[Federal Register Volume 84, Number 80 (Thursday, April 25, 2019)]
[Proposed Rules]
[Pages 17570-17618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08143]
[[Page 17569]]
Vol. 84
Thursday,
No. 80
April 25, 2019
Part III
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Part 418
Medicare Program; FY 2020 Hospice Wage Index and Payment Rate Update
and Hospice Quality Reporting Requirements; Proposed Rule
Federal Register / Vol. 84 , No. 80 / Thursday, April 25, 2019 /
Proposed Rules
[[Page 17570]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 418
[CMS-1714-P]
RIN 0938-AT71
Medicare Program; FY 2020 Hospice Wage Index and Payment Rate
Update and Hospice Quality Reporting Requirements
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would update the hospice wage index,
payment rates, and cap amount for fiscal year 2020. This rule proposes
to rebase the continuous home care, general inpatient care, and the
inpatient respite care per diem payment rates in a budget-neutral
manner to more accurately align Medicare payments with the costs of
providing care. In addition, this rule proposes to modify the election
statement by requiring an addendum that includes information aimed at
increasing coverage transparency for patient under a hospice election.
Finally, this rule proposes changes to the Hospice Quality Reporting
Program.
DATES: Comments: To be assured consideration, comments must be received
at one of the addresses provided below, no later than 5 p.m. on June
18, 2019.
ADDRESSES: In commenting, refer to file code CMS-1714-P. Because of
staff and resource limitations, we cannot accept comments by facsimile
(FAX) transmission.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (choose only one of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-1714-P, P.O. Box 8010,
Baltimore, MD 21244-1850.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-1714-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For general questions about hospice
payment policy, send your inquiry via email to:
[email protected]. Debra Dean-Whittaker, (410) 786-0848 for
questions regarding the CAHPS[supreg] Hospice Survey. Cindy Massuda,
(410) 786-0652 for questions regarding the hospice quality reporting
program.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to
view public comments. Wage index addenda will be available only through
the internet on our website at: (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Wage-Index.html.)
I. Executive Summary
A. Purpose
This rule proposes updates to the hospice wage index, payment
rates, and cap amount for fiscal year (FY) 2020, as required under
section 1814(i) of the Social Security Act (the Act). This rule
proposes to rebase the continuous home care (CHC), general inpatient
care (GIP), and inpatient respite care (IRC) per diem payment rates in
a budget neutral manner to more accurately align payments with the
costs of providing care, using the hospice payment reform authority
under section 1814(i)(6) of the Act. This rule also proposes a change
to the hospice wage index to remove the 1-year lag in data by using the
current year's hospital wage data to establish the hospice wage index.
In addition, this rule proposes to modify the hospice election
statement by requiring an addendum that includes information aimed at
increasing coverage transparency for patients under a hospice election.
Finally, this rule proposes changes to the Hospice Quality Reporting
Program.
B. Summary of the Major Provisions
Section III.A of this proposed rule describes the FY 2020 hospice
per diem payment rebasing methodology, cost reports and calculations.
Using the hospice payment reform authority under section 1814(i)(6) of
the Act, section III.A.3 proposes to rebase the FY 2020 per diem
payment rates for CHC, IRC, and GIP levels of care. As required in
section 1814(i)(6)(D)(ii) of the Act, any changes to hospice payment
rates must be done in a budget neutral manner. As such, section III.A.3
also proposes a reduction to the routine home care (RHC) payment
amounts for FY 2020 in order to maintain overall budget neutrality.
Section III.B.1 of this proposed rule proposes to eliminate the 1-year
lag of the pre-floor, pre-reclassified hospital wage index that is used
in calculating the hospice wage index. Section III.B.2 proposes updates
to the hospice wage index and makes the application of the updated wage
data budget neutral for all four levels of hospice care. In section
III.B.4 of this proposed rule, we discuss the proposed FY 2020 hospice
payment update percentage of 2.7 percent. Section III.B.5 outlines the
proposed FY 2020 hospice payment rates that result from the policies
proposed in section III.A. Section III.B.6 of this proposed rule
updates the hospice cap amount for FY 2020 by the hospice payment
update percentage discussed in section III.B.4 of this rule. Section
III.C proposes to modify the hospice election statement content
requirements at Sec. 418.24(b) to increase coverage transparency for
patients under a hospice election by notifying beneficiaries if there
are services that will not be covered by the hospice.
In addition, section III.D describes a request for information
(RFI) as it relates to the Medicare Fee-For-Service (FFS) Hospice
benefit and coordination of care at end-of-life. Finally, in section
III.E of this proposed rule, we discuss updates to the Hospice Quality
Reporting Program (HQRP), including: The development of claims-based
and outcome measures, measure concepts, and the hospice assessment
tool. We also provide updates on the public reporting change for the
``Hospice Visits When Death is Imminent'' measure pair, the posting of
publicly available government data to the CMS Hospice Compare website
and the CAHPS[supreg] Hospice Survey.
C. Summary of Impacts
The overall economic impact of this proposed rule is estimated to
be $540
[[Page 17571]]
million in increased payments to hospices for FY 2020.
II. Background
A. Hospice Care
Hospice care is a comprehensive, holistic approach to treatment
that recognizes the impending death of a terminally ill individual and
warrants a change in the focus from curative care to palliative care
for relief of pain and for symptom management. Medicare regulations
define ``palliative care'' as 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, and is a critical component of the
Medicare hospice benefit.
The goal of hospice care is to help terminally ill individuals
continue life with minimal disruption to normal activities while
remaining primarily in the home environment. A hospice uses an
interdisciplinary approach to deliver medical, nursing, social,
psychological, emotional, and spiritual services through a
collaboration of professionals and other caregivers, with the goal of
making the beneficiary as physically and emotionally comfortable as
possible. Hospice is compassionate beneficiary and family/caregiver-
centered care for those who are terminally ill.
As referenced in our regulations at Sec. 418.22(b)(1), to be
eligible for Medicare hospice services, the patient's attending
physician (if any) and the hospice medical director must certify that
the individual is ``terminally ill,'' as defined in section
1861(dd)(3)(A) of the Act and our regulations at Sec. 418.3; that is,
the individual's prognosis is for a life expectancy of 6 months or less
if the terminal illness runs its normal course. The regulations at
Sec. 418.22(b)(3) require that the certification and recertification
forms include a brief narrative explanation of the clinical findings
that support a life expectancy of 6 months or less.
Under the Medicare hospice benefit, the election of hospice care is
a patient choice and once a terminally ill patient elects to receive
hospice care, a hospice interdisciplinary group is essential in the
seamless provision of services. These hospice services are provided
primarily in the individual's home. The hospice interdisciplinary group
works with the beneficiary, family, and caregivers to develop a
coordinated, comprehensive care plan; reduce unnecessary diagnostics or
ineffective therapies; and maintain ongoing communication with
individuals and their families about changes in their condition. The
beneficiary's care plan will shift over time to meet the changing needs
of the individual, family, and caregiver(s) as the individual
approaches the end of life.
If, in the judgment of the hospice interdisciplinary team, which
includes the hospice physician, the patient's symptoms cannot be
effectively managed at home, then the patient is eligible for general
inpatient care (GIP), a more medically intense level of care. GIP must
be provided in a Medicare-certified hospice freestanding facility,
skilled nursing facility, or hospital. GIP is provided to ensure that
any new or worsening symptoms are intensively addressed so that the
beneficiary can return to his or her home and continue to receive
routine home care. Limited, short-term, intermittent, inpatient respite
care (IRC) is also available because of the absence or need for relief
of the family or other caregivers. Additionally, an individual can
receive continuous home care (CHC) during a period of crisis in which
an individual requires continuous care to achieve palliation or
management of acute medical symptoms so that the individual can remain
at home. Continuous home care may be covered for as much as 24 hours a
day, and these periods must be predominantly nursing care, in
accordance with our regulations at Sec. 418.204. A minimum of 8 hours
of nursing care, or nursing and aide care, must be furnished on a
particular day to qualify for the continuous home care rate (Sec.
418.302(e)(4)).
Hospices must comply with applicable civil rights laws,\1\
including Section 504 of the Rehabilitation Act of 1973 and the
Americans with Disabilities Act, under which covered entities must take
appropriate steps to ensure effective communication with patients and
patient care representatives with disabilities, including the
provisions of auxiliary aids and services. Additionally, they must take
reasonable steps to ensure meaningful access for individuals with
limited English proficiency, consistent with Title VI of the Civil
Rights Act of 1964. Further information about these requirements may be
found at: http://www.hhs.gov/ocr/civilrights.
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\1\ Hospices are also subject to additional Federal civil rights
laws, including the Age Discrimination Act, Section 1557 of the
Affordable Care Act, and conscience and religious freedom laws.
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B. Services Covered by the Medicare Hospice Benefit
Coverage under the Medicare Hospice benefit requires 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 biologicals);
medical appliances; counseling services (including dietary counseling);
short-term inpatient care in a hospital, nursing facility, or hospice
inpatient facility (including both respite care and procedures
necessary for pain control and acute or chronic symptom management);
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 Medicare
hospice benefit must be available to beneficiaries as needed, 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 also
expected hospices to continue to use volunteer services, though these
services are not reimbursed by Medicare (see section 1861(dd)(2)(E) of
the Act). As stated in the FY 1983 Hospice Wage Index and Rate Update
proposed rule (48 FR 38149), the hospice interdisciplinary group should
comprise paid hospice employees as well as hospice volunteers, and that
``the hospice benefit and the resulting Medicare reimbursement is not
intended to diminish the voluntary
[[Page 17572]]
spirit of hospices.'' This expectation supports the hospice philosophy
of community based, holistic, comprehensive, and compassionate end-of-
life care.
C. 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 42 CFR 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 (RHC, CHC, IRC, and GIP),
based on each day a qualified Medicare beneficiary is under hospice
care (once the individual has elected). This per diem payment is to
include all of the hospice services and items needed to manage the
beneficiary's 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
changes in the methodology concerning updating the daily payment rates
based on the hospital market basket percentage increase applied to the
payment rates in effect during the previous federal fiscal year.
2. Balanced Budget Act of 1997
Section 4441(a) of the Balanced Budget Act of 1997 (BBA) (Pub. L.
105-33) established that updates to the hospice payment rates beginning
FY 2002 and subsequent FYs be the hospital market basket percentage
increase for the FY.
3. FY 1998 Hospice Wage Index Final Rule
The FY 1998 Hospice Wage Index final rule (62 FR 42860),
implemented a new methodology for calculating the hospice wage index
and instituted an annual Budget Neutrality Adjustment Factor (BNAF) so
aggregate Medicare payments to hospices would remain budget neutral to
payments calculated using the 1983 wage index.
4. FY 2010 Hospice Wage Index Final Rule
The FY 2010 Hospice Wage Index and Rate Update final rule (74 FR
39384) instituted an incremental 7-year phase-out of the BNAF beginning
in FY 2010 through FY 2016. The BNAF phase-out reduced the amount of
the BNAF increase applied to the hospice wage index value, but was not
a reduction in the hospice wage index value itself 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 is
subject to annual reductions related to changes in economy-wide
productivity, as specified in section 1814(i)(1)(C)(iv) of the Act.
In addition, sections 1814(i)(5)(A) through (C) of the Act, as
added by section 3132(a) of the Patient Protection and Affordable Care
Act (PPACA) (Pub. L. 111-148), required hospices to begin submitting
quality data, based on measures specified by the Secretary of the
Department of Health and Human Services (the Secretary), for FY 2014
and subsequent FYs. Beginning in FY 2014, hospices that fail to report
quality data have their market basket percentage increase reduced by 2
percentage points.
Section 1814(a)(7)(D)(i) of the Act, as added by section 3132(b)(2)
of the PPACA, required, effective January 1, 2011, that a hospice
physician or nurse practitioner have a face-to-face encounter with the
beneficiary to determine continued eligibility of the beneficiary's
hospice care prior to the 180th day recertification and each subsequent
recertification, and to attest that such visit took place. When
implementing this provision, we finalized in the FY 2011 Hospice Wage
Index final rule (75 FR 70435) that the 180th day recertification and
subsequent recertifications would correspond to the beneficiary's third
or subsequent benefit periods. Further, section 1814(i)(6) of the Act,
as added by section 3132(a)(1)(B) of the PPACA, authorized 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 PPACA could capture
accurate resource utilization, which could be collected on claims, cost
reports, and possibly other mechanisms, as the Secretary determined to
be appropriate. The data collected could be used to revise the
methodology for determining the payment rates for RHC 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 were
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
In the FY 2012 Hospice Wage Index final rule (76 FR 47308 through
47314) we announced that beginning in 2012, the hospice aggregate cap
would be calculated using the patient-by-patient proportional
methodology, within certain limits. We allowed existing hospices the
option of having their cap calculated through the original streamlined
methodology, also within certain limits. As of FY 2012, new hospices
have their cap determinations calculated using the patient-by-patient
proportional methodology. If a hospice's total Medicare payments for
the cap year exceed the hospice aggregate cap, then the hospice must
repay the excess back to Medicare.
7. FY 2015 Hospice Wage Index and Payment Rate Update Final Rule
The FY 2015 Hospice Wage Index and Rate Update final rule (79 FR
50452) finalized a requirement that the Notice of Election (NOE) be
filed within 5 calendar days after the effective date of hospice
election. If the NOE is filed beyond this 5-day period, hospice
providers are liable for the services furnished during the days from
the effective date of hospice election to the date of NOE filing (79 FR
50474). Similar to the NOE, the claims processing system must be
notified of a beneficiary's discharge from hospice or hospice benefit
revocation within 5 calendar days after the effective date of the
discharge/revocation (unless the hospice has already filed a final
claim) through the submission of a final claim or a Notice of
Termination or Revocation (NOTR).
The FY 2015 Hospice Wage Index and Rate Update final rule (79 FR
50479) also finalized a requirement that the election form include the
beneficiary's choice of attending physician and that the beneficiary
provide the hospice with a signed document when he or she chooses to
change attending physicians.
In addition, the FY 2015 Hospice Wage Index and Rate Update final
rule (79 FR 50496) provided background, eligibility criteria, survey
respondents,
[[Page 17573]]
and implementation of the Hospice Experience of Care Survey for
informal caregivers. Hospice providers were required to begin using
this survey for hospice patients as of 2015.
Finally, the FY 2015 Hospice Wage Index and Rate Update final rule
required providers to complete their aggregate cap determination not
sooner than 3 months after the end of the cap year, and not later than
5 months after, and remit any overpayments. Those hospices that failed
to timely submit their aggregate cap determinations had their payments
suspended until the determination is completed and received by the
Medicare contractor (79 FR 50503).
8. IMPACT Act of 2014
The Improving Medicare Post-Acute Care Transformation Act of 2014
(IMPACT Act) (Pub. L. 113-185) became law on October 6, 2014. Section
3(a) of the IMPACT Act mandated that all Medicare certified hospices be
surveyed every 3 years beginning April 6, 2015 and ending September 30,
2025. In addition, section 3(c) of the IMPACT Act requires medical
review of hospice cases involving beneficiaries receiving more than 180
days of care in select hospices that show a preponderance of such
patients; section 3(d) of the IMPACT Act contains a new provision
mandating that the cap amount for accounting years that end after
September 30, 2016, and before October 1, 2025 be updated by the
hospice payment update rather than using the consumer price index for
urban consumers (CPI-U) for medical care expenditures.
9. FY 2016 Hospice Wage Index and Payment Rate Update Final Rule
In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR
47172), we created two different payment rates for RHC that resulted in
a higher base payment rate for the first 60 days of hospice care and a
reduced base payment rate for subsequent days of hospice care. We also
created a Service Intensity Add-on (SIA) payment payable for services
during the last 7 days of the beneficiary's life, equal to the CHC
hourly payment rate multiplied by the amount of direct patient care
provided by a registered nurse (RN) or social worker that occurs during
the last 7 days (80 FR 47177).
In addition to the hospice payment reform changes discussed, the FY
2016 Hospice Wage Index and Rate Update final rule (80 FR 47186)
implemented changes mandated by the IMPACT Act, in which the cap amount
for accounting years that end after September 30, 2016 and before
October 1, 2025 is updated by the hospice payment update percentage
rather than using the CPI-U. This was applied to the 2016 cap year,
starting on November 1, 2015 and ending on October 31, 2016. In
addition, we finalized a provision to align the cap accounting year for
both the inpatient cap and the hospice aggregate cap with the fiscal
year for FY 2017 and thereafter. Finally, the FY 2016 Hospice Wage
Index and Rate Update final rule (80 FR 47144) clarified that hospices
must report all diagnoses of the beneficiary on the hospice claim as a
part of the ongoing data collection efforts for possible future hospice
payment refinements.
10. FY 2017 Hospice Wage Index and Payment Rate Update Final Rule
In the FY 2017 Hospice Wage Index and Rate Update final rule (81 FR
52160), we finalized several new policies and requirements related to
the HQRP. First, we codified our policy that if the National Quality
Forum (NQF) made non-substantive changes to specifications for HQRP
measures as part of the NQF's re-endorsement process, we would continue
to utilize the measure in its new endorsed status, without going
through new notice-and-comment rulemaking. We would continue to use
rulemaking to adopt substantive updates made by the NQF to the endorsed
measures we have adopted for the HQRP; determinations about what
constitutes a substantive versus non-substantive change would be made
on a measure-by-measure basis. Second, we finalized two new quality
measures for the HQRP for the FY 2019 payment determination and
subsequent years: Hospice Visits when Death is Imminent Measure Pair
and Hospice and Palliative Care Composite Process Measure-Comprehensive
Assessment at Admission (81 FR 52173). The data collection mechanism
for both of these measures is the HIS, and the measures were effective
April 1, 2017. Regarding the CAHPS[supreg] Hospice Survey, we finalized
a policy that hospices that receive their CMS Certification Number
(CCN) after January 1, 2017 for the FY 2019 Annual Payment Update (APU)
and January 1, 2018 for the FY 2020 APU will be exempted from the
Hospice Consumer Assessment of Healthcare Providers and Systems
(CAHPS[supreg]) requirements due to newness (81 FR 52182). The
exemption is determined by CMS and is for 1 year only.
D. Trends in Medicare Hospice Utilization
Since the implementation of the hospice benefit in 1983, 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 1.5 million in FY 2018. Medicare hospice expenditures have
risen from $2.8 billion in FY 2000 to approximately $18.7 billion in FY
2018. CMS' Office of the Actuary (OACT) projects that hospice
expenditures are expected to continue to increase, by approximately 8.5
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.
As a part of our ongoing analysis of hospice utilization trends, we
examined the distribution of total hospice days by level of care. A
review of claims over the last 10 years shows that RHC remains the
highest utilized level of care, accounting for an average of 97.6
percent of total hospice days; GIP accounting for 1.7 percent of total
hospice days; CHC accounting for 0.4 percent of total hospice days;
and, IRC accounting for 0.3 percent of total hospice days.
There have also been notable changes in the diagnosis patterns
among Medicare hospice enrollees. At the time of the implementation of
the Medicare hospice benefit, cancer diagnoses were the most frequently
reported diagnoses. However, there has been a significant increase in
the reporting of neurologically-based diagnoses, including Alzheimer's
disease, which has been the top-reported diagnosis on hospice claims
since 2014. The increase in the reporting of neurological conditions as
the principal diagnosis on hospice claims corresponds to a
clarification in the FY 2014 hospice final rule (78 FR 48242) on
diagnosis reporting where ``debility'' and ``adult failure to thrive''
are no longer permitted to be reported as principal diagnosis codes on
hospice claims. Our ongoing analysis of diagnosis reporting trends
finds that neurological and organ-based failure conditions remain top-
reported principal diagnoses.
In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR
47201), we clarified that hospices are to report all diagnoses
identified in the initial and comprehensive assessments on hospice
claims, whether related or unrelated to the terminal prognosis of the
individual, effective October 1, 2015. Analysis of FY 2018 hospice
claims show that 100 percent of claims included at least one diagnosis,
90.3 percent of claims included at least two
[[Page 17574]]
diagnoses, and 82.1 percent of claims included at least three
diagnoses.
Finally, we examined hospice trends relating to hospice length of
stay. The number of days that a hospice beneficiary receives care under
a hospice election is referred to as the hospice length of stay (LOS).
Length of stay can be analyzed in several ways. Total lifetime length
of stay includes the sum of all days of hospice care across all hospice
elections. This would mean if a beneficiary had one hospice election,
was discharged alive, and then reelected the benefit at a later date,
the sum of both elections would count towards their lifetime length of
stay. Average length of stay refers to the number of hospice days
during a single hospice election at the date of live discharge or
death. The median length of stay reflects the 50th percentile and is
often the most meaningful comparison measure for evaluating LOS data as
the total lifetime length of stay and the average length of stay are
affected by extremely short and extremely long lengths of stay. Table 1
lists the clinical categories of principal diagnoses reported on
hospice claims along with the corresponding number of decedents, as
well as the average, total lifetime and median lengths of stay.
Table 1--Average Length of Stay in Days for Hospice Users in FY 2018
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Number of
hospice users Number of
who are Average Median elections Average length Median length
Category discharged at lifetime lifetime (elections of election of election
the end of FY length of stay length of stay ending in FY
2018 2018)
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Alzheimer's, Dementia, and Parkinson's.................. 203,349 167.4 50 215,547 124.9 37
CVA/Stroke.............................................. 55,321 142.7 30 58,457 109.7 24
Cancers................................................. 286,131 53.6 17 303,507 46.0 16
Chronic Kidney Disease.................................. 27,527 43.9 8 28,740 34.6 7
Heart (CHF and Other Heart Disease)..................... 203,613 106.0 24 216,161 83.7 20
Lung (COPD and Pneumonias).............................. 114,399 103.9 18 122,579 79.6 16
Other................................................... 335,777 78.7 13 352,288 61.3 12
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All Diagnoses....................................... 1,226,117 96.6 19 1,297,279 75.3 17
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Source: FY 2018 hospice claims data from CCW on January 29, 2019.
Note(s): Only beneficiaries whose last day of hospice in FY 2018 was not associated with a discharge status code of ``30'' were counted (``30''
indicates they remained in hospice). Lifetime length of stay is determined using all hospice elections over the beneficiary's lifetime.
III. Provisions of the Proposed Rule
A. Proposed Rebasing of the Continuous Home Care, Inpatient Respite
Care, and General Inpatient Care Payment Rates for FY 2020
1. Background
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 (RHC),
continuous home care (CHC), inpatient respite care (IRC) and general
inpatient care (GIP)), based on each day a qualified Medicare
beneficiary is under a hospice election. These per diem payments
include reimbursement for all of the hospice services and items needed
to manage the beneficiary's 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.
We originally set the base payment rates for each level of care in
1983 using information from a relatively small set (n=26) of hospices
that were participating in a CMS hospice demonstration. As a result of
technological changes to providing hospice care that have occurred
since the early 1980's, as well as changes in the patient population
that uses the hospice benefit, it is possible that the current per diem
payment rates for the Medicare hospice benefit do not align accurately
with the costs of providing care. Since the establishment of the base
payment rates, they have been updated through the years to primarily
account for inflation, but we have not implemented any large scale
changes to reflect non-inflationary changes in cost over time, with the
exception of the bifurcation of the RHC payment rate and the creation
of the SIA payment finalized in the FY 2016 Hospice Wage Index and
Payment Rate Update final rule for implementation on January 1, 2016
(80 FR 47142).
For over a decade, MedPAC and other organizations reported findings
that suggested that the hospice benefit's fixed per-diem payment system
was inconsistent with the true variance of service costs over the
course of an episode. Specifically, MedPAC cited both academic and non-
academic studies, as well as its own analyses (as summarized and
articulated in MedPAC's 2002,\2\ 2004,\3\ 2006,\4\ 2008,\5\ and 2009
\6\ Reports to Congress), demonstrating that the intensity of services
over the duration of a hospice stay manifests in a `U-Shaped' pattern
(that is, the intensity of services provided is higher both at
admission and near death and, conversely, is relatively lower during
the middle period of the hospice episode). Since hospice care is most
profitable during the long, low-cost middle portions of an episode,
longer episodes have very
[[Page 17575]]
profitable, long middle segments. In its March 2009 report, ``Reforming
Medicare's Hospice Benefit,'' As mentioned previously, this led to CMS
finalizing a bifurcated payment rate for RHC level of care in the FY
2016 (80 FR 47172) hospice final rule. These dual RHC payment rates
were derived from observed resource utilization reflecting the cost of
providing care for the clinical service (labor) components of the RHC
across the entire episode, that would produce higher payments during
times when service is more intensive (the beginning of a stay or the
end of life) and produce lower payments during times when service is
less intensive (such as the ``middle period'' of the stay). For the
establishment of the dual RHC rates we used visit intensity as a close
proxy for the reasonable cost of providing hospice care absent data on
the non-labor components of the RHC rate, such as drugs and DME. In
addition to the dual RHC payment rates, CMS also finalized a Service
Intensity Add-on (SIA) payment payable for services during the last 7
days of the beneficiary's life, equal to the CHC hourly payment rate
multiplied by the amount of direct patient care provided by a
registered nurse (RN) or social worker that occurs during the last 7
days (80 FR 47177). While we made changes to the RHC payment rate based
on resource utilization and established an SIA payment to account for
differences in resource use throughout the course of hospice care, we
did not make any changes to the per diem payment rates for CHC, IRC or
GIP. Likewise, the dual RHC rates did not reflect the total costs of
providing hospice care given the lack of more comprehensive information
on the costs associated with the services provided by hospices to
Medicare beneficiaries by level of care at that time.
---------------------------------------------------------------------------
\2\ Medicare Payment Advisory Commission (MedPAC). ``Report to
the Congress: Medicare Payment Policy.'' Washington, DC. March 2002.
P. 48. http://www.medpac.gov/docs/default-source/reports/Mar02_Entire_report.pdf.
\3\ Medicare Payment Advisory Commission (MedPAC). ``Report to
the Congress: Medicare Payment Policy.'' Washington, DC. March 2004.
http://www.medpac.gov/docs/default-source/reports/Mar04_Entire_reportv3.pdf?sfvrsn=0.
\4\ Medicare Payment Advisory Commission (MedPAC). ``Report to
the Congress: Medicare Payment Policy.'' Washington, DC. March 2006.
http://www.medpac.gov/docs/default-source/reports/Mar06_EntireReport.pdf?sfvrsn=0.
\5\ Medicare Payment Advisory Commission (MedPAC). ``Report to
the Congress: Medicare Payment Policy.'' Washington, DC. March 2008.
http://www.medpac.gov/docs/default-source/reports/mar08_entirereport.pdf?sfvrsn=0.
\6\ Medicare Payment Advisory Commission (MedPAC). ``Report to
the Congress: Medicare Payment Policy.'' Washington, DC. March 2009.
