discharge HIS on 
all patients admitted to hospice starting July 1, 2014 for FY 2016 APU 
determination. The admission and discharge HIS will collect the 
standardized data elements needed to calculate 7 NQF endorsed measures 
for hospice.
    Using 2011 Medicare claims data we have estimated that there will 
be approximately 1,089,719 admissions across all hospices per year and 
therefore, we expect that there should be 1,089,719 Hospice Item Sets 
(consisting of one admission and one discharge item set per patient), 
submitted across all hospices yearly. There were 3,742 certified 
hospices in the U.S. as of October 1, 2012; we estimate that each 
individual hospice will submit on average 291 Hospice Item Sets 
annually or 24 Hospice Items Sets per month.
    The Hospice Item Set consists of both an admission and a discharge 
data collection. As noted above, we estimate that there will be 
1,089,719 hospice admissions across all hospices per year. Therefore, 
we expect there to be 2,179,438 Hospice Item Set submissions, (both 
admission and discharge data) submitted across all hospices annually or 
181,620 across all hospices monthly. We further estimate that there 
will be 582 Hospice Item Set submissions by each hospice annually or 49 
submissions monthly.
    For the Admission Hospice Item Set, we estimate that it will take 
14 minutes of time by a clinician such as a Registered Nurse at an 
hourly wage of $33.23 to abstract data for Admission Hospice Item Set. 
This will cost the hospice approximately $7.75 for each admission 
assessment.\9\ We further estimate that it will take 5 minutes of time 
by clerical or administrative staff person such as a medical data entry 
clerk or medical secretary at an hourly wage of $15.59 to upload the 
Hospice Item Set data into the CMS system. This will cost the hospice 
approximately $1.30 per assessment.\10\ For the Discharge Hospice Item 
Set, we estimate that it will take 5 minutes of time by a clinician 
such as a nurse at an hourly wage of $33.23 to abstract data for 
Discharge Hospice Item Set. This will cost the hospice approximately 
$2.77. We further estimate that it will take 5 minutes of time by 
clerical or administrative staff such as a medical data entry clerk or 
medical secretary at an hourly wage of $15.59 to upload data into the 
CMS system. This will cost the hospice approximately $1.30.
---------------------------------------------------------------------------

    \9\ 14 minutes of time by a Registered Nurse at $33.23/60 
minutes per hour = $0.56; $0.56 per one minute x 5 minutes = $7.75.
    \10\ 5 minutes of time by a Medical Data Entry Clerk at $15.59/
60 minutes per hour = $0.265; $0.265 per one minute x 5 minutes = 
$1.30.
---------------------------------------------------------------------------

    We estimate that the total nursing time required for completion of 
both the admission and discharge assessments is 19 minutes at a rate of 
$33.23 per hour. The annualized cost across all Hospices for the 
nursing/clinical time required to complete both the admission and 
discharge Hospice Item sets is estimated to be $11,458,528 and the cost 
to each individual Hospice is estimated to be $3,062.14. The estimated 
time burden to hospices for a medical data entry clerk to complete the 
admission and discharge Hospice Item Set assessments is 10 minutes at a 
rate of $15.59 per hour. The cost for completion of the both the 
admission and discharge Hospice Item sets by a medical data entry clerk 
is estimated to be $2,829,401 across all Hospices and $756.12 to each 
Hospice.
    The total combined time burden for completion of the Admission and 
Discharge Hospice Data Item Sets is estimated to be 29 minutes. The 
total annualized cost across all hospices is estimated to be 
$14,287,929. For each individual hospice, this annualized cost is 
estimated to be $3,818.26. The estimated cost for each individual 
Hospice Item Set submission is $13.11.

