[Federal Register Volume 90, Number 82 (Wednesday, April 30, 2025)]
[Proposed Rules]
[Pages 18568-18587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-06317]
[[Page 18567]]
Vol. 90
Wednesday,
No. 82
April 30, 2025
Part V
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 2026 Hospice Wage Index and Payment Rate Update
and Hospice Quality Reporting Program Requirements; Proposed Rule
Federal Register / Vol. 90, No. 82 / Wednesday, April 30, 2025 /
Proposed Rules
[[Page 18568]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 418
[CMS-1835-P]
RIN 0938-AV49
Medicare Program; FY 2026 Hospice Wage Index and Payment Rate
Update and Hospice Quality Reporting Program Requirements
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would update the hospice wage index,
payment rates, and aggregate cap amount for Fiscal Year (FY) 2026. This
rule also proposes changes to the admission to hospice regulations and
the hospice face-to-face attestation requirements under the
certification of terminal illness regulations. This proposed rule also
includes a technical correction to the regulatory text and provides
updates to the Hospice Quality Reporting Program requirements. Finally,
this proposed rule solicits comments regarding requests for information
surrounding future measure concepts for Hospice Quality Reporting
Program.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, June 30, 2025.
ADDRESSES: In commenting, refer to file code CMS-1835-P.
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 https://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-1835-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-1835-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].
For questions regarding the CAHPS[supreg] Hospice Survey, contact
Lauren Fuentes at (410) 786-2290.
For questions regarding the hospice quality reporting program,
contact Jermama Keys at (410) 786-7778.
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: https://www.regulations.gov. Follow the search instructions on that website to
view public comments. CMS will not post on Regulations.gov public
comments that make threats to individuals or institutions or suggest
that the individual will take actions to harm the individual. CMS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments.
Plain Language Summary: In accordance with 5 U.S.C. 553(b)(4), a
plain language summary of this proposed rule may be found at https://www.regulations.gov/.
Deregulation Request for Information (RFI): On January 31, 2025,
President Trump issued Executive Order (E.O.) 14192 ``Unleashing
Prosperity Through Deregulation,'' which states the Administration
policy to significantly reduce the private expenditures required to
comply with Federal regulations to secure America's economic prosperity
and national security and the highest possible quality of life for each
citizen. We would like public input on approaches and opportunities to
streamline regulations and reduce administrative burdens on providers,
suppliers, beneficiaries, and other interested parties participating in
the Medicare program. CMS has made available an RFI at https://www.cms.gov/medicare-regulatory-relief-rfi. Please submit all comments
in response to this RFI through the provided weblink.
I. Executive Summary
A. Purpose
This proposed rule would update the hospice wage index, payment
rates, and cap amount for FY 2026 as required under section 1814(i) of
the Social Security Act (the Act). In addition, this proposed rule
would clarify in the payment regulations that the physician member of
the hospice interdisciplinary group (IDG) may recommend admission to
hospice. This proposed rule would also re-align the attestation
requirements in the regulatory text at 42 CFR 418.22(b)(4) with the
original intent of the CY 2011 Home Health Prospective Payment System
(HH PPS) final rule and statutory requirements under section 1814(a)(7)
of the Act for the certification of terminal illness. That rule stated
that the attestation of the physician or nurse practitioner who
conducts the face-to-face encounter must include the physician's or
nurse practitioner's, as applicable, signature and the date of the
signature.
This proposed rule proposes to correct an error in the regulations
text at Sec. 418.312(j). This rule also reinforces updates on the
Hospice Quality Reporting Program (HQRP) and the Hospice Outcomes and
Patient Evaluation (HOPE) instrument and public reporting, future
quality measures (QMs), and the transition of hospice providers from
the Quality Improvement and Evaluation System (QIES) to the internet
Quality Improvement and Evaluation System (iQIES). Finally, this
proposed rule includes requests for information (RFI) regarding future
QM concepts for the HQRP.
B. Summary of the Major Provisions
Section III.A.1. of this proposed rule includes the proposed
updates to the hospice wage index and makes the application of the
updated wage data budget neutral for all four levels of hospice care.
Section III.A.2. of this proposed rule includes the proposed FY
2026 hospice payment update percentage of 2.4 percent.
Section III.A.3. of this proposed rule includes the proposed FY
2026 hospice payment rates.
Section III.A.4. of this proposed rule includes the proposed update
to the hospice cap amount for FY 2026 by the hospice payment update
percentage of 2.4 percent.
Section III.B. of this proposed rule proposes to clarify that the
physician member of the interdisciplinary group is among the types of
physicians who can recommend a patient's admission to
[[Page 18569]]
hospice care and proposes to add the physician member of the
interdisciplinary group to the regulatory text at Sec. 418.25.
Section III.C. of this proposed rule proposes to re-align the
attestation requirements in the regulatory text at Sec. 418.22(b)(4)
with the original intent of the statutory requirements under section
1814(a)(7) of the Act and CY 2011 HH PPS final rule for the
certification of terminal illness regulations to include the
physician's or nurse practitioner's signature and the date of the
signature on each face-to-face encounter attestation. This section
provides clarification that the attestation, its accompanying
signature, and the date signed, must be a separate and distinct section
of, or an addendum to, the recertification form, and must be clearly
titled.
Section III.D. of this proposed rule proposes a technical
correction to a typo in the FY 2024 Hospice final rule at Sec.
418.312(j). This section provides updates on the HOPE instrument, HQRP
measures, and the transition to iQIES. This section also provides RFIs
related to the transition to digital measures, nutrition, and well-
being concepts.
C. Summary of Impacts
The overall economic impact of this proposed rule is estimated to
be $695 million in increased payments to hospices in FY 2026.
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(c)(1), to be certified for Medicare hospice
services, the patient's attending physician (if any) and the hospice
medical director (or designee) or physician member of the
interdisciplinary group 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 has a medical
prognosis that the individual's life expectancy is 6 months or less if
the illness runs its normal course. The regulations at Sec.
418.22(b)(2) require that clinical information and other documentation
that support the medical prognosis accompany the certification and be
filed in the medical record with the written certification. The
regulations at Sec. 418.22(b)(3) require that the certification and
recertification forms, or an addendum to the certification and
recertification forms, include a brief narrative explanation of the
clinical findings that supports 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 primarily home-based services. 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 group (as
specified at Sec. 418.56(a)(1)), 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 home for
hospice care (routine home care) (RHC). 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. CHC may be covered for as much
as 24 hours a day, and these periods must be predominantly nursing
care, in accordance with the 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 CHC rate (Sec. 418.302(e)(4)).
Hospices covered by this proposed rule must comply with applicable
civil rights laws, including section 504 of the Rehabilitation Act of
1973 and the Americans with Disabilities Act, which require covered
entities to take appropriate steps to ensure that communications with
individuals with disabilities, including companions with disabilities,
are as effective as communications with others, including the
provisions of auxiliary aids and services when necessary to afford
qualified individuals with disabilities, including applicants,
participants, beneficiaries, companions and members of the public, an
equal opportunity to participate in, and enjoy the benefits of, a
service, program or activity of a covered entity.\1\
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\1\ Hospices receiving Medicare Part A funds or other Federal
financial assistance from the Department are also subject to
additional Federal civil rights laws, including the Age
Discrimination Act, and are subject to conscience and religious
freedom laws where applicable.
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Title VI of the Civil Rights Act of 1964 prohibits discrimination
on the basis of race, color or national origin in federally assisted
programs or activities. The Office for Civil Rights (OCR) interprets
this to require that recipients of Federal financial assistance take
reasonable steps to provide meaningful access to their programs or
activities to individuals with limited English proficiency (LEP).\2\
Similarly, section 1557 of the Affordable Care Act's implementing
regulation requires covered entities to take reasonable steps to
provide meaningful access to LEP individuals in federally funded health
programs and activities (45 CFR 92.201(a)). Meaningful access may
[[Page 18570]]
require the provision of interpreter services and translated materials
(45 CFR 92.201(c)).
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\2\ HHS OCR, Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 68 FR
47311 (Aug. 8, 2003).
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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 services; medical social services; home health aide
services (called hospice aide services); physician's 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 and 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 such care is provided by, or under arrangements made
by, the 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 (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, Congress also
expected hospices to continue to use volunteer services, although
Medicare does not pay for these volunteer services (section
1861(dd)(2)(E) of the Act). As stated in the Health Care Financing
Administration's (now Centers for Medicare & Medicaid Services (CMS))
proposed rule: Medicare Program; Hospice Care (48 FR 38149), the
hospice must have an interdisciplinary group composed of paid hospice
employees as well as hospice volunteers, and that ``the hospice benefit
with the resulting Medicare reimbursement is not intended to diminish
the voluntary 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 the 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 based on 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 the benefit). This per diem
payment is meant to cover all hospice services and items needed to
manage the beneficiary's care, as required by section 1861(dd)(1) of
the Act.
While payment made to hospices is to cover all items, services, and
drugs for the palliation and management of the terminal illness and
related conditions, federal funds cannot be used for prohibited
activities, even in the context of a per diem payment. For example,
hospices are prohibited from playing a role in medical aid in dying
(MAID) where such practices have been legalized in certain States. The
Assisted Suicide Funding Restriction Act of 1997 (Pub. L. 105-12, April
30, 1997) prohibits the use of federal funds to provide or pay for any
health care item or service or health benefit coverage for the purpose
of causing, or assisting to cause, the death of any individual
including ``mercy killing, euthanasia, or assisted suicide.'' However,
the prohibition does not pertain to the provision of an item or service
for the purpose of alleviating pain or discomfort, even if such use may
increase the risk of death, so long as the item or service is not
furnished for the specific purpose of causing or accelerating death.
The Medicare hospice benefit has been revised and refined since its
implementation after various Acts of Congress and Medicare rules. For a
historical list of changes and regulatory actions, we refer readers to
the background section of previous Hospice Wage Index and Payment Rate
Update rules.\3\
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\3\ Hospice Regulations and Notices. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Regulations-and-Notices.