P 347 http://www.medpac.gov/docs/default-source/reports/march-2009-report-to-congress-medicare-payment-policy.pdf?sfvrsn=0.
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Hospices are paid per day, regardless of whether any services are
provided to a hospice patient on any given day. The CHC level of care
is paid based on an hourly rate when a hospice patient, who is not in
an inpatient facility, receives hospice care consisting predominantly
of nursing care on a continuous basis at home. The hospice must provide
a minimum of 8 hours of care in a 24 hour period in order for such
services to be covered as CHC. The GIP level of care is a day in which
a hospice patient receives care in an inpatient facility for pain
control or acute or chronic symptom management that cannot be managed
in other settings. The IRC level of care is short-term care provided
only when necessary to relieve the family members or other persons
caring for the hospice patient at home. IRC can be provided for up to 5
consecutive days.
While hospices must provide all levels of care to meet the hospice
Conditions of Participation (CoPs), there is much lower utilization of
CHC, IRC, and GIP compared to RHC. As part of our ongoing reform work,
we analyzed the trends in hospice days and payments by level of care.
Our analysis found that between FY 2009 and FY 2018 RHC days as a
percent of total hospice days increased from 97.2 percent to 98.2
percent. Conversely, during this time frame CHC and GIP days as a
percent of total hospice days decreased. CHC days as a percent of total
hospice days decreased by half, and in FY 2018, CHC was only 0.2
percent of total hospice days compared to 0.4 percent in FY 2009. GIP
days as a percent of total hospice days decreased from 2.1 percent in
FY 2009 to 1.3 percent in FY 2018. Finally, the percent of IRC days
remained relatively constant from FY 2009-FY 2018 at 0.3 percent of
total hospice days in FY 2018. The results were similar for the percent
of payments by level of care. RHC payments as a percent of total
hospice payments increased from 89.2 percent in FY 2009 to 93.4 percent
in FY 2018. CHC payments as a percent of total payments decreased from
1.9 percent of payments in FY 2009 to 1.0 percent in FY 2018. GIP
payments decreased from 8.7 percent of total hospice payments in FY
2009 to 5.3 percent in FY 2018. Finally, IRC payments as a percent of
total hospice payments increased slightly to 0.3 percent in 2018 from
0.2 percent in 2009.\7\ Figure 1 shows the trends of total hospice days
by level of care for FYs 2009-2018 and Figure 2 shows the trends of
total hospice payments by level of care for FYs 2009-2018.
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\7\ FY 2009 through FY 2018 hospice claims data, accessed from
the Chronic Conditions Data Warehouse (CCW) on January 3, 2019.
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BILLING CODE 4120-01-P
[[Page 17576]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.008
BILLING CODE 4120-01-C
[[Page 17577]]
As discussed previously in this proposed rule, 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 for other purposes. The data collected may be used to revise the
methodology for determining the payment rates for RHC and other hospice
services (in a budget-neutral manner in the first year), no earlier
than October 1, 2013, as described in section 1814(i)(6)(D) of the Act.
Furthermore, section 3132(a)(1)(C) of the Affordable Care Act specifies
that the Secretary may collect additional data and information on cost
reports, claims, or other mechanisms as the Secretary determines to be
appropriate.
The Secretary is required to consult with hospice programs and the
MedPAC regarding additional data collection and payment reform options.
We have transparently conducted payment reform analysis and have
released research findings to the public in our 2013 and 2014 Technical
Reports,8 9 as well as in the FYs 2014 and 2015
Hospice Wage Index and Payment Rate Update final rules (78 FR 48234 and
80 FR 50452). These research findings and concepts provided a basis for
the initial step toward hospice payment reform.
---------------------------------------------------------------------------
\8\ Medicare Hospice Payment Reform: Hospice Study Technical
Report. Cambridge, MA. April 2013. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/Hospice-Study-Technical-Report.pdf.
\9\ Medicare Hospice Payment Reform: Analyses to Support Payment
Reform. Cambridge, MA. May 2014. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/Hospice-Study-Technical-Report.pdf.
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Based on stakeholder suggestions, we began collecting additional
information on the hospice claims form as of April 1, 2014.\10\ These
changes include the reporting of line-item visit data for hospice staff
providing GIP to hospice patients in skilled nursing facilities (site
of service Healthcare Common Procedure Coding System (HCPCS) code
Q5004) or in hospitals (site of service HCPCS codes Q5005, Q5007,
Q5008). This includes visits by hospice nurses, aides, social workers,
physical therapists, occupational therapists, and speech-language
pathologists, on a line-item basis, with visit and visit length
reported as is done for RHC and CHC. It also includes certain calls by
hospice social workers (as described in CR 6440, Transmittal 1738),\11\
on a line-item basis, with call and call length reported, as is done
for RHC and CHC. However, we did not change the existing GIP visit
reporting requirements when the site of service is a hospice inpatient
unit (site of service HCPCS code Q5006). Only visits/calls made by the
paid hospice staff are to be reported; hospices do not report visits by
non-hospice staff. Additionally, hospices are required to report visits
and length of visits (rounded to the nearest 15 minute increment), for
nurses, aides, social workers, and therapists who are employed by the
hospice, that occur on the date of death, after the patient has passed
away. Finally, these changes included the requirement that hospice
agencies report injectable and non-injectable prescription drugs for
the palliation and management of the terminal illness and related
conditions on their claims. Both injectable and non-injectable
prescription drugs would be reported on claims on a line-item basis per
fill, based on the amount dispensed by the pharmacy. Over-the-counter
drugs would not be reported on the claim. However, we removed the
requirement to report detailed drug data on the hospice claim as a way
to reduce burden for hospices. Instead, hospices are now only required
to report total durable medical equipment (DME) and medication charges
on the claim. This change became effective October 1, 2018.
---------------------------------------------------------------------------
\10\ CMS Transmittal 2864. ``Additional Data Reporting
Requirements for Hospice Claims.'' Available at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R2864CP.pdf.
\11\ CR 6440, Transmittal 1738. https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R1738CP.pdf.
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Effective for cost reporting periods beginning on or after October
1, 2014, freestanding hospices are required to file the revised hospice
cost report (Form CMS-1984-14).\12\ Provider-based hospices began using
the revised cost report form for cost reporting periods beginning on or
after October 1, 2015. The revised cost report expands data collection
requirements to supply greater detail related to hospice costs by level
of care. Hospices are required to report all direct patient care costs
by multiple cost categories into the respective level of care. Within
the revised cost report changes in 2014, there were modifications in
the manner in which general service costs and statistical information
is accumulated by the hospice and an expansion of the general service
cost centers. Instructions for completing the freestanding hospice cost
report (Form CMS-1984-14) are found in the Medicare Provider
Reimbursement Manual--Part 2, Chapter 43.\13\
---------------------------------------------------------------------------
\12\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R1P243.pdf.
\13\ The Provider Reimbursement Manual--Part 2. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Paper-Based-Manuals-Items/CMS021935.html.
---------------------------------------------------------------------------
In the FY 2016 Hospice Wage Index and Payment Rate Update final
rule (80 FR 47142) we stated that we received many suggestions for ways
to improve data collection to support larger payment reform efforts in
the future and that we expected to analyze additional claims and cost
report data reported by hospices to determine whether additional
regulatory proposals to reform and strengthen the Medicare hospice
benefit would be warranted (80 FR 47161). Likewise, MedPAC, the
Government Accountability Office (GAO), and the Office of the Inspector
General (OIG) have all recommended that CMS collect more comprehensive
data to better evaluate trends in utilization of the Medicare hospice
benefit.
We continued to analyze hospice claims and cost report data to
determine whether additional changes need to be made to more accurately
align hospice payment with the costs of providing care. Specifically,
we have continued to examine whether there is a misalignment between
payment and costs for CHC, IRC, and GIP. In its March 2018 Report to
the Congress, MedPAC stated Medicare's payment rates for the CHC, IRC
and GIP levels of care appear to be lower than the average and median
costs per day for freestanding providers and suggested that rebalancing
the payment rates may be warranted.\14\
---------------------------------------------------------------------------
\14\ Medicare Payment Advisory Commission (MedPAC). ``Hospice
Services.'' Report to the Congress: Medicare Payment Policy.
Washington, DC. March 2018. P. 341. http://www.medpac.gov/docs/default-source/reports/mar18_medpac_ch12_sec.pdf?sfvrsn=0.
---------------------------------------------------------------------------
Additionally, we received public comments on past rules that
indicated the payment rates for CHC, IRC and GIP are much different
from the average costs of providing those levels of care. Specifically,
several commenters expressed concerns regarding the rates for these
levels of care being insufficient to acquire and maintain contracts for
inpatient levels of care. In response to the FY 2015 Hospice Wage Index
and Payment Rate Update proposed rule (79 FR 26538), a commenter
suggested that hospices have difficulty contracting for respite care in
many areas because the hospice respite rate may be $5 to $50 less per
day than the facility's Medicaid rate. This commenter also stated that
nursing facilities in many states do not want to accept less than their
Medicaid
[[Page 17578]]
room and board rate. In response to the FY 2016 Hospice Wage Index and
Payment Rate Update proposed rule (80 FR 25832) one commenter stated
that some hospitals do not want to accept the GIP hospice rate which
leaves hospices unable to provide the GIP level of care. Finally, in
response to the FY 2019 Hospice Wage Index and Payment Rate Update
proposed rule (83 FR 20934), one commenter stated that providers have
reported that it is more difficult to obtain new GIP contracts with
hospitals and skilled nursing facilities and to retain existing
contracts as they are renegotiated because the hospice GIP rate is less
than the hospital would receive for an acute inpatient stay. Some
commenters also suggested that hospices must pay the contracting
facility the full daily hospice reimbursement rate in order to secure a
contract for inpatient care. The Hospice CoPs at Sec. 418.108 require
that inpatient care must be available for pain control, symptom
management, and respite purposes, and must be provided in a
participating Medicare or Medicaid facility. Therefore, hospices that
do not provide inpatient care and are unable to negotiate contracts
with hospitals or skilled nursing facilities (SNFs) for inpatient level
of care are in violation of the hospice CoPs. However, through public
comments and anecdotal reports from hospices, we continue to hear that
the payment rates for CHC, IRC, and GIP are a significant factor in
whether or not hospices can secure the necessary contracts to provide
these levels of care.
Using information collected from the revised hospice cost report,
for the first time, we are able to estimate hospices' average costs per
day by level of care. As required by section 1814(i)(1)(A) of the Act,
payment for hospice services must be an amount equal to the costs which
are reasonable and related to providing hospice care, or which are
based on such other tests of reasonableness as the Secretary may
prescribe in regulations. Therefore, given that we now have several
years' worth of cost report data from the revised hospice cost report,
we calculated the average costs per day by level of care and compared
such costs to the per diem payment rates by level of care to determine
if there is a misalignment between payment and costs and whether the
per diem payment rates for CHC, IRC, and GIP should be rebased. To
conduct this analysis, we used a variety of different data sources,
including cost reports and hospice claims data. We also used additional
sources such as prior hospice final rules that detail wage indices and
payment rate updates, as well as the CMS Provider of Services (POS)
file. The methodology of this analysis is described below.
2. Methodology and Analysis of Costs per Day for Continuous Home Care,
Inpatient Respite Care, and General Inpatient Care
a. Hospice Cost Report Data
Our analysis was based on information obtained from the Healthcare
Cost Report Information System (HCRIS). The Hospice Cost Report Data
contains cost and statistical data for freestanding and provider-based
hospice providers. The dataset is normally updated quarterly and is
available on the last day of the month following the quarter's end. To
determine the average per-day costs of providing hospice services, we
conducted initial analysis of both freestanding and provider-based
Medicare hospice cost reports. We used the following HCRIS data files
as of December 31, 2018, for cost reports from FY 2017 to support our
analyses: \15\
---------------------------------------------------------------------------
\15\ Cost reports from FY 2017 had a start date on or after
October 1, 2016 and before October 1, 2017.
------------------------------------------------------------------------
------------------------------------------------------------------------
Freestanding Hospices........ http://downloads.cms.gov/Files/hcris/HOSPC14-ALL-YEARS.zip.
Skilled Nursing Facility https://www.cms.gov/Research-Statistics-
(SNF) Based Hospices. Data-and-Systems/Downloadable-Public-Use-
Files/Cost-Reports/Cost-Reports-by-
Fiscal-Year-Items/SNF10-DL-2017.html.
Home Health Agency (HHA) https://www.cms.gov/Research-Statistics-
Based Hospices. Data-and-Systems/Downloadable-Public-Use-
Files/Cost-Reports/Cost-Reports-by-
Fiscal-Year-Items/HHA-DL-2017.html.
Hospital Based Hospices...... https://www.cms.gov/Research-Statistics-Data-and-Systems/Downloadable-Public-Use-Files/Cost-Reports/Cost-Reports-by-Fiscal-Year-Items/HOSPITAL10-DL-2017.html.
------------------------------------------------------------------------
The HCRIS data as of December 31, 2018, were downloaded February 2019.
To create the initial analytic file, we took a number of data cleaning
steps to exclude certain hospices. Specifically, we made the following
exclusions: \16\
---------------------------------------------------------------------------
\16\ For the three exclusions, we found information on hospice
CCNs using Worksheet S-2 of provider-based cost reports.
Specifically, we used information from Worksheet S-2, Part I, line
14 and its subscripts for hospital-based cost reports, Worksheet S-
2, Part I, line 12 and its subscripts for SNF based cost reports,
and Worksheet S-2, line 3.50 and its subscripts for home health
agency cost reports. Additionally, a single provider-based cost
report could contain information on multiple hospice CCNs, in which
case we considered each hospice CCN as a separate cost report.
---------------------------------------------------------------------------
Exclusion 1: A small number of hospices (as represented by CMS
Certification Number (CCN)) had multiple FY 2017 cost reports in the
HCRIS cost report data file. For those hospices, we kept the cost
report that covered the greatest length of time in FY 2017; \17\
---------------------------------------------------------------------------
\17\ We determined the length of the cost report by subtracting
the cost reports fiscal year begin date from the cost reports fiscal
year end date.
---------------------------------------------------------------------------
Exclusion 2: We eliminated SNF, HHA, and hospital cost reports that
did not contain a hospice CCN; and
Exclusion 3: We eliminated 15 cost reports (as represented by CCN)
due to the following reasons:
a. Sometimes within a provider-based cost report, the same CCN was
listed multiple times (that is, there might be two separate reports of
RHC costs for the same CCN within a provider-based cost report). In
order to limit each hospice to one single cost report, we selected the
cost report with the highest RHC cost.\18\
---------------------------------------------------------------------------
\18\ For example, in one home health agency-based cost report,
the home health agency reported costs for the same hospice CCN three
different times on the same cost report.
---------------------------------------------------------------------------
b. Sometimes a CCN appeared in a freestanding cost report as well
as appeared in a provider-based cost report.
Table 2 below shows the starting sample and the number of hospice
cost reports after applying the exclusions listed above.
Table 2--Number of Medicare Hospice Cost Reports After Exclusions
----------------------------------------------------------------------------------------------------------------
Starting Exclusion 3
Type of cost report sample Exclusion 1 Exclusion 2 \19\
----------------------------------------------------------------------------------------------------------------
Freestanding.................................... 3,253 3,213 3,213 3,207
Skilled Nursing Facility (SNF).................. 14,883 14,068 26 26
[[Page 17579]]
Home Health Agency (HHA)........................ 10,227 10,090 476 473
Hospital........................................ 5,480 5,413 425 419
----------------------------------------------------------------------------------------------------------------
Next, we constructed a series of flags to identify cost reports
that did not fill out fields that we would expect hospices to report
(for example, nursing services). We identified those cost report fields
using information from the Provider Reimbursement Manual--Part 2,
Provider Cost Reporting Forms and Instructions, Chapter 43, Form CMS-
1984-14, Transmittal 3, dated April 13, 2018, that updated cost
reporting instructions for freestanding hospice cost reports.\20\ These
instructions describe a number of new Level I edit conditions that
required freestanding hospices to fill out certain parts of their cost
reports. Specifically, section 4395 of this transmittal revised edit
1050A in the new Level I edits portion of ``Table 6--Edits'' to require
that values entered into Worksheet A, column 7, lines 1, 2, 3, 4, 13,
28, 33, 37, and 38 must be greater than zero; and the sum of lines 14
and 42.50 must also be greater than zero. These Level I edits went into
effect for freestanding hospice cost reports with a reporting period
that ended on or after December 31, 2017.
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\19\ FY 2017 cost reports had a start date on or after October
1, 2016 and before October 1, 2017.
\20\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018Downloads/R3P243.pdf.
---------------------------------------------------------------------------
Next, to remove outliers from this analysis, we applied another set
of exclusions as described in the FY 2019 Hospice Wage Index and
Payment Rate Update proposed rule (83 FR 20948). Specifically, we
described how a trimming methodology is applied to cost reports so that
statistical anomalies were minimized. For each calculated outcome (for
example, average RHC costs per day), we excluded those values that are
above the 99th percentile and those values that are below the 1st
percentile. We refer to this trim as the ``1% Trim''. The data we
exclude vary for each level of care. For example, we may exclude a
hospice's data when calculating RHC costs per day, but not exclude it
when calculating GIP costs per day. After all the described exclusions
were applied, table 3 below shows how many freestanding cost reports
were used for this analysis.
Table 3--Number of Freestanding Cost Reports After the Level I Edits
Exclusion and 1% Trim
------------------------------------------------------------------------
Number of cost Number of days by
Level of care reports after level of care (FY
exclusions 2017)
------------------------------------------------------------------------
RHC............................. 1,098 41,329,675
GIP............................. 809 783,335
CHC............................. 437 187,498
IRC............................. 906 134,146
------------------------------------------------------------------------
Note: We begin with the 3,207 freestanding cost reports that remained
after applying exclusions in 1-3 (table 2). After applying the Level I
edits, 1,120 freestanding cost reports remained. Not all cost reports
contain information on each level of care. Numbers shown indicate the
number of cost reports available for analysis for each level of care
after all exclusions, including the 1% trim are applied.
Primarily, due to the small sample size of provider-based hospices
after these exclusions (see explanation below), we ultimately decided
to only use freestanding hospice cost reports. As shown in table 2,
there were 918 provider-based cost reports (that is, 26 SNF, 473 HHA,
and 419 hospital) before applying the new Level I edits to the
provider-based hospice cost reports. After applying the new Level I
edits there were 96 provider-based cost reports remaining. Likewise, in
MedPAC's March 2017 Report to Congress, they stated that included in
the costs of provider-based hospices are overhead costs allocated from
the parent provider, which contribute to provider-based hospices having
higher costs than freestanding hospices. The Commission believes
payment policy should focus on the efficient delivery of services to
Medicare beneficiaries. If freestanding hospices are able to provide
high-quality care at a lower cost than provider-based hospices, payment
rates should be set accordingly, and the higher costs of provider-based
hospices should not be a reason for increasing Medicare payment
rates.\21\ Industry representatives also suggested various edits to
improve the quality of data submitted on the cost report before being
accepted by the Medicare Administrative Contractors (MACs) (83 FR
20949).
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\21\ Medicare Payment Advisory Commission (MedPAC). ``Hospice
Services.'' Report to the Congress: Medicare Payment Policy.
Washington, DC. March 2018. P. 341. http://www.medpac.gov/docs/default-source/reports/mar18_medpac_ch12_sec.pdf?sfvrsn=0.
---------------------------------------------------------------------------
However, we did consider using both freestanding and provider-based
cost reports, with all cost report adjustments, including Level I
edits, to rebase the payment rates for CHC, IRC, and GIP. We also
considered not applying the Level I edits to the freestanding cost
reports for this rebasing analysis. Both of these alternative
approaches are described in section V.E. of this proposed rule. The
remaining discussion in this section will focus on our analysis of
freestanding hospice cost reports for FY 2017. This analysis focused on
the costs per day by level of care found within the hospice cost
reports and reported on Worksheet C, column 3, Lines 3, 8, 13 and 18.
b. Hospice Claims Data
We created an analytic data set based on Medicare hospice claims
downloaded from the Chronic Condition Data Warehouse--Virtual Research
Data Center (CCW VRDC) to examine hospice utilization on specific days
during FY 2017. We assigned a wage index (using the FY 2017 hospice
wage indices) to each day of hospice service based on the core-based
[[Page 17580]]
statistical area (CBSA) where a particular day's hospice services took
place.\22\ We merged information from the June 2018 release of the CMS
POS file to identify characteristics of the hospice including:
Ownership type, census division (based on the hospice's state), and
whether the hospice's main office was located either in an urban or
rural location. This data was used in the subsequent section in
calculating costs per day by level of care.
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\22\ https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Wage-Index/FY-2017-Final-Hospice-Wage-Index.html?DLPage=1&DLEntries=10&DLSort=0&DLSortDir=descending
---------------------------------------------------------------------------
c. Calculating Costs per Day by Level of Care
In order to compute the average cost per day for each level of care
using information from the freestanding hospice cost reports, after
applying the exclusions, we made several adjustments to the average
cost calculations, as described below.
Costs reported on Medicare cost reports vary due to many factors,
including variation in costs driven by geographic location. For
example, all else equal, hospices in high wage areas (for example, New
York City) may have higher costs compared to hospices in low wage
areas. Daily payment rates for hospice are adjusted to account for
geographic differences in wage rates. However, this geographic wage
adjustment is only applied to the labor share of the base payment rate.
The labor share for RHC and CHC is 68.71 percent, for GIP it is 64.01
percent and for IRC, it is 54.13 percent. Medicare adjusts for these
wage differences by first multiplying the base payment rate paid to
hospices by the labor share of the base payment rate. That value is
then multiplied by the wage index assigned to the CBSA where the
hospice provided services to the patient. Therefore, it is important to
calculate average costs after removing any regional differences that
may be driven by wages, otherwise we would over-adjust for wage
differences across regions. For example, we remove the wage differences
in RHC costs by calculating the following value for each hospice:
[GRAPHIC] [TIFF OMITTED] TP25AP19.009
We perform a similar calculation for the other levels of care using
the corresponding cost per day from FY 2017 cost reports and the
appropriate labor share for CHC, IRC, and GIP. For example, the
adjusted GIP cost per day uses the same formula, but instead includes
GIP cost per day from FY 2017 cost reports, the hospice's average wage
index for all GIP days in the formula, and the GIP labor share of 64.01
percent.
Due to exclusions mentioned previously, not all hospices that
submitted claims during FY 2017 have a corresponding cost report in our
final sample. As a result, the characteristics of the sample of cost
reports used to calculate average cost per day for each level of care
do not necessarily match up with the characteristics of all hospices
that submitted claims during FY 2017. If not accounted for, our sample
of cost reports may over-represent certain types of hospices. To
correct for this, we categorize each hospice in our sample by facility
type,\23\ ownership type,\24\ urban/rural status,\25\ and size.\26\ For
each category of hospices and the calculations for each level of care,
we use the following steps:
---------------------------------------------------------------------------
\23\ Freestanding versus provider-based.
\24\ We only divide the freestanding cost reports into ownership
type categories. We use the ownership type categories from the POS:
For-profit, government, non-profit, and other. Due to limited sample
size we do not break out the provider-based hospices into ownership
type.
\25\ Urban/rural status is reported on the POS and corresponds
to the mailing address of the hospice.
\26\ We divide hospices into three categories based on their
number of RHC days in FY 2017: Large (>=20,000 RHC days), medium
(3,500-19,999 RHC days), and small (0-3,499 RHC days).
---------------------------------------------------------------------------
1. Using claims, we compute the total number of days provided in FY
2017 by all hospices within a particular category;
2. We compute the total number of days, as reported on the claims
provided in FY 2017, using only the hospices in our trimmed sample of
cost reports within a particular category (Table 3); and
3. For each level of care and each category of hospices, we
construct a ratio using the value in Step 1 over the value in Step 2.
For each cost report in our sample, we multiply each provider's
days (as reported on claims) by level of care by the ratio in order to
make the sample cost reports more representative of the overall
population of hospices. We then multiply the provider's average per
diem cost as reported on the cost report times the number of adjusted
days from the prior step to yield total costs by level of care for that
provider. We then compute the weighted average for each level of care
by summing across hospices the total costs by level of care divided by
the sum of the adjusted days across the cost reports in our sample.\27\
---------------------------------------------------------------------------
\27\ The formula describes the average cost per day calculation
for IRC, however, the same formula can be adapted for each level of
care.
[GRAPHIC] [TIFF OMITTED] TP25AP19.014
[[Page 17581]]
We compute the weighted average equation for each level of care.
For example, we use a separate equation to calculate the average GIP
cost per day that uses GIP costs and GIP days. The equation as
described above is an approach to calculate the average per day cost
for each level of care. However, Medicare pays for the CHC level of
care using a per hour rate instead of a per day rate. We calculated
each hospice's hourly cost of CHC by taking their CHC cost per day from
the hospice cost report and dividing it by their average number of
hours of CHC provided on CHC days occurring in FY 2017 as reported on
each hospice's claims. Each hospice's CHC cost per hour (adjusted by
average number of hours of CHC) is then averaged (using the weighted
average formula discussed above) across all hospices in our sample to
create the overall average of CHC cost per hour. To convert the CHC
cost per hour into a CHC cost per day we multiply the average CHC cost
per hour by 24 hours. It is important to note that each hospice's
hourly CHC cost is based on their average number of CHC minutes per
day, which is less than 24 hours. That means a full CHC per day payment
(which covers 24 hours) will be larger than the average CHC cost per
day (which covers a time period less than 24 hours).
Applying all of the steps as described above, average costs per day
by level of care in FY 2017 are listed in Table 4 below:
Table 4--Average Cost per Day by Level of Care, FY 2017
------------------------------------------------------------------------
Average cost
Level of care per day
------------------------------------------------------------------------
RHC..................................................... $130.83
CHC (24 Hours) \28\..................................... 1,307.76
CHC (Per Hour).......................................... 54.49
IRC..................................................... 438.98
GIP..................................................... 953.96
------------------------------------------------------------------------
The current payment system pays hospices a two-tiered rate for RHC. RHC
days during the first 60 days are paid a higher per diem rate compared
to any RHC days after day 60. Hospices do not report RHC costs
separately for the first 60 days versus RHC days after day 60. However,
we can estimate the RHC costs in the first 60 days versus after 60 days
by making the same assumption that was made to calculate the two-tiered
payment. That is, in the FY 2016 hospice final rule (80 FR 47166), we
calculated resource use ratios to determine the differences in resource
utilization for the first 60 days and any RHC days after day 60. For
the creation of the two-tiered RHC rate (80 FR 47166), the following
ratios were used:
---------------------------------------------------------------------------
\28\ Based off a full CHC per day payment (which covers 24
hours).