[[Page 48277]]

    Comment: We received several comments indicating concern about 
general burden that would be associated with implementing and using the 
HIS. Commenters stated hospices will have to conduct training among 
staff to implement and use the HIS, in addition to staff time that will 
be required to complete and submit the HIS. Commenters also stated that 
implementing the HIS will require modifications to clinical 
documentation processes. Some commenters expressed concerns that 
implementing the HIS will concurrently entail both implementation of a 
new data collection tool and implementation of new quality measures. No 
commenters stated that these burdens were great enough to consider not 
implementing the HIS for use in the HQRP.
    Response: We recognize these activities and efforts will be 
required to implement and use the HIS as part of the quality reporting 
program. We agree that it is important for Hospices to learn about and 
understand the new HIS and we plan to provide hospices with training 
resources to facilitate implementation of the HIS. We further 
acknowledge that specific training costs were not identified in the 
proposed rule because calculating the training burden is outside the 
scope of the information collection requirements.
    Comment: A few commenters expressed concern that the estimated 29 
minutes to complete and upload the admission and discharge HIS was 
underestimated. One commenter said that the estimated 14 minutes for a 
staff member to extract data for the Admission HIS and 5 minutes for 
the Discharge HIS seemed accurate, another commenter indicated that, 
based on their experiences with the Home Health OASIS, they felt the 
HIS would take longer than the estimated time.
    Response: Burden estimates for completing the HIS data items were 
based on the HIS pilot test. The HIS is a set of data elements that can 
be used to calculate 7 NQF endorsed quality measures. The HIS is not a 
patient assessment that would be administered to the patient and/or 
family or caregivers during the initial assessment visits; therefore, 
it cannot be compared to the OASIS instrument. As the HIS is not a true 
patient assessment, the estimated burden of 14 and 5 minutes do not 
include the time a clinician would spend assessing the patient. The 
time estimates are intended to reflect the time it would take hospice 
staff to complete and submit the HIS, irrespective of clinical 
activities to collect initial assessment data. The HIS pilot 
demonstrated that hospices use varying patient assessment forms during 
the initial patient assessment; all hospices were able to crosswalk 
items from their hospice's patient assessment forms to the HIS data 
elements, and complete the HIS items. Therefore, the HIS did not add 
new data collection efforts to the hospice's customary patient initial 
assessment.

VI. Regulatory Impact Analysis

A. Statement of Need

    This final rule follows Sec.  418.306(c), which requires annual 
issuance, in the Federal Register, of the hospice wage index based on 
the most current available CMS hospital wage data. This rule finalizes 
hospice payment rates for FY 2014. In addition, this final rule 
provides background on hospice care, clarifies diagnosis coding on 
hospice claims, updates the public on the status of hospice payment 
reform, finalizes a technical and clarifying regulatory text change, 
and finalizes changes to the hospice quality reporting program.

B. Overall Impact

    The overall impact of this final rule is an estimated net increase 
in Federal payments to hospices of $160 million, or 1.0 percent, for FY 
2014. This estimated impact on hospices is a result of the final 
hospice payment update percentage for FY 2014 of 1.7 percent and 
changes to the FY 2014 hospice wage index, including a reduction to the 
BNAF by an additional 15 percent, for a total BNAF reduction of 70 
percent (10 percent in FY 2010, and 15 percent per year for FY 2011 
through FY 2014). A 70 percent reduced BNAF is computed to be 0.018461 
(or 1.8461 percent). The BNAF reduction is part of a 7-year BNAF phase-
out that was finalized in the August 6, 2009 FY 2010 Hospice Wage Index 
final rule (74 FR 39384), and is not a policy change.
1. Introduction
    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the 
Unfunded Mandates Reform Act of 1995 (UMRA, March 22, 1995; Pub. L. 
104-4), and the Congressional Review Act (5 U.S.C. 804(2)).
    Executive Orders 12866 and 13563 direct 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. A regulatory impact analysis (RIA) must be prepared for 
major rules with economically significant effects ($100 million or more 
in any 1 year). This final rule has been designated as economically 
significant under section 3(f)(1)of Executive Order 12866 and thus a 
major rule under the Congressional Review Act. Accordingly, we have 
prepared a regulatory impact analysis (RIA) that to the best of our 
ability presents the costs and benefits of the rulemaking. Also, the 
rule has been reviewed by OMB.
2. Detailed Economic Analysis
    This final rule sets forth updates to the FY 2013 hospice payment 
rates. The impact analysis of this final rule presents the estimated 
expenditure effects of policy changes finalized in this rule. Certain 
events may limit the scope or accuracy of our impact analysis, because 
such an analysis is susceptible to forecasting errors due to other 
changes in the forecasted impact time period. The nature of the 
Medicare program is such that the changes may interact, and the 
complexity of the interaction of these changes could make it difficult 
to predict accurately the full scope of the impact upon hospices.
    Table 11 represents how hospice revenues are likely to be affected 
by the policy changes finalized in this rule. In column 1 of Table 11, 
we indicate the number of hospices included in our analysis as of 
December 31, 2012, which had also filed claims in FY 2012. In column 2, 
we indicate the number of routine home care days that were included in 
our analysis, although the analysis was performed on all types of 
hospice care. Column 3 shows the percentage change in estimated 
Medicare payments for FY 2014 due to the effects of the updated wage 
data only, compared with estimated FY 2013 payments. The effect of the 
updated wage data can vary from region to region depending on the 
fluctuations in the wage index values of the pre-floor, pre-
reclassified hospital wage index. Column 4 shows the percentage change 
in estimated hospice payments from FY 2013 to FY 2014 due to the 
combined effects of using the updated wage data and reducing the BNAF 
by an additional 15 percent. Column 5 shows the percentage change in 
estimated hospice