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III. Provisions of the Proposed Rule
A. Proposed FY 2026 Hospice Wage Index and Rate Update
1. Proposed FY 2026 Hospice Wage Index
a. Background
The hospice wage index is used to adjust payment rates for hospices
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 the Office of Management and
Budget (OMB) to Metropolitan Statistical Area (MSA) definitions.
In general, OMB issues major revisions to statistical areas every
10 years based on the results of the decennial census. On July 21,
2023, OMB issued Bulletin No. 23-01, which updated and superseded OMB
Bulletin No. 20-01, issued on March 6, 2020. OMB Bulletin No. 23-01
established revised delineations for the MSAs, Micropolitan Statistical
Areas, Combined Statistical Areas (CSAs), and Metropolitan Divisions,
collectively referred to as Core Based Statistical Areas (CBSAs).
According to OMB, the delineations reflect the 2020 Standards for
Delineating Core Based Statistical Areas (the ``2020 Standards''),
which appeared in the Federal Register (86 FR 37770 through 37778) on
July 16, 2021, and application of those standards to Census Bureau
population and journey-to-work data (for example, 2020 Decennial
Census, American Community Survey, and Census Population Estimates
Program data). A copy of OMB Bulletin No. 23-01 is available online at
https://www.bls.gov/bls/omb-bulletin-23-01-revised-delineations-of-metropolitan-statistical-areas.pdf.
The July 21, 2023 OMB Bulletin No. 23-01 contained a number of
significant changes. For example, it designated new CBSAs, split some
existing CBSAs, and changed some urban counties to rural and some rural
counties to urban. We believe it is important for the hospice
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wage index to use the latest OMB delineations available in order to
maintain the most accurate and up-to-date payment system, reflecting
the reality of population shifts and labor market conditions. We
further believe that using the most current OMB delineations increases
the integrity of the hospice wage index by creating a more accurate
representation of geographic variation in wage levels. Therefore, in
the FY 2025 Hospice final rule (89 FR 64208 through 64224), we
finalized the implementation of new labor market areas based on the
revisions in OMB Bulletin No. 23-01 beginning in FY 2025.
b. Finalized Hospice Floor and 5 Percent Cap Policies
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. The pre-
floor, pre-reclassified hospital wage index values below 0.8000 are
adjusted by a 15 percent increase subject to a maximum wage index value
of 0.8000. For example, if CBSA 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 0.8000, the CBSA
A's hospice wage index would be 0.4593. In another example, if CBSA 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 0.8000, CBSA B's hospice wage index would be 0.8000.
In the FY 2023 Hospice Wage Index and Rate Update final rule (87 FR
45673), we finalized for FY 2023 and subsequent years the application
of a permanent 5 percent cap on any decrease to a geographic area's
wage index from its wage index in the prior year, regardless of the
circumstances causing the decline, so that a geographic area's wage
index would not be less than 95 percent of its wage index calculated in
the prior FY. When calculating the 5 percent cap on wage index
decreases, we start with the current FY's pre-floor, pre-
reclassification hospital wage index value for a CBSA or statewide
rural area, and if that wage index value is below 0.8000, we apply the
hospice floor as discussed previously in this section of the proposed
rule. Next, we compare the current FY's wage index value after the
application of the hospice floor to the final wage index value from the
previous FY. If the current FY's wage index value is less than 95
percent of the previous year's wage index value, the 5 percent cap on
wage index decreases would be applied and the final wage index value
would be set equal to 95 percent of the previous FY's wage index value.
If the 5 percent cap is applied in one FY, then in the subsequent FY,
that year's pre-floor, pre-reclassification hospital wage index would
be used as the starting wage index value and adjusted by the hospice
floor. The hospice floor adjusted wage index value would be compared to
the previous FY's wage index which had the 5 percent cap applied. If
the hospice floor adjusted wage index value for that FY is less than 95
percent of the capped wage index from the previous year, then the 5
percent cap would be applied again, and the final wage index value
would be 95 percent of the capped wage index from the previous FY.
Using the example previously stated, if CBSA 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. If CBSA A had a wage index value
of 0.6200 in the previous FY, then we would compare 0.4593 to the
previous FY's wage index value. Since 0.4593 is less than 95 percent of
0.6200, then CBSA A's hospice wage index would be 0.5890, which is
equal to 95 percent of the previous FY's wage index value of 0.6200. In
the next FY, the updated wage index value would be compared to the wage
index value of 0.5890.
Previously, this 5 percent cap methodology was applied to all the
counties that make up a CBSA or rural area. However, beginning in FY
2025, we finalized a policy that the 5 percent cap methodology would
also be applied to individual counties. In the FY 2025 Hospice Wage
Index and Rate Update final rule (89 FR 64202), as a transition to the
adoption of the revised delineations from OMB No. 23-01, we finalized a
policy applying the permanent 5 percent cap on wage index decreases at
the county level. Specifically, counties that were impacted by the
revised designations beginning in FY 2025 would receive a 5 percent cap
on any decrease in a geographic area's wage index value from the wage
index value from the prior FY. Also, beginning in FY 2025, counties
that have a different wage index value than the CBSA or rural area into
which they are designated due to the application of the 5 percent cap
(including redesignated counties that will receive the 5 percent cap
and redesignated counties that move into a CBSA or rural area where all
other constituent counties receive the 5 percent cap) would use a wage
index transition code. These special codes are five digits in length
and begin with ``50''. The 50XXX wage index transition codes are used
only in specific counties. Counties located in CBSAs and rural areas
that do not correspond to a different transition wage index value will
still use the CBSA number.
Finally, we finalized a policy to apply the 5 percent cap to a
county that corresponds to a different wage index value than the wage
index value assigned to the CBSA or rural area in which they are
designated due to a delineation change until the county's new wage
index is more than 95 percent of the wage index from the previous FY.
In order to capture the correct wage index value, the county will
continue to use the assigned 50XXX transition code until the county's
wage index value calculated for that FY using the new OMB delineations
is not less than 95 percent of the county's capped wage index from the
previous FY.
The FY 2026 hospice wage index will continue to include the hospice
floor as well as the 5 percent cap on wage index decreases. For FY
2026, the 5 percent cap on wage index decreases will continue to be
calculated at the county level as well. While some counties that
required a transition code for FY 2025 will continue to use the same
transition code for FY 2026, other counties that required a transition
code in FY 2025 will no longer require a transition code in FY 2026.
For these counties, the FY 2026 wage index of the CBSA or rural area
that they are designated into has a wage index higher than 95 percent
of their previous FY's wage index. Therefore, these counties will use
the CBSA or rural county code of the area they were redesignated into
based on OMB Bulletin No. 23-01.
More information regarding these special codes can be found in the
FY 2025 Hospice Wage Index and Rate Update final rule (89 FR 64220
through 64224). Additionally, the list of counties that must use a
50XXX transition code for a given FY can be found as a separate tab in
the hospice wage index file for that FY available on the CMS website at
https://www.cms.gov/medicare/payment/fee-for-service-providers/hospice/hospice-wage-index.
c. Proposed FY 2026 Hospice Wage Index
In the FY 2020 Hospice Wage Index and Rate Update final rule (84 FR
38484), we finalized a policy to use the
[[Page 18572]]
current FY's hospital wage index data to calculate the hospice wage
index values. For FY 2026, we are proposing that the hospice wage index
be based on the FY 2026 hospital pre-floor, pre-reclassified wage index
for hospital cost reporting periods beginning on or after October 1,
2021 and before October 1, 2022 (FY 2022 cost report data). The FY 2026
hospice wage index would not consider any geographic reclassification
of hospitals, including those in accordance with sections 1886(d)(8)(B)
or 1886(d)(10) of the Act. The regulations that govern hospice payment
do not provide a mechanism for allowing hospices to seek geographic
reclassification or to utilize the rural floor provisions that exist
for Inpatient Prospective Payment System (IPPS) hospitals. The
reclassification provision found in section 1886(d)(10) of the Act is
specific to hospitals. Section 4410(a) of the Balanced Budget Act of
1997 (Pub. L. 105-33) provides that the area wage index applicable to
any hospital located in an urban area of a State may not be less than
the area wage index applicable to hospitals located in rural areas in
that State. This rural floor provision is also specific to hospitals.
Because the reclassification and the hospital rural floor policies
apply to hospitals only, and not to hospices, we continue to believe
the use of the pre-floor and pre-reclassified hospital wage index is
the most appropriate adjustment to the labor portion of the hospice
payment rates. This position is longstanding and consistent with other
Medicare payment systems, for example, the skilled nursing facility
prospective payment system (SNF PPS), the inpatient rehabilitation
facility prospective payment system (IRF PPS), and the home health
prospective payment system (HH PPS). However, the hospice wage index
does include the hospice floor, which is applicable to all CBSAs, both
rural and urban. The hospice floor adjusts pre-floor, pre-reclassified
hospital wage index values below 0.8000 by a 15 percent increase
subject to a maximum wage index value of 0.8000.
The appropriate FY 2026 wage index value would be 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 FY 2026 wage index value would be applied to the labor
portion of the payment rate based on the geographic location of the
facility for beneficiaries receiving GIP or IRC.
There exist some geographic areas where there are no hospitals, and
thus, no hospital wage data on which to base the calculation of the
hospice wage index. In the FY 2006 Hospice Wage Index and Rate Update
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 the CBSAs within the State would be used to calculate a
statewide urban average pre-floor, pre-reclassified hospital wage index
value to use as a reasonable proxy for these areas. For FY 2026, the
only CBSA without a hospital from which hospital wage data can be
derived is 25980, Hinesville, Georgia. As such, the proposed FY 2026
hospice wage index for Hinesville, Georgia is 0.8892.