---------------------------------------------------------------------------
Days 1 through 60: The ratio of average resource use for
RHC days in days 1 through 60 to average resource use across all RHC
days was 1.2603 to 1.
Days 61 and beyond: The ratio of average resource use for
RHC days after day 60 to the average resource use across all RHC days
was 0.8722 to 1.
We multiplied the average cost per day for RHC in FY 2017 by the
corresponding resource use ratio to calculate the average cost per day
for the first 60 days and any RHC days after 60 days. The resulting
average cost per day for RHC is shown in Table 5.
Table 5--Average RHC Costs (FY 2017) per Day for Days 1 Through 60 and Days 61+
----------------------------------------------------------------------------------------------------------------
Average cost
Average cost Resource use per day in FY
RHC level of care per day ratio 2017 (based on
days of RHC)
----------------------------------------------------------------------------------------------------------------
Days 1-60....................................................... $130.83 1.2603 $164.89
Days 61+........................................................ 130.83 0.8722 114.11
----------------------------------------------------------------------------------------------------------------
To determine if there is any misalignment between the average costs
of providing CHC, IRC and GIP and the per diem payment rates for these
levels of care, we inflated the average costs in FY 2017 to FY 2019
dollars. We did this by multiplying the average FY 2017 costs by level
of care by the hospice market basket update payment update for FY 2018
(82 FR 36649) and FY 2019 (83 FR 38630) less the multifactor
productivity adjustments (MFP). Table 6 below shows the estimated
average costs for CHC, IRC and GIP for FY 2019 (that is, taking the
average FY 2017 cost per day by each level of care inflated to 2019
dollars).
Table 6--Estimated Average Costs (FY 2019) for CHC, IRC and GIP
----------------------------------------------------------------------------------------------------------------
FY 2018 FY 2019
hospice market hospice market
FY 2017 basket update basket update FY 2019
Level of care average costs less less estimated
productivity productivity average costs
adjustment adjustment
----------------------------------------------------------------------------------------------------------------
CHC (per Hour).................................. $54.49 x 1.021 x 1.021 $56.80
IRC............................................. 438.98 x 1.021 x 1.021 457.61
GIP............................................. 953.96 x 1.021 x 1.021 994.45
----------------------------------------------------------------------------------------------------------------
We also analyzed the average costs of the RHC for the first 60 days
and any RHC days after day 60 inflated from FY 2017 dollars to FY 2019
dollars by applying the hospice market basket update less the MFP
adjustments. The results in Table 7 show the estimated average costs
for RHC by days for FY 2019.
[[Page 17582]]
Table 7--Estimated Average Costs for RHC (FY 2019) Days 1 Through 60 and Days 61+
----------------------------------------------------------------------------------------------------------------
FY 2018 FY 2019
hospice market hospice market
FY 2017 basket update basket update FY 2019
Level of care average costs less less estimated
productivity productivity average costs
adjustment adjustment
----------------------------------------------------------------------------------------------------------------
RHC Days 1-60................................... $164.89 x 1.021 x 1.021 $171.89
RHC Days 61+.................................... 114.11 x 1.021 x 1.021 118.95
----------------------------------------------------------------------------------------------------------------
We then compared the FY 2019 average costs for CHC, IRC and GIP to
the FY 2019 payment rates for these three levels of care. Our analysis
shows that there is a misalignment between average costs and payment
for these three levels of care. Table 8 below shows: The percent of
total hospice days by level of care; the estimated average FY 2019
costs by level of care; the current FY 2019 per diem payment rates; and
the estimated percent increase to the payment rates to more accurately
align the per diem payments for CHC, IRC and GIP with the costs of
providing these levels of care.
---------------------------------------------------------------------------
\29\ Based off a full CHC per day payment (which covers 24
hours).
Table 8--Comparison of FY 2019 Average Costs to Payments for CHC, IRC and GIP
----------------------------------------------------------------------------------------------------------------
Estimated percent
Percent of days Estimated FY 2019 FY 2019 per diem payment increase
Level of care by level of care average costs per payment rates needed to align
in FY 2018 * day with costs
----------------------------------------------------------------------------------------------------------------
CHC............................. 0.2 $1,363.26/$56.80 $997.38/$41.56 (per +36.6
(per hour) \29\. hour).
IRC............................. 0.3 $457.61............ $176.01............ +160.0
GIP............................. 1.3 $994.45............ $758.07............ +31.2
----------------------------------------------------------------------------------------------------------------
* RHC days accounted for 98.2 percent of all hospice days in FY 2018.
The payment rates for CHC, IRC, and GIP are significantly less than
the average costs of providing care. We also compared the FY 2019
average costs for RHC for the first 60 days and any RHC days after day
60 to the FY 2019 payment rates for RHC and the percentage difference
between payment and average costs and the results are shown in Table 9
below.
Table 9--Comparison of FY 2019 Average Costs to Payment for RHC
----------------------------------------------------------------------------------------------------------------
Percent
Estimated FY difference
Level of care 2019 average FY 2019 between
costs per day payment rates payment and
costs
----------------------------------------------------------------------------------------------------------------
RHC Days 1-60................................................... $171.89 $196.25 +14.2
RHC Days 61+.................................................... 118.95 154.21 +29.6
----------------------------------------------------------------------------------------------------------------
For RHC, the payment rates significantly exceed the average costs
of providing care for this level of care for the first 60 days and any
RHC days after day 60.
3. Proposed Rebasing of the CHC, IRC, and GIP Payment Rates for FY 2020
As mentioned above, section 1814(i)(1)(A) of the Act requires that
payment for hospice services must be an amount equal to the costs which
are reasonable and related to the cost of providing hospice care. As
described above, the average costs of providing CHC, IRC and GIP are
significantly higher than the payment amounts for these three levels of
care. Using the hospice payment reform authority under section
1814(i)(6) of the Act, we are proposing to rebase the payment rates for
CHC, IRC, and GIP by setting these payment amounts equal to the FY 2019
estimated average costs per day, as described in the methodology above,
before application of the hospice payment update percentage outlined in
section III.C of this proposed rule. We are proposing to rebase the
payment rates for CHC, IRC, and GIP as follows:
---------------------------------------------------------------------------
\30\ Based off a full CHC per day payment (which covers 24
hours).
Table 10--Proposed Rebased Payment Rates for CHC, IRC, and GIP *
------------------------------------------------------------------------
Proposed rebased payment
Level of care rates *
------------------------------------------------------------------------
Continuous Home Care (CHC)................ $56.80 per hour/$1,363.26
(per day).\30\
Inpatient Respite Care (IRC).............. $435.82.**
General Inpatient Care (GIP).............. $994.45.
------------------------------------------------------------------------
* Prior to application of the hospice payment update percentage of 2.7
percent outlined in section III.B of this proposed rule.
** IRC payment rate accounts for 5 percent coinsurance ($457.61/1.05 =
$435.82).
Although there is no coinsurance amount for RHC, CHC or GIP, the
[[Page 17583]]
amount of coinsurance for each respite care day is equal to 5 percent
of the payment made by Medicare for a respite care day. Section
1813(a)(4)(A)(ii) of the Act states that the amount payable for hospice
care shall be reduced in the case of respite care provided by (or under
arrangements made by) the hospice program, by a coinsurance amount
equal to 5 percent of the amount estimated by the hospice program (in
accordance with regulations of the Secretary) to be equal to the amount
of payment under section 1814(i) to that program for respite care. To
ensure payments (both paid by Medicare and collected from the
beneficiary via coinsurance) under a rebased IRC rate equal the average
per-diem cost of IRC, we set the rebased IRC payment rate equal to the
average per-diem cost of IRC divided by 1.05. The amount of the
individual's coinsurance liability for respite care during a hospice
coinsurance period may not exceed the inpatient hospital deductible
applicable for the year in which the hospice coinsurance period began.
The individual hospice coinsurance period begins on the first day an
election is in effect for the beneficiary and ends with the close of
the first period of 14 consecutive days on each of which an election is
not in effect for the beneficiary.
Section 1814(i)(6)(D)(ii) of the Act requires that any revisions to
the methodology for determining the payment rates for other services
included in hospice care to be done in a budget-neutral manner in the
fiscal year in which such revisions in payment are implemented as would
have been made for care in the fiscal year if such revisions had not
been implemented. Therefore, in order to offset the proposed increases
in payment rates to the CHC, IRC, and GIP levels of care, we are
proposing to reduce the RHC payment rates by 2.71 percent in order to
implement rebasing in a budget-neutral manner in FY 2020. Reducing the
RHC payment rate to a level equal to the estimated RHC costs would
require a reduction in the RHC payment rate that exceeds the proposed
2.71 percent. While we are rebasing the per diem payment rates for CHC,
GIP, and IRC to more accurately align the payment with costs, the
reduction to the RHC payment rates is not considered rebasing as the
2.71 percent reduction does not bring the RHC payment in alignment with
the costs of providing this level of care. The purpose of the 2.71
percent reduction to the RHC payment rates is to ensure that the
revisions to the payment rates for CHC, GIP and IRC are made in a
budget-neutral manner, in accordance with the law.
To calculate the proposed 2.71 percent reduction to the RHC payment
rates, we first calculate two sets of payments using different payment
parameters.
1. Total payments for hospice days provided during FY 2018 under
the existing FY 2019 payment rates and FY 2019 wage indices.\31\
---------------------------------------------------------------------------
\31\ FY 2018 is the most, current full year of data available.
---------------------------------------------------------------------------
2. Total payments for hospice days provided during FY 2018 under a
new RHC payment rate and the rebased payment rates for CHC, IRC, and
GIP.
We set the RHC payment rate in step (2) equal to the value that
makes total payments between step (1) and step (2) equivalent. We
calculate that rate using the following steps:
1. We calculate the difference in Medicare payments when using the
rebased CHC, IRC, and GIP payment rates instead of the payment rates in
place during FY 2019.
2. We calculate one minus the value from Step (1) over the RHC
payments made under the payment rates in place during FY 2019.\32\
---------------------------------------------------------------------------
\32\ Using the average per-diem costs generated from our sample
of freestanding hospice cost reports, rebasing CHC, IRC, and GIP
results in extra payments of $465,983,031.15 for those levels of
care. The RHC payments that were made under the payment rates in
place during FY 2019 were $17,218,209,794.15. One minus the value of
the extra payments over the RHC payments equals 0.9729.
---------------------------------------------------------------------------
3. We multiply the value in Step (2) by each RHC payment rate (the
first 60 days and any RHC days after day 60) in place during FY 2019 to
establish the budget- neutral RHC payment rates (the first 60 days and
any RHC days after day 60).
The calculated payment rates in Step (3) will make the total
payments made under the rebased FY 2019 payment rates equal to the
total payments made under the existing FY 2019 payment rates.
The results of this calculation demonstrate that in order to rebase
CHC, IRC, and GIP levels of care in a budget-neutral manner, the RHC
payment rates would need to be reduced by 2.71 percent. The proposed
2.71 percent reduction would be applied to the RHC payment rates for
the first 60 days and RHC days after day 60 (that is we would take each
of the RHC payment rates and multiply by the 0.9729 to determine the FY
2019 RHC payment rates).
To summarize, we are proposing: To rebase the payment rates for CHC
and GIP and set these rates equal to their estimated FY 2019 average
costs per day (see Table 10 above); we are proposing to rebase the
payment rate for IRC and set this rate equal to the estimated FY 2019
average cost per day, with a reduction of 5 percent to the estimated FY
2019 average cost per day to account for coinsurance (see Table 10
above); and we are proposing a 2.71 percent reduction to the RHC
payment rates to offset the proposed increases to the CHC, IRC, and GIP
payment rates as the proposed increases in the payment rates for these
three levels of care must be implemented in a budget-neutral manner in
accordance with section 1814(i)(6)(D)(ii) of the Act. While the per
diem payments were a reasonable way to pay hospices, we think the
proposal to rebase the per diem payments for CHC, GIP, and IRC better
reflects the costs of providing care. This proposal is in accordance
with section 1814(i)(A) of the Act that provides the authority to set
such payments reasonable to the cost of providing hospice care.
It is our intent to ensure that payment rates under the hospice
benefit align as closely as possible with the average costs hospices
incur when efficiently providing covered services to beneficiaries.
This proposal is not intended to place an arbitrary limit on hospice
services and we believe the rebased rates for CHC, IRC, and GIP may
help appropriately increase access to these levels of care. We continue
to expect hospices to adhere to the long-standing policy to provide
``virtually all'' care during a hospice election as articulated in the
1983 Hospice Care proposed and final rules as well as most recently in
FY 2019 Hospice Wage Index and Payment Rate Update final rule. We also
believe this proposal is responsive to industry concerns regarding the
challenges in securing needed contracts with facilities to provide
inpatient levels of care by more accurately aligning Medicare payments
for hospice services for higher cost levels of care. We are soliciting
comments on our proposal to rebase the payment rates for CHC, IRC, and
GIP, which results in an increase in the payment rates to those three
levels of care, and to maintain overall budget neutrality through a
proposed reduction to the RHC payment rates.
We believe that rebasing the per diem payment amounts for CHC, GIP,
and IRC is appropriate in order to better align payments with the costs
of providing care and that potential, subsequent increases in
utilization of those levels of care would not necessarily be
inappropriate. However, we are also soliciting comment on whether
rebasing the payment amounts for CHC, GIP, and
[[Page 17584]]
IRC could create an adverse incentive for providers to inappropriately
steer patients to a higher, more specialized level of care when that
level of care is not medically indicated.
B. Proposed FY 2020 Hospice Wage Index and Rate Update
1. Proposed Wage Index Lag Elimination
Historically we have calculated the hospice wage index values by
using the prior fiscal year's pre-floor, pre-reclassified hospital wage
index. In an effort to align with the Inpatient Prospective Payment
System (IPPS) and other payment systems, we are proposing to change the
hospice wage index methodology. Specifically, we are proposing to
change from our established policy of using the pre-floor, pre-
reclassified acute care hospital wage index from the prior fiscal year
as the basis for the hospice wage index, and instead to align with the
same timeframe used by the IPPS and other payment systems. In other
words, we are proposing to use the pre-floor, pre-reclassified hospital
wage index from the current fiscal year as the basis for the hospice
wage index. Under this proposal, the FY 2020 hospice wage index would
be based on the FY 2020 pre-floor, pre-reclassified IPPS hospital wage
index rather than on the FY 2019 pre-floor, pre-reclassified IPPS
hospital wage index.
Using the concurrent pre-floor, pre-reclassified hospital wage
index would result in the most up-to-date wage data being the basis for
the hospice wage index, increasing payment accuracy. It would also
result in more consistency and parity in the wage index methodology
used by Medicare. Medicare's skilled nursing facility (SNF), home
health and acute care hospital prospective payment systems already use
the most current wage index data as the basis for their wage indices.
Thus, if our proposal is finalized, the wage-adjusted Medicare payments
of various provider types would be based upon wage index data from the
same timeframe. We are considering similar policies to use the
concurrent pre-floor, pre-reclassified hospital wage index data in
other Medicare payment systems, such as inpatient psychiatric
facilities and inpatient rehabilitation facilities.
Overall, the impact between the FY 2020 wage index with the 1-year
lag and the proposed FY 2020 wage index removing the 1-year lag is 0.0
percent due to the wage index standardization factor, which ensures
that wage index updates and revisions are implemented in a budget-
neutral manner. The anticipated impact on Medicare hospice payments due
to the change in the wage index methodology can be found in table 11
below.
BILLING CODE 4120-01-P
[[Page 17585]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.015
[[Page 17586]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.016
BILLING CODE 4120-01-C
We invite comments on this proposal to align the hospice wage index
with that of the SNF PPS and Home Health PPS, by using the most current
pre-floor, pre-reclassified IPPS hospital wage index as the basis for
the hospice wage index.
2. Proposed FY 2020 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. 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 made by Office of Management and
Budget (OMB) to the Metropolitan Statistical Areas (MSAs) definitions.
In section III.B.1 above, we proposed to use the current FY's
hospital wage index data to calculate the hospice wage index values.
For FY 2020, the proposed hospice wage index would be based on the FY
2020 hospital pre-floor, pre-reclassified wage index. This means that
the hospital wage data used for the hospice wage index are not adjusted
to take into account any geographic reclassification of hospitals
including those in accordance with section 1886(d)(8)(B) or 1886(d)(10)
of the Act. The appropriate wage index value is applied to the labor
portion of the hospice payment rate based on the geographic area in
which the beneficiary resides when receiving RHC or CHC. The
appropriate wage index value is applied to the labor portion of the
payment rate based on the geographic location of the facility for
beneficiaries receiving GIP or IRC.
In the FY 2006 Hospice Wage Index final rule (70 FR 45135), we
adopted the policy that, for urban labor markets without a hospital
from which hospital wage index data could be derived, all of the Core-
Based Statistical Areas (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.
For FY 2020, there are two CBSAs without a hospital from which hospital
wage data can be derived: 25980, Hinesville-Fort Stewart, Georgia and
16180, Carson City, NV. The FY 2020 wage index value for Carson City,
NV is 1.0518 and the wage index value for Hinesville-Fort Stewart,
Georgia is 0.8237.
There exist some geographic areas where there were no hospitals,
and thus, no hospital wage data on which to base the calculation of the
hospice wage index. In the FY 2008 Hospice Wage Index final rule (72 FR
50217 through 50218), we implemented a methodology to update the
hospice wage index for rural areas without hospital wage data. In cases
where there was a rural area without rural hospital wage data, we use
the average pre-floor, pre-reclassified hospital wage index data from
all contiguous CBSAs, to represent a reasonable proxy for the rural
area. The term ``contiguous'' means 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, for rural Puerto
Rico, we would not apply this methodology due to the distinct economic
circumstances that exist there (for example, due to the close proximity
to one another of almost all of Puerto Rico's various urban and non-
urban areas, this methodology would produce a wage index for rural
Puerto Rico that is higher than that in half of its urban areas);
instead, we would continue to use the most recent wage index previously
available for that area. For
[[Page 17587]]
FY 2020, we propose to continue to use the most recent pre-floor, pre-
reclassified hospital wage index value available for Puerto Rico, which
is 0.4047, subsequently adjusted by the hospice floor.
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 subject to 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 a 15 percent increase subject to a maximum wage index value
of 0.8. For example, if County A has a pre-floor, pre-reclassified
hospital wage index value of 0.3994, we would multiply 0.3994 by 1.15,
which equals 0.4593. Since 0.4593 is not greater than 0.8, then County
A's hospice wage index would be 0.4593. In another example, if County B
has a pre-floor, pre-reclassified hospital wage index value of 0.7440,
we would multiply 0.7440 by 1.15 which equals 0.8556. Because 0.8556 is
greater than 0.8, County B's hospice wage index would be 0.8.
The proposed hospice wage index applicable for FY 2020 (October 1,
2019 through September 30, 2020) is available on our website at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Wage-Index.html.
3. Wage Index Comment Solicitation
As we stated above, historically, we have calculated the hospice
wage index values using unadjusted wage index values from another
provider setting. Stakeholders have frequently commented on certain
aspects of the hospice wage index values and their impact on payments.
We are soliciting comments on concerns stakeholders may have regarding
the wage index used to adjust hospice payments and suggestions for
possible updates and improvements to the geographic adjustment of
hospice payments.
4. Proposed FY 2020 Hospice Payment Update Percentage
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
to be updated by a factor equal to the inpatient hospital market basket
percentage increase set out under section 1886(b)(3)(B)(iii) of the
Act, 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 inpatient market basket percentage increase for that FY.
Section 3401(g) of the Affordable Care Act mandated that, starting
with FY 2013 (and in subsequent FYs), the hospice payment update
percentage would be annually reduced by changes in economy-wide
productivity as specified in section 1886(b)(3)(B)(xi)(II) of the Act.
The statute defines the productivity adjustment to be equal to the 10-
year moving average of changes in annual economy-wide private nonfarm
business multifactor productivity (MFP).
The proposed hospice payment update percentage for FY 2020 is based
on the estimated inpatient hospital market basket update of 3.2 percent
(based on IHS Global Inc.'s fourth-quarter 2018 forecast with
historical data through the third quarter 2018). Due to the
requirements at sections 1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) of
the Act, the estimated inpatient hospital market basket update for FY
2020 of 3.2 percent must be reduced by a MFP adjustment as mandated by
Affordable Care Act (currently estimated to be 0.5 percentage point for
FY 2020). In effect, the proposed hospice payment update percentage for
FY 2020 would be 2.7 percent.
Currently, the labor portion of the hospice payment rates is as
follows: For RHC, 68.71 percent; for CHC, 68.71 percent; for General
Inpatient Care, 64.01 percent; and for Respite Care, 54.13 percent. The
non-labor portion is equal to 100 percent minus the labor portion for
each level of care. Therefore, the non-labor portion of the payment
rates is as follows: For RHC, 31.29 percent; for CHC, 31.29 percent;
for General Inpatient Care, 35.99 percent; and for Respite Care, 45.87
percent. Beginning with cost reporting periods starting on or after
October 1, 2014, freestanding hospice providers are required to submit
cost data using CMS Form 1984-14 (https://www.cms.gov/Research-Statistics-Data-and-Systems/Downloadable-Public-Use-Files/Cost-Reports/Hospice-2014.html). We continue to analyze this data for possible use
in updating the labor portion of the hospice payment rates. Any changes
to the labor portions would be proposed in future rulemaking and would
be subject to public comments.
5. Proposed FY 2020 Rebased Hospice Payment Rates
There are four hospice payment categories, all of which 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 RHC
rate for each day the beneficiary is enrolled in hospice, unless the
hospice provides CHC, IRC, or GIP. CHC is provided during a period of
patient crisis to maintain the patient at home; IRC is short-term care
to allow the usual caregiver to rest and be relieved from caregiving;
and GIP is provided to treat symptoms that cannot be managed in another
setting.
As discussed in the FY 2016 Hospice Wage Index and Rate Update
final rule (80 FR 47172), we implemented two different RHC payment
rates, one RHC rate for the first 60 days and a second RHC rate for
days 61 and beyond. In addition, in that final rule, we implemented a
Service Intensity Add-on (SIA) payment for RHC when direct patient care
is provided by a RN or social worker during the last 7 days of the
beneficiary's life. The SIA payment is equal to the CHC hourly rate
multiplied by the hours of nursing or social work provided (up to 4
hours total) that occurred on the day of service, if certain criteria
are met. In order to maintain budget neutrality, as required under
section 1814(i)(6)(D)(ii) of the Act, the new RHC rates were adjusted
by a SIA budget neutrality factor.
As discussed in the FY 2016 Hospice Wage Index and Rate Update
final rule (80 FR 47177), we will continue to make the SIA payments
budget neutral through an annual determination of the SIA budget
neutrality factor (SBNF), which will then be applied to the RHC payment
rates. The SBNF will be calculated for each FY using the most current
and complete utilization data available at the time of rulemaking. For
FY 2020, this calculation would also reflect the proposed increase in
the hourly rate for CHC as a result of rebasing, discussed in section
III.A.2.c of this proposed rule.
In the FY 2017 Hospice Wage Index and Rate Update final rule (81 FR
52156), we initiated a policy of applying a wage index standardization
factor to hospice payments in order to eliminate the aggregate effect
of annual variations in hospital wage data. In order to calculate the
wage index
[[Page 17588]]
standardization factor, we simulate total payments using the proposed
FY 2020 hospice wage index (no lag) and compare it to our simulation of
total payments using the FY 2019 hospice wage index. By dividing
payments for each level of care using the FY 2020 wage index (no lag)
by payments for each level of care using the FY 2019 wage index, we
obtain a wage index standardization factor for each level of care (the
first 60 RHC days and RHC days after day 60 and, CHC, IRC, and GIP).
The wage index standardization factors for each level of care are shown
in the tables 12 and 13 below.
As discussed in section III.A.3 of this proposed rule, we are
proposing to rebase the per diem payment rates for the CHC, IRC, and
GIP levels of care. 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 for other purposes.
The data collected may be used to revise the methodology for
determining the payment rates for RHC and other hospice services (in a
budget-neutral manner in the first year), no earlier than October 1,
2013, as described in section 1814(i)(6)(D) of the Act. As mentioned
above and outlined in the Affordable Care Act, hospice payment reform
must be done in a budget-neutral manner. In other words, total
estimated hospice expenditures under these rebased payment rates must
equal total estimated hospice expenditures absent rebasing (we are
assuming no change in utilization). In order to rebase the per diem
payment amounts for CHC, IRC, and GIP in a budget-neutral manner, in
section III.A.2.c we proposed that increases to the CHC, IRC, and GIP
per diem payment amounts would be offset by corresponding decreases to
the RHC per diem payment amounts to maintain overall budget neutrality.
The proposed FY 2020 payment rates for RHC would be the proposed FY
2019 payment rates, reduced by a budget neutrality factor as a result
of the proposed rebasing of the CHC, IRC, and GIP payment amounts,
adjusted by the SIA budget neutrality factor, adjusted by the wage
index standardization factor, and increased by the 2.7 hospice payment
update percentage as shown in table 12. The proposed FY 2020 rebased
payment rates for CHC, IRC, and GIP would be the proposed rebased FY
2019 payment rates, adjusted by the wage index standardization factor
and increased by the 2.7 market basket update percent as shown in table
13.
Table 12--Proposed FY 2020 Hospice RHC Payment Rates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed FY
2019 budget- SIA budget Wage index Proposed FY Proposed FY
Code Description neutral RHC neutrality standardization 2020 hospice 2020 payment
payment rates factor factor ** payment update rates
*
--------------------------------------------------------------------------------------------------------------------------------------------------------
651............................... Routine Home Care (days 1-60).... $190.93 x 0.9924 x 1.0054 x 1.027 $195.65
651............................... Routine Home Care (days 61+)..... 150.03 x 0.9982 x 1.0054 x 1.027 154.63
--------------------------------------------------------------------------------------------------------------------------------------------------------
* FY 2019 RHC payment rate for days 1-60: = $196.25 * 0.9729 = $190.93. FY 2019 RHC payment rate for days 61+ = $154.21 * 0.9729 = $150.03.
** Transition from FY 2019 Wage Index to FY 2020 Wage Index without 1-Year Lag.
Table 13--Proposed FY 2020 Hospice CHC, IRC, and GIP Payment Rates
----------------------------------------------------------------------------------------------------------------
Proposed FY Wage index Proposed FY Proposed FY
Code Description 2019 rebased standardization 2020 hospice 2020 payment
payment rates factor * payment update rates
----------------------------------------------------------------------------------------------------------------
652................... Continuous Home Care $1,363.26 x 1.0041 x 1.027 $1,405.81
Full Rate = 24 hours
of care ($56.80 =
hourly rate).
655................... Inpatient Respite 435.82 x 1.0049 x 1.027 449.78
Care.