[[Page 48278]]

payments from FY 2013 to FY 2014 due to the combined effects of using 
updated wage data, an additional 15 percent BNAF reduction, and the 
final 1.7 percent hospice payment update percentage. Taking into 
account the 1.7 percent final hospice payment update percentage (+$280 
million), the use of updated wage index data ($-20 million), and the 
additional 15 percent reduction in the BNAF ($-100 million), hospice 
payments will increase by an estimated $160 ($280 million-$20 million -
$100 million = $160 million) or 1.0 percent in FY 2014.
    The impact of changes in this final rule has been analyzed 
according to the type of hospice, geographic location, type of 
ownership, hospice base, and size. Table 11 categorizes hospices by 
various geographic and hospice characteristics. The first row of data 
displays the aggregate result of the impact for all Medicare-certified 
hospices. The second and third rows of the table categorize hospices 
according to their geographic location (urban and rural). Our analysis 
indicated that there are 2,594 hospices located in urban areas and 975 
hospices located in rural areas. The next two row groupings in the 
table indicate the number of hospices by census region, also broken 
down by urban and rural hospices. The next grouping shows the impact on 
hospices based on the size of the hospice's program. We determined that 
the majority of hospice payments are made at the routine home care 
rate. Therefore, we based the size of each individual hospice's program 
on the number of routine home care days provided in FY 2012. The next 
grouping shows the impact on hospices by type of ownership. The final 
grouping shows the impact on hospices defined by whether they are 
provider-based or freestanding.
    Column 5 of Table 11 shows the combined effects of the updated wage 
data, the additional 15 percent BNAF reduction, and the final 1.7 
percent hospice payment update percentage on estimated FY 2014 payments 
as compared to estimated FY 2013 payments. Overall, hospices are 
anticipated to experience a 1.0 percent increase in payment, with urban 
hospices anticipated to experience a 1.0 percent increase in payments, 
and rural hospices anticipated to experience 1.1 percent increase in 
payments. Urban hospices are anticipated to experience an increase in 
estimated payments in every region, ranging from 0.3 percent in the 
Mountain region to 2.2 percent in New England. Rural hospices in every 
region but one are estimated to see an increase in payments ranging 
from 0.4 percent in New England to 1.7 percent in the East South 
Central and Outlying region. The Pacific region is estimated to see a 
decrease in payments of 1.2 percent, largely due to fluctuations in the 
updated hospital wage index data used to create the FY 2014 hospice 
wage index. Hospital wages in the Pacific region declined compared to 
the previous year, which led to the decrease in the hospital wage index 
values, and which thus affected the FY 2014 hospice wage index values.
    Column 5 of Table 11 also shows an estimated payment increase by 
hospice base and hospice size. Payments to hospices in FY 2014 are 
estimated to increase by 1.4 percent for HHA-based hospices, 1.1 
percent for hospital-based hospices, 1.0 percent for SNF-based 
hospices, and by 0.9 percent for freestanding hospices. Payments to 
small hospices (less than 3,500 RHC days) in FY 2014 are estimated to 
increase by 0.8 percent, whereas payments to large hospices (more than 
20,000 RHC days) in FY 2014 are estimated to increase by 1.0 percent.