In the FY 2008 Hospice Wage Index and Rate Update 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 is 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). In
the FY 2025 Hospice Wage Index and Rate Update final rule (89 FR
64207), as part of our adoption of the revised OMB delineations, rural
North Dakota became a rural area without a hospital from which hospital
wage data can be derived. Therefore, to calculate the proposed FY 2026
wage index for rural area 99935, North Dakota, we use as a proxy the
average pre-floor, pre-reclassified hospital wage data (updated by the
hospice floor and 5 percent cap) from the contiguous CBSAs: CBSA 13900-
Bismark, ND, CBSA 22020-Fargo, ND-MN, CBSA 24220-Grand Forks, ND-MN and
CBSA 33500, Minot, ND, which results in a proposed FY 2026 hospice wage
index of 0.8486 for rural North Dakota.
Previously, the only rural area without a hospital from which
hospital wage data could be derived was in Puerto Rico. However, for
rural Puerto Rico, we did not apply this methodology due to the
distinct economic circumstances that exist there (for example, due to
the close proximity of almost all of Puerto Rico's various urban areas
to non-urban areas, this methodology would produce a wage index for
rural Puerto Rico that is higher than that of half of its urban areas).
Instead, we used the most recent wage index previously available for
that area, which was 0.4047, subsequently adjusted by the hospice floor
for an adjusted wage index of 0.4654. For FY 2025, we noted that as
part of our adoption of the revised OMB delineations, there is now a
hospital in rural Puerto Rico from which hospital wage data can be
derived. Therefore, we finalized a wage index for rural Puerto Rico
based on the hospital wage data for the area instead of the previously
available pre-hospice floor wage index of 0.4047, which equaled an
adjusted wage index value of 0.4654. The proposed FY 2026 pre-hospice
floor unadjusted wage index for rural Puerto Rico would be 0.2452 and
is subsequently adjusted by the hospice floor to equal 0.2820. Because
0.2820 is more than a 5 percent decline in the FY 2025 wage index, the
adjusted FY 2026 wage index with the 5 percent cap applied would equal
0.95 multiplied by 0.4421 (that is, the FY 2025 wage index with 5
percent cap), which would result in a proposed FY 2026 wage index value
of 0.4200.
The proposed hospice wage index applicable for FY 2026 (October 1,
2025 through September 30, 2026) is available on the CMS website for
the FY 2026 Hospice Wage Index proposed rule at https://www.cms.gov/medicare/payment/fee-for-service-providers/hospice/hospice-regulations-and-notices.
2. Proposed FY 2026 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 one percentage point. Payment rates for FYs since 2002 have
been updated as required by 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 hospital market basket percentage increase for
that FY. In the FY 2022 IPPS/LTCH PPS final rule (86 FR 45194 through
45204), we finalized the rebased and revised IPPS market basket to
reflect a 2018 base year. For FY 2026, we are proposing to rebase and
revise the IPPS market basket to reflect a 2023 base year. For more
information on this proposal, we refer readers to the FY 2026 IPPS/LTCH
PPS proposed rule.
Section 3401(g) of the Affordable Care Act mandated that, starting
with FY 2013 (and in subsequent FYs), the hospice payment update
percentage 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
[[Page 18573]]
adjustment to be equal to the 10-year moving average of changes in
annual economy-wide private nonfarm business multifactor productivity
(MFP) as projected by the Secretary for the 10-year period ending with
the applicable FY, year, cost reporting period, or other annual period
(the ``productivity adjustment''). The United States Department of
Labor's Bureau of Labor Statistics (BLS) publishes the official
measures of productivity for the United States economy. We note that,
previously, the productivity measure referenced in section
1886(b)(3)(B)(xi)(II) of the Act was published by BLS as private
nonfarm business multifactor productivity. Beginning with the November
18, 2021 release of productivity data, BLS replaced the term
``multifactor productivity'' with ``total factor productivity'' (TFP).
BLS noted that this is a change in terminology only and would not
affect the data or methodology. As a result of the BLS name change, the
productivity measure referenced in section 1886(b)(3)(B)(xi)(II) of the
Act is now published by BLS as ``private nonfarm business total factor
productivity.'' However, as mentioned, the data and methods are
unchanged. We refer readers to http://www.bls.gov for the BLS
historical published TFP data. A complete description of IHS Global
Inc.'s (IGIs) TFP projection methodology is available on the CMS
website at https://www.cms.gov/data-research/statistics-trends-and-reports/medicare-program-rates-statistics/market-basket-research-and-information. In addition, in the FY 2022 IPPS final rule (86 FR 45214),
we noted that beginning with FY 2022, CMS changed the name of this
adjustment to refer to it as the ``productivity adjustment'' rather
than the ``MFP adjustment''.
Consistent with our historical practice, we estimate the market
basket percentage increase, and the productivity adjustment based on
IGI's forecast, using the most recent available data. The proposed
hospice payment update percentage for FY 2026 is based on the most
recent estimate of the inpatient hospital market basket (based on IGI's
fourth quarter 2024 forecast). Due to the requirements at sections
1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) of the Act, the proposed
inpatient hospital market basket percentage increase for FY 2026 of 3.2
percent is required to be reduced by a productivity adjustment as
mandated by section 3401(g) of the Affordable Care Act. The proposed
productivity adjustment for FY 2026 is 0.8 percentage point (based on
IGI's fourth quarter 2024 forecast). Therefore, the proposed hospice
payment update percentage for FY 2026 is 2.4 percent. We are also
proposing that if more recent data become available after the
publication of this proposed rule and before the publication of the
final rule (for example, a more recent estimate of the inpatient
hospital market basket percentage increase or productivity adjustment),
we would use such data, if appropriate, to determine the hospice
payment update percentage in the FY 2026 final rule. We continue to
believe it is appropriate to routinely update the hospice payment
system so that it reflects the best available data regarding
differences in patient resource use and costs among hospices as
required by the statute.
In the FY 2022 Hospice Wage Index and Rate Update final rule (86 FR
42532), we rebased and revised the labor shares for RHC, CHC, GIP, and
IRC using Medicare cost report data for freestanding hospices (CMS Form
1984-14, OMB Control Number 0938-0758) from 2018. The current labor
portion of the payment rates are: RHC, 66.0 percent; CHC, 75.2 percent;
GIP, 63.5 percent; and IRC, 61.0 percent. The non-labor portion is
equal to 100 percent minus the labor portion for each level of care.
The non-labor portion of the payment rates are as follows: RHC, 34.0
percent; CHC, 24.8 percent; GIP, 36.5 percent; and IRC, 39.0 percent.
3. Proposed FY 2026 Hospice Payment Rates
There are four payment categories that are distinguished by the
location and intensity of the hospice 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 care is intended 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 registered nurse (RN) or social worker during the last
seven 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 four hours total) that occurred on the day of service
if certain criteria are met. To maintain budget neutrality, as required
under section 1814(i)(6)(D)(ii) of the Act, the new RHC rates were
adjusted by an SIA budget neutrality factor (SBNF). The SBNF is used to
reduce the overall RHC rate in order to ensure that SIA payments are
budget neutral. At the beginning of every FY, SIA utilization is
compared to the prior year in order calculate a budget neutrality
adjustment. For FY 2026, the proposed SIA budget neutrality factor is
1.0005 for RHC days 1-60 and 1.0001 for RHC days 61+.
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. For FY 2026 hospice rate
setting, we are continuing our longstanding policy of using the most
recent data available. Specifically, we are proposing to use FY 2024
claims data as of January 13, 2025 for the FY 2026 payment rate
updates. We note that the budget neutrality factors and payment rates
will be updated with more complete FY 2024 claims data for the final
rule. In order to calculate the wage index standardization factor, we
simulate total payments using FY 2024 hospice utilization claims data
with the FY 2025 wage index (pre-floor, pre-reclassified hospital wage
index with the hospice floor and the 5 percent cap on wage index
decreases) and FY 2025 payment rates and compare it to our simulation
of total payments using FY 2024 utilization claims data, the proposed
FY 2026 hospice wage index (pre-floor, pre-reclassified hospital wage
index with hospice floor, and the 5 percent cap on wage index
decreases) and FY 2025 payment rates. By dividing payments for each
level of care (RHC days 1 through 60, RHC days 61+, CHC, IRC, and GIP)
using the FY 2025 wage index and FY 2025 payment rates for each level
of care by the FY 2026 wage index and FY 2025 payment rates, we obtain
a wage index standardization factor for each level of care. The
proposed wage index standardization factors for each level of care are
shown in Tables 1 and 2.
The proposed FY 2026 RHC rates are shown in Table 1. The proposed
FY 2026 payment rates for CHC, IRC, and GIP are shown in Table 2.
[[Page 18574]]
Table 1--Proposed FY 2026 Hospice RHC Payment Rates
----------------------------------------------------------------------------------------------------------------
FY 2026 Proposed FY
FY 2025 SIA budget Wage index hospice 2026
Code Description payment neutrality standardization payment payment
rates factor factor update rates
----------------------------------------------------------------------------------------------------------------
651............... Routine Home Care $224.62 1.0005 1.0009 1.024 $230.33
(days 1-60).
651............... Routine Home Care 176.92 1.0001 1.0018 1.024 181.51
(days 61+).
----------------------------------------------------------------------------------------------------------------
Table 2--Proposed FY 2026 Hospice CHC, IRC, and GIP Payment Rates
----------------------------------------------------------------------------------------------------------------
FY 2026
FY 2025 Wage index hospice Proposed FY 2026
Code Description payment standardization payment payment rates
rates factor update
----------------------------------------------------------------------------------------------------------------
652................ Continuous Home Care $1,618.59 1.0047 1.024 $1,665.23, $69.38 per
Full Rate = 24 hours hour.
of care.
655................ Inpatient Respite Care 518.78 1.0007 1.024 $531.60.
656................ General Inpatient Care 1,170.04 0.9994 1.024 $1,197.40.