656................... General Inpatient 994.45 x 1.0060 x 1.027 1,027.43
Care.
----------------------------------------------------------------------------------------------------------------
* Transition from FY 2019 Wage Index to FY 2020 Wage Index without 1-Year Lag.
Sections 1814(i)(5)(A) through (C) of the Act require that hospices
submit quality data, based on measures to be specified by the
Secretary. In the FY 2012 Hospice Wage Index final rule (76 FR 47320
through 47324), we implemented a Hospice Quality Reporting Program 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. 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. The proposed FY 2020 rates for hospices that do not
submit the required quality data would be updated by the proposed FY
2020 hospice payment update percentage of 2.7 percent minus 2
percentage points. These rates are shown in tables 14 and 15.
[[Page 17589]]
Table 14--Proposed FY 2020 Hospice RHC Payment Rates for Hospices That DO NOT Submit the Required Quality Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed FY
Proposed FY 2020 hospice
2019 budget- SIA budget Wage index payment update Proposed FY
Code Description neutral RHC neutrality standardization of 2.7% minus 2020 payment
payment rates factor factor ** 2 percentage rates
* points = +0.7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
651............................... Routine Home Care (days 1-60).... $190.93 x 0.9924 x 1.0054 x 1.007 $191.84
651............................... Routine Home Care (days 61+)..... 150.03 x 0.9982 x 1.0054 x 1.007 151.62
--------------------------------------------------------------------------------------------------------------------------------------------------------
* FY 2019 RHC payment rate for days 1-60 = $196.25 * 0.9729 = $190.93. FY 2019 RHC rate for days 61+ = $154.21 * 0.9729 = $150.03.
** Transition from FY 2019 Wage Index to FY 2020 Wage Index without 1-Year Lag.
Table 15--Proposed FY 2020 Hospice CHC, IRC, and GIP Payment Rates for Hospices That DO NOT Submit the Required
Quality Data
----------------------------------------------------------------------------------------------------------------
Proposed FY
2020 hospice
Proposed FY Wage index payment update Proposed FY
Code Description 2019 rebased standardization of 2.7% minus 2020 payment
payment rates factor * 2 percentage rates
points = +0.7%
----------------------------------------------------------------------------------------------------------------
652..................... Continuous Home $1,363.26 x 1.0041 x 1.007 $1,378.43
Care Full Rate =
24 hours of care
($56.80 = hourly
rate).
655..................... Inpatient Respite 435.82 x 1.0049 x 1.007 441.02
Care.
656..................... General Inpatient 994.45 x 1.0060 x 1.007 1,007.42
Care.
----------------------------------------------------------------------------------------------------------------
* Transition from FY 2019 Wage Index to FY 2020 Wage Index without 1-Year Lag.
6. Proposed Hospice Cap Amount for FY 2020
As discussed in the FY 2016 Hospice Wage Index and Rate Update
final rule (80 FR 47183), we implemented changes mandated by the IMPACT
Act of 2014 (Pub. L. 113-185). Specifically, for accounting years that
end after September 30, 2016, and before October 1, 2025, the hospice
cap is updated by the hospice payment update percentage rather than
using the CPI-U. The proposed hospice cap amount for the FY 2020 cap
year will be $29,993.99, which is equal to the FY 2019 cap amount
($29,205.44) updated by the proposed FY 2020 hospice payment update
percentage of 2.7 percent.
C. Proposed Election Statement Content Modifications and Proposed
Addendum To Provide Greater Coverage Transparency and Safeguard Patient
Rights
1. Background
Hospice care is a comprehensive, holistic approach to treatment
that recognizes the impending death of an individual may necessitate a
transition from curative to palliative care if the individual so
chooses. Medicare hospice care services are virtually all-inclusive,
and are focused on meeting the physical, emotional, psychosocial and
spiritual needs of the terminally ill individual and his or her family.
In order to make an informed choice about whether to receive hospice
care, the patient, family, and caregiver must have an understanding of
what services are going to be provided by the hospice and that, because
there is no longer a reasonable expectation for a cure, care should now
focus on comfort and quality of life. The services covered under the
Medicare hospice benefit are comprehensive such that, upon election,
the individual waives all rights to Medicare payment for services
related to the treatment of the individual's condition with respect to
which a diagnosis of terminal illness has been made, except when
provided by the designated hospice or attending physician. Because of
the significance of this decision, the terminally ill individual must
elect hospice care in order to receive services under the Medicare
hospice benefit. Since we first implemented the Medicare hospice
benefit in 1983, it has been our general view that the waiver required
by law requires hospices to provide virtually all the care that is
needed by terminally ill patients (48 FR 56010).
2. Current Statutory and Regulatory Requirements for Care Planning and
Patient Rights
In order to be eligible to elect the Medicare hospice benefit, a
beneficiary must be certified as terminally ill, meaning that the
beneficiary has a medical prognosis of a life expectancy of 6 months or
less if the illness runs its normal course (42 CFR 418.3). For the
initial certification, the patient-designated attending physician (if
any) and the hospice medical director (or hospice physician member of
the interdisciplinary group (IDG)) must each certify in writing, at the
beginning of the period, that the individual is terminally ill based on
the physician's or medical director's clinical judgment regarding the
normal course of the individual's illness. The regulations Sec. 418.25
require that the hospice admit a patient only on the recommendation of
the medical director in consultation with, or with input from, the
patient's attending physician (if any).
In reaching a decision to certify that the patient is terminally
ill, the hospice medical director must consider the principal diagnosis
of the patient, all other health conditions, whether related or
unrelated to the terminal condition, and all clinically relevant
information
[[Page 17590]]
supporting all diagnoses. The clinical information and other
documentation that support the medical prognosis must accompany the
written certification and must be filed in the individuals' hospice
medical record in accordance with the regulations at Sec.
418.22(b)(2). Likewise, for the initial certification of terminal
illness, the hospice CoPs at Sec. 418.102(b) require that the hospice
medical director (or hospice physician designee) consider not only the
principal diagnosis and related conditions, but also current signs and
symptoms affecting the patient, current medications and treatment
interventions, and the medical management of unrelated conditions.
Therefore, even prior to a patient's admission to hospice, the hospice
medical director (or hospice physician designee) plays a pivotal role
in making clinical determinations regarding related and unrelated
conditions of terminally ill individuals. Once a beneficiary is
certified as terminally ill, he or she becomes eligible to elect
hospice care under the Medicare hospice benefit.
Because the receipt of hospice services under the Medicare hospice
benefit is dependent upon the eligible beneficiary electing to receive
hospice care, the regulations at Sec. 418.24 provide the requirements
of the hospice election statement. The election statement must include
the identification of the designated hospice and attending physician
(if any); the individual's or representative's acknowledgement that he
or she has been given a full understanding of the palliative rather
than curative nature of hospice care; and the individual's or
representative's acknowledgement that the individual waives the right
to Medicare payment for services related to the terminal illness and
related conditions, except when provided by the designated hospice or
attending physician. Services unrelated to the terminal illness and
related conditions remain eligible for Medicare coverage and payment
outside of the hospice benefit.
Once the beneficiary has elected hospice care, the hospice conducts
an initial assessment visit in advance of furnishing care. During this
visit, the hospice must provide the patient or representative with a
spoken and written notice of the patient's rights and responsibilities
as required by the CoPs at Sec. 418.52. Our rules state that the
beneficiary has the right to be involved in developing his or her
hospice plan of care; receive information about the services covered
under the hospice benefit; and receive information about the scope of
services that the hospice will provide and specific limitations on
those services. The hospice program must assure the patient that its
staff will protect patients' rights and will involve patients in
decisions about their care, treatment and services.\33\ Likewise, the
regulations at Sec. 476.78 state that providers must inform Medicare
beneficiaries at the time of admission, in writing, that the care for
which Medicare payment is sought will be subject to Quality Improvement
Organization (QIO) review. CMS identifies the core functions of the QIO
Program as:
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\33\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_m_hospice.pdf.
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Improving quality of care for beneficiaries;
Protecting the integrity of the Medicare Trust Fund by
ensuring that Medicare pays only for services and goods that are
reasonable and necessary and that are provided in the most appropriate
setting; and
Protecting beneficiaries by expeditiously addressing
individual complaints.
Changes to the QIO Program were made to ensure that Medicare
beneficiary needs are better met by designating a special type of
organization, a Medicare Beneficiary and Family--Centered Care--Quality
Improvement Organization (BFCC-QIO), to address quality of care
concerns and appeals. When Medicare beneficiaries have a complaint that
is not related to the clinical quality of healthcare, they and their
healthcare provider can agree to participate in a flexible, dialogue-
based resolution process, called ``immediate advocacy,'' which is
coordinated by the BFCC-QIO (Sec. 476.110).
The patient rights are provided to the beneficiary at the beginning
of a hospice election. Likewise, the hospice CoPs at Sec. 418.54
require that the hospice registered nurse must complete the initial
assessment within 48 hours after the election of hospice care, unless
the physician, patient, or representative requests that the initial
assessment be completed in less than 48 hours. The initial assessment
is to gather critical information necessary to treat the patient/
family's immediate care needs. The hospice IDG, in consultation with
the individual's attending physician (if any), must complete a
comprehensive assessment no later than 5 calendar days after the
election of hospice care. Additionally, the hospice CoPs at Sec.
418.54(c) provide the content requirements for the initial and
comprehensive assessments used to identify patient, family, and
caregiver needs for physical, emotional, psychosocial, and spiritual
care. As part of the comprehensive assessment, the hospice is required
to assess the patient for complications and risk factors, which can
affect care planning. The needs identified in these assessments drive
the development and revisions of an individualized written plan of care
for each patient as required by the CoPs at Sec. 418.56. Collectively,
the IDG, in consultation with the patient's attending physician (if
any), makes care plan decisions for each patient to ensure that each
care plan is individualized to meet the unique needs of each hospice
beneficiary. The plan of care also must reflect patient, family, and
caregiver preferences, goals, and interventions based on the problems
identified in the initial, comprehensive, and updated comprehensive
assessments. The plan of care must include all services necessary for
the palliation and management of the terminal illness and related
conditions and the CoPs at Sec. 418.56(c) detail the plan of care
content requirements, including the following:
(1) Interventions to manage pain and symptoms.
(2) A detailed statement of the scope and frequency of services
necessary to meet the specific patient and family needs.
(3) Measurable outcomes anticipated from implementing and
coordinating the plan of care.
(4) Drugs and treatment necessary to meet the needs of the patient.
(5) Medical supplies and appliances necessary to meet the needs of
the patient.
(6) The interdisciplinary group's documentation of the patient's or
representative's level of understanding, involvement, and agreement
with the plan of care, in accordance with the hospice's own policies,
in the clinical record. Furthermore, as a condition for payment, the
services provided must be consistent with the plan of care (Sec.
418.200).
Though hospices are responsible for providing all services needed
for palliation and management of the terminal illness and related
conditions, the 2008 Hospice Conditions of Participation final rule (73
FR 32088, June 5, 2008) states that while needs unrelated to the
terminal illness and related conditions are not the responsibility of
the hospice, the hospice may choose to furnish services for those needs
regardless of responsibility (73 FR 32114). If a hospice does not
choose to furnish services for those needs unrelated to the terminal
illness and related conditions,
[[Page 17591]]
the hospice is to document such needs and communicate and coordinate
with those health care providers who are identified as caring for the
unrelated needs, as set out at Sec. 418.56(e)(5). In the 2008 final
rule, we stressed that the intent of the plan of care requirements are
to show a direct link between the needs identified in the comprehensive
assessment and the plan of care developed by the hospice. This also
means that even if the hospice identified other needs in the patient
assessment that were unrelated to the terminal illness and related
conditions, these needs could not simply be ignored by the hospice;
rather, the hospice would have to communicate and coordinate with the
non-hospice providers that would be managing those conditions (73 FR
32114).
To ensure comprehensive and coordinated care, at Sec. 418.56(e) we
require hospices to have a communication system that allows for the
exchange of information with other non-hospice health care providers
who are furnishing care unrelated to the terminal illness and related
conditions. We also require hospices to designate a registered nurse
(RN) who is a member of the IDG to coordinate implementation of the
comprehensive plan of care. The designated RN must assure that
coordination of care and continuous assessment of patient, family, and
caregiver needs occur among staff providing services to the patient,
family, and caregiver so that all IDG members are kept informed of the
patient/family's status.\34\ The goal of a coordinated communication
process and a designated nurse coordinator is to adequately ensure that
each patient's hospice care is coordinated both within the hospice and
with other health care providers.
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\34\ https://www.cms.gov/RegulationsandGuidance/Guidance/Manuals/downloads/som107ap_hospice.pdf.
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3. Services Unrelated to the Terminal Illness and Related Conditions
As discussed in section III.C.2., the hospice medical director, the
attending physician (if any), and the hospice IDG determine, for each
patient, what items and services are related and unrelated to the
palliation and management of the terminal illness and related
conditions during the admission process, the initial and comprehensive
assessments, and in the development of the hospice plan of care. To the
extent that individuals receive services outside of the Medicare
hospice benefit during a hospice election, Medicare coverage is
determined by whether or not the services are for the treatment of a
condition completely unrelated to the individual's terminal illness and
related conditions (48 FR 38146, 38148, August 22, 1983). As such, it
is our long-standing position that services unrelated to the terminal
illness and related conditions should be exceptional, unusual and rare
given the comprehensive nature of the services covered under the
Medicare hospice benefit (48 FR 56008, 56010, December 16, 1983). The
Medicare claims processing system has edits in place to prevent other
non-hospice claims from being processed while a patient is under a
hospice election. For claims unrelated to the terminal illness and
related conditions to be processed for Medicare payment while a patient
is under a hospice election, the non-hospice provider or supplier must
use a modifier or condition code on the claim to indicate that the
service billed is unrelated to the patient's terminal condition. This
is to help ensure that payment is made from the appropriate Medicare
trust fund, and that duplicate payments are avoided.
In accordance with the hospice CoPs at Sec. 418.56(e)(5), and in
alignment with continuity of care principles,\35\ the ongoing sharing
of information with other non-hospice healthcare providers and
suppliers furnishing services unrelated to the terminal illness and
related conditions is necessary to ensure coordination of services and
to meet the patient, family, and caregiver needs. The coordination
requirements include that the hospice must develop and maintain a
system of communication and integration amongst all providers
furnishing care to the terminally ill patient. This communication helps
to minimize fragmented care and to improve quality of life. Part of
that communication process is the clear identification of what the
related and unrelated conditions are and who is responsible for
providing reasonable and necessary services for those conditions. As is
the preferred practice for care coordination and communication,\36\
both hospice and non-hospice providers typically document these
discussions, which then becomes part of the patient's medical record
with each provider. Accordingly, all Medicare providers and suppliers
must be able to provide medical documentation to support payment for
services billed (sections 1833(e) and 1815(a) of the Act). For non-
hospice providers or suppliers billing Medicare for services received
by hospice beneficiaries unrelated to their terminal illness and
related conditions, this includes being able to provide documentation
from the hospice listing the conditions (and thus items, drugs, and
services) the hospice determined to be unrelated and documented as such
on the hospice plan of care.
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\35\ Uijena, A., Schersa, H., Schellevisb, F., van den Bosch, W.
How unique is continuity of care? A review of continuity and related
concepts. Family Practice 2012; 29:264-271 doi:10.1093/fampra/
cmr104.
\36\ National Quality Forum (NQF), Preferred Practices and
Performance Measures for Measuring and Reporting Care Coordination:
A Consensus Report, Washington, DC: NQF; 2010.
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While hospices are required by the CoPs to have a system of
communication with non-hospice providers to furnish such information,
we have heard anecdotally from non-hospice providers stating that they
are unable to reach or do not receive return calls from the hospice to
discuss the hospice beneficiary's coordination of services that the
hospice has determined unrelated to his or her terminal illness and
related condition(s). Likewise, we have also received anecdotal reports
from hospices who state they were unaware that patients had received
care from non-hospice providers. In these reports, the hospice would
first learn of this outside care when non-hospice providers would
contact the hospice seeking reimbursement. If this care was related to
the terminal illness and related conditions and the hospice did not
make arrangements for such care, the beneficiary would be liable for
the costs of receiving that care. Additionally, if non-hospice
providers bill Medicare for services that potentially should have been
the coverage responsibility of hospice, Medicare could be making
duplicative payments for care related to the terminal illness and
related conditions.
The OIG released a report in June of 2012 identifying situations
where Medicare may have been paying twice for prescription drugs for
hospice beneficiaries. This report also suggests that Medicare hospice
beneficiaries themselves could also be paying unnecessary co-payments
or coinsurance for prescription drugs.\37\ In addition to being liable
for unnecessary co-payments or coinsurance, if beneficiaries fill
prescriptions to treat conditions that are related to the terminal
illness and related conditions without such fills being arranged for by
the hospice, the patient would be liable for the entire cost of the
prescription.
[[Page 17592]]
The OIG identified four common categories of prescription drugs that
are typically used to treat end-of-life symptoms that were being
covered under Part D for beneficiaries under a hospice election. These
four categories of drugs included analgesics, anti-nauseants,
laxatives, and antianxiety agents. As a result of this report, CMS
issued the first of several memoranda seeking to clarify the criteria
for determining payment responsibility under the Part A hospice benefit
and Part D for drugs prescribed to hospice beneficiaries. Part D plan
sponsors were encouraged to place beneficiary-level prior authorization
(PA) requirements on drugs being processed through Part D for hospice
beneficiaries. The purpose of this PA form is to facilitate
coordination between Part D sponsors, hospices, and pharmacists. Two
primary uses are to document that a drug is unrelated to a
beneficiary's terminal prognosis and to convey a beneficiary's change
in hospice status. It may also be used by hospice providers to
communicate and update the medication list from the beneficiary's plan
of care.\38\ In 2014, when the PA was instituted for all beneficiaries
enrolled in hospice, utilization was reduced for both drugs in and
outside of the four categories. However, when the PA was lifted for
drugs not in the four categories (that is, maintenance drugs) there
have been steady increases in utilization of these drugs by hospice
beneficiaries through Part D.\39\ Recent analyses of Part D
prescription drug event (PDE) data suggest that the current PA process
has reduced Part D program payments for drugs in the four targeted
categories and that utilization patterns are sensitive to the PA
process.\40\
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\37\ Office of the Inspector General, Department of Health and
Human Services. Medicare Could Be Paying Twice for Prescription
Drugs for Beneficiaries in Hospice. June, 2012. A-06-10-00059.
https://oig.hhs.gov/oas/reports/region6/61000059.pdf.
\38\ https://www.cms.gov/Medicare/Prescription-Drug-Coverage/PrescriptionDrugCovContra/Downloads/Instruction-and-Form-for-Hospice-and-Medicare-Part-D.pdf.
\39\ The four categories of drugs listed above are not included
in the analyses of maintenance drugs.
\40\ https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/2016-11-15-Part-D-Hospice-Guidance.pdf.
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After a hospice election, many maintenance drugs or drugs used to
treat or cure a condition are typically discontinued as the focus of
care shifts to palliation and comfort measures. However, there are
maintenance drugs that are appropriate to continue as they may offer
symptom relief for the palliation and management of the terminal
illness and related conditions. Some examples of maintenance drugs
include those to manage conditions such as heart disease, COPD, and
diabetes. We continue to receive complaints from Part D plan sponsors
and pharmacies that some hospice providers fail to respond to frequent
outreach efforts from Part D sponsors seeking recovery for claims in
the four categories or to clarify payment responsibility for
medications for hospice beneficiaries. We believe that this represents
a lack of coordination between hospices and Part D pharmacies and
sponsors, which ultimately affects the quality of care furnished to an
especially vulnerable population and results in additional costs to
beneficiaries, as well as Part D plan sponsors.
In previous years' hospice proposed rules, we have included data on
non-hospice expenditures for beneficiaries under a hospice election.
These total non-hospice expenditures include beneficiary cost-sharing
amounts. For Parts A and B, the beneficiary cost-sharing amounts in FY
2017 totaled approximately $138 million and for Part D, the beneficiary
cost-sharing totaled approximately $68.6 million (83 FR 20946 through
20947). We believe that this is a substantial financial burden being
placed on terminally ill individuals for services that potentially
should have been covered by hospice. In previous years' rules, we have
provided data and case studies on the most frequently reported
principal diagnoses on hospice claims and their associated non-hospice
expenditures for what were determined to be services for unrelated
conditions (80 FR 47154 and 81 FR 25510). These diagnoses included lung
cancer, cerebral degeneration of the brain (that is, conditions that
cause dementia), chronic obstructive pulmonary disease (COPD), and
congestive heart failure (CHF). We also discussed the recommended
evidence-based clinical practice guidelines for those diagnoses,
including the use of certain types of DME, supplies and drugs. Our
analysis revealed that items such as oxygen, respiratory agents,
hospital beds, wheelchairs, common palliative drugs, and disease-
specific drugs were not being furnished or covered by hospice even
though we would expect such items to be clinically indicated and
provided for the palliation and management of the terminal illness and
related conditions (80 FR 47154). This suggests that hospice
beneficiaries may be incurring unnecessary financial burden as they are
having to seek out and pay for items and services for pain and symptom
relief--services that hospice should be furnishing and covering.
We have received numerous anecdotal reports from beneficiaries,
families, and non-hospice providers that hospice patients are obtaining
needed drugs and other services outside of the hospice benefit because
they have been told that hospice would not cover the drugs as the
hospice determined that they were unrelated to the terminal illness and
related conditions. Many of these anecdotal reports state that the
beneficiaries and families believe that these items, services, and
drugs were related to the terminal illness and related conditions and
believed that they should have been provided by the hospice. The
beneficiaries and/or the families stated that they did not know they
would have to seek care outside of the hospice benefit for these
conditions because the hospice did not tell them these items, services,
and drugs would not be furnished by the hospice until the patient
needed them. The Medicare Beneficiary Ombudsman Office also has
received similar reports. The Medicare Ombudsman helps beneficiaries
with Medicare-related complaints, grievances, and information requests,
regarding what beneficiaries need to know to make appropriate health
care decisions; beneficiary rights and protections under Medicare; and
how to get issues resolved.\41\ Whereas the Medicare Ombudsman helps
with providing general information about Medicare and navigating
through various Medicare processes to resolve issues, the BFCC-QIOs
assist Medicare beneficiaries with specific quality of care complaints
for people with Medicare to improve the effectiveness, efficiency,
economy, and quality of services for people with Medicare. The BFCC-
QIOs provide services to help Medicare beneficiaries file appeals if
they think their coverage is ending too soon; to conduct quality of
care and medical necessity reviews, and; to help with grievances. Both
entities are in place to make sure beneficiary rights are protected.
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\41\ https://www.cms.gov/Center/Special-Topic/Ombudsman/How-the-Medicare-Beneficiary-Ombudsman-Works-for-You.pdf.
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The Medicare Ombudsman also shares information with the Secretary
of Health and Human Services, Congress, and other organizations about
what does and doesn't work well to improve the quality of the services
and care beneficiaries get through Medicare. Examples of recent
Medicare Ombudsman reports of patients being told only after electing
the benefit and the commencement of hospice care that certain items,
services or drugs were not covered by the hospice include:
An incident was reported to the Medicare Beneficiary
Ombudsman Office by a hospice beneficiary who stated that when she ran
out of her
[[Page 17593]]
diabetic test strips, the hospice refused to furnish them. The patient
stated that the diabetic glucose testing was necessary to ensure the
appropriate dosage of medication to control her blood glucose level,
and hence prevent any symptoms that would be associated with
hyperglycemia. When contacted, the hospice informed the Ombudsman that
the hospice determined the patient's diabetes was not related to the
patient's principal diagnosis of congestive heart failure (CHF) and
thus the hospice was not furnishing any services to manage the
patient's diabetes. While this hospice told the patient that her
diabetes was unrelated to her congestive heart failure, they did not do
so until after the beneficiary elected hospice and ran out of her test
strips. The beneficiary disagreed with that determination but was not
made aware of options for advocacy to assist in resolving this
disagreement with the plan of care. Because of this lack of
communication, the beneficiary felt she had no choice but to obtain her
test strips and pay for them herself.
A family member contacted CMS on behalf of his mother and
stated that the hospice refused to furnish a seated walker because the
hospice had determined the need for a seated walker was unrelated to
the beneficiary's terminal illness and related conditions. This
beneficiary was unable to ambulate without having to stop and sit down
because of shortness of breath due to her end-stage lung cancer. The
family member mentioned that his father was going to purchase the
walker out of pocket, but he wanted to check with Medicare before doing
so. The beneficiary was very distressed because being able to ambulate
in her own home lessened the pain of lying in bed for prolonged periods
of time and improved the quality of her life. The family member stated
he did not know whom to call because he was under the impression that
hospice was to cover everything his mother needed.
During a CMS field office site visit, one hospice
beneficiary reported that the hospice would not cover the cost of his
benign prostatic hypertrophy (BPH) medication as the hospice stated the
medication was unrelated to his terminal illness and related
conditions. This medication helped alleviate urinary retention which
caused him significant discomfort. This beneficiary had a hospice-
reported principal diagnosis of sepsis due to a urinary tract
infection. The beneficiary obtained his BPH medication through his
pharmacy benefit but he stated he thought hospice was to provide him
with all of his medications because that was the impression the hospice
had given him when he elected hospice. He said he was never told by the
hospice what medications or services he would have to obtain on his
own.
CMS has received multiple reports of hospice beneficiaries
requiring palliative chemotherapy or palliative radiation for pain and
symptom management, but these beneficiaries are told by hospices that
these services are not covered under the hospice benefit because these
treatments are curative in nature and therefore not in alignment with
the hospice philosophy of care. These beneficiaries report that they
were not told this when they elected hospice and they revoked the
hospice benefit in order to receive needed treatments to alleviate
pain.
Similarly, CMS has met with physician associations to
discuss the Medicare hospice benefit and physicians report that when
they try to refer patients to hospice who require palliative blood
transfusions for symptom management, the physicians and their patients
are being told by hospices that the Medicare hospice benefit does not
cover palliative blood transfusions. The physicians reported that they
either do not refer these patients to hospice to ensure that the
patients can continue their palliative blood transfusions, or for those
patients that do elect the hospice benefit, those patients revoke
hospice care to receive their palliative blood transfusions and then
re-elect hospice care after they have received these services. We note
that the Medicare hospice benefit does cover services for pain and
symptom management, including palliative chemotherapy, radiation and
blood transfusions. The per diem payment amounts paid to hospices
account for such services and hospices are required to cover those
items, services, and drugs for the palliation and management of the
terminal illness and related conditions.