Table 11--Anticipated Impact on Medicare Hospice Payments in FY 2014 in Updating the Pre-floor, Pre-Reclassified
  Hospital Wage Index Data, Reducing the Budget Neutrality Adjustment Factor (BNAF) by an Additional 15 Percent
     (for a Total BNAF Reduction of 70 Percent) and Applying a 1.7 Percent Hospice Payment Update Percentage
----------------------------------------------------------------------------------------------------------------
                                                                                                  Percent change
                                                                                                    in hospice
                                                                                  Percent change   payments due
                                                                                    in hospice     to wage index
                                                                                   payments due       update,
                                                     Number of    Percent change   to wage index  additional 15%
                                     Number of     routine home     in hospice        update,      reduction in
                                     hospices      care days in    payments due   additional 15%      budget
                                                     thousands      to the wage    reduction in     neutrality
                                                                   index update       budget      adjustment and
                                                                                    neutrality        hospice
                                                                                    adjustment        payment
                                                                                                    percentage
                                                                                                      update
                                             (1)             (2)             (3)             (4)             (5)
----------------------------------------------------------------------------------------------------------------
ALL HOSPICES....................           3,569          62,945            -0.1            -0.7             1.0
    URBAN HOSPICES..............           2,594          55,101            -0.1            -0.7             1.0
    RURAL HOSPICES..............             975           7,844            -0.2            -0.6             1.1
BY REGION--URBAN:
    NEW ENGLAND.................             129           1,472             1.1             0.5             2.2
    MIDDLE ATLANTIC.............             249           5,702             0.0            -0.6             1.1
    SOUTH ATLANTIC..............             378          13,173            -0.7            -1.3             0.4
    EAST NORTH CENTRAL..........             338           7,224             0.0            -0.6             1.1
    EAST SOUTH CENTRAL..........             155           3,278            -0.5            -1.0             0.7
    WEST NORTH CENTRAL..........             197           2,494             0.4            -0.2             1.5
    WEST SOUTH CENTRAL..........             517           6,622            -0.4            -1.0             0.7
    MOUNTAIN....................             263           5,698            -0.8            -1.4             0.3
    PACIFIC.....................             333           8,141             0.9             0.2             1.9
    OUTLYING....................              35           1,296             0.3             0.3             2.0
BY REGION--RURAL:
    NEW ENGLAND.................              24             195            -0.7            -1.3             0.4
    MIDDLE ATLANTIC.............              43             439            -0.1            -0.7             1.0
    SOUTH ATLANTIC..............             135           1,918            -0.3            -0.7             1.0

[[Page 48279]]