----------------------------------------------------------------------------------------------------------------
Sections 1814(i)(5)(A) through (C) of the Act require that hospices
submit quality data on measures to be specified by the Secretary. In
the FY 2012 Hospice Wage Index and Rate Update final rule (76 FR 47320
through 47324), we implemented a Hospice Quality Reporting Program
(HQRP) as required by those sections. Hospices were required to begin
collecting quality data in October 2012 and submit those quality data
in 2013. Section 1814(i)(5)(A)(i) of the Act requires that beginning
with FY 2014 through FY 2023, the Secretary shall reduce the market
basket percentage increase by two percentage points for any hospice
that does not comply with the quality data submission requirements with
respect to that FY. Section 1814(i)(5)(A)(i) of the Act was amended by
section 407(b) of Division CC, Title IV of the Consolidated
Appropriations Act (CAA), 2021 (Pub. L. 116-260) to change the payment
reduction for failing to meet hospice quality reporting requirements
from two to four percentage points. Depending on the amount of the
annual update for a particular year, a reduction of four percentage
points beginning in FY 2024 makes a negative payment update more likely
than the previous 2 percent reduction. This could result in the annual
market basket update being less than zero percent for a FY and may
result in payment rates that are less than payment rates for the
preceding FY. We applied this policy beginning with the FY 2024 Annual
Payment Update (APU), which we based on CY 2022 quality data.
Therefore, the proposed FY 2026 rates for hospices that do not submit
the required quality data would be updated by -1.6 percent, which is
the proposed FY 2026 hospice payment update percentage of 2.4 percent
minus four percentage points. The proposed payment rates for hospices
that do not submit the required quality data are shown in Tables 3 and
4.
Table 3--Proposed FY 2026 Hospice RHC Payment Rates for Hospices That DO NOT Submit the Required Quality Data
----------------------------------------------------------------------------------------------------------------
FY 2026 hospice
FY 2025 SIA budget Wage index payment update of Proposed FY
Code Description payment neutrality standardization 2.4% minus 4 2026
rates factor factor percentage points payment
= -1.6% rates
----------------------------------------------------------------------------------------------------------------
651............ Routine Home Care $224.62 1.0005 1.0009 0.984 $221.34
(days 1-60).
651............ Routine Home Care 176.92 1.0001 1.0018 0.984 174.42
(days 61+).
----------------------------------------------------------------------------------------------------------------
Table 4--Proposed FY 2026 Hospice CHC, IRC, and GIP Payment Rates for Hospices That DO NOT Submit the Required
Quality Data
----------------------------------------------------------------------------------------------------------------
FY 2026 hospice
FY 2025 Wage index payment update of
Code Description payment standardization 2.4% minus 4 Proposed FY 2026
rates factor percentage points payment rates
= -1.6%
----------------------------------------------------------------------------------------------------------------
652.............. Continuous Home Care $1,618.59 1.0047 0.984 $1,600.18, $66.67
Full Rate = 24 per hour.
hours of care.
655.............. Inpatient Respite 518.78 1.0007 0.984 $510.84.
Care.
656.............. General Inpatient 1,170.04 0.9994 0.984 $1,150.63.
Care.
----------------------------------------------------------------------------------------------------------------
[[Page 18575]]
4. Proposed Hospice Cap Amount for FY 2026
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, Oct. 6, 2014). Specifically, we stated
that 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 consumer price index for all
urban consumers (CPI-U). Division CC, section 404 of the CAA, 2021
extended the accounting years impacted by the adjustment made to the
hospice cap calculation until 2030. In the FY 2022 Hospice Wage Index
and Rate Update final rule (86 FR 42539), we finalized conforming
regulation text changes at Sec. 418.309 to reflect the provisions of
the CAA, 2021. Division P, section 312 of the CAA, 2022 (Pub. L. 117-
103) amended section 1814(i)(2)(B) of the Act and extended the
provision that mandates the hospice cap be updated by the hospice
payment update percentage (the inpatient hospital market basket
percentage increase reduced by the productivity adjustment) rather than
the CPI-U for accounting years that end after September 30, 2016 and
before October 1, 2031. Division FF, section 4162 of the CAA, 2023
(Pub. L. 118-328) amended section 1814(i)(2)(B) of the Act and extended
the provision that currently mandates the hospice cap be updated by the
hospice payment update percentage (the inpatient hospital market basket
percentage increase reduced by the productivity adjustment) rather than
the CPI-U for accounting years that end after September 30, 2016 and
before October 1, 2032. Division G, Section 308 of the Consolidated
Appropriations Act, 2024 (CAA, 2024) (Pub. L. 118-42) extends this
provision to October 1, 2033. Before the enactment of this provision,
the hospice cap update was set to revert to the original methodology of
updating the annual cap amount by the CPI-U beginning on October 1,
2032. Therefore, for accounting years that end after September 30,
2016, and before October 1, 2033, the hospice cap amount is updated by
the hospice payment update percentage rather than the CPI-U. In the FY
2025 Hospice Wage Index and Rate Update final rule (89 FR 64202), as a
result of the changes mandated by the CAA, 2024, we finalized
conforming regulation text changes at Sec. 418.309 to reflect the
revisions at section 1814(i)(2)(B) of the Act.
The proposed hospice cap amount for the FY 2026 cap year is
$35,292.51, which is equal to the FY 2025 cap amount ($34,465.34)
updated by the proposed FY 2026 hospice payment update percentage of
2.4 percent. We are also proposing that if more recent data become
available after the publication of this proposed rule and before the
publication of the final rule (for example, a more recent estimate of
the hospice payment update percentage), we would use such data, if
appropriate, to determine the hospice cap amount in the FY 2026 final
rule.
B. Proposed Regulation Change to Admission to Hospice Care
The Medicare hospice benefit provides coverage for a comprehensive
set of services described in section 1861(dd)(1) of the Act for
individuals who are deemed ``terminally ill'' based on a medical
prognosis that the individual's life expectancy is 6 months or less, as
described in section 1861(dd)(3)(A) of the Act. As such, section
1814(a)(7)(A) of the Act requires the individual's attending physician
(if the patient designates an attending physician) and hospice medical
director (or physician member of the interdisciplinary group (IDG)) to
certify in writing at the beginning of the first 90-day period of
hospice care 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. In a subsequent 90- or 60-
day period of hospice care, only the hospice medical director or the
physician member of the IDG recertifies at the beginning of the period
that the patient is terminally ill based on such clinical judgment.
Operation Restore Trust (ORT), a government initiative that began
in 1995, coordinated with the Centers for Medicare & Medicaid Services
(CMS), the Office of the Inspector General (OIG), and the
Administration on Aging (AoA) to identify vulnerabilities in the
Medicare program and to pursue ways to reduce Medicare's exposure to
fraud and abuse. Through audits, ORT identified several areas of
weakness in the hospice benefit, primarily in the area of hospice
eligibility. In response to concerns raised by ORT regarding
beneficiaries who had been receiving hospice care for more than 210
days but who were later determined to have not been eligible \4\ and to
reduce Medicare exposure to abusive practices, the FY 2006 Medicare
Program; Hospice Care Amendments final rule (70 FR 70532, 70535, 70547)
added a new Sec. 418.25, ``Admission to hospice care,'' which
established specific requirements that must be met before a hospice
provider admits a patient to its care.
---------------------------------------------------------------------------
\4\ Operation Restore Trust: Review of Medicare Hospice
Eligibility at the San Diego Hospice Corporation https://oig.hhs.gov/reports/all/1997/operation-restore-trust-review-of-medicare-hospice-eligibility-at-the-san-diego-hospice-corporation/.
---------------------------------------------------------------------------
In particular, Sec. 418.25(a) requires that the hospice admit a
patient only on the recommendation of the medical director (or the
physician designee, as defined in Sec. 418.3) in consultation with, or
with input from, the patient's attending physician (if any). Section
418.25(b) sets out the information that the hospice medical director
(or the physician designee, as defined in Sec. 418.3) must consider in
reaching a decision to certify that the patient is terminally ill.
Section 418.25(b) is not the only regulation that discusses the
certification of terminal illness. Section 418.22(c)(1) sets forth the
sources of the certification of terminal illness and Sec. 418.102(b)
provides the standard for the initial certification of terminal illness
in the condition of participation (CoP) for hospice medical directors.
However, while each of these regulations pertain to the determination
that a patient is terminally ill, they do not align regarding the
physicians who can make these determinations.
In particular, Sec. 418.25 only describes any of two physicians on
the recommendation of whom the hospice may admit a patient: the medical
director or the physician designee (in addition to the patient's
attending physician, if any). However, the payment certification of
terminal illness and medical director CoP regulations at Sec. Sec.
418.22(c)(1)(i) and 418.102(b), respectively, list any of three
physicians who provide the written certification of terminal illness:
the medical director of the hospice, the physician designee, or
physician member of the hospice IDG.
In the FY 2025 Hospice Wage Index and Rate Update final rule (89 FR
64231), we received several comments requesting that the physician
member of the IDG be added to the hospice admission regulation at Sec.
418.25. Specifically, commenters requested that the language regarding
which physicians can make determinations for hospice admission align
with current certification requirements and CoPs. We did not make a
change to Sec. 418.25 in the FY 2025 hospice final rule as we did not
propose this change.
We agree with the commenters that our regulations should
consistently describe the physicians who can certify terminal illness
and determine patient admission to hospice care. Accordingly, to align
with the current payment and CoP regulations at Sec. Sec.
418.22(c)(1)(i) and
[[Page 18576]]
418.102(b), respectively, we propose to add the text ``or the physician
member of the hospice interdisciplinary group'' at Sec. 418.25(a) and
(b) to indicate that, in addition to the medical director or physician
designee, the physician member of the hospice IDG may also determine
admission to hospice care. We believe aligning the language at Sec.