The continued anecdotal reports we receive from various
stakeholders may suggest that some hospices are not adequately
informing hospice patients at hospice election about the scope of
services covered under the hospice benefit and thus hospice patients
may not have complete benefit coverage information when electing the
hospice benefit. This lack of coverage transparency may result in
hospice patients having to seek out needed items, services and drugs
outside of the Medicare hospice benefit and incur unexpected financial
liability as a result. This also may suggest that hospices could be
making care plan decisions based on cost or convenience rather than
based on the needs, preferences and goals of the patient. This is not
in alignment with the Medicare hospice benefit regulations and CoPs. We
expect that services received outside of the hospice benefit to be
rare.
Since the implementation of the Medicare hospice benefit, we have
received frequent requests, via informal means and through the formal
rulemaking process to provide additional guidance about determining
what are considered ``related conditions'' as these are the coverage
responsibility of hospice. Our position has been the same since the
implementation of the Medicare hospice benefit in 1983. We believe that
hospices are required to provide virtually all of the care needed by
the terminally ill individual (48 FR 56010). Any services needed
outside of the hospice benefit (that is, ``unrelated'') should be
exceptional and unusual. We reiterate that the terminally ill
individual's unique clinical condition makes it necessary for these
determinations of related versus unrelated conditions to be made for
each patient. To be responsive to the numerous requests for more
guidance, in recent years' rules we have provided additional guidance
regarding eligibility requirements for hospice admission (79 FR 50470
and 80 FR 25878); assessment of other conditions and comorbidities (80
FR 25878 through 25879); and, reporting of related and unrelated
conditions on hospice claims (80 FR 25880). However, in spite of the
guidance provided, we continue to have concerns that these decisions
are based on a more narrow view of the overall condition of the
individual, as is evidenced by the non-trivial amount of items,
services, and drugs for potentially related conditions provided by non-
hospice providers to beneficiaries under a hospice election.
4. Proposed Election Statement Content Modifications and Proposed
Addendum To Provide Greater Coverage Transparency and Safeguard Patient
Rights
As mentioned previously, the CoPs at Sec. 418.56 require that the
hospice include all services needed for the palliation and management
of the terminal illness and related conditions on the individualized
hospice plan of care. Similarly, the hospice interpretative guidelines
for Sec. 418.56 state that the plan of care should also identify the
conditions or symptoms that the hospice determines to be ``unrelated''
so hospices can provide ongoing sharing of information with
[[Page 17594]]
other non-hospice healthcare providers who may be furnishing services
unrelated to the terminal illness and related conditions.\42\ Although
hospices are required to educate each patient and the primary
caregiver(s) on the services identified on the plan of care and
document the patient's or representative's level of understanding,
involvement, and agreement with the plan of care, the amount and nature
of the non-hospice services being billed to Medicare outside of the
hospice benefit suggests that hospice beneficiaries may not be fully
informed, at the time of admission or throughout the hospice election,
of the items, services, and drugs the hospice has determined to be
unrelated to their terminal illness and related conditions. This is
necessary information for patients and their families to make informed
care decisions and to anticipate any financial liability associated
with needed items, services, and drugs not provided under the Medicare
hospice benefit.
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\42\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_m_hospice.pdf (L-Tag 538).
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The Medicare hospice regulations and CoPs are designed to ensure
comprehensive coverage of hospice services and to help educate patients
and their families regarding the scope of hospice services. Patient
protection, empowerment, and advocacy are of such utmost importance
that the CoPs at Sec. 418.52 explicitly require that the hospice
inform the patient of his or her rights and promote the exercise of
these rights. However, as described in section III.C.3 above, we have
concerns about whether patients are being adequately informed about the
scope of services covered under the Medicare hospice benefit and
whether patient rights are being fully promoted and protected.
Furthermore, we continue to be concerned about the currently reported
poor or absent communication between hospice and non-hospice providers
needed to ensure coordination of all reasonable and necessary services
for Medicare hospice beneficiaries. This may result in a lack of
coverage transparency and where beneficiaries are unaware of their
financial liability while under a hospice election for those items,
services, and drugs the hospice has determined to be unrelated to their
terminal prognosis.
Patients and their families must be provided complete and accurate
information regarding their hospice benefit under Medicare, as well as
their rights, responsibilities, and financial liability to ensure that
they are empowered to make informed treatment decisions that align with
their personal needs, preferences, and goals. In order to receive
services under the Medicare hospice benefit, the beneficiary must make
a choice to elect the benefit. As with all medical choices, this would
mean that the beneficiary (or representative) has given informed
consent for services. Stated simply, informed consent in medical care,
which includes hospice care, is a process of communication between a
clinician and a patient that results in the patient's authorization or
agreement to undergo a specific medical intervention or mode of
care.\43\
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\43\ https://www.jointcommission.org/assets/1/23/Quick_Safety_Issue_Twenty-One_February_2016.pdf.
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Therefore, we are proposing to modify the hospice election
statement content requirements at Sec. 418.24(b) to increase coverage
transparency for patients under a hospice election. In addition to the
existing election statement content requirements at Sec. 418.24(b), we
are proposing that hospices also would be required to include the
following on the election statement:
Information about the holistic, comprehensive nature of
the Medicare hospice benefit;
A statement that, although it would be rare, there could
be some necessary items, drugs, or services that will not be covered by
the hospice because the hospice has determined that these items, drugs,
or services are to treat a condition that is unrelated to the terminal
illness and related conditions.
Information about beneficiary cost-sharing for hospice
services.
Notification of the beneficiary's (or representative's)
right to request an election statement addendum that includes a written
list and a rationale for the conditions, items, drugs, or services that
the hospice has determined to be unrelated to the terminal illness and
related conditions and that immediate advocacy is available through the
BFCC-QIO if the beneficiary (or representative) disagrees with the
hospice's determination.
Likewise, we are proposing to make the corresponding regulations
text changes at Sec. 418.24(b).
Additionally, we are proposing that hospices would be required,
upon request, to provide to the beneficiary (or representative) an
election statement addendum with a list and rationale for the
conditions, items, services, and drugs that the hospice has determined
as unrelated to the terminal illness and related conditions. Similarly,
we are proposing that hospices would be required to provide the
election statement addendum upon request to other non-hospice providers
that are treating such conditions, and Medicare contractors who request
such information. We are proposing that if the election statement
addendum is requested at the time of hospice election, the hospice must
provide this information, in writing, to the individual (or
representative) within 48 hours of the request. Furthermore, we are
proposing that if this addendum is requested during the course of
hospice care, the hospice must provide this information, in writing,
immediately to the requesting individual (or representative), non-
hospice provider, or Medicare contractor, as this information should be
readily available in the beneficiary's hospice medical record. While we
believe that hospices should be able to immediately provide this
information, in writing, to the requesting beneficiary (or
representative), non-hospice provider or Medicare contractor, we are
soliciting comment on the appropriate timeframe to provide this
information to the requesting party if such information is requested
after the election of hospice care. During the course of hospice care,
if there are changes to the plan of care that result in a determination
that a new illness or condition has arisen, we are proposing that
hospices would be required to issue an updated addendum to the patient
(or representative) reflecting whether or not items, services and
supplies related to the new illness or condition will be provided by
the hospice.
The purpose of the proposed addendum is to inform beneficiaries and
their families of non-covered conditions, items, services, and drugs to
provide full coverage transparency to hospice patients and their
families to assist in making treatment decisions. Likewise, the
addendum will help facilitate communication and benefit coordination
between hospices and non-hospice providers. We propose that if there is
a request for the addendum, the presence of the signed addendum (and
updated, signed addenda) in the beneficiary's hospice medical record
would be a new condition for payment for Medicare hospice services.
Hospices can develop and design the addendum to meet their needs,
similar to how hospices develop their own hospice election statement.
We propose the addendum would be titled ``Patient Notification of
Hospice Non-Covered Items, Services, and Drugs.'' We propose that the
addendum would include the following information:
1. Name of the hospice;
[[Page 17595]]
2. Beneficiary's name and hospice medical record identifier;
3. Identification of the beneficiary's terminal illness and related
conditions;
4. A list of the beneficiary's current diagnoses/conditions present
on hospice admission (or upon plan of care update, as applicable) and
the associated items, services, and drugs, not covered by the hospice
because they have been determined by the hospice to be unrelated to the
terminal illness and related conditions;
5. A written clinical explanation, in language the beneficiary and
his or her representative can understand, as to why the identified
conditions, items, services, and drugs are considered unrelated to the
terminal illness and related conditions and not needed for pain or
symptom management. This clinical explanation would be accompanied by a
general statement that the decision as to whether or not conditions,
items, services, and drugs is related is made for each patient and that
the beneficiary should share this clinical explanation with other
health care providers from which they seek services unrelated to their
terminal illness and related conditions;
6. References to any relevant clinical practice, policy, or
coverage guidelines.
7. Information on the following domains:
a. Purpose of Addendum
i. The purpose of the addendum is to notify the hospice beneficiary
(or representative) of those conditions, items, services, and drugs the
hospice will not be covering because the hospice has determined they
are unrelated to the beneficiary's terminal illness and related
conditions.
ii. The addendum is subject to review and shall be updated, as
needed, when the plan of care is updated in accordance with Sec.
418.56. The hospice will provide these updates, in writing, to the
beneficiary (or representative).
b. Right to Immediate Advocacy
The addendum must include language that immediate advocacy is
available through the BFCC-QIO if the beneficiary (or representative)
disagrees with the hospice's determination. Specifically, the language
must include contact information for the BFCC-QIO, as well as, the
following statement: ``We encourage you to contact your hospice
provider to discuss any concerns about the diagnoses/conditions, as
well as items, services, and medications listed on this form that you
believe should be covered by the hospice. Beyond issues related to
Medicare coverage, if you believe that your care concerns were not
adequately addressed by your hospice provider, you may contact the
Medicare Beneficiary and Family Centered Care Quality Improvement
Organization (BFCC-QIO) to help you. While it cannot require services
be covered, provided, or be paid for by Medicare, the BFCC-QIO
addresses quality of care issues for people with Medicare. There are
various ways the BFCC-QIO can assist you: (a) verbally engaging
providers on your behalf to seek quick resolution, known as Immediate
Advocacy, or (b) by having an independent physician review of your
medical documentation to determine if there was a quality issue.''
8. Name and signature of Medicare hospice beneficiary (or
representative) and date signed, along with a statement that signing
this addendum (or its updates) is only acknowledgement of receipt of
the addendum (or its updates) and not necessarily the beneficiary's
agreement with the hospice's determinations.
Finally, we are proposing to add the election statement addendum
content requirements to the regulations at Sec. 418.24.
As discussed and proposed above, the signed addendum (and any
signed updates) would be a new condition for payment. This does not
mean that in order to meet this condition for payment that the
beneficiary (or representative), or non-hospice provider must agree
with the hospice's determination. For purposes of this condition for
payment, the signed addendum is only acknowledgement of the
beneficiary's (or representative's) receipt of the addendum (or its
updates) and this payment requirement would be met if there was a
signed addendum (and any signed updates) in the requesting
beneficiary's medical record with the hospice. This addendum would not
be required to be submitted with any hospice claims. Likewise, the
hospice beneficiary (or representative) would not have to separately
consent to the release of this information to non-hospice providers
furnishing services for unrelated conditions as the Health Insurance
Portability and Accountability Act (HIPAA) Privacy Rule allows those
doctors, nurses, hospitals, laboratory technicians, and other health
care providers that are covered entities to use or disclose protected
health information, such as X-rays, laboratory and pathology reports,
diagnoses, and other medical information for treatment purposes without
the patient's express authorization. This includes sharing the
information to consult with other providers, including providers who
are not covered entities, to treat a different patient, or to refer the
patient (45 CFR 164.506).
This hospice election statement addendum would only be required for
Medicare hospice beneficiaries who request such information, though
hospices may choose to provide this addendum to all of their hospice
patients, regardless of payer source (after making appropriate
adjustments for the specific payer). Hospices can determine which
member of the IDG would be responsible for completing this addendum,
but we would expect that this typically would be the function of the
hospice registered nurse responsible for the patient's plan of care. As
mentioned previously, hospices must designate a registered nurse (RN),
who is a member of the IDG, to coordinate implementation of the
comprehensive plan of care. The designated RN must assure that
coordination of care and continuous assessment of patient, family, and
caregiver needs occur among staff providing services to the patient,
family, and caregiver so that all IDG members are kept informed of the
patient/family/caregiver's status (Sec. 418.56(a)).
While ideally this addendum would be provided to the requesting
beneficiary (or representative) at the time of hospice election, we
recognize that hospices may need some leeway to have discussion amongst
the members of the IDG to finish developing the hospice plan of care.
Therefore, we are proposing that the addendum would be required to be
provided to the requesting beneficiary (or representative) within 48
hours of the hospice election date; and the beneficiary would sign the
addendum and receive a completed, signed copy at that time for his/her
records. This is in alignment with the current CoP requirements at
Sec. 418.54(a) stating that the hospice registered nurse must complete
an initial assessment within 48 hours after the election of hospice
care. Hospices would be exempt from completing this addendum if the
beneficiary died within 48 hours of the election date of hospice care.
The original beneficiary or representative-signed election statement
and addendum would be included in the patient's hospice medical record
as already required by the hospice CoPs at Sec. 418.104(a)(2).
If the beneficiary (or representative) requests this addendum after
admission to hospice, we are proposing that the hospice would provide
the addendum immediately to the beneficiary (or representative), as
this information should already be readily available in the
beneficiary's hospice medical
[[Page 17596]]
record. Additionally, we are proposing that hospices would be required,
upon request, to provide a copy of the addendum (with the list of non-
covered items, services and drugs) to non-hospice providers rendering
services to the hospice beneficiary to support the hospice's
determination that those items, services, or drugs are for unrelated
conditions. Likewise, if there are any changes to the conditions,
items, services, and/or drugs listed on the addendum that occur after
the hospice election and during the course of hospice care, the hospice
would update the addendum accordingly and the beneficiary would sign
and date any updates to acknowledge that he/she has received the
information. This would occur for both additions to and removal of any
unrelated conditions, items, services, and/or drugs. However, we do not
expect that additions to addendum would be a frequent occurrence. Body
systems are interrelated and as an individual progresses closer to
death, all care is related to the dying process and thus we would not
expect to see unrelated conditions, items, services, or drugs routinely
added to the addendum.
While the proposed election statement addendum outlines the content
requirements for the addendum, it does not mandate the use of a
specific form. Hospices are able to design the addendum in the form or
format that best meets their needs, assuming all content requirements
are met. As there is currently a model election statement available in
a MLN Matters[supreg] article, SE1631,\44\ we also will assist hospices
in developing the addendum. If finalized, we would post a model
election statement with the added content requirements, as well as a
model addendum on the Hospice Center web page to help hospices in
developing their addendums and thereby minimizing their costs.
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\44\ https://www.cms.gov/outreach-and-education/medicare-learning-network-mln/mlnmattersarticles/downloads/se1631.pdf.
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Furthermore, Part D plan sponsors currently have a prior
authorization process in place for their member enrolled in hospice for
the four categories of drugs (analgesics, anti-nausea, anti-anxiety,
and laxatives) and a voluntary, standardized form was developed with
industry input for hospices to submit to Part D plans in order to
assist in: (1) Proactively avoiding a drug claim from rejecting at
point-of-sale; (2) overriding a reject edit at point-of-sale; and (3)
communicating a change in the a patient's hospice status.\45\ Hospices
currently can use the standardized PA form as a means of notifying a
Part D plan that their member has elected hospice care, as well as to
document specific drugs that are or are not being covered by the
hospice. As such, we intend to work with hospices and Part D plans to
develop a process in which the ``Patient Notification of Hospice Non-
covered Items, Services and Drugs'' potentially could be used at the
point-of-service when hospice beneficiaries are filling drug
prescriptions to ensure timely access to needed drugs. Complete
documentation on the part of the hospice, coupled with timely
notification of Part D sponsors, mitigates the risk for possible double
payment by the Medicare program for drugs, and is anticipated to
prevent Part D enrollees in hospice from having a hospice-related
medication billed by a pharmacy to their Part D plan, potentially
subjecting the beneficiary to out-of-pocket expenses.
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\45\ Hospice Information for Medicare Part D Plans, OMB-approved
form (No. 0938-1269).
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While the CoPs already require that information on unrelated
conditions should be documented and communicated to beneficiaries and
non-hospice providers (Sec. 418.56), we believe that making this a
condition for payment will help to ensure that hospices are diligent in
providing this information to Medicare hospice beneficiaries. It is
important to note that the proposed modifications to the hospice
election statement and the election statement addendum, ``Patient
Notification of Hospice Non-Covered Items, Services, and Drugs,''
leverages existing hospice regulations, CoPs, and QIO requirements for
hospices to:
Identify those conditions and services present on hospice
admission (and at plan of care update, as necessary) that the hospice
has determined to be unrelated to the terminal illness and related
conditions (Sec. Sec. 418.22, 418.54(c)(2), 418.102), as outlined in
element 4 of the addendum as noted above;
Inform the beneficiary and family about what is covered
and not covered by the hospice on the plan of care (Sec. Sec. 418.52
and 418.56(b)), as outlined in the proposed additional election
statement content requirements and elements 3, 4, 5, and 6 of the
addendum as noted above;
Coordinate with providers that are providing care
unrelated to the terminal illness and related conditions (Sec.
418.56(e)(5)), as outlined in the proposed, additional election
statement content requirements and elements 4, 5, and 6 of the addendum
as noted above; Educate beneficiaries about their patient rights
(Sec. Sec. 418.52(a) and 476.78(b)(3)), as outlined in the proposed,
additional election statement content requirements and element 7 of the
addendum as noted above.
We believe that the election statement addendum will promote
greater transparency regarding coverage under the Medicare hospice
benefit, as well as informing the beneficiary as to those services they
might need to seek outside of the hospice benefit. This would help in
beneficiary decision-making regarding needed items, services, and
drugs, and to determine the model of care that best meets their
treatment preferences and goals of care. Likewise, we believe the
addendum would provide information that would allow hospice
beneficiaries to anticipate potential financial liability for health
care services outside of the hospice benefit. Because hospices would
have to provide a list and clinical rationale for those items,
services, and drugs that they will not be covering because the hospice
has determined them to be unrelated to the terminal illness and related
conditions, to requesting hospice beneficiaries (or representatives),
non-hospice providers rendering services to hospice beneficiaries, and/
or Medicare contractors, we believe this accountability may mitigate
unnecessary financial burden for hospice beneficiaries. A primary goal
of the election statement addendum is to hold hospices more accountable
to hospice beneficiaries through benefit coverage transparency.
Hospices should already be holistic and comprehensive in their approach
to the provision of hospice services. We believe this proposal would be
an incremental step in ensuring beneficiaries are receiving information
regarding the full scope of Medicare hospice benefits. Subsequently, if
the proposed addendum is finalized, we would continue to monitor
hospice utilization trends, including non-hospice spending, to
determine whether any additional changes may be warranted.
As the hospice regulations and the CoPs already require the
assessment and documentation of unrelated conditions as described
throughout this section, we believe there is no increase in hospice
burden resulting from this addendum requirement to communicate with
non-hospice providers. Similarly, we believe the collection of
information for the election statement and the addendum is already
accounted for in the hospice CoP burden estimates in its information
collection request (OMB control number: 0938-1067) that was re-
[[Page 17597]]
approved in November, 2017.\46\ However, we estimate a one-time hospice
cost burden to develop the election statement addendum, as well as a
small increase in the time spent to complete the addendum. This
estimate is described in section IV of this proposed rule. We believe
that this election statement addendum would serve to streamline
existing regulatory requirements into a single tool for communicating
with beneficiaries and their families, the beneficiary's designated
independent attending physician (if any), as well as, with non-hospice
providers furnishing items, services, and drugs to hospice
beneficiaries. As the addendum should also be used to provide for an
ongoing sharing of information with other non-hospice healthcare
providers furnishing services unrelated to the terminal illness and
related conditions, as required by the CoPs, it would likely minimize
time spent by IDG members looking through a beneficiary's medical
record to locate the information on unrelated conditions, items,
services, and drugs when such information is requested by non-hospice
providers.
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\46\ https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201809-0938-005.
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Furthermore, this addendum, if filled out completely, updated
regularly, and shared proactively and in a timely manner with non-
hospice providers and pharmacies, would minimize multiple calls from
non-hospice providers and pharmacies to the hospice requesting
information on a patient's unrelated conditions, items, services, and
drugs since the addendum would provide this comprehensive information
in a practical, consistent, and useful format. In effect, this addendum
would reduce burden for non-hospice providers because this addendum
could assist in making treatment decisions and support the coding of an
appropriate modifier or condition code on non-hospice claims for
services unrelated to the terminal illness and related conditions. Non-
hospice providers providing services to hospice beneficiaries are
required to report the following on Medicare claims to identify that
the items or services were for the treatment of conditions unrelated to
the terminal illness and related conditions:
Institutional providers would submit a claim with
condition code 07.
Physicians would submit a claim with modifier GW.
The election statement addendum may allow the non-hospice provider
to be ``without fault'' if there is any question regarding an
overpayment. In accordance with section 1870 of the Act, a provider is
responsible for an overpayment if the provider knew or had reason to
know that service(s) were not reasonable and necessary, and/or the
provider did not follow correct procedures or use care in billing or
receiving payment. If non-hospice providers have the addendum, this
potentially could satisfy section 1870 of the Act in providing that the
non-hospice provider did not have reason to know that the services were
not reasonable and necessary (considering the service itself is
reasonable and necessary and satisfies all other requirements for
payment). Moreover, if a non-hospice provider submits a claim to
Medicare for services provided to a beneficiary that are unrelated to
the terminal illness and related conditions but does not have the
supporting documentation that the services are unrelated, this could be
considered a false claim under the False Claims Act.\47\ Having the
addendum identifying the unrelated conditions, items, services, and
drugs may provide the necessary documentation support that the non-
hospice provider was rendering services unrelated to the terminal
illness and related conditions. Therefore, the addendum could assist in
more accurate claims submission, mitigate potential duplicative
payments, and provide non-hospice providers with documentation to
support a ``without fault'' determination. To provide transparency in
how we believe this addendum reduces non-hospice provider burden, we
have included a burden reduction estimate in section IV of this
proposed rule. While this burden estimate assumes that an itemized list
would be requested by every hospice beneficiary (or representative)
receiving non-hospice services, or by the non-hospice providers
rendering these unrelated services, we believe the actual burden would
be less as hospices are already required to be comprehensive in their
approach to covered services. As such, there would be hospices that
would not have to complete the addendum as the hospice would be
providing all items, services, and drugs.
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\47\ The False Claims Act, Title 3, section 3729. https://www.govinfo.gov/content/pkg/USCODE-2011-title31/pdf/USCODE-2011-title31.pdf.
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We note that this addendum is not to be used by hospices as a
vehicle in which to exercise unlimited ability to determine services as
unrelated to the terminal illness and related conditions. It has always
been CMS' expectation that hospice would be providing virtually all of
the care needed by terminally ill individuals (48 FR 56010). Similarly,
in a 1993 HCFA (now CMS) ruling, ``Weight To Be Given To a Treating
Physician's Opinion In Determining Medicare Coverage Of Inpatient Care
In a Hospital Or Skilled Nursing Facility,'' we stated that even though
a physician's opinion is very important in making treatment
determinations, no presumptive weight should be assigned to the
treating physician's medical opinion alone, as coverage decisions are
not made solely on this opinion.\48\ That is, while the physician's
determination carries great weight, other factors such as the condition
of the patient upon admission, the nature of the principal diagnosis
and the existence of comorbid conditions play an important role in
coverage determinations. Hospices are to continue to make
determinations about unrelated conditions, items, services, and drugs
for each patient taking into account the needs, preferences and goals
of the terminally ill individual and his or her family. In doing so,
hospices are to conduct a thoughtful review of all of the beneficiary's
conditions, related and unrelated to the terminal illness and related
conditions, and current clinically relevant information supporting all
diagnoses as required by regulation at Sec. 418.25. This process
requires clinical judgment in which hospices need to consider clinical
practice guidelines and relevant research when making determinations of
whether items, services, and drugs are related or unrelated to the
terminal illness and related conditions.
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\48\ HCFA Ruling No. 93-1, ``Weight to Be Given to a Treating
Physician's Opinion in Determining Medicare Coverage of Inpatient
Care in a Hospital or Skilled Nursing Facility,'' May, 1993. https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/Downloads/HCFAR931v508.pdf.
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We believe that the proposed election statement addendum, as a
condition for payment, will achieve the goal of increasing
comprehensive patient education, awareness, empowerment, and coverage
transparency by:
Providing information to the beneficiary (or
representative), upon request, regarding those conditions, items,
services, and drugs not covered by the hospice in an uncomplicated
written format;
Promoting informed consent;
Encouraging discussion between the hospice and the
terminally ill individual and their family regarding hospice covered
and non-covered conditions, items, services, and drugs;
Safeguarding patient rights and protecting the integrity
of the hospice benefit by informing beneficiaries of an already
established process through
[[Page 17598]]
which they are able to receive BFCC-QIO Immediate Advocacy to dispute
the hospice's determination regarding non-covered items and services
for unrelated conditions when the beneficiary thinks they might be
related;
Providing a communication mechanism between hospice and
non-hospice providers to help ensure benefit coordination for
terminally ill patients.
This proposal outlines the modifications to the election statement
content requirements and the required elements of the election
statement addendum that we would require; we expect that hospices
should already be complying with the existing, underlying coverage
requirements. We are soliciting public comment on all aspects of the
proposed modifications to the election statement content requirements,
and the proposed election statement addendum, ``Patient Notification of
Hospice Non-Covered Items, Services, and Drugs,'' as described in this
section as well as the corresponding proposed revision to the
regulations at Sec. 418.24(b) in section VI of this proposed rule.
D. Request for Information Regarding the Role of Hospice and
Coordination of Care at End-of-Life
The Medicare hospice benefit is currently only available as part of
traditional, fee-for-service (FFS) Medicare as hospice care is excluded
from the scope of what Medicare Advantage (MA) plans must offer under
section 1852(a)(1)(B)(i) of the Act. MA enrollees that are eligible for
and elect the hospice benefit remain in their MA plan, but receive
hospice care through traditional FFS Medicare. In turn, CMS pays
hospice organizations directly for hospice services based on the FFS
payment system. Generally, following the month the enrollee elects
hospice, CMS pays the MA plan the rebate amount, but not the risk-
adjusted capitated amount for Part A and Part B services. The MA plan
remains responsible for the provision of supplemental benefits, and in
the case of an MA-PD, Part D drugs that the hospice has determined are
unrelated to the enrollee's terminal illness and related conditions.