 
    EAST NORTH CENTRAL..........             138           1,154             0.4            -0.2             1.5
    EAST SOUTH CENTRAL..........             134           1,529             0.1             0.0             1.7
    WEST NORTH CENTRAL..........             182             604            -0.8            -1.2             0.5
    WEST SOUTH CENTRAL..........             176             977            -0.1            -0.2             1.5
    MOUNTAIN....................              95             568             0.4            -0.1             1.6
    PACIFIC.....................              47             445            -2.2            -2.8            -1.2
    OUTLYING....................               1              15             0.0             0.0             1.7
BY SIZE/DAYS:
    0-3499 DAYS (small).........             841           1,373            -0.3            -0.8             0.8
    3500-19,999 DAYS (medium)...            1815          17,403            -0.2            -0.7             1.0
    20,000+ DAYS (large)........             913          44,168            -0.1            -0.7             1.0
TYPE OF OWNERSHIP:
    VOLUNTARY...................            1080          23,296             0.0            -0.5             1.1
    PROPRIETARY.................            2002          32,992            -0.3            -0.9             0.8
  GOVERNMENT....................             487           6,656            -0.1            -0.7             1.0
HOSPICE BASE:2
    FREESTANDING................            2569          50,665            -0.2            -0.8             0.9
    HOME HEALTH AGENCY..........             522           7,728             0.3            -0.3             1.4
    HOSPITAL....................             458           4,430             0.0            -0.6             1.1
    SKILLED NURSING FACILITY....              20             122             0.0            -0.7             1.0
----------------------------------------------------------------------------------------------------------------
Source: Provider data as of December 31, 2012 for hospices with claims filed in FY 2012 (Based on the 2012
  standard analytic file (SAF).
Note(s): The final 1.7 percent hospice payment update percentage for FY 2014 is based on an estimated 2.5
  percent inpatient hospital market basket update, reduced by a 0.5 percentage point productivity adjustment and
  by 0.3 percentage point; these reductions were mandated by section 3401(g) of ACA.
REGION KEY:
New England = Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Middle Atlantic =
  Pennsylvania, New Jersey, New York; South Atlantic = Delaware, District of Columbia, Florida, Georgia,
  Maryland, North Carolina, South Carolina, Virginia, West Virginia; East North Central = Illinois, Indiana,
  Michigan, Ohio, Wisconsin; East South Central = Alabama, Kentucky, Mississippi, Tennessee; West North Central
  = Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota; West South Central = Arkansas,
  Louisiana, Oklahoma, Texas; Mountain = Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Wyoming;
  Pacific = Alaska, California, Hawaii, Oregon, Washington; Outlying = Guam, Puerto Rico, Virgin Islands

3. Cost Allocation of Quality Reporting
    This final rule also implements a hospice patient-level data set to 
be used by all hospices to collect and submit standardized data about 
each patient admitted to hospice. This Hospice Item Set will be used to 
support the standardized collection and calculation of quality 
measures, collection of the requisite data elements. Hospices will be 
required to complete and submit an admission HIS and a discharge HIS on 
all patients admitted to hospice starting July 1, 2014 for FY 2016 APU 
determination. The admission and discharge HIS will collect the 
standardized data elements needed to calculate 7 NQF endorsed measures 
for hospice. The total annualized cost across all hospices, starting 
July 2014, is estimated to be $14,287,929. Furthermore, the structural 
measure related to QAPI indicators and the NQF 0209 pain 
measure will no longer be required for the hospice quality reporting 
program beyond data submission for the FY 2015 payment determination. 
The original intent of the structural measure was for hospices to 
submit information about number, type, and data source of quality 
indicators used as a part of their QAPI Program. Data gathered as part 
of the structural measure were used to ascertain the breadth and 
context of existing hospice QAPI programs to inform future measure 
development activities including the data collection approach for the 
first year of required reporting (FY 2014). Please refer to section B, 
the Hospice Quality Reporting Program, for a detailed discussion of 
these programs.
4. Alternatives Considered
    In continuing the reduction to the BNAF by an additional 15 
percent, for a total BNAF reduction of 70 percent (10 percent in FY 
2010, and 15 percent per year for FY 2011 through FY 2014), and 
implementing the hospice payment update percentage and the updated wage 
index, the aggregate impact will be a net increase of $160 million in 
payments to hospices. In the proposed rule for FY 2014, we did not 
consider discontinuing the additional 15 percent reduction to the BNAF 
as the 7-year phase-out of the BNAF was finalized in the FY 2010 
Hospice Wage Index final rule (74 FR 39384). However, if we were