418.25(a) and (b) with the language at Sec. Sec. 418.102(b) and
418.22(c)(1)(i) would allow for greater consistency between key
components of hospice regulations and policies.
C. Proposed Clarifying Regulation Change Regarding Face-to-Face
Attestation
The Medicare Program; Home Health Prospective Payment System Rate
Update for Calendar Year 2011; Changes in Certification Requirements
for Home Health Agencies and Hospices final rule (CY 2011 HH PPS final
rule) implemented the requirements in section 1814(a)(7)(D) of the Act,
as added by section 3132(b) of the Affordable Care Act (75 FR 70435).
Subclause (i) of section 1814(a)(7)(D) requires that on and after
January 1, 2011, a hospice physician or nurse practitioner (NP) must
have a face-to-face encounter with a hospice patient to determine the
patient's continued eligibility for hospice care prior to the 180-day
recertification, and prior to each subsequent recertification. Section
1814(a)(7)(D)(i) also requires that the hospice physician or NP attest
that such a visit took place, in accordance with procedures established
by the Secretary. Additionally, as existing regulatory text at Sec.
418.22 requires, if the face-to-face encounter was not performed by the
certifying physician, the attestation of the physician or nurse
practitioner who performed the face-to-face encounter shall state that
the clinical findings of that visit were provided to the certifying
physician for use in determining continued eligibility for hospice
care. These requirements were codified at Sec. 418.22 to ensure that a
hospice patients' continued eligibility is appropriately assessed
through a face-to-face encounter conducted by either a hospice
physician or NP.
As explained in the CY 2011 HH PPS final rule, the regulation at
Sec. 418.22(b)(4) set forth that the physician or NP who performs the
face-to-face encounter with the patient must attest in writing that he
or she had a face-to-face encounter with the patient and, at that time,
set forth that the attestation of the nurse practitioner shall state
that the clinical findings of that visit were provided to the
certifying physician, for use in determining whether the patient
continues to have a life expectancy of 6 months or less, should the
illness run its normal course. Further, the regulation set forth that
the attestation, its accompanying signature, and the date signed, must
be a separate and distinct section of, or an addendum to, the
recertification form, and must be clearly titled (75 FR 70463).
In the FY 2012 Hospice Wage Index final rule (76 FR 47314), as a
result of interested parties' concerns regarding access risks resulting
from the policy implemented in the CY 2011 HH PPS final rule, we
finalized that any hospice physician can perform the face-to-face
encounter regardless of whether that physician recertifies the
patient's terminal illness and composes the recertification narrative.
Additionally, we amended the regulatory text at Sec. 418.22(b)(4) to
provide that the attestation of the NP or a non-certifying hospice
physician shall state that the clinical findings of that encounter were
provided to the certifying physician, for use in determining continued
eligibility for hospice.
In that final rule, however, we inadvertently omitted from the
regulatory text at Sec. 418.22(b)(4) the explicit requirements that
the attestation include the accompanying signature of the practitioner
who performed the face-to-face encounter, and the date signed. While
the CY 2011 HH PPS final rule regulatory text required the practitioner
conducting the encounter to attest to its occurrence, including the
date and their signature, the unintentional omission of this explicit
requirement in the FY 2012 Hospice Wage Index final rule led to
discrepancies in documentation practices and introduced potential
ambiguity into compliance requirements along with inconsistencies in
implementation among hospice providers. Specifically, the lack of
clarity regarding the full attestation requirements complicated
documentation standards and audit processes, led to confusion about the
expectations for what elements the attestation should minimally
include, and thereby undermining of the intent of the original statute
and rule to require verifiable documentation of appropriately assessed
continued eligibility.
As such, we propose to amend Sec. 418.22(b)(4) to set forth that
the physician, or NP who performs the face-to-face encounter attest
that the face-to-face encounter occurred, and the attestation must
include the signature of the physician or NP who conducted the face-to-
face encounter and the date it was signed. Further, we propose that the
attestation, its accompanying signature, and the date signed, must be a
separate and distinct section of, or an addendum to, the
recertification form, and must be clearly titled. With these measures,
we seek to realign the regulatory text at Sec. 418.22(b)(4) with the
original intent of the CY 2011 HH PPS final rule and the statutory
requirement in section 1814(a)(7)(D)(i)(I) of the Act.
Accordingly, we propose to clarify the current regulation at Sec.
418.22(b)(4) as follows: The physician or nurse practitioner who
performs the face-to-face encounter with the patient described in
paragraph (a)(4) of this section must attest in writing that he or she
had a face-to-face encounter with the patient, including the date of
that visit. The attestation must include the physician's or nurse
practitioner's signature and the date it was signed. The attestation,
its accompanying signature, and the date signed, must be a separate and
distinct section of, or an addendum to, the recertification form, and
must be clearly titled. If the face-to-face encounter was not performed
by the certifying physician, the attestation of the physician or nurse
practitioner who performed the face-to-face encounter shall state that
the clinical findings of that visit were provided to the certifying
physician for use in determining continued eligibility for hospice
care.
These additions will help to resolve current ambiguities, improve
documentation standards, and promote consistent implementation across
providers.
D. Updates for the Hospice Quality Reporting Program (HQRP)
1. Background and Statutory Authority
Section 1814(i)(5) of the Act requires the Secretary to establish
and maintain a quality reporting program for hospices. The Hospice
Quality Reporting Program (HQRP), consisting of Hospice Item Set (HIS),
administrative data, and Consumer Assessment of Healthcare Providers
and Systems (CAHPS[supreg]) Hospice Survey, specifies reporting
requirements that hospices complete and submit a standardized set of
items for each patient to capture patient-level data, regardless of
payer or patient age (Sec. 418.312(b)). Beginning with FY 2014,
section 1814(i)(5) of the Act requires the Secretary to reduce the
market basket update by 2 percentage points for those hospices failing
to meet quality reporting requirements. Section 407(b) of Division CC,
Title IV of the Consolidated Appropriations Act (CAA), 2021 amended
section 1814(i)(5)(A)(i) of the Act to change the
[[Page 18577]]
payment reduction for failing to meet hospice quality reporting
requirements from 2 to 4 percentage points beginning in FY 2024 for any
hospice that does not comply with the submission requirements above for
that FY. In the FY 2024 Hospice final rule, we codified the application
of the 4-percentage point payment reduction for failing to meet hospice
quality reporting requirements and set completeness thresholds at Sec.
418.312(j).
Depending on the amount of the annual update for a particular year,
a reduction of 4 percentage points beginning in FY 2024 could result in
the annual market basket update being less than zero 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 specified year.
In the FY 2014 Hospice Wage Index and Payment Rate Update final
rule (78 FR 48234, 48257 through 48262), and in compliance with section
1814(i)(5)(C) of the Act, we finalized a new standardized patient-level
data collection vehicle called the Hospice Item Set (HIS). We also
finalized the specific collection of data items that support eight
consensus-based entity (CBE)-endorsed measures for hospice.
In the FY 2015 Hospice Wage Index and Payment Rate Update final
rule (79 FR 50452), we finalized national implementation of the
CAHPS[supreg] Hospice Survey, 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 the FY 2014 and FY 2015
Hospice Wage Index and Payment Update final rules (78 FR 48234 and 79
FR 50452, respectively) or to https://www.hospicecahpssurvey.org/.
National implementation commenced January 1, 2015. We adopted eight
CAHPS[supreg] survey-based measures for the CY 2018 data collection
period and for subsequent years. These eight measures are publicly
reported on the Care Compare website.
In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR
47142, 47186 through 47188), we finalized the policy for retention of
HQRP measures adopted for previous payment determinations and seven
factors for removal. In that same final rule, we discussed how we would
provide public notice through rulemaking of measures under
consideration for removal, suspension, or replacement. We also stated
that if we had reason to believe continued collection of a measure
raised potential safety concerns, we would take immediate action to
remove the measure from the HQRP and not wait for the annual rulemaking
cycle. The measures would be promptly removed and we would immediately
notify hospices and the public of such a decision through the usual
HQRP communication channels, including but not limited to listening
sessions, email notifications, Open Door Forums, and Web postings. In
such instances, the removal of a measure would be formally announced in
the next annual rulemaking cycle.
On August 31, 2020, we added correcting language to the FY 2016
Hospice Wage Index and Payment Rate Update and Hospice Quality
Reporting Requirements; Correcting Amendment (85 FR 53679) hereafter
referred to as the FY 2021 HQRP Correcting Amendment. In the correcting
amendment, we made updates to 42 CFR 418.312 to correct technical
errors identified in the FY 2016 Hospice Wage Index and Payment Rate
Update final rule. Specifically, the FY 2021 HQRP Correcting Amendment
(85 FR 53679) added paragraph (i) to Sec. 418.312 to reflect our
exemptions and extensions requirements for reporting, which were
referenced in the preamble but inadvertently omitted from the
regulations text. Thus, these exemptions or extensions can occur when a
hospice encounters certain extraordinary circumstances.
In the FY 2017 Hospice Wage Index and Payment Rate Update final
rule, we finalized the ``Hospice Visits When Death is Imminent''
measure pair (HVWDII, Measure 1 and Measure 2), effective April 1,
2017. We refer the public to the FY 2017 Hospice Wage Index and Payment
Rate Update final rule (81 FR 52144, 52163 through 52169) for a
detailed discussion.
As stated in the FY 2019 Hospice Wage Index and Rate Update final
rule (83 FR 38622, 38635 through 38648), 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. The Meaningful Measures Initiative is not intended to
replace any existing CMS quality reporting programs but will help such
programs identify and select individual measures. The Meaningful
Measures Initiative priority areas are intended to increase measure
alignment across our quality 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 to 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.