However, if the beneficiary requires items, services, or non-Part D
drugs that the hospice has determined to be unrelated to the
beneficiary's terminal illness and related conditions, then the costs
for any treatment are borne by Medicare FFS rather than the MA plan in
accordance with the MA program's special rules for hospice care at
Sec. Sec. 422.320(c)(3) and 417.585. Incorporating hospice into other
kinds of care delivery models may be a way of alleviating the payment
fragmentation described above.
As outlined above, the Medicare hospice benefit is currently only
available as part of traditional FFS Medicare. As part of delivery
system transformation, we seek information on the interaction of the
hospice benefit and various alternative care delivery models, including
MA, Accountable Care Organizations (ACOs), and other future models
designed to change the incentives in providing care under traditional
FFS Medicare. Finally, we seek information on the impact of alternative
delivery and payment models implemented outside of the Medicare program
on the provision of hospice care and any lessons learned that we should
consider for the future design of the Medicare hospice benefit. The
questions and complexities around incorporating hospice into MA are
indicative of the operational considerations that would need to be
addressed around any long-term programmatic change, especially with
regards to other contexts, such as ACOs or other models or changes
within the Medicare hospice benefit to adapt to a changing payor mix
and environment. For example, with respect to MA, unless an alternative
approach to building hospice into the current bid for Part A and B
services were followed, county benchmarks and the risk adjustment model
would need to be revised to incorporate the cost of these
beneficiaries. Additionally, although alternative network approaches
might be considered, incorporating hospice into MA could result in MA
plans only contracting with a subset of local hospices, thereby
potentially limiting patient access and choice, and network adequacy
standards would need to be developed by CMS. Additionally, given that
CMS cannot and should not interfere in the contracting process between
MA plans and their contracted providers, if hospice providers agree to
payment rates that are lower than what Medicare currently pays that may
result in changes in the quantity and types of services provided. One
way managed care or value-based arrangements could address these issues
may be to construct payments for hospice care such that they align
closely with how hospices are paid under traditional FFS Medicare.
We note that we are testing ways to incorporate hospice into other
kinds of care delivery models to alleviate payment fragmentation. One
approach is to test incorporating hospice into MA under the CMS
Innovation Center's authority (section 1115A of the Social Security
Act). Under this voluntary model, beginning in 2021, MA enrollees in
participating plans will have hospice care provided through their
chosen MA plan. Through this RFI, we are seeking public comments on
other broader approaches, beyond the model noted above, regarding the
appropriate role of hospice as part of the care options available.
Specifically, we are seeking public comments on how hospice under
Medicare FFS relates to other treatment options, how it impacts the
provision of a spectrum of care for those that need supportive and
palliative care before becoming hospice eligible and after, and whether
rates of live discharge are a reflection of the current structure of
Medicare FFS. We are also seeking comment on any care coordination
differences for hospice patients that received Medicare through
traditional FFS prior to hospice election, were enrolled in an MA plan
prior to hospice election, or received care from providers that
participate in an Accountable Care Organization (ACO) prior to hospice
election. Finally, we are soliciting public comments on the pros and
cons of including hospice services as the part of the benefits provided
in value-based or capitated payment arrangements given that some
hospices likely have experience with ACOs and experience with Medicaid
managed care when providing hospice care through the Medicaid program,
as well as experience in providing hospice care to patients enrolled in
``commercial coverage'' (non-Medicare/Medicaid managed care plans). We
believe the information gathered under this RFI will help to inform:
(1) Future CMS payment models; (2) the role hospice with respect to
ACOs; and (3) our general understanding of the traditional FFS hospice
environment in relation to the increasing penetration of managed care
through the MA program.
E. Updates to the Hospice Quality Reporting Program (HQRP)
1. Background and Statutory Authority
The Hospice Quality Reporting Program includes meeting the
reporting requirements for both the Hospice Item Set (HIS) and Consumer
Assessment of Healthcare Providers and Systems (CAHPS[supreg]) Hospice
Survey. Section 3004(c) of the Affordable Care Act amended section
1814(i)(5) of 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 for that FY.
Depending on the amount
[[Page 17599]]
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 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 year
involved. Any such reduction would not be cumulative nor 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.
2. Update to Quality Measure Development for Future Years
As stated in the FY 2019 Hospice Wage Index and Payment Rate Update
and Hospice Quality Reporting Requirements (83 FR 38622), we launched
the Meaningful Measures initiative (which identifies high priority
areas for quality measurement and improvement) to improve outcomes for
patients, their families, and providers while also reducing burden on
clinicians and providers. Meaningful Measures initiative is not
intended to replace any existing programs, but will help programs
identify and select individual measures. Meaningful Measure Initiative
areas are intended to increase measure alignment across our programs
and other public and private initiatives. Additionally, it will point
to high priority areas where there may be gaps in available quality
measures while helping guide our efforts to develop and implement
quality measures to fill those gaps. More information about the
Meaningful Measures initiative can be found at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/MMF/General-info-Sub-Page.html.
The Meaningful Measures initiative fits well with the HQRP since it
has changed little since we began with FY 2014 Hospice Wage Index and
Payment Rate Update final rule, (76 FR 26806). The Meaningful Measures
initiative enables us to review HQRP to close the gaps in quality
measures to reflect the hospice industry as it has progressed to meet
hospice care, including symptom management for its patients regardless
of where hospice care is provided.
In the FY 2014 Hospice Wage Index and Payment Rate Update final
rule (78 FR 48257), and in compliance with section 1814(i)(5)(C) of the
Act, we finalized the specific collection of data items that support
the following 7 National Quality Forum (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).
We finalized the following two additional measures in the FY 2017
Hospice Wage Index and Payment Rate Update final rule, effective April
1, 2017. Data collected will, if not reported, affect payments for FY
2019 and subsequent years. (81 FR 52163 through 52173):
Hospice Visits when Death is Imminent,
Hospice and Palliative Care
Composite Process Measure--Comprehensive Assessment at Admission.
The Hospice and Palliative Care Composite Process Measure--
Comprehensive Assessment at Admission measure (hereafter referred to as
``the Hospice Comprehensive Assessment Measure'') underwent an off-
cycle review by the NQF Palliative and End-of-Life Standing Committee
and successfully received NQF endorsement in July 2017.
Data for the ``Hospice Visits when Death is Imminent'' measure pair
is being collected using new items added to the HIS V2.00.0, effective
April 1, 2017.
Our goal is to identify measures that provide a window into hospice
care throughout the dying process, fit well with the hospice business
model, and meet the objectives of the Meaningful Measures initiative.
Quality measures should provide timely, understandable, comprehensive,
clinically valid, and meaningful feedback to hospice leadership, all of
its staff, and their different teams regardless of the hospice setting
where care is provided. We seek public input on measure concepts and/or
actual quality measures along with public comment on the discussions
presented below.
a. Claims-Based and Outcome Quality Measure Development for Future
Years
As part of Meaningful Measures initiative, we seek to develop
claims-based and outcome measures as part of the future for the HQRP.
While we acknowledge that there are limitations of using claims data as
a source for measure development, there are several advantages to using
claims data as part of a robust hospice quality reporting program.
Claims-based measures place minimal burden on providers as they do not
require additional data collection and data submission. Furthermore, in
contrast to self-reported data that are dependent on hospice, patient,
or caregiver participation, claims data has the benefit of following a
relatively consistent format and of using a standard set of pre-
established codes that describe specific diagnoses, procedures, and
drugs. Additionally, nearly every encounter that a patient has with the
healthcare system leads to the generation of a claim, creating an
abundant and standardized source of patient information. This makes
claims data widely available, relatively inexpensive, and amenable to
analysis because they are readily available in an electronic format.
Medicare is the largest payer of hospice services and Medicare-
certified providers predominate in hospice so it makes good sense to
use claims data to reflect hospice care. Further, other settings, such
as the Inpatient Quality Reporting Program (QRP) and the post-acute
care (PAC) QRPs, have adopted claims-based measures, and the NQF has
endorsed claims-based measures and believes they can capture quality
even when not directly assessing clinical care. Although claims data
have some limitations, such as incomplete reflection of care processes
and patient outcomes, they will continue to be a valuable and important
source of data for quality reporting for a selected set of metrics and
as part of a hospice quality reporting program that includes other
measures, such as HIS and CAHPS[supreg] Hospice Survey.
While not mutually exclusive of claims-based measures, we also seek
to develop outcome measures as part of the Meaningful Measures
initiative. Outcome measures could help with improving pain and symptom
management, which is core to hospice care. They could also help
identify the value of different staff providing care at different times
in hospice. For these reasons, we plan to explore the development of
other claims-based and outcome measures for the HQRP to work toward the
high priority areas of reducing regulatory burden and identifying gaps
in care. In identifying high priority areas for future measure
enhancement and development, CMS takes into consideration input from
all stakeholders including; Measures Application Partnership (MAP); the
Office of the Inspector General (OIG); the Medicare Payment Advisory
Commission (MedPAC); Technical
[[Page 17600]]
Expert Panels (TEP); issues raised through the Beneficiary and Family-
Centered Care Quality Improvement Organization; and national
priorities, such as those established by the National Priorities
Partnership, the HHS Strategic Plan, the National Strategy for Quality
Improvement in Healthcare, the CMS Quality Strategy, the Meaningful
Measures initiative and the general public, such as through rulemaking.
In addition, CMS considers feedback and input from published research
and reports. We are not proposing any claims-based or outcome measures
at this time. However, we are soliciting public comments and
suggestions related to ideas for future claims-based and outcome
measure concepts and quality measures in the HQRP that could also be
tied to the goals of the Meaningful Measures initiative.
b. Update on Claims-Based Measure Development
The FY 2018 Hospice Wage Index and Payment Rate Update and Hospice
Quality Reporting Requirements, (82 FR 36638), noted that, based on
input from stakeholders, CMS has identified two ``high priority'' areas
that will be addressed by claims-based measure development: Potentially
avoidable hospice care transitions and access to levels of hospice
care. The potentially avoidable hospice care transitions concept was
developed as a measure under consideration called Transitions from
Hospice Care, Followed by Death or Acute Care. The goal of this measure
is to identify hospices that have notably higher rates of live
discharges followed shortly by death or acute care utilization, when
compared to their peers. Details about this measure can be found in the
FY 2017 Hospice Wage Index and Payment Rate Update and the NQF website,
http://www.qualityforum.org/map/, where it went on the measures under
consideration (MUC) list in July 2018 and was reviewed by the MAP in
December 2018. At this time, we are revisiting the potentially
avoidable hospice care transitions. While MAP did not support the
measure as specified, MAP recognized the impact that care transitions
at the end of life can have on patients and suggested a number of ways
MAP's concerns with the measure could be mitigated. Areas that the MAP
recommended included reconsidering the exclusion criteria for the
measure. Specifically, the exclusion for Medicare Advantage patients
should be reviewed as this may be excluding too many patients.
Additionally, the MAP suggested adding an exclusion to allow for
patient choice, as there are a number of reasons a patient may choose
to transition from hospice. For example, a patient may choose to pursue
additional curative treatment, have cultural beliefs that influence the
definition of a good death, have limited access to primary care, or may
need to revoke the hospice benefit to avoid a financial penalty for
seeking more acute care. MAP also noted that the measure may provide
more useful information if it separates out the concepts addressed in
the measure, as the measure may be trying to address different concepts
by including both death within 30 days and admission to an acute care
use within 7 days. The MAP also requested to consider shortening the
timeframe for the measure, MAP 2019 Considerations for Implementing
Measures in Federal Programs: Post-Acute Care and Long-Term Care, Final
Report February 15, 2019, https://www.qualityforum.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=89400.
The access to levels of hospice care measure concept is also
detailed in the FY 2018 Hospice Wage Index and Payment Rate Update.
After further analyses, it was determined that this measure concept as
currently specified could result in hospices providing higher levels of
care when it is not required by the plan of care or expected by CMS. We
remain committed to developing claims-based measures that meet high
priority areas and are rethinking both measures based on feedback from
the MAP and our analyses. We are seeking public comment on ways to
further develop these two measure concepts and different measure
concepts that fall under these high priority areas.
c. Update on the Hospice Assessment Tool
We discussed the plan to develop a hospice assessment tool in the
FY 2018 Hospice Wage Index and Payment Rate Update and Hospice Quality
Reporting Requirements, (82 FR 36638). A technical expert panel on
development of such an assessment tool was held in October 2017
followed by a pilot study that began with training 9 hospice sites in
December 2017. We are sincerely thankful for and appreciative of the 9
Medicare hospices that participated in the pilot study. We learned much
from them during the pilot study and afterwards in lessons learned
interviews. Information from that pilot study, referred to as Pilot A,
can be found on the HQRP website at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/HEART.html. We also discussed Pilot A findings, lessons
learned, and goals of a hospice assessment tool at the September 2018
special open door forum (SODF). The transcript for that SODF can be
found at, https://www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/PodcastAndTranscripts.html. Key concepts in developing a
hospice assessment tool include understanding the care needs of people
through the dying process and ensuring the safety and comfort of
individuals enrolled in hospice institutions nationwide. Currently we
collect data at admission and discharge via HIS that are used to
calculate measures in the HQRP. We would like to replace HIS and
capture data with a hospice assessment instrument in order to bridge
the gap to achieve a fuller understanding of patient care needs. While
it must be recognized that hospice care differs from other PAC
settings, there is a need to create a comprehensive assessment
instrument for hospice care to align with other PAC settings, where
feasible and practical. As such, objectives of a comprehensive
assessment instrument must include the ability to establish goals of
care that embrace the individual's values and preferences, and are
consistent with a person-centered approach that values the person and
caregiver in the care continuum with an emphasis on physical,
psychosocial, spiritual, and emotional support. We continue our
commitment to engaging stakeholders at regular SODF meetings and/or
other means like the HQRP website, open door forums (ODF), webinars,
and other sub-regulatory means.
One of the requests raised at the September 2018 SODF was to change
the name of the hospice assessment tool from Hospice Evaluation
Assessment Reporting Tool (HEART) to a name that is not as easily
confused with other HQRP related tools like the Hospice Abstraction
Reporting Tool (HART). We agree with this feedback since people refer
to both by their same sounding acronyms and seek public comment on the
name for the hospice assessment tool.
We will keep providers informed about future measure and assessment
tool development efforts and solicit key stakeholder input through
regular sub-regulatory channels. Additionally, future measure concepts
under development, including details regarding measure definitions,
data sources, data collection approaches, and timeline for
implementation will be communicated in future rulemaking.
[[Page 17601]]
3. Form, Manner, and Timing of Quality Data Submission
a. Background
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. Section 1814(i)(5)(A)(i) of the Act
requires that beginning with the FY 2014 and for 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 for that FY.
b. Update on the CMS System for Reporting Quality Measures and
Standardized Patient Assessment Data and Associated Procedural
Proposals
Hospices are currently required to submit HIS data to CMS using the
Quality Improvement and Evaluation System (QIES) Assessment and the
Submission Processing (ASAP) system. We will be migrating to a new
internet Quality Improvement and Evaluation System (iQIES) as soon as
FY 2020 that will enable us to make real-time upgrades, and we are
designating that system as the data submission system for the Hospice
QRP. Effective October 1, 2019, we are proposing to notify the public
of any changes to the CMS-designated system in the future using sub-
regulatory mechanisms such as web page postings, listserv messaging,
and webinars. We are inviting public comment on this proposal.
4. CAHPS[supreg] Hospice Survey Participation Requirements for the FY
2023 APU and Subsequent Years
a. Background and Description of the CAHPS[supreg] Hospice Survey
The CAHPS[supreg] Hospice Survey is a component of the CMS HQRP
which is used to collect data on the experiences of hospice patients
and the primary caregivers listed in their hospice records. Readers who
want more information about the development of the survey, originally
called the Hospice Experience of Care Survey, may refer to 79 FR 50452
and 78 FR 48261. National implementation of the CAHPS[supreg] Hospice
Survey commenced January 1, 2015 as stated in the FY 2015 Hospice Wage
Index and Payment Rate Update final rule (79 FR 50452).
b. Overview of the CAHPS[supreg] Hospice Survey Measures
The CAHPS[supreg] Hospice Survey measures received NQF endorsement
on October 26th, 2016 (NQF #2651). We adopted these 8 survey based
measures for the CY 2018 data collection period and for subsequent
years. These 8 measures are reported on Hospice Compare.
c. Data Sources
We previously finalized the participation requirements for the FY
2020, FY 2021, and FY 2022 APUs (see 82 FR 36673). We propose to extend
the same participation requirements for the HQRP for FY 2023 and all
future years. As part of the Patients Over Paperwork initiative, we
solicit comments about the CAHPS Hospice Survey questionnaire. We seek
comments regarding suggested changes, additions or deletions to the
instrument that would improve its value to hospices for quality
improvement and consumers for selecting a hospice.
d. Public Reporting of CAHPS[supreg] Hospice Survey Results
We began public reporting of the results of the CAHPS[supreg]
Hospice Survey on Hospice Compare as of February 2018. We report the
most recent 8 quarters of data on the basis of a rolling average, with
the most recent quarter of data being added and the oldest quarter of
data removed from the averages for each data refresh. We refresh the
data 4 times a year in the months of February, May, August, and
November.
e. Volume-Based Exemption for CAHPS[supreg] Hospice Survey Data
Collection and Reporting Requirements
We previously finalized a volume-based exemption for CAHPS[supreg]
Hospice Survey Data Collection and Reporting requirements in the FY
2017 Hospice Wage Index and Payment Rate Update final rule (82 FR
36671). We propose to continue our policy for a volume-based exemption
for CAHPS[supreg] Hospice Survey Data Collection for FY 2021 and every
year thereafter. For example, for the FY 2021 APU, hospices that have
fewer than 50 survey eligible decedents/caregivers in the period from
January 1, 2018 through December 31, 2018 (reference year) are eligible
to apply for an exemption from CAHPS[supreg] Hospice Survey data
collection and reporting requirements (corresponds to the CY 2019 data
collection period). To qualify, hospices must submit an exemption
request form for the FY 2021 APU. The exemption request form is
available on the official CAHPS[supreg] Hospice Survey website: http://www.hospiceCAHPSsurvey.org. Hospices that intend to claim the size
exemption are required to submit to CMS their completed exemption
request form covering their total unique patient count for the
reference year (for the CY 2019 data collection period the reference
year is January 1, 2018 through December 31, 2018). The due date for
submitting the exemption request form for the FY 2021 APU is December
31, 2019. Exemptions for size are active for 1 year only. If a hospice
continues to meet the eligibility requirements for this exemption in
future FY APU periods, the organization needs to request the exemption
annually for every applicable FY APU period by the final day of the
calendar year. Subsequent periods will follow the same pattern of using
the year before the data collection year as the reference year for
determining eligibility.
Starting with FY 2022 we propose to provide an automatic exemption
to any hospice that (1) is an active agency and (2) according to CMS
data sources has served less than a total of 50 unique decedents/
caregivers in the reference year. The automatic exemption is good for 1
year and will be reassessed in subsequent years. Hospices with fewer
than 50 unique decedents/caregivers in the reference year would not be
required to submit an exemption request form.
Hospices that have a total patient count of more than 50 unique
decedents/caregivers in the reference year, but who have a total of
fewer than 50 survey-eligible decedents/caregivers will not be granted
an automatic exemption. For example, hospices may have more than 50
unique decedents/caregivers, but have some decedents/caregivers who are
not eligible to be sampled for the CAHPS Hospice Survey, which would
therefore lead to fewer than 50 survey-eligible decedents/caregivers.
Such hospices may qualify for a size exemption. To do so, they must
apply for a size exemption by submitting the size exemption request
form as outlined above. This exemption is valid for 1 year only. If the
hospice remains eligible for the size exemption, it must request the
exemption annually for every applicable FY APU period. We solicit
feedback on these proposals.
[[Page 17602]]
Table 16--Size Exemption Key Dates 2021 Through FY 2025
----------------------------------------------------------------------------------------------------------------
Data
Fiscal year collection Reference year Size exemption form submission deadline
year
----------------------------------------------------------------------------------------------------------------
FY 2021............................... 2019 2018 December 31, 2019.
FY 2022............................... 2020 2019 December 31, 2020.
FY 2023............................... 2021 2020 December 31, 2021.
FY 2024............................... 2022 2021 December 31, 2022.
FY 2025............................... 2023 2022 December 31, 2023.
----------------------------------------------------------------------------------------------------------------
f. Newness Exemption for CAHPS[supreg] Hospice Survey Data Collection
and Reporting Requirements
We previously finalized a one-time newness exemption for hospices
that meet the criteria as stated in the FY 2017 Hospice Wage Index and
Payment Rate Update final rule (81 FR 52181). In the FY 2019 Hospice
Wage Index and Payment Rate Update final rule (83 FR 38642), we
continued the newness exemption for FY 2023, FY 2024, FY 2025, and all
future years. We encourage hospices to keep the letter they receive
providing them with their CCN. The letter can be used to show when you
received your number.
g. Survey Participation Requirements
We previously finalized survey participation requirements for FY
2022 through FY 2025 as stated in the FY 2018 and FY 2019 Hospice Wage
Index and Payment Rate Update final rules (82 FR 36670 and 83 FR 38642
through 38643). We propose to continue those requirements in all
subsequent years. Below we reprint the Hospice Survey data submission
dates finalized in the FY 2019 Hospice Wage Index and Payment Rate
Update final rule (83 FR 38643).
------------------------------------------------------------------------
CAHPS[supreg] quarterly data
Sample months (month of death) \1\ submission deadlines \2\
------------------------------------------------------------------------
FY 2023 APU
------------------------------------------------------------------------
CY January-March 2021 (Quarter 1). August 11, 2021.
CY April-June 2021 (Quarter 2).... November 10, 2021.
CY July-September 2021 (Quarter 3) February 9, 2022.
CY October-December 2021 (Quarter May 11, 2022.
4).
------------------------------------------------------------------------
FY 2024 APU
------------------------------------------------------------------------
CY January-March 2022 (Quarter 1). August 10, 2022.
CY April-June 2022 (Quarter 2).... November 9, 2022.
CY July-September 2022 (Quarter 3) February 8, 2023.
CY October-December 2022 (Quarter May 10, 2023.
4).
------------------------------------------------------------------------
FY 2025 APU
------------------------------------------------------------------------
CY January-March 2023 (Quarter 1). August 9, 2023.
CY April-June 2023 (Quarter 2).... November 8, 2023.
CY July-September 2023 (Quarter 3) February 14, 2024.
CY October-December 2023 (Quarter May 80, 2024.
4).
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\1\ Data collection for each sample month initiates 2 months following
the month of patient death (for example, in April for deaths occurring
in January).
\2\ Data submission deadlines are the second Wednesday of the submission
months, which are the months August, November, February, and May.
For further information about the CAHPS[supreg] Hospice Survey, we
encourage hospices and other entities to visit: https://www.hospiceCAHPSsurvey.org. For direct questions, contact the
CAHPS[supreg] Hospice Survey Team at [email protected] or
telephone 1-844-472-4621.
5. Public Display of Quality Measures and Other Hospice Data for the
HQRP
a. Background
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. These procedures shall ensure that a
hospice has the opportunity to review the data that is to be made
public prior to such data being made public; the data will be available
on our public website.
To meet the Act's requirement for making quality measure data
public, we launched the Hospice Compare website in August 2017. This
website allows consumers, providers, and other stakeholders to search
for all Medicare-certified hospice providers and view their information
and quality measure scores. Since its release, the CMS Hospice Compare
website has reported 7 HIS Measures (NQF #1641, NQF #1647, NQF #1634,
NQF #1637, NQF #1639, NQF #1638, and NQF #1617). In February 2018,
CAHPS[supreg] Hospice Survey measures (NQF #2651) were added to the
website, and in November 2018, the Hospice and Palliative Care
Composite Process Measure--Comprehensive Assessment at Admission (NQF
#3235) was added to the website.
b. Update to Quality Measures To Be Displayed on Hospice Compare in FY
2019
1. Background and Description of ``Hospice Visits When Death Is
Imminent'' Measure Pair
In the FY 2017 Hospice Wage Index and Payment Rate Update (81 FR
52163 to 52169, August 6, 2016), we finalized the ``Hospice Visits when
Death is Imminent'' measure pair for
[[Page 17603]]
implementation April 1, 2017. This measure pair assesses whether the
needs of hospice patients and their caregivers were addressed by the
hospice staff during the last days of life. The ``Hospice Visits when
Death is Imminent'' measure pair is made up of two measures, Measure 1
and Measure 2. Measure 1 of the pair assesses the percentage of
patients receiving at least 1 visit from a registered nurse, physician,
nurse practitioner, or physician assistant in the last 3 days of life.
Measure 2 assesses the percentage of patients receiving at least 2
visits from social workers, chaplains or spiritual counselors, licensed
practical nurses, or aides in the last 7 days of life.
2. Update to Public Reporting of the ``Hospice Visits When Death Is
Imminent'' Measure Pair
As stated in the FY 2019 Hospice Wage Index and Payment Rate Update
and Hospice Quality Reporting Requirements (83 FR 38643 to 38645,
August 6, 2018), quality measures are added to Hospice Compare once
they meet the readiness standards for public reporting, which is
determined through rigorous testing for reliability, validity, and
reportability. Since the proposal of the ``Hospice Visits when Death is
Imminent'' measure pair, CMS has conducted further measure testing
activities according to National Quality Forum (NQF) guidelines and the
Blueprint for the CMS Measures Management System Version 14.0 available
at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/MMS/Downloads/BlueprintVer14.pdf. This testing is conducted
to ensure that measures demonstrate scientific acceptability (including
reliability and validity) and meet the goals of the HQRP, which include
distinguishing performance among hospices and contributing to better
patient outcomes.
As we assessed the scientific acceptability of ``Hospice Visits
when Death is Imminent'' measure pair, we determined that Measure 1
meets established standards for reliability, validity, and
reportability. Therefore, the measure will be publicly reported in FY
2019 as stated in the FY 2019 Hospice Wage Index and Payment Rate
Update and Hospice Quality Reporting Requirements (83 FR 38645 to
38648). Our testing of Measure 2 of the ``Hospice Visits when Death is
Imminent'' measure pair (referred to as Measure 2) revealed that the
measure does not meet readiness standards for public reporting at this
time and additional testing is needed before we are able to make a
decision on the public reporting of Measure 2. Therefore, we have
decided not to publish Measure 2 of the ``Hospice Visits when Death is
Imminent'' measure pair at this time. See our discussion on our
website: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-Background-and-Announcements.html for more information.
Although Measure 2 will not be publicly reported at this time, we
believe that Measure 2 focuses on an important aspect of quality care
for imminently dying patients. Therefore, we will include quality
performance data on the measure in each hospice's confidential Quality
Measure Reports and the Review and Correct Report available on the
Certification and Survey Provider Enhanced Reporting (CASPER) system.