[[Page 48280]]

to discontinue the reduction to the BNAF by an additional 15 percent, 
Medicare would pay an estimated $100 million more to hospices in FY 
2014. The final 1.7 percent hospice payment update percentage for FY 
2014 is based on a final 2.5 percent inpatient hospital market basket 
update for FY 2014, reduced by a 0.5 percentage point productivity 
adjustment and by an additional 0.3 percentage point. Payment rates for 
FYs since 2002 have been updated according to section 
1814(i)(1)(C)(ii)(VII) of the Act, which states that the update to the 
payment rates for subsequent FYs must be the market basket percentage 
for that FY. The Act requires us to use the inpatient hospital market 
basket to determine the hospice payment rate update. In addition, 
section 3401(g) of the Affordable Care Act mandates that, starting with 
FY 2013 (and in subsequent FYs), the hospice payment update percentage 
will be annually reduced by changes in economy-wide productivity as 
specified in section 1886(b)(3)(B)(xi)(II) of the Act. In addition, 
section 3401(g) of the Affordable Care Act also mandates that in FY 
2013 through FY 2019, the hospice payment update percentage will be 
reduced by an additional 0.3 percentage point (although for FY 2014 to 
FY 2019, the potential 0.3 percentage point reduction is subject to 
suspension under conditions specified in section 1814(i)(1)(C)(v) of 
the Act). Since the hospice payment update percentage is determined 
based on statutory requirements, we did not consider not updating 
hospice payment rates by the payment update percentage.

C. Accounting Statement

    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf), in Table 12 below, we 
have prepared an accounting statement showing the classification of the 
expenditures associated with this final rule. Table 12 provides our 
best estimate of the increase in FY 2014 Medicare payments under the 
hospice benefit as a result of the changes presented in this final rule 
using data for 3,569 hospices in our database. In addition, the table 
presents the costs to hospice providers for submitting data to the 
Hospice Item Set starting in July 2014.

       Table 12--Accounting Statement: Classification of Estimated
                  Expenditures, From FY 2013 to FY 2014
                             [In $millions]
------------------------------------------------------------------------
                 Category                             Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers............  $160.
From Whom to Whom.........................  Federal Government to
                                             Hospices.
------------------------------------------------------------------------
                 Category                               Costs
------------------------------------------------------------------------
Annualized Monetized Costs for Hospices to  $14.3.
 Submit Data*.
------------------------------------------------------------------------
* All hospices are required to submit data for the Hospice Item Set
  starting in July of 2014.

D. Conclusion

    In conclusion, the overall effect of this final rule is an 
estimated $160 million increase in Federal Medicare payments to 
hospices due to the wage index changes (including the additional 15 
percent reduction in the BNAF) and the final hospice payment update 
percentage of 1.7 percent. Furthermore, hospices are estimated to incur 
total costs of $14.3 million as a result of data submission 
requirements starting in July 2014. Lastly, the Secretary has 
determined that this final rule will not have a significant impact on a 
substantial number of small entities, or have a significant effect 
relative to section 1102(b) of the Act.
1. Regulatory Flexibility Act Analysis
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses if a rule has a significant impact on a substantial 
number of small entities. For purposes of the RFA, we estimate that 
almost all hospices are small entities as that term is used in the RFA. 
The great majority of hospitals and most other health care providers 
and suppliers are small entities by meeting the Small Business 
Administration (SBA) definition of a small business (in the service 
sector, having revenues of less than $7.0 million to $34.5 million in 
any 1 year), or being nonprofit organizations. While the SBA does not 
define a size threshold in terms of annual revenues for hospices, it 
does define one for home health agencies ($14 million; see http://www.sba.gov/sites/default/files/files/Size_Standards_Table(1).pdf). 
For the purposes of this final rule, because the hospice benefit is a 
home-based benefit, we are applying the SBA definition of ``small'' for 
home health agencies to hospices; we will use this definition of 
``small'' in determining if this final rule has a significant impact on 
a substantial number of small entities (for example, hospices). We 
estimate that 95 percent of hospices have Medicare revenues below $14 
million or are nonprofit organizations and therefore are considered 
small entities.
    HHS's practice in interpreting the RFA is to consider effects 
economically ``significant'' only if they reach a threshold of 3 to 5 
percent or more of total revenue or total costs. As noted above, the 
combined effect of the updated wage data, the additional 15 percent 
BNAF reduction, and the final FY 2014 hospice payment update percentage 
of 1.7 percent results in an increase in estimated hospice payments of 
1.0 percent for FY 2014. For small and medium hospices (as defined by 
routine home care days), the estimated effects on revenue when 
accounting for the updated wage data, the additional 15 percent BNAF 
reduction, and the final FY 2014 hospice payment update percentage 
reflect increases in payments of 0.8 percent and 1.0 percent, 
respectively. Therefore, the Secretary has determined that this final 
rule will not create a significant economic 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. This final rule only 
affects hospices. Therefore, the Secretary has determined that this 
final rule will not have a significant impact on the operations of a 
substantial number of small rural hospitals.
2. Unfunded Mandates Reform Act Analysis
    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 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2013, that 
threshold is approximately $141 million. This final rule is not 
anticipated to have an effect on State, local, or tribal governments, 
in the aggregate, or on the private sector of $141 million or more.
    Comment: We received a few comments on Unfunded Mandates Reform Act 
Analysis section. Commenters disagreed that we did not