In the FY 2022 Hospice Wage Index and Payment Rate Update final
rule (86 FR 42552), we finalized two new measures using claims data:
(1) Hospice Visits in the Last Days of Life (HVLDL); and (2) Hospice
Care Index (HCI). We also removed the HVWDII measure, as it was
replaced by HVLDL. We also finalized a policy that claims-based
measures would use 8 quarters of data, which would allow CMS to
publicly report on more hospices. Additionally, the rule indicated that
public data reflecting hospices' reporting of the two new claims-based
quality measures (QMs), the HVLDL and the HCI measures, would be
available on the Care Compare/Provider Data Catalogue (PDC) web pages
as of the August 2022 refresh.
In addition, we removed the seven HIS Process Measures from the
program as individual measures, and ceased their public reporting
because, in our view, the HIS Comprehensive Assessment Measure is
sufficient for measuring care at admission without the seven individual
process measures. In the FY 2022 Hospice Wage Index and Rate Update
final rule (86 FR 42553), we finalized Sec. 418.312(b)(2), which
requires hospices to provide administrative data, including claims-
based measures, as part of the HQRP requirements for Sec. 418.306(b).
In that same final rule, we provided CAHPS Hospice Survey updates.
In the FY 2023 and FY 2024 Hospice Wage Index final rules, we did
not propose any new quality measures. However, we provided updates on
already-adopted measures.
In the FY 2025 Hospice Wage Index final rule, the HQRP finalized
two measures, including new data collection through the Hospice
Outcomes and Patient Evaluation (HOPE) tool and plans for further
development.
Table 5 shows the current quality measures in effect for the FY
2026 HQRP, which were updated and finalized in the FY 2025 Hospice Wage
Index and Payment Rate Update final rule.
[[Page 18578]]
Table 5--Quality Measures in Effect for the Hospice Quality Reporting
Program
------------------------------------------------------------------------
Hospice Quality Reporting Program
-------------------------------------------------------------------------
Hospice Items Set (HIS) and Hospice Outcomes and Patient Evaluation
(HOPE)
------------------------------------------------------------------------
Hospice and Palliative Care Composite Process Measure--Comprehensive
Assessment Measure at Admission includes:
1. Patients Treated with an Opioid who are Given a Bowel Regimen.
2. Pain Screening.
3. Pain Assessment.
4. Dyspnea Treatment.
5. Dyspnea Screening.
6. Treatment Preferences.
7. Beliefs/Values Addressed (if desired by the patient).
------------------------------------------------------------------------
Administrative Data, Including Claims-Based Measures
------------------------------------------------------------------------
Hospice Visits in Last Days of Life (HVLDL).
Hospice Care Index (HCI):
1. Continuous Home Care (CHC) or General Inpatient (GIP) Provided.
2. Gaps in Skilled Nursing Visits.
3. Early Live Discharges.
4. Late Live Discharges.
5. Burdensome Transitions (Type 1)--Live Discharges from Hospice
Followed by Hospitalization and Subsequent Hospice Readmission.
6. Burdensome Transitions (Type 2)--Live Discharges from Hospice
Followed by Hospitalization with the Patient Dying in the Hospital.
7. Per-beneficiary Medicare Spending.
8. Skilled Nursing Care Minutes per Routine Home Care (RHC) Day.
9. Skilled Nursing Minutes on Weekends.
10. Visits Near Death.
------------------------------------------------------------------------
CAHPS Hospice Survey
------------------------------------------------------------------------
CAHPS Hospice Survey:
1. Communication with Family.
2. Getting Timely Help.
3. Treating Patient with Respect.
4. Emotional and Spiritual Support.
5. Help for Pain and Symptoms.
6. Training Family to Care for Patient.
7. Care Preferences.
8. Rating of this Hospice.
9. Willing to Recommend this Hospice.
------------------------------------------------------------------------
2. Update on the Comprehensive Assessment at Admission Measure
We retained key items from the HIS in HOPE v1.0 and continue to
collect data to inform the Comprehensive Assessment at Admission (CBE
#3235) while gathering additional data to support new quality measures.
The Comprehensive Assessment Measure assesses the proportion of
patients for whom the hospice performed all seven care processes, as
applicable, at admission.
First endorsed by the National Quality Forum (NQF) in July 2017,
the measure was endorsed again by NQF in July 2021 and this measure
endorsement has been extended through Fall 2026 under the new CBE,
Battelle.
3. Update on Hospice Claims-Based Measures
In the FY 2022 Hospice Wage Index and Payment Rate Update final
rule (86 FR 42552), we finalized two new measures using claims data:
(1) Hospice Visits in the Last Days of Life (HVLDL); and (2) Hospice
Care Index (HCI).
Our measure selection activities for the HQRP take into
consideration input we receive from the CBE, as part of a pre-
rulemaking process that we have established and are required to follow
under section 1890A of the Act. The CBE convenes interested parties
from multiple groups to provide CMS with recommendations on the
Measures Under Consideration (MUC) list. This input informs how CMS
selects certain categories of quality and efficiency measures as
required by section 1890A(a)(3) of the Act. By February 1st of each
year, the CBE must provide that input to CMS. On July 26, 2022, the CBE
endorsed the claims-based HVLDL measure. More information can be found
on the HQRP Quality Measure Development web page at https://www.cms.gov/medicare/hospiceequality-reporting-program/quality-measure-development and the HQRP Current Measures web page at https://www.cms.gov/medicare/quality/hospice/current-measures. In November
2024, HVLDL was sent to the CBE advisory group for endorsement
extension. HVLDL was re-endorsed with conditions in February 2025 and
is endorsed through 2027. We are considering respecifying HCI, see the
Hospice Technical Expert Panel (TEP) and Caregiver Report on this web
page at https://www.cms.gov/medicare/quality/hospice/provider-and-stakeholder-engagement.
4. Update on the HOPE Instrument and Public Reporting and Future
Quality Measure (QM) Development
The HOPE assessment was developed as the new patient assessment
tool to replace the HIS as part of the HQRP. HOPE was finalized in the
in the FY 2025 Hospice Wage Index final rule (89 FR 64202) and once
implemented in FY 2026 (October 1, 2025), will provide value to hospice
providers, patients, and families. Additional information regarding
HOPE and its associated costs and burden can be found in the FY 2025
PRA submission (CMS-10390; OMB Control Number: 0938-1153).
HOPE will provide assessment-based quality data to enhance the HQRP
[[Page 18579]]
through standardized data collection, provide a better understanding of
patient care needs, contribute to the patient's plan of care, and
provide additional clinical data that could inform future payment
refinements.
We encourage providers and vendors to visit the HOPE Technical
Information web page at https://www.cms.gov/medicare/quality/hospice-quality-reporting-program/hospice-outcomes-and-patient-evaluation-hope-technical-information for the latest updates and resources related to
HOPE data submission specifications and other technical information.
The Web-Based Training, entitled Introducing the HOPE Tool, released
October 1, 2024, is available on the HQRP Training and Education
Library web page at https://www.cms.gov/medicare/quality/hospice/hqrp-training-and-education-library. We encourage providers to complete the
course, which contains five sections and includes interactive exercises
to help providers understand and apply the content presented. More
detailed comprehensive training will follow and be available on the
HQRP Training and Education Library web page linked above.
As finalized in the FY 2025 Hospice Wage Index final rule (89 FR
64202), public reporting of the HOPE quality measures will be
implemented no earlier than FY 2028. Data collected by hospices during
the four quarters of CY 2026 (for example, Q 1, 2, 3 and 4 CY 2026)
will be analyzed starting in CY 2027. We will inform the public of the
decisions about whether CMS will report some or all of the quality
measures publicly based on the findings of analysis of the CY 2026 data
through future rulemaking. Providers will have the opportunity to
preview HOPE data before it is publicly reported, with the first HOPE-
based QM public reporting anticipated to be no earlier than November
2027 (FY 2028). Table 6 walks through the anticipated schedule for HOPE
public reporting, should CMS decide that this information will be
publicly reported.
Table 6--Anticipated HOPE Public Education, Data Collection, and
Reporting
------------------------------------------------------------------------
Key event Time period
------------------------------------------------------------------------
Provider Trainings for HOPE Spring/Summer 2025.
Implementation.
Data Collection Begins.................. October 1, 2025.
CY 2026 Data Analyzed to Assess Quality Winter/Spring 2027.
and Completeness.
Provider Preview Reports for HOPE Summer 2027.
Measure(s) Provided to Hospices *.
Public Reporting of HOPE Measure(s) Fall 2027.
Begins *.
------------------------------------------------------------------------
* These dates are subject to change based on the quality and
reportability of the data as determined based on CMS analyses; updates
will be provided in the FY 2027 Hospice Rule.
Lastly, as stated in the FY 2022 Hospice Wage Index final rule (86
FR 42528), we continue to consider developing hybrid quality measures
that could be calculated from multiple data sources, such as claims,
HOPE data, or other data sources (for example, CAHPS Hospice Survey).
We also intend to develop several quality measures based on information
collected by HOPE after HOPE is implemented. More information on
measure development can be found on the HQRP Quality Measure
Development web page at https://www.cms.gov/medicare/hospice-quality-reporting-program/quality-measure-development.
5. Update on the Transition to iQIES
In the FY 2020 Hospice Wage Index and Payment Rate Update final
rule (84 FR 38484), we finalized migrating our systems for submitting
and processing assessment data and the reporting system. 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 and obtain reports in the Certification and
Survey Provider Enhanced Reports (CASPER) system. The FY 2020 Hospice
Wage Index and Payment Rate Update final rule (84 FR 38484) finalized
the proposal to migrate to a new single CMS submission and reporting
system.
In the FY 2025 Hospice Wage Index and Payment Rate Update final
rule (86 FR 64202), we finalized the HOPE tool to replace the HIS as
part of the HQRP. Beginning on October 1, 2025, the new CMS submission
and reporting system will begin accepting the data from HOPE, in line
with the start of HOPE data collection. Provider reports will also be
available in this system beginning October 1, 2025. The QIES system
will stop accepting HIS records for hospice admissions and discharges
that occurred prior to October 1, 2025, including any corrections, on
February 15, 2026.