Hospices will also still receive credit for reporting on Measure 2 as
part of the HQRP requirements. Furthermore, Measure 2 aligns with our
Meaningful Measures initiative and its quality priorities, particularly
``Strengthen Person and Family Engagement as Partners in Their Care--
End of Life Care according to Preferences.'' While Measure 1 of the
``Hospice Visits when Death is Imminent'' measure pair (referred to as
Measure 1) addresses case management and clinical care, Measure 2,
which includes visits from social workers, chaplains or spiritual
counselors, licensed practical nurses, and aides, recognizes providers'
flexibility to provide individualized care from a variety of
disciplines that is in line with the patient, family, and caregiver's
preferences and goals for care and contributes to the overall well-
being of the individual and others important to them at the end of
life. As such, we believe that Measure 2 addresses a high-priority
measure area where there is significant opportunity for improvement, as
well as is meaningful to patients, clinicians, and providers alike.
We will conduct additional testing on Measure 2 to determine if and
how the measure specifications may be modified or re-specified, and/or
if the method for displaying the measure may be adjusted, so that this
measure meets the highest standards of scientific acceptability and
reportability. Additional testing will also ensure that Measure 2 is
thoroughly evaluated to determine that it meets the criteria for
display on Hospice Compare.
The results of the additional testing will inform the next steps
regarding the public reporting of Measure 2 of ``Hospice Visits when
Death is Imminent'' measure pair. As stated in the FY 2019 Hospice Wage
Index and Payment Rate Update and Hospice Quality Reporting
Requirements (83 FR 38643), we will inform providers of updates to
testing and public reporting of quality measures, including Measure 2
of the ``Hospice Visits when Death is Imminent'' measure pair, through
sub-regulatory channels and regular HQRP communication strategies, such
as Open Door Forums, Medicare Learning Network, CMS.gov website
announcements, listserv messaging, and other opportunities.
While we have decided not to publicly report Measure 2 of the
``Hospice Visits when Death is Imminent'' measure pair on the Provider
Preview Reports and Hospice Compare at this time, the measure will
remain on provider's CASPER Quality Measure (QM) Reports. CASPER QM
Reports are intended for providers' internal use and are meant to aid
hospices in quality improvement efforts. Although the measure will not
be publicly reported at this time, we believe that it is important for
providers to internally review and be informed by these data, to ensure
that they are providing their patients and caregivers the
individualized support they need in the patients' last days of life.
Our decision not to publicly report Measure 2 of the ``Hospice Visits
when Death is Imminent'' measure pair at this time is distinct from our
interest in continuing collecting these data. Specifically, these data
are needed to determine whether a measure meets all the criteria for
public reporting. Continued data collection will enable us to test and
modify or re-specify a measure so that these criteria are satisfied. We
seek to balance these data collection effort with the section
1814(i)(5)(E) of the Act, which states, ``The Secretary shall report
quality measures that relate to hospice care provided by hospice
programs on the internet website of the Centers for Medicare & Medicaid
Services.'' We believe that information required for the robust
analyses to further develop this measure, modify or re-specify it to
allow for public reporting justifies continuing data collection.
The data collection and submission requirements for the ``Hospice
Visits When Death is Imminent'' measure pair will not change in order
to collect the data for measure 1, which will be publicly reported
beginning with FY 2019. Measure 2, which will not be publicly reported
at this time, needs to be further evaluated for modification or re-
specification. Measure 2 of ``Hospice Visits when Death is Imminent''
measure pair is calculated using items
[[Page 17604]]
O5010, O5020 and O5030 from the HIS V2.00.0. These items collect data
on hospice visits in the final 3 days of life, level of care in the
final 7 days of life, and hospice visits in the three to six days prior
to death. Because the measure is not being removed from the HQRP,
providers should continue to complete these items accurately and
completely and submit HIS records to us in a timely manner. We require
data from Section O to calculate Hospice Visits when Death is Imminent
Measure 1, which will be publicly reported on Hospice Compare beginning
in FY 2019. Therefore, we propose continued collection of this data to
complete additional testing and to make a determination about the
public reporting of Measure 2 of the ``Hospice Visits when Death is
Imminent'' measure pair. We expect to complete our analysis by the end
of FY 2020, and determine next steps for public reporting based on
meeting established standards for reliability, validity, and
reportability.
We are cognizant and respectful of the time and effort that
hospices take to complete the HIS V2.00.0 items used to calculate and
test Measure 2. We will continually evaluate the volume and robustness
of the resulting data to determine when data collection is no longer
required.
c. Display of Publicly Available Government Data on the Hospice Compare
Website
1. Update to Posting of Public Use File (PUF) Data to the Hospice
Compare Website
In the FY 2019 Hospice Wage Index and Payment Rate Update and
Hospice Quality Reporting Requirements (83 FR 38649), we finalized
plans to publicly post information from the Medicare Provider
Utilization and Payment Data: Physician and Other Supplier Public Use
File (PUF) and/or other publicly available CMS data to the Hospice
Compare website. This PUF data, along with clear text explaining the
purpose and uses of this information and suggesting consumers discuss
this information with their healthcare provider, will be displayed
under a new ``General information'' section on Hospice Compare in
summer 2019. This new section will precede the existing ``Family
Experience of Care'' section on the Hospice Compare website. Tables 17
through 19 show how these data will displayed on Hospice Compare.
BILLING CODE 4120-01-P
[[Page 17605]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.010
[[Page 17606]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.011
2. Proposal to Post Information From Government Data Sources to the
Hospice Compare Website
As part of our ongoing efforts to make the Hospice Compare website
more meaningful and informative to our beneficiaries, their caregivers,
and families, we propose to post information from other publicly
available government data, in addition to the data from the PUF or
other CMS sources, to the Hospice Compare website at some time in the
future. We are proposing to be able to use informative data from other
government sources on Hospice Compare in the future and as soon as FY
2020. Examples, provided for illustration, from where CMS could pull
publicly available government data include the United States Census
Bureau, Centers for Disease Control and Prevention, and National
Institutes of Health.
We may use information available in these public government files
to augment the ``General Information'' section described above. This
``General Information'' section including PUF data and, if this
proposal is finalized, information from other public government data
will provide additional information along with the HIS and
CAHPS[supreg] quality measures that are already displayed.
Any future reporting of public government data on the Hospice
Compare website will be displayed in a consumer-friendly format. This
means we may display the data as shown in these publicly available
government files or present the data after additional calculations. For
example, the data could be averaged over multiple years, displayed as a
percentage rather than the raw number, or other calculations could be
based on a given year or over multiple years, so the data has meaning
to end-users. Furthermore, by performing these calculations, we can
make the data apply to hospices broadly regardless of size, location,
or other factors.
Also, we would like to note that data used from these publicly
available sources are not quality measures. Rather, they present
supplementary information that many consumers seek during the provider
selection process and, therefore, will help them to make an informed
decision. This is similar to other useful information we already
display on Hospice Compare under the Spotlight, Tools and Tips, and
Additional Information sections on the Hospice Compare homepage. Data
from publicly available data sources can serve as one more piece of
information, along with quality of care metrics from the HIS and
CAHPS[supreg] Hospice Survey and other useful information, to help
consumers effectively and efficiently compare hospice providers and
make an informed decision about their care in a stressful time. We also
believe such information may be useful to providers. For example,
adding information from the United States Census Bureau may help
consumers better understand the service area in which they are looking
for services (for example, if there is a large population of people
from a similar race/ethnicity in the area). This information may also
help providers better understand their service area to see if there are
any business development opportunities (for example, if there is a
large population of a similar race/ethnicity, the provider may consider
investing resources in better serving patients from this background).
To ensure that end-users understand that these data provide
information about hospice characteristics and are not a reflection of
the quality of care a hospice provides, we will, with consultation from
key stakeholders, carefully craft explanatory language to ensure that
consumers understand the information and how the data are meant for
informational purposes only.
As we determine which publicly available government data sources we
will use and how we will be using and presenting information from these
sources, we will inform the public and engage with stakeholders via
sub-regulatory processes, including regular HQRP communication
strategies such as Open Door Forums, Medicare Learning Network,
Spotlight Announcements, and other opportunities.
We are soliciting public comment on our proposal to post
information from publicly available government sources to the Hospice
Compare website in the future.
IV. 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.
Section 1814(i)(5)(C) of the Act requires that each hospice submit
data to the Secretary on quality measures specified by the Secretary.
This data must be submitted in a form and manner, and at a time
specified by the Secretary.
We are soliciting public comment on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs):
A. Election Statement Addendum: ``Patient Notification of Hospice Non-
Covered Items, Services, and Drugs''
To calculate this burden estimate, we use salary information from
the Bureau of Labor Statistics (BLS) website at https://www.bls.gov/
and include a fringe benefits package worth 100 percent of the base
salary. The mean hourly wage rates are based on May, 2017 BLS data for
each discipline. Table 20 contains our burden estimate assumptions for
the proposed Election Statement Addendum: ``Patient Notification of
Hospice Non-Covered
[[Page 17607]]
Items, Services, and Drugs'' discussed in section III.C. of this
proposed rule.
Table 20--Election Statement Addendum: ``Patient Notification of Hospice
Non-Covered Items, Services, and Drugs'' Burden Estimate Assumptions
------------------------------------------------------------------------
------------------------------------------------------------------------
Number of Medicare-billing hospices, from FY 4,465.
2017 Medicare Enrollment Database, Provider of
Service files.
Number of hospice elections in FY 2017.......... (1,268,497 x 0.84) =
1,065,537.
Hourly rate of an office employee (Executive $57.12 ($28.56 x
Secretaries and Executive Administrative 2.00).
Assistants, 43-6011).
Hourly rate of an administrator (General and $118.70 ($59.35 x
Operations Managers, 11-1021). 2.00).
Hourly rate of registered nurses (Registered $70.72 ($35.36 x
Nurses, 29-1141). 2.00).
Hourly rate of pharmacy technicians (Pharmacy $31.80 ($15.90 x
Technicians, 29-2052). 2.00).
------------------------------------------------------------------------
Source: FY 2017 hospice claims data. 16 percent of beneficiaries die
within the first 48 hours. Hospices are exempt for completing addendum
if beneficiary dies within first 48 hours.
Section 1814(a)(7) of the Act requires for the first 90-day period
of a hospice election the individual's attending physician (as defined
in section 1861(dd)(3)(B) of the Act) (which for purposes of this
subparagraph does not include a nurse practitioner), and the medical
director (or physician member of the interdisciplinary group described
in section 1861(dd)(2)(B) of the Act) of the hospice program providing
(or arranging for) the care, each certify in writing, at the beginning
of the period, that the individual is terminally ill (as defined in
section 1861(dd)(3)(A) of the Act). The regulations codified at
Sec. Sec. 418.22 and 418.25 provide the requirements regarding the
certification of terminal illness and admission to hospice care. The
hospice medical director 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. Additionally, 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. 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. The aforementioned regulations also
require that the hospice medical director must consider both related
and unrelated conditions and current clinically relevant information
when making the decision to certify the individual as terminally ill.
Likewise, the hospice CoPs at Sec. 418.102(b) provide the requirements
regarding the certification responsibility of the hospice medical
director or hospice physician designee which includes a review of the
clinical information, including both related and unrelated conditions,
for each hospice patient.
In order to receive hospice services under the Medicare hospice
benefit, eligible beneficiaries must elect to receive hospice care by
completing an election statement. By signing this election statement,
the individual acknowledges that he/she waives all rights to Medicare
payments for treatment related to the terminal illness and related
conditions. The content requirements for the hospice election statement
are listed at Sec. 418.24(b) and each hospice election statement must
include the following information:
Identification of the particular hospice and of the
attending physician that will provide care to the individual. The
individual or representative must acknowledge that the identified
attending physician was his or her choice.
The individual's or representative's acknowledgement that
he or she has been given a full understanding of the palliative rather
than curative nature of hospice care, as it relates to the individual's
terminal illness.
Acknowledgement that certain Medicare services, as set
forth in Sec. 418.24(d), are waived by the election.
The effective date of the election, which may be the first
day of hospice care or a later date, but may be no earlier than the
date of the election statement.
The signature of the individual or representative.
Once a beneficiary is certified as terminally ill and elects the
Medicare hospice benefit, the hospice conducts an initial assessment
visit in advance of furnishing care. During this visit, the hospice
must provide the patient or representative with verbal and written
notice of the patient's rights and responsibilities as required by the
CoPs at Sec. 418.52. Likewise, the regulations at Sec. 476.78 state
that providers must inform Medicare beneficiaries at the time of
admission, in writing, that the care for which Medicare payment is
sought will be subject to Quality Improvement Organization (QIO)
review.
The beneficiary needs identified in the initial and comprehensive
assessments drive the development and revisions of an individualized
written plan of care for each patient as required by the hospice CoPs
at Sec. 418.56. The hospice plan of care is established, reviewed and
updated by the hospice IDG and must include all services necessary for
the palliation and management of the terminal illness and related
conditions. While needs unrelated to the terminal illness and related
conditions are not the responsibility of the hospice, the hospice may
choose to furnish services for those needs regardless of
responsibility. However, if a hospice does not choose to furnish
services for those needs unrelated to the terminal illness and related
conditions, the hospice is to communicate and coordinate with those
health care providers who are caring for the unrelated needs, as
described in Sec. 418.56(e). In accordance with the CoPs, the hospice
must document the services and treatments that address how they will
meet the patient and family-specific needs related to the terminal
illness and related conditions in the plan of care, and those needs
unrelated to the terminal illness and related conditions that are
present when the patient elects hospice should also be documented. This
documentation ensures that the hospice is aware of those unrelated
needs and who is addressing them. This documentation provides the
support for the hospices' financial responsibility for the hospice
services they will be providing. There is limited beneficiary financial
liability for hospice services upon election of the Medicare hospice
benefit. However, for any services received that are unrelated to the
terminal illness and related conditions, the beneficiary would incur
any associated copayments and coinsurance.
[[Page 17608]]
Hospices already are required to review, determine, and document
information on unrelated conditions per the hospice regulations and
CoPs. However, to ensure Medicare beneficiaries are provided disclosure
of those conditions, items, services, and drugs the hospice has
determined to be unrelated to the terminal illness and related
conditions at the time of admission, we propose to add to the
regulations at Sec. 418.24(b) and (c), the requirement of an election
statement addendum titled ``Patient Notification of Hospice Non-Covered
Items, Services, and Drugs'' that would be issued to the patient (or
representative) within 48 hours of the hospice election date to ensure
that Medicare beneficiaries are fully informed whether or not all
items, services, and drugs identified on the hospice plan of care will
be furnished by the hospice. The addendum statement would not be
required if the beneficiary died within 48 hours of the hospice
election date. This addendum would accompany the hospice election
statement and each hospice would use the required proposed elements to
develop and design their own addendum to best meet their needs and the
requirement. This requirement for payment would be added to the
regulations at Sec. 418.24(b) and (c).
The burden associated with the documentation requirement for the
addendum includes the time for each hospice to develop the addendum
that the hospice provides to the beneficiary (or their representative)
within 48 hours of election of the Medicare hospice benefit. The
addendum must include the name of the issuing hospice, beneficiary's
name, and hospice medical record identifier. The addendum must also
allow the hospice registered nurse to document a list of non-covered
conditions, items, services, and drugs, as well as provide a clinical
explanation as to why these conditions, items, services, and drugs have
been determined to be unrelated to the terminal illness and related
conditions. This documentation would include references to any relevant
clinical practice, policy, or coverage guidelines. The addendum must
include statements informing the patient as to the purpose of the
addendum and information on BFCC-QIO Immediate Advocacy rights and
contact information. The addendum would be signed by the beneficiary as
an acknowledgement that he or she has received this information, but
signing it does not mean the beneficiary agrees with the determination.
We believe that the burden for the hospice associated with the election
statements addendum would be the cost of developing the form and the
cost of filling out the form. There is no associated burden for
hospices to communicate/coordinate with non-hospice providers regarding
the content of the addendum statement because the hospice CoPs, as
described above, have always required hospices to have a system of
communication with non-hospice providers in place. However, we believe
that the election statement addendum would reduce burden for non-
hospice providers through a consistent and streamlined process by which
non-hospice providers can make informed treatment decisions and
accurately submit claims with the appropriate condition code or
modifier.
1. Estimated Hospice Burden With Election Statement Addendum
a. Estimated One-Time Form Development
We estimate a one-time burden for the development of the election
statement addendum. We estimate that it would take a hospice
administrative assistant 15 minutes (15/60 = 0.25 hours) to develop the
addendum with the required elements, and the hospice administrator 15
minutes (15/60 = 0.25 hours) to review the addendum. The clerical time
plus administrator time equals a one-time burden of 30 minutes or (30/
60 = 0.50 hours) per hospice. For all 4,465 hospices, the total time
required would be (0.50 x 4,465) = 2,232.5 hours. At $57.12 per hour
for an executive administrative assistant, the cost per hospice would
be (0.25 x $57.12) = $14.28. At $118.70 per hour for the
administrator's time, the cost per hospice would be (0.25 x $118.70) =
$29.68. Therefore, the one-time cost, per hospice, for the development
of the form would be ($14.28+29.68) = $43.96, and the total one-time
cost for all hospices would be ($43.96 x 4,465) = $196,281.
b. Estimated Time for Hospice To Complete Addendum
Per the hospice CoPs at Sec. 418.56(a), the hospice must designate
a registered nurse that is a member of the interdisciplinary group to
provide coordination of care and to ensure continuous assessment of
each patient's and family's needs and implementation of the
interdisciplinary plan of care. The hospice CoPs at Sec. 418.54
require that a registered nurse conduct the initial assessment,
therefore, the registered nurse would be responsible for completing the
addendum for each hospice election as part of the routine admission
paperwork. We estimate that there would be 1,268,497 hospice elections
in a year based on FY 2017 claims data. Approximately 16 percent of
hospice beneficiaries die within the first 48 hours after the hospice
election date. Hospices would not be required to complete the election
statement addendum for those hospice beneficiaries that die within 48
hours of hospice election. Therefore, the estimated total number of
hospice elections in FY 2020 that would require the hospice election
statement addendum would be (1,268,497 x 0.84) = 1,065,537. There are
4,465 Medicare-certified hospices, so on average there would be
(1,065,537/4,465) = 239 hospice elections per hospice. The estimated
burden for the hospice registered nurse to extrapolate this information
from the existing documentation in the patient's hospice medical record
and complete this addendum would be 10 minutes (10/60 = 0.1667). At
$70.72 per hour for a registered nurse over 10 minutes (0.1667 x $70.72
= $11.79), we estimate the total cost of RN time to complete the
addendum per hospice in FY 2020 to be ($11.79 x 239) = $2,818, and the
total cost of RN time to complete the addendum for all hospices in FY
2020 would be ($2,818 x 4,465) = $12,582,370. The estimated total per
hospice and total annual hospice cost associated with the proposed
addendum (including one-time form development and total RN costs) in FY
2020 are shown in table 21 below. These total costs would include the
one-time development of the addendum, so subsequent years' costs would
only include the cost for the RN to complete the addendum statement.
Providing this information to the beneficiary would be part of the
routine admissions process and, as such, incurs no additional burden to
that process.
[[Page 17609]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.019
2. Estimated Burden Reduction for Non-Hospice Providers
To ensure comprehensive and coordinated care, the CoPs at Sec.
418.56(e) require hospices to have a communication system that allows
for the exchange of information with other non-hospice health care
providers who are furnishing care unrelated to the terminal illness and
related conditions. Therefore, it is our expectation that hospices are
already determining what is related and unrelated to the terminal
illness and related conditions. The election statement addendum would
add no additional burden for communicating with non-hospice providers,
as this decision-making process has been a long-standing CoP
requirement, as described above and in the preamble of this proposed
rule. However, burden would be reduced for non-hospice providers,
including institutional, non-institutional and pharmacy providers
because less time would be spent trying to obtain needed information
for treatment decisions and accurate claims submissions.
To estimate the cost burden reduction, we first calculated the
estimated current burden, in the absence of the addendum, for
communicating and coordinating information regarding unrelated
conditions between hospice and non-hospice providers. Next, we
calculated the estimated burden, using the addendum for communicating
and coordinating information regarding unrelated conditions between
hospice and non-hospice providers. Finally, we analyzed the difference
between the burden estimates to see if there is any overall reduction.
To do this, we analyzed all Medicare Parts A and B non-hospice claims
for beneficiaries under a hospice election in FY 2017. We also examined
the Part D claims for drugs provided to hospice beneficiaries under a
hospice election. Specifically, we analyzed the following:
The total number of non-hospice, institutional claims with
condition code 07 (to indicate the services were unrelated to the
terminal illness and related conditions).
The total number of non-hospice, non-institutional claims
with ``GW'' modifier (to indicate the services were unrelated to the
terminal illness and related conditions).
The total number of Part D claims for beneficiaries under
a hospice election.
The average number of hospice beneficiaries per non-
hospice provider with institutional claims with condition code 07.
The average number of hospice beneficiaries per non-
hospice provider with non-institutional claims with ``GW'' modifier.
The average number of hospice beneficiaries per non-
hospice provider with Part D claims.
To calculate the average number of hospice beneficiaries per non-
hospice provider, we count the number of unique beneficiaries
associated with each non-hospice provider as beneficiaries may receive
services by more than one non-hospice provider. This means that some
beneficiaries are double-counted. However, given this estimate is
calculated based on the number of expected communication encounters
between hospices and non-hospice providers, this is the appropriate
approach. Because we double-counted beneficiaries, we expect that
average to be larger than the ratio of unique beneficiaries to unique
non-hospice providers. Table 22 below summarizes Part A, B and D claims
that overlap with hospice episodes in FY 2017.
Table 22--Summary of Part A, B and D Claims That Overlap With Hospice Episodes, FY 2017
----------------------------------------------------------------------------------------------------------------
Average number of
Number of Number of non- Number of hospice benes per
Non-hospice claim type hospice hospice hospice non-hospice
beneficiaries providers providers provider
----------------------------------------------------------------------------------------------------------------
Part A & B, Non-Hospice Total................ 473,587 94,535 4,341 .................
[[Page 17610]]
Institutional Claims w/07.................... 173,060 19,354 4,117 11.0
Non-Institutional Lines w/GW................. 431,379 75,181 4,321 12.0
Part D....................................... 591,543 60,632 4,416 12.0
----------------------------------------------------------------------------------------------------------------
Source: FY 2017 Parts A, B, and D claims.
3. Burden Estimate Without Election Statement Addendum for Non-Hospice
Providers
In order for non-hospice providers to make treatment decisions
regarding services, items and medications for hospice beneficiaries and
to submit the appropriate modifier or condition code on Medicare
claims, they need supporting information from the hospice regarding
related and unrelated conditions. As such, we first estimate the
current burden associated with this communication and coordination in
the absence of the election statement addendum. We believe this would
require the non-hospice providers to contact the hospice and have a
detailed phone call to obtain and document the information on unrelated
conditions, items, services, and medications. For non-hospice providers
submitting institutional claims (including inpatient acute care
hospitals, SNFs, HHAs, and institutional outpatient providers),
typically nurse case managers provide coordination of care for those
beneficiaries in these settings who are receiving inpatient services or
who are preparing to transition to a post-acute care setting or home.
The estimated burden for the registered nurse to contact the hospice to
obtain the needed information would be 15 minutes (15/60 = 0.25). The
average number of hospice beneficiaries receiving services per
institutional, non-hospice provider is 11 per year, which would mean
each institutional, non-hospice provider would have an average of 11
communication encounters with hospice. The total number of
institutional, non-hospice providers servicing hospice beneficiaries in
FY 2017 was 19,354. At $70.72 per hour for a registered nurse (0.25 x
$70.72) = $17.68, we estimate the total cost per institutional, non-
hospice provider furnishing services to hospice beneficiaries in FY
2020 to be ($17.68 x 11) = $194.48 and the annual total cost for all
institutional, non-hospice providers in FY 2018 would be ($194.48 x
19,354) = $3,763,966.
For non-institutional, non-hospice providers (including
physicians), we also expect that a nurse would contact the hospice to
obtain the needed clinical information on unrelated conditions, items,
services and drugs. The estimated burden for the registered nurse to
contact the hospice to obtain the needed information would be 15
minutes (15/60 = 0.25). The average number of hospice beneficiaries
receiving services per non-institutional, non-hospice provider is 12
per year, which would mean each provider would have an average of 12
communication encounters with a hospice. The total number of non-
institutional, non-hospice providers servicing hospice beneficiaries in
FY 2017 was 75,181. At $70.72 per hour for a registered nurse (0.25 x
$70.72) = $17.68, we estimate the total cost per non-institutional,
non-hospice provider furnishing services to hospice beneficiaries in FY
2020 to be ($17.68 x 12) = $212.16 and the annual total cost for all
non-institutional, non-hospice providers in FY 2018 would be ($212.16 x
75,181) = $15,950,401.
For Part D providers furnishing drugs to hospice beneficiaries, the
estimated burden for the pharmacy technician at the point of service to
contact the hospice to obtain the needed clinical information regarding
the drugs deemed by the hospice as unrelated to the terminal illness
and related conditions would be 15 minutes (15/60 = 0.25). The average
number of hospice beneficiaries receiving services per Part D pharmacy
providing maintenance drugs is 12 per year, which would mean each
pharmacy would have an average of 12 communication encounters with
hospice. The total number of Part D pharmacies providing maintenance
drugs to hospice beneficiaries in FY 2017 was 60,632. At $31.80 per
hour for a pharmacy technician (0.25 x $31.80) = $7.95, we estimate the
total cost per Part D pharmacy providing maintenance drugs to be ($7.95
x 12) = $95.40 and the annual total cost for all Part D pharmacies
providing maintenance drugs to be ($95.40 x 60,632) = $5,784,293. The
estimated total annual burden for all non-hospice providers furnishing
services, items and medications to hospice beneficiaries in FY 2020
without the availability of the hospice election statement addendum
identifying unrelated conditions, items, services and drugs would be
$25,498,660 ($3,763,966 + $15,950,401 + $5,784,293).
4. Burden Reduction Estimate With Election Statement Addendum for Non-
Hospice Providers
However, with the availability of the ``Patient Notification of
Hospice Covered/Non-Covered Items, Services, and Drugs'' election
statement addendum, we believe this estimated burden would be reduced
for non-hospice providers through a streamlining of the communication
and coordination process. For institutional, non-hospice providers
(those who would submit claims for unrelated services with condition
code 07), the estimated burden for the registered nurse to contact the
hospice to obtain the needed information would be reduced to 5 minutes
(5/60 = 0.0833). The average number of hospice beneficiaries receiving
services per institutional non-hospice provider is 11 per year. The
total number of institutional non-hospice providers servicing hospice
beneficiaries in FY 2017 was 19,354. At $70.72 per hour for a
registered nurse (0.0833 x $70.72) = $5.89, we estimate the total cost
per institutional non-hospice provider in FY 2020 to be ($5.89 x 11) =
$64.79 and the annual total cost for all institutional non-hospice
providers in FY 2020 would be ($64.79 x 19,354) = $1,253,945.66 an
annual decrease in burden by ($3,763,966-$1,253,945.66) =
$2,510,020.34.