[[Page 48281]]

meet the statutory threshold of the Unfunded Mandates Reform Act of 
1995. A commenter stated that the total costs of additional staff time, 
professional consulting fees and software necessary to comply fully 
with the new billing; coding, quality reporting and survey 
administration tasks will exceed that threshold figure of $141 million.
    Response: The hospice benefit covers all care for the terminal 
prognosis, related conditions, and for the management of pain and 
symptoms. HIPAA, federal regulations, and the Medicare hospice claims 
processing manual all require that ICD-9-CM Coding Guidelines be 
applied to the coding and reporting of diagnoses on hospice claims. In 
our regulations at 45 CFR 162.1002, the Secretary adopted the ICD-9-CM 
code set, including The Official ICD-9-CM Guidelines for Coding and 
Reporting. The CMS' Hospice Claims Processing manual (Pub 100-04, 
chapter 11) requires that hospice claims include other diagnoses ``as 
required by ICD-9-CM Coding Guidelines.'' In the proposed rule, we 
provided guidance from the ICD-9-CM Official Guidelines for Coding and 
Reporting to highlight coding guidelines for principal and other 
diagnosis selection, as well as the various coding and sequencing 
conventions found therein. We are not requiring any new ICD-9-CM coding 
guidelines in this rule, rather we are reiterating existing policies 
and reminding providers of the expectations in regards to diagnostic 
coding on hospice claims. In addition, as indicated in section V of 
this final rule, we set out the requirements and burden estimates for 
the Hospice Experience of Care Survey field study and indicated that it 
is too early to set out the requirements and burden estimates for the 
national implementation of the survey. We anticipate having the final 
survey instrument in 2014 and setting out the collection of information 
requirements and burden estimates in the proposed rule for CY 2015. In 
addition, we provided a burden estimate for the Hospice Item Set that 
providers will be required to submit starting FY 2015, with a total 
annualized cost across all hospices estimated at $14,287,929. 
Therefore, we do not believe that any clarifications or requirements 
promulgated in this rule exceed the Unfunded Mandates Reform Act 
threshold.

VII. Federalism Analysis and Regulations Text

    Executive Order 13132 on Federalism (August 4, 1999) establishes 
certain requirements that an agency must meet when it promulgates a 
proposed rule (and subsequent final rule) that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has Federalism implications. We have reviewed this 
final rule under the threshold criteria of Executive Order 13132, 
Federalism, and have determined that it will not have substantial 
direct effects on the rights, roles, and responsibilities of States, 
local or tribal governments.

List of Subjects in 42 CFR Part 418

    Health facilities, Hospice care, Medicare, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services proposes to amend 42 CFR part 418 as set forth 
below:

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).


Sec.  418.311  [Amended]

0
2. Amend Sec.  418.311 by removing the reference to ``Sec.  405.1874'' 
and adding in its place the reference ``Sec.  405.1875''.

(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: July 24, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: July 30, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2013-18838 Filed 8-2-13; 4:15 pm]
BILLING CODE 4120-01-P