6. Form, Manner, and Timing of Quality Measure Data Submission
a. Statutory Penalty for Failure To Report
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 and manner, and at a time
specified by the Secretary. Section 1814(i)(5)(A)(i) of the Act was
amended by the CAA, 2021 and the payment reduction for failing to meet
hospice quality reporting requirements was increased from 2 percent to
4 percent beginning with FY 2024. During FYs 2014 through 2023, the
Secretary reduced the market basket update by 2 percentage points for
non-compliance. Beginning in FY 2024 and for each subsequent year, the
Secretary will reduce the market basket update by 4 percentage points
for any hospice that does not comply with the quality measure data
submission requirements for that FY. In the FY 2023 Hospice Wage Index
final rule (87 FR 45669), we revised our regulations at Sec.
418.306(b)(2) in accordance with this statutory change.
b. Compliance
HQRP Compliance requires understanding the different timeframes for
both HIS (or HOPE, once implemented) and CAHPS: The relevant Reporting
Year, the payment FY, and the Reference Year.
The ``Reporting Year''' (HIS or HOPE) or ``Data Collection
Year''' (CAHPS) is based on the calendar year (CY). It is the same CY
for both HIS (or HOPE, once it is implemented) and CAHPS. If the CAHPS
Data Collection year is CY 2025, then the HIS (or HOPE) reporting year
is also CY 2025.
In the ``Payment FY'', the APU is subsequently applied to
FY payments based on compliance in the corresponding Reporting Year/
Data Collection Year.
For the CAHPS Hospice Survey, the Reference Year is the CY
before the Data Collection Year. The Reference Year applies to hospices
submitting a size exemption from the CAHPS survey (there is no similar
exemption for HIS
[[Page 18580]]
or HOPE).\5\ For example, for the CY 2025 data collection year, the
Reference Year is CY 2024. This means providers seeking a size
exemption for CAHPS in CY 2025 will base it on their hospice size in CY
2024.
---------------------------------------------------------------------------
\5\ CAHPS Hospice Survey, Participation Exemption for Size.
https://www.hospicecahpssurvey.org/en/participation-exemption-for-size/.
---------------------------------------------------------------------------
Submission requirements are codified at 42 CFR 418.312. Table 7
summarizes the three timeframes. It illustrates how the CY interacts
with the FY payments, covering the CY 2023 through CY 2026 data
collection periods and the corresponding APU application from FY 2025
through FY 2028. Please note that during the first reporting year that
implements HOPE, APUs may be based on fewer than four quarters of data.
We will provide additional subregulatory guidance regarding APUs for
the HOPE implementation year.
Table 7--HQRP Reporting Requirements and Corresponding Annual Payments
Updates
------------------------------------------------------------------------
Reporting year for HIS/HOPE
and data collection year Annual payment Reference year for
for CAHPS data (calendar update impacts CAHPS size exemption
year) payments for the FY (CAHPS only)
------------------------------------------------------------------------
CY 2024..................... FY 2026 APU......... CY 2023.
CY 2025..................... FY 2027 APU......... CY 2024.
CY 2026..................... FY 2028 APU......... CY 2025.
CY 2027..................... FY 2029 APU......... CY 2026.
------------------------------------------------------------------------
As illustrated in Table 7, CY 2024 data submissions compliance
impacts the FY 2026 APU. CY 2025 data submissions compliance impacts
the FY 2027 APU. CY 2026 data submissions compliance impacts FY 2028
APU. This CY data submission impacting FY APU pattern follows for
subsequent years.
c. Submission of Data Requirements
As finalized in the FY 2016 Hospice Wage Index final rule (80 FR
47142, 47192), hospices' compliance with HIS requirements beginning
with the FY 2020 APU determination (that is, based on HIS Admission and
Discharge records submitted in CY 2018) are based on a timeliness
threshold of 90 percent. This means CMS requires that hospices submit
90 percent of all required HIS records within 30 days of the event
(that is, patient's admission or discharge). The 90-percent threshold
is hereafter referred to as the timeliness compliance threshold. Ninety
percent of all required HIS records must be submitted and accepted
within the 30-day submission deadline to avoid the statutorily mandated
payment penalty.
We will apply the same submission requirements for HOPE admission,
discharge, and up to two hospice update visit (HUV) records. After HIS
is phased out, hospices will continue to be required to submit 90
percent of all required HOPE records to support the quality measures
within 30 days of the event or completion date (patient's admission,
discharge, and based on the patient's length of stay up to two HUV
timepoints).
Hospice compliance with claims data requirements is based on
administrative data collection. Since Medicare claims data are already
collected from claims, hospices are considered 100 percent compliant
with the submission of these data for the HQRP. There is no additional
submission requirement for administrative data.
To comply with CMS' quality reporting requirements for CAHPS,
hospices are required to collect data monthly using the CAHPS Hospice
Survey. Hospices comply by utilizing a CMS-approved third-party vendor.
Approved Hospice CAHPS vendors must successfully submit data on the
hospice's behalf to the CAHPS Hospice Survey Data Center. A list of the
approved vendors can be found on the CAHPS Hospice Survey website at
https://www.hospicecahpssurvey.org.
Table 8 HQRP Compliance Checklist illustrates the APU and
timeliness threshold requirements.
Table 8--HQRP Compliance Checklist
------------------------------------------------------------------------
Annual payment update HIS/HOPE CAHPS
------------------------------------------------------------------------
FY 2026.................. Submit at least 90 Ongoing monthly
percent of all HIS participation in
records within 30 days the Hospice CAHPS
of the event date (for survey 1/1/2024-12/
example, patient's 31/2024.
admission or discharge)
for patient admissions/
discharges occurring 1/
1/24-12/31/24.
FY 2027.................. Submit at least 90 Ongoing monthly
percent of all HIS/HOPE participation in
records within 30 days the Hospice CAHPS
of the event date (for survey 1/1/2025-12/
example, patient's 31/2025.
admission or discharge)
for patient admissions/
discharges occurring 1/
1/25-12/31/25.
FY 2028.................. Submit at least 90 Ongoing monthly
percent of all HOPE participation in
records within 30 days the Hospice CAHPS
of the event or survey 1/1/2026-12/
completion date (for 31/2026.
example, patient's
admission date, HUV
completion date or
discharge date) for
patient admissions/
discharges occurring 1/
1/26-12/31/26.
FY 2029.................. Submit at least 90 Ongoing monthly
percent of all HOPE participation in
records within 30 days the Hospice CAHPS
of the event date (for survey 1/1/2028-12/
example, patient's 31/2027.
admission or discharge)
for patient admissions/
discharges occurring 1/
1/27-12/31-2027.
------------------------------------------------------------------------
Note: The data source for the claims-based measures will be Medicare
claims data that are already collected and submitted to CMS. There is
no additional submission requirement for administrative data (Medicare
claims), and hospices with claims data are 100-percent compliant with
this requirement.
Most hospices that fail to meet HQRP requirements do so because
they miss the 90 percent threshold. We offer many training and
education opportunities through our websites, which are available 24/7,
365 days per year, to enable hospice staff to learn at the pace and
time of their choice. We want hospices to be successful with meeting
[[Page 18581]]
the HQRP requirements. We encourage hospices to visit the frequently-
updated HQRP website at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting.
Available trainings can be found on the HQRP Training and Education
Library web page at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-Quality-Reporting-Training-Training-and-Education-Library and
additional resources are located on the Requirements and Best Practices
web page at https://www.cms.gov/medicare/quality/hospice/hqrp-requirements-and-best-practices. We also encourage readers to stay
informed about HQRP by visiting the HQRP Provider and Stakeholder
Engagement web page at https://www.cms.gov/medicare/quality/hospice/provider-and-stakeholder-engagement to sign-up for the Hospice Quality
Listserv.
7. Request for Information (RFI) To Advance Digital Quality Measurement
(dQM) in the HQRP
As part of our quality measurement enterprise modernization, we are
issuing this RFI to gather broad public input on the digital quality
measurement.
a. Background
We are committed to improving healthcare quality through
measurement, transparency, and public reporting of quality data, and to
enhancing healthcare data exchange by promoting the adoption of
interoperable health information technology (IT) through Health Level
Seven[supreg] (HL7[supreg]) Fast Healthcare Interoperability
Resources[supreg] (FHIR[supreg]) standards. Proposing requirements
around the use of technology utilizing such standards within the HQRP
in the future could potentially enable greater care coordination and
information sharing, which is essential for delivering high-quality,
efficient care and better outcomes at a lower cost (86 FR 25615). In
the FY 2022 IRF/LTCH PPS proposed rule and the FY 2023 Hospice proposed
rule,\6\ we outlined several HHS initiatives aimed at promoting the
adoption of interoperable health IT and facilitating nationwide health
information exchange. Further, to inform our digital strategy, in the
FY 2022 Hospice proposed rule we shared and sought feedback on our
intent to explore the use of FHIR-based standards to exchange clinical
information through application programming interfaces (APIs), enabling
quality data submission to CMS through our internet Quality Improvement
and Evaluation System (iQIES), and to work with healthcare standards
organizations to ensure their standards support our assessment tools
(86 FR 19700).
---------------------------------------------------------------------------
\6\ ``Advancing Health Information Exchange'' in: FY 2022 IPPS/
LTCH PPS proposed rule (87 FR 28108) and FY 2023 Hospice proposed
rule (87 FR 19442).
---------------------------------------------------------------------------
We now are continuing to consider opportunities to advance FHIR-
based reporting of patient assessment data in settings that were not
eligible to participate in the Medicare Electronic Health Record (EHR)
Incentive Program (now known as the Medicare Promoting Interoperability
Program), while acknowledging that such providers may be at different
levels of health IT adoption and readiness. Specifically, we are
interested in assessing the feasibility of using the FHIR standard for
the submission of HOPE data. Our objective is to explore how hospices
typically integrate technologies with varying complexity into existing
systems and how this affects hospice workflows. We seek to identify the
challenges or opportunities that may arise during this integration, and
determine the support needed to complete and submit HOPE in ways that
protect and enhance care delivery.