For non-institutional, non-hospice providers (those who would
submit claims for unrelated services with modifier GW), the estimated
burden for the registered nurse to contact the hospice to obtain the
needed information would be reduced to 5 minutes (5/60 = 0.0833). The
average number of hospice beneficiaries receiving services per non-
institutional, non-hospice provider is 12 per year. The total number of
non-institutional, non-hospice providers servicing hospice
[[Page 17611]]
beneficiaries in FY 2017 was 75,181. At $70.72 per hour for a
registered nurse (0.0833 x $70.72) = $5.89, we estimate the total cost
per non-institutional, non-hospice provider in FY 2020 to be ($5.89 x
12) = $70.68 and the annual total cost for all non-institutional, non-
hospice providers in FY 2020 would be ($70.68 x 75,181) =
$5,313,793.08, an annual decrease in burden by ($15,950,401 -
5,313,793.08) = $10,636,607.92.
For Part D pharmacies providing drugs to hospice beneficiaries, the
estimated burden for the pharmacy technician at the point of service to
contact the hospice to obtain the needed clinical information regarding
the drugs deemed by the hospice as unrelated to the terminal illness
and related conditions would be reduce to 5 minutes (5/60 = 0.0833).
The average number of hospice beneficiaries receiving services per Part
D pharmacy providing maintenance drugs is 12 per year. The total number
of Part D pharmacies providing maintenance drugs to hospice
beneficiaries in FY 2017 was 60,632. At $31.80 per hour for a pharmacy
technicians (0.0833 x $31.80) = $2.65, we estimate the total cost per
Part D pharmacy providing maintenance drugs to be ($2.65 x 12) = $31.80
and the annual total cost for all Part D pharmacies providing
maintenance drugs to be ($31.80 x 60,632) = $1,928,097.60, an annual
decrease in burden by ($5,784,293 - $1,928,097.60) = $3,856,195.40. The
estimated total annual burden for all non-hospice providers furnishing
services, items and drugs to hospice beneficiaries in FY 2020 with the
availability of the hospice election statement addendum identifying
unrelated conditions, items, services and medication would be
$8,495,836.66 for an overall burden reduction of ($25,498,660 -
$8,495,836.66) = $17,002,823.34. The total reduction in burden for all
institutional, non-institutional, and Part D pharmacy non-hospice
providers is summarized in table 23 below.
Table 23--FY 2020 Estimated Total Overall Burden Reduction for Non-Hospice Providers Using Election Statement
Addendum
----------------------------------------------------------------------------------------------------------------
Estimated
burden
Non-hospice claims Burden without Burden with reduction for
addendum addendum non-hospice
providers
----------------------------------------------------------------------------------------------------------------
Institutional Claims with Condition Code 07..................... $3,763,966 $1,253,945 $2,510,021
Non-institutional Claims with GW Modifier....................... 15,950,401 5,313,793 10,636,608
Part D Maintenance Drugs........................................ 5,784,293 1,928,098 3,856,195
-----------------------------------------------
Total Burden Reduction for Non-Hospice Providers............ 25,498,660 8,495,836 17,002,824
----------------------------------------------------------------------------------------------------------------
The use of the ``Patient Notification of Hospice Non-Covered Items,
Services, and Drugs'' election statement addendum would result in an
estimated, total overall provider burden reduction of -$4,224,173
($12,778,651 - $17,002,824) in FY 2020. Table 24 below summarizes the
FY 2020 estimated total burden reduction.
Table 24--FY 2020 Estimated Total Provider Burden Reduction Using
Election Statement Addendum
------------------------------------------------------------------------
------------------------------------------------------------------------
FY 2020 Estimated Cost for Election Statement Addendum.. + $12,778,651
FY 2020 Estimated Non-hospice Provider Burden Reduction. -7,002,824
---------------
FY 2020 Estimated Total Burden Reduction............ (4,224,173)
------------------------------------------------------------------------
B. Submission of PRA-Related Comments
We have submitted a copy of this proposed rule to OMB for its
review of the rule's information collection and recordkeeping
requirements. The requirements are not effective until they have been
approved by OMB.
To obtain copies of the supporting statement and any related forms
for the proposed collections previously discussed, visit our website
at: https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html, or call the Reports
Clearance Office at (410) 786-1326.
We invite public comments on these information collection
requirements. If you wish to comment, submit your comments
electronically as specified in the DATES and ADDRESSES sections of this
proposed rule and identify the rule (CMS-1714-P) and, where applicable,
indicate the ICR's CFR citation, CMS ID number, and OMB control number.
V. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
VI. Regulatory Impact Analysis
A. Statement of Need
This proposed rule meets the requirements of our regulations at
Sec. 418.306(c) and (d), which require annual issuance, in the Federal
Register, of the hospice wage index based on the most current available
CMS hospital wage data, including any changes to the definitions of
Core-Based Statistical Areas (CBSAs) or previously used Metropolitan
Statistical Areas (MSAs), as well as any changes to the methodology for
determining the per diem payment rates. This proposed rule would also
update payment rates for each of the categories of hospice care,
described in Sec. 418.302(b), for FY 2020 as required under section
1814(i)(1)(C)(ii)(VII) of the Act. The payment rate updates are subject
to changes in economy-wide productivity as specified in section
1886(b)(3)(B)(xi)(II) of the Act. Lastly, section 3004 of the
Affordable Care Act amended the Act to authorize a quality reporting
program for hospices, and this
[[Page 17612]]
rule discusses changes in the requirements for the hospice quality
reporting program in accordance with section 1814(i)(5) of the Act.
B. Overall Impacts
We estimate that the aggregate impact of the payment provisions in
this proposed rule would result in an estimated increase of $540
million in payments to hospices, resulting from the hospice payment
update percentage of 2.7 percent for FY 2020. Section 1814(i)(6)(D)(ii)
of the Act requires the proposed rebasing of the per diem payment rates
for CHC, GIP, and IRC to be done in a budget-neutral manner in the
first year of implementation. Therefore, the proposed rebased rates for
CHC, GIP, and IRC would not result in an overall payment impact for the
Medicare program as we are proposing to reduce the RHC payment rates to
ensure that total estimated payments to hospices are budget-neutral
given the proposed increases to the CHC, GIP, and IRC payment rates. In
addition, the proposed change in the hospice wage index to use the FY
2020 pre-floor, pre-reclassified hospital wage index (rather than the
FY 2019 pre-floor, pre-reclassified hospital wage index) as the basis
for the FY 2020 hospice wage index would not result in an overall
payment impact for the Medicare program as annual wage index updates
are now similarly implemented in a budget-neutral manner. 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.
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 Social Security Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22,
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4,
1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive
Order 13771 on Reducing Regulation and Controlling Regulatory Costs
(January 30, 2017).
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). Section
3(f) of Executive Order 12866 defines a ``significant regulatory
action'' as an action that is likely to result in a rule: (1) Having an
annual effect on the economy of $100 million or more in any 1 year, or
adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creating a serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules
with economically significant effects ($100 million or more in any 1
year). We estimate that this rulemaking is ``economically significant''
as measured by the $100 million threshold, and hence also a major rule
under the Congressional Review Act. Accordingly, we have prepared a RIA
that, to the best of our ability presents the costs and benefits of the
rulemaking.
C. Anticipated Effects
The Regulatory Flexibility Act (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. 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 $7.5 million to $38.5 million in
any 1 year), or being nonprofit organizations. For purposes of the RFA,
we consider all hospices as small entities as that term is used in the
RFA. HHS's practice in interpreting the RFA is to consider effects
economically ``significant'' only if greater than 5 percent of
providers reach a threshold of 3 to 5 percent or more of total revenue
or total costs. The effect of the FY 2020 hospice payment update
percentage results in an overall increase in estimated hospice payments
of 2.7 percent, or $540 million. The distributional effects of the
proposed FY 2020 hospice wage index do not result in a greater than 5
percent of hospices experiencing decreases in payments of 3 percent or
more of total revenue. Finally, the distributional effects of the
proposed FY 2020 increases to the CHC, IRC, and GIP per diem payment
rates as a result of rebasing, offset by a proposed decrease to the FY
2020 RHC payment rates of less than 3 percent to maintain budget
neutrality in the first year of implementation, do not result in a
greater than 5 percent of hospices experiencing decreases in payments
of 3 percent or more of total revenue. Therefore, the Secretary has
determined that this rule will not create a significant economic impact
on a substantial number of small entities.
In addition, section 1102(b) of the Social Security 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 rule
will only affect hospices. Therefore, the Secretary has determined that
this rule will not have a significant impact on the operations of a
substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 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. The 2019 UMRA
threshold is $154 million. This rule is not anticipated to have an
effect on state, local, or tribal governments, in the aggregate, or on
the private sector of $154 million or more.
Executive Order 13132 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 rule under these criteria of
Executive Order 13132, and have determined that it will not impose
substantial direct costs on state or local governments.
If regulations impose administrative costs on private entities,
such as the time needed to read and interpret this proposed rule, we
should estimate the
[[Page 17613]]
cost associated with regulatory review. Due to the uncertainty involved
with accurately quantifying the number of entities that will review the
rule, we assume that the total number of unique commenters on last
year's proposed rule will be the number of reviewers of this proposed
rule. We acknowledge that this assumption may understate or overstate
the costs of reviewing this proposed rule. It is possible that not all
commenters reviewed last year's rule in detail, and it is also possible
that some reviewers chose not to comment on the proposed rule. For
these reasons we thought that the number of past commenters would be a
fair estimate of the number of reviewers of this proposed rule.
Using the wage information from the Bureau of Labor Statistics
(BLS) for medical and health service managers (Code 11-9111), we
estimate that the cost of reviewing this rule is $107.38 per hour,
including overhead and fringe benefits (https://www.bls.gov/oes/current/oes_nat.htm). This proposed rule consists of approximately
43,000 words. Assuming an average reading speed of 250 words per
minute, it would take approximately one and a half hour for the staff
to review half of it. For each hospice that reviews the rule, the
estimated cost is $153.55 (1.43 hour x $107.38). Therefore, we estimate
that the total cost of reviewing this regulation is $18,733.10 ($153.55
x 122 reviewers).
D. Detailed Economic Analysis
1. Hospice Payment Update for FY 2020
The FY 2020 hospice payment impacts appear in table 24. We tabulate
the resulting payments according to the classifications (for example,
provider type, geographic region, facility size), and compare the
difference between current and future payments to determine the overall
impact. The first column shows the breakdown of all hospices by
provider type and control (non-profit, for-profit, government, other),
facility location, facility size. The second column shows the number of
hospices in each of the categories in the first column. The third
column shows our estimate of applying the proposed rebased payment
rates of CHC, IRC, and GIP (and the decreased RHC rate used to achieve
budget neutrality). The fourth column shows the hospice payments using
FY 2018 Hospice Claims, FY 2020 rebased Payments, and FY 2020 Wage
Index without the 1-Year lag. The fifth column show the proposed FY
2020 hospice payment update percentage of 2.7 percent as mandated by
section 1814(i)(1)(C) of the Act, and is consistent for all providers.
The 2.7 percent hospice payment update percentage is based on an
estimated 3.2 percent inpatient hospital market basket update, reduced
by a 0.5 percentage point productivity adjustment. It is projected that
aggregate payments would increase by 2.7 percent, assuming hospices do
not change their service and billing practices. The sixth column shows
the estimated total impact for FY 2020. We have set the rates so the
overall impact is zero percent due to the requirement that any
revisions in payment are implemented in a budget-neutral manner in
accordance with section 1814(i)(6)(D)(ii) of the Act (accomplished for
the proposed rebasing of the CHC, GIP, and IRC payment rates by a
corresponding proposed decrease to the RHC payment rates).
In addition, to assist providers in understanding the potential
impacts of the proposed wage index with and without the lag and the
proposed rebasing of CHC, IRC, and GIP, we are providing a provider-
specific impact analysis file, which is available on our website at
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Regulations-and-Notices.html. We note that simulated payments
are based on utilization in FY 2018 as seen on Medicare hospice claims
(accessed from the CCW in January of 2019) and only include payments
related to the level of care and do not include payments related to the
service intensity add-on.
As illustrated in table 25, the combined effects of all the
proposals vary by specific types of providers and by location.
BILLING CODE 4120-01-P
[[Page 17614]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.012
[[Page 17615]]
[GRAPHIC] [TIFF OMITTED] TP25AP19.013
BILLING CODE 4120-01-C
2. Proposed Hospice Election Statement Addendum
This proposed rule includes proposals related to the election
statement addendum that would be provided, upon request, to hospice
beneficiaries (or representative), non-hospice providers, and Medicare
contractors. If finalized, this change would become effective for
hospice elections on and after October 1, 2019. The election statement
addendum would add no additional burden for communicating with non-
hospice providers, as this decision-making process has been a long-
standing CoP requirement, as described in the preamble of this proposed
rule. However, burden would be reduced for non-hospice providers,
including institutional, non-institutional and pharmacy providers
because less time would be spent trying to obtain needed information
for treatment decisions and accurate claims submissions. As a result of
this election statement addendum, we estimate that this rule generates
$4.2 million in annualized cost savings, or $3 million per year on an
ongoing basis discounted at 7 percent relative to year 2016, over a
perpetual time horizon beginning in FY 2020. The burden reduction for
this proposal is detailed in section IV of this proposed rule and the
total annual reduction is included in table 24.
E. Alternatives Considered
For the FY 2020 Hospice Wage Index and Rate Update proposed rule,
we considered alternatives to the proposals articulated in section
III.A. First, we considered not applying the Level I edits to the
freestanding cost reports to estimate the FY 2017 costs per day by
level of care. Our analysis showed that the differences in costs for
each level of care between these two approaches were minimal. As
described in the FY 2019 hospice proposed rule (89 FR 20949), industry
representatives have suggested using these Level I edits to force
adherence to certain cost reporting principles that could lead to the
reporting of higher-quality hospice cost data and therefore, we believe
it is most technically appropriate to apply the Level I edits. Table 26
describes the FY 2017 estimated, average per day costs by level of care
applying all cost report adjustments, and those same estimated costs
applying all cost report adjustments except the Level I edits.
[[Page 17616]]
Table 26--Freestanding Hospice Average per Day Costs Without Level I
Edits, FY 2017
------------------------------------------------------------------------
Estimated average
Estimated average cost per day using
Level of care cost per day using all adjustments,
all adjustments except Level I edits
------------------------------------------------------------------------
RHC (Days 1-60)............. $164.89............. $164.17.
RHC (Days 61+).............. $114.11............. $113.62.
CHC......................... $54.49 ($1,307.76 $53.83 ($1,291.92
for 24 hours). for 24 hours).
IRC......................... $438.97............. $467.78.
GIP......................... $953.95............. $960.12.
------------------------------------------------------------------------
We also considered proposing to use freestanding and provider-based
cost reports to rebase CHC, IRC, and GIP per diem rates, rather than
using only freestanding hospice cost reports. When we analyzed both
freestanding and provider-based cost reports, the results from these
two samples tend to be similar, however, on average, incorporating
provider-based cost reports results in higher costs than the cost
reports for freestanding hospices only as shown in table 27.
Table 27--Freestanding and Provider-Based Average Cost per Day by Level
of Care, FY 2017
------------------------------------------------------------------------
Freestanding average Provider-based
Level of care cost per day average cost per day
------------------------------------------------------------------------
RHC (Days 1-60)............. $164.89............. $169.36.
RHC (Days 61+).............. $114.11............. $117.21.
CHC......................... $54.49 ($1,307.76 $56.20 ($1,348.80
for 24 hours). for 24 hours).
IRC......................... $438.98............. $521.74.
GIP......................... $953.96............. $956.04.
------------------------------------------------------------------------
--With all cost report adjustments applied.
--With Level I Edits.
Since the costs are higher, the FY 2019 rebased payment rates for
CHC, GIP, and IRC when using cost reports for both freestanding and
provider-based hospices would also be higher and we would need to
reduce the RHC payment more in order to maintain budget neutrality as
shown in table 28. If we utilized freestanding and provider-based cost
reports, RHC would need to be reduced by 2.92 percent to offset the
increases to the per diem payment amounts for CHC, GIP, and IRC.\49\
---------------------------------------------------------------------------
\49\ Using the average per-diem costs generated from our sample
of freestanding and provider-based hospice cost reports, rebasing
CHC, IRC, and GIP results in extra payments of $503,162,283.48 for
those levels of care. The RHC payments that were made under the
payment rates in place during FY 2019 were $17,218,209,794.15. One
minus the value of the extra payments over the RHC payments equals
0.9708.
Table 28--Rebased Payment Rates for CHC, IRC, and GIP Levels of Care Using Freestanding and Provider-Based
Hospice Cost Reports, FY 2019
----------------------------------------------------------------------------------------------------------------
Level of care Rebased payment rates
----------------------------------------------------------------------------------------------------------------
Continuous Home Care (CHC).................. $58.59 per hour/$1,406.04 (per day).
Inpatient Respite Care (IRC)................ $517.98.*
General Inpatient Care (GIP)................ $996.62.
----------------------------------------------------------------------------------------------------------------
Note:
--Prior to application of the hospice payment update percentage of 2.7 percent outlined in section III.B.4 of
this proposed rule.
--Includes Level I edits.
* IRC payment rate accounts for 5 percent coinsurance ($543.88 / 1.05 = $517.98).
In MedPAC's March 2018 Report to Congress, MedPAC stated that
included in the costs of provider-based hospices are overhead costs
allocated from the parent provider, which contributes to provider-based
hospices having higher costs than freestanding providers. The
Commission believes payment policy should focus on the efficient
delivery of services to Medicare's beneficiaries. If freestanding
hospices are able to provide high-quality care at a lower cost than
provider-based hospices, payment rates should be set accordingly, and
the higher costs of provider-based hospices should not be a reason for
increasing Medicare payment rates.\50\ Similarly, the application of
the cost report exclusions yielded a small sample size of provider-
based cost reports and when we applied the Level I cost report edits to
the provider-based cost reports, this trimmed out nearly all of the
provider-based cost reports. Therefore, we are less confident in the
calculations of the average costs per day by level of care using
provider-based hospice cost reports as very few of such providers had
costs reports that were not trimmed out due to the recently implemented
Level I cost report edits. We invite comments on the alternatives
considered discussed in this analysis.
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\50\ Medicare Payment Advisory Commission (MedPAC). ``Hospice
Services.'' Report to the Congress: Medicare Payment Policy.
Washington, DC. March 2018. P. 341. http://www.medpac.gov/docs/default-source/reports/mar18_medpac_ch12_sec.pdf?sfvrsn=0.
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F. Accounting Statement
As required by OMB Circular A-4 (available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf), in table 29, we have prepared an accounting statement showing
the classification of the transfers and costs
[[Page 17617]]
associated with the provisions of this proposed rule. This table shows
an estimated $540 million in transfers to hospices in FY 2020. All
expenditures are classified as transfers to hospices. Table 29 also
reflects the estimated change in costs and burden for hospices and non-
hospice providers as a result of the proposed election statement
addendum requirements described in section III.C. Table 29 provides our
best estimate of a one-time burden for hospices to develop the election
statement addendum form of 2,233 hours or $196,281, as well as our
estimate of the annual burden for hospices to complete the election
statement addendum of 744 hours or $12.6 million for an estimated total
burden for hospices of $12.8 million, as described in section IV of
this proposed rule. Additionally, we estimate a net reduction in burden
for non-hospice providers of 25,866 hours or $17 million (see section
IV of this proposed rule) for an estimated overall, annualized net
reduction in burden with the proposed election statement addendum of
$4.2 million.
Table 29--Accounting Statement: Classification of Estimated Transfers and Costs, From FY 2019 to FY 2020
----------------------------------------------------------------------------------------------------------------
Category Transfers
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Transfers......................................... $ 540 million.*
From Whom to Whom?..................................................... Federal Government to Medicare
Hospices.
----------------------------------------------------------------------------------------------------------------
Category Costs
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Net Reduction in Burden for Non-Hospice Providers -$17.0 million.
with the Proposed Regulations Change at Sec. 418.24, Election
Statement Addendum.
Annualized Net Burden for Hospice Providers with the One-time Form +$12.8 million.
Development and Completion of Election Statement Addendum.
Total Annualized Net Reduction In Burden with the Proposed Election -$4.2 million.
Statement Addendum.
----------------------------------------------------------------------------------------------------------------
* The net increase of $540 million in transfer payments is a result of the 2.7 percent hospice payment update
compared to payments in FY 2019.
G. Regulatory Reform Analysis Under E.O. 13771
Executive Order 13771, entitled ``Reducing Regulation and
Controlling Regulatory Costs,'' was issued on January 30, 2017 (82 FR
9339, February 3, 2017) and requires that the costs associated with
significant new regulations ``shall, to the extent permitted by law, be
offset by the elimination of existing costs associated with at least
two prior regulations.'' This proposed rule is expected to be an E.O.
13771 deregulatory action with $4.2 million in annualized cost savings,
or $3 million per year on an ongoing basis discounted at 7 percent
relative to year 2016, over a perpetual time horizon beginning in FY
2020. The burden reduction for this proposal is detailed in section IV
of this proposed rule and the total annual reduction is included in
Table 24. Details on the estimated cost savings of this rule with
comment period can be found in the rule's collection of information and
economic analysis.
H. Conclusion
We estimate that aggregate payments to hospices in FY 2020 will
increase by $540 million, or 2.7 percent, compared to payments in FY
2019. We estimate that in FY 2020, hospices in urban and rural areas
will experience, on average, 2.8 percent and 2.1 percent increases,
respectively, in estimated payments compared to FY 2019. Hospices
providing services in the South Atlantic, Middle Atlantic and East
North Central regions would experience the largest estimated increases
in payments of 4.7 percent and 2.8 percent, respectively. Hospices
serving patients in the Pacific and outlying regions would experience,
on average, the lowest estimated increase of 1.0 and -0.3 percent,
respectively in FY 2020 payments. We also estimate an overall reduction
in burden of $4.2 million as a result of the proposed election
statement addendum. In accordance with the provisions of Executive
Order 12866, this regulation was reviewed by the Office of Management
and Budget.
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 chapter IV as set forth
below:
PART 418-HOSPICE CARE
0
1. The authority citation for part 418 is revised to read as follows:
Authority: 42 U.S.C. 1302 and 1395hh.
0
2. Section 418.24 is amended by--
0
a. Revising paragraphs (b)(2) and (3);
0
b. Redesignating paragraph (b)(5) as paragraph (b)(8);
0
c. Adding new paragraphs (b)(5), (6), and (7);
0
d. Redesignating paragraphs (c) through (f) as paragraphs (d) through
(g), respectively; and
0
e. Adding a new paragraph (c).
The revisions and additions read as follows:
Sec. 418.24 Election of hospice care.
* * * * *
(b) * * *
(2) The individual's or representative's acknowledgement that he or
she has been given a full understanding of the palliative rather than
curative nature of hospice care, as it relates to the individual's
terminal illness and related conditions.
(3) Acknowledgement that the individual has been provided
information on the hospice's coverage responsibility and that certain
Medicare services, as set forth in paragraph (e) of this section, are
waived by the election. This includes providing the individual with
information indicating that services unrelated to the terminal illness
and related conditions are exceptional and unusual and hospice should
be providing virtually all care needed by the individual who has
elected hospice.
* * * * *
(5) Information on individual cost-sharing for hospice services.
(6) Notification of the individual's (or representative's) right to
receive an election statement addendum, as set forth in paragraph (c)
of this section, if there are conditions, items, services, and drugs
the hospice has determined to be unrelated to the individual's terminal
illness and related conditions and would not be covered by the hospice.
[[Page 17618]]
(7) Information on BFCC-QIO, including the right to immediate
advocacy and BFCC-QIO contact information.
* * * * *
(c) Content of hospice election statement addendum. In the event
that the hospice determines there are conditions, items, services, or
drugs that are unrelated to the individual's terminal illness and
related conditions, the individual (or representative), non-hospice
providers furnishing such items, services, or drugs, or Medicare
contractors may request a written list as an addendum to the election
statement. If the election statement addendum is requested at the time
of hospice election, the hospice must provide this information, in
writing, to the individual (or representative) within 48 hours. If this
addendum is requested during the course of the hospice election, the
hospice must provide this information, in writing, immediately to the
requesting individual (or representative), non-hospice provider, or
Medicare contractor. If there are any changes to the content on the
addendum during the course of the hospice election, the hospice must
update the addendum and provide these updates, in writing, to the
individual (or representative). The election statement addendum must
include the following:
(1) The addendum must be titled ``Patient Notification of Hospice
Non-Covered Items, Services, and Drugs.''
(2) Name of the hospice.
(3) Individual's name and hospice medical record identifier.
(4) Identification of the individual's terminal illness and related
conditions.
(5) A list of the individual's conditions present on hospice
admission (or upon plan of care update) and the associated items,
services, and drugs not covered by the hospice because they have been
determined by the hospice to be unrelated to the terminal illness and
related conditions.
(6) A written clinical explanation, in language the individual (or
representative) can understand, as to why the identified conditions,
items, services, and drugs are considered unrelated to the individual's
terminal illness and related conditions and not needed for pain or
symptom management. This clinical explanation must be accompanied by a
general statement that the decision as to whether or not conditions,
items, services, and drugs are related is made for each patient and
that the individual should share this clinical explanation with other
health care providers from which they seek items, services, or drugs
unrelated to their terminal illness and related conditions.
(7) References to any relevant clinical practice, policy, or
coverage guidelines.
(8) Information on the following--
(i) Purpose of addendum. The purpose of the addendum is to notify
the individual (or representative), in writing, of those conditions,
items, services, and drugs the hospice will not be covering because the
hospice has determined they are unrelated to the individual's terminal
illness and related conditions.
(ii) Right to immediate advocacy. The addendum must include
language that immediate advocacy is available through the Medicare
Beneficiary and Family Centered Care-Quality Improvement Organization
(BFCC-QIO) if the individual (or representative) disagrees with the
hospice's determination.
(9) Name and signature of the individual (or representative) and
date signed, along with a statement that signing this addendum (or its
updates) is only acknowledgement of receipt of the addendum (or its
updates) and not necessarily the individual's (or representative's)
agreement with the hospice's determinations.
* * * * *
Dated: April 4, 2019.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
Dated: April 9, 2019.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2019-08143 Filed 4-19-19; 4:15 pm]
BILLING CODE 4120-01-P