Any updates to specific program requirements related to quality
measurement and reporting provisions would be addressed through
separate and future notice-and-comment rulemaking, as necessary.
b. Solicitation for Comment
We seek feedback on the following questions regarding the current
state of health IT use, including EHRs, in your facilities:
To what extent does your hospice use health IT to maintain
patient records? If your facility has transitioned to using electronic
records, in part or in whole, what types of health IT does your hospice
use to maintain patient records, and are these technology systems
certified under the Office of the National Coordinator (ONC) Health IT
Certification Program? \7\ If your facility uses health IT systems that
are not certified under the ONC Health IT Certification Program, please
specify and include the reason(s) for not using a certified health IT
system (for example, resources, lack of certified health IT products
that meet your needs, etc.). Does your facility maintain any patient
records outside of these electronic systems? If so, are the data
organized in a structured format, using codes and recognized standards,
that can be exchanged with other systems?
---------------------------------------------------------------------------
\7\ Certified Health IT Product List (CHPL). https://chpl.healthit.gov/#/search.
---------------------------------------------------------------------------
Does your hospice submit data to CMS through your current
health IT system? If a third-party intermediary (for example, an EHR
vendor) is used to report data, what type of intermediary service is
used? How does your facility currently exchange health information with
other healthcare providers or systems, specifically between hospices
and other provider types? What about health information exchange with
other entities, such as public health agencies--what does that look
like? What are the challenges to electronic exchange of health
information?
Are there any challenges with your current electronic
devices (for example, tablets, smartphones, computers) that hinder your
ability to easily exchange information across systems? Does limited or
lack of internet connectivity impact your ability to exchange data with
other healthcare providers, including community-based care services, or
your ability to submit patient assessment data to CMS? Please specify.
What steps does your hospice take to ensure compliance in
using health IT security and patient privacy requirements such as the
Health Insurance Portability and Accountability Act and related
regulations?
Does your hospice refer to Safety Assurance Factors for
HER Resilience (SAFER) Guides (see newly revised versions published in
January 2025 at https://www.healthit.gov/topic/safety/safer-guides) to
self-assess EHR safety practices?
What challenges or barriers does your hospice encounter
when submitting quality measure data to CMS as part of the Hospice QRP?
What opportunities or factors could improve your facility's successful
data submission to CMS?
How do you anticipate the adoption of technology using
FHIR-based APIs to facilitate the reporting of patient assessment data
could impact provider workflows? What impact, if any, do you anticipate
it will have on quality of care?
Does your hospice have any experience using one or more
versions of the United States Core Data for Interoperability (USCDI)
standard? \8\ Is your facility using technology that utilizes APIs
based on the FHIR
[[Page 18582]]
standard for electronic data exchange using APIs? If so, with whom are
you exchanging data using the FHIR standard and for what purpose(s)?
For example, have you used FHIR APIs to exchange data with public
health agencies? Does your facility use any Substitutable Medical
Applications and Reusable Technologies (SMART) on FHIR \9\
applications? If so, are the SMART on FHIR applications integrated with
your EHR? Additionally, what benefits or challenges have you
experienced with the implementation of technology using FHIR-based
APIs?
---------------------------------------------------------------------------
\8\ The USCDI is a standardized set of health data classes and
constituent data elements for nationwide, interoperable health
information exchange. Learn more at https://www.healthit.gov/isp/united-states-core-data-interoperability-uscdi.
\9\ https://smarthealthit.org/.
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What might encourage your facility or agency and/or
vendors to participate in a pilot test that would explore assessment
submission process options, for example, testing a FHIR-based
assessment submission to CMS?
How could the Trusted Exchange Framework and Common
AgreementTM (TEFCATM) \10\ support CMS quality
programs' adoption of FHIR-based assessment submissions consistent with
the FHIR Roadmap (available at https://rce.sequoiaproject.org/three-year-fhir-roadmap-for-tefca/)? How might patient assessment data hold
secondary uses for treatment or other TEFCA exchange purposes?
---------------------------------------------------------------------------
\10\ TEFCATM, outlines a common set of principles,
terms, and conditions to support the development of a Common
Agreement that helps enable the nationwide exchange of electronic
health information (EHI) across disparate health information
networks (HINs).
---------------------------------------------------------------------------
What other information should we consider that could
facilitate successful adoption and integration of FHIR-based
technologies and standardized data for patient assessment instruments
like HOPE? We invite any feedback, suggestions, best practices, or
success stories related to the implementation of these technologies.
We plan to continue working with other agencies and interested
parties to coordinate and to inform our dQM transition, nutrition and
well-being efforts. While we will not be responding to specific
comments submitted in response to this RFI in the FY 2026 Hospice final
rule, we will actively consider all input as we develop future
regulatory proposals or future sub-regulatory policy guidance. Any
updates to specific program requirements related to quality measurement
and reporting provisions would be addressed through separate and future
notice-and-comment rulemaking, as necessary.
8. RFIs on Future Quality Measure Concepts for the Hospice QRP
We are seeking input on the importance, relevance, appropriateness,
and applicability of several concepts under consideration for future
years in the Hospice QRP. We published a request for information (RFI)
in previous proposed rules on meaningful measures suitable for the
hospice setting.
We are seeking input on three concepts for the Hospice QRP:
1. Interoperability
We are seeking comments on a measure of interoperability, focusing
on systems readiness and capabilities in the Hospice setting. Title XXX
of the Public Health Service Act defines ``interoperability'' in part,
and with respect to health information technology, as health
information technology that enables the secure exchange of electronic
health information with, and use of electronic health information from,
other health information technology without requiring special efforts
by the user.\11\ The definition further states that interoperability of
health information technology allows for complete, including by
providers, patients, and caregivers, access, exchange, and use of
electronically accessible health information for authorized uses under
applicable State or Federal law.\12\ Adoption and optimization of
electronic health records (EHRs) and health information exchange
services that use common standards to share data can enable
interoperability across systems. We would like to receive input and
comment on approaches to assessing interoperability in the hospice care
setting, for instance, measures that address or evaluate the level of
readiness for interoperable data exchange, or measures that evaluate
the ability of data systems to securely share information across the
spectrum of care.
---------------------------------------------------------------------------
\11\ 42 U.S.C. 300jj(9).
\12\ 42 U.S.C. 300jj(9).
---------------------------------------------------------------------------
2. Well-Being
We are seeking feedback on a measure of well-being. Well-being is a
comprehensive approach to disease prevention and health promotion, as
it integrates mental, social, and physical health while emphasizing
preventative care to proactively address potential health issues.\13\
This comprehensive approach emphasizes person-centered care by
promoting the well-being of hospice patients. We are seeking comments
on tools and measures that assess overall health, happiness, and
satisfaction at the end of life, which could include aspects of
emotional well-being, social connections, purpose, fulfillment, and
self-care work.
---------------------------------------------------------------------------
\13\ Well-Being Concepts. CDC Archives. WHPL_Canon_WB_Well-
Being_Concepts__HRQOL__CDC_2017.pdf.
---------------------------------------------------------------------------
3. Nutrition
We are seeking feedback on a measure of nutrition. Assessment for
nutritional status may include various strategies, guidelines, and
practices designed to promote nutrition at every stage of hospice care
and ensure patients receive the necessary nutrients for maintaining
their individual health needs and overall well-being. This also
includes aspects of health that support or mediate nutritional status,
such as activity and sleep. These efforts not only support nutrition
but could also work to include the cultural, social, and spiritual
needs and wishes of the patients. We are seeking feedback on tools and
frameworks that promote healthy, safe eating habits, exercise,
nutrition, and activity appropriate for optimal end-of-life care.
9. Proposed Revision to Sec. 418.312(j)(2) To Correct Regulatory Text
In accordance with the Administrative Procedure Act, 5 U.S.C. 553,
it is the Secretary's practice to offer interested parties the
opportunity to comment on proposed regulations. However, the regulatory
changes in this proposal are necessary to correct an error and do not
establish any new substantive rules.
We are proposing to revise the regulatory text at Sec.
418.312(j)(2) to correct a reference to another part of the
regulations. Specifically, we are replacing a reference to Sec.
412.306(b)(2) with the correct reference to Sec. 418.306(b)(2).
IV. Collection of Information Requirements
This proposed rule would revise the attestation requirements at
Sec. 418.22(b)(4) to better align with the original intent of the
statutory requirements under section 1814(a)(7) of the Act and CY 2011
HH PPS final rule for the certification of terminal illness regulations
to include the physician's or nurse practitioner's signature and the
date of the signature on each face-to-face encounter attestation. These
underlying attestation requirements are collections of information that
require approval under the Paperwork Reduction Act and were previously
approved in the ICR for the Hospice Conditions of Participation (OMB
Control Number 0938-1067). However, the revisions proposed in this rule
are minor and would not substantively change the scope of the
attestation requirement or the burden that it would entail, and thus
they do not require any additional approval that
[[Page 18583]]
would go beyond the coverage provided by 0938-1067.
We are planning to seek approval from OMB to reinstate Control
Number 0938-1067 separately from this rulemaking via the standard PRA
process.
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
1. Hospice Payment
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
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 update the payment rates for each of
the categories of hospice care, described in Sec. 418.302(b), for FY
2026 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.
B. Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866, ``Regulatory Planning and Review''; Executive Order 13132,
``Federalism``; Executive Order 13563, ``Improving Regulation and
Regulatory Review''; Executive Order 14192, ``Unleashing Prosperity
Through Deregulation''; the Regulatory Flexibility Act (RFA) (Pub. L.
96-354); section 1102(b) of the Social Security Act; and section 202 of
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select those regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; and distributive
impacts). Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as any regulatory action that is likely to result
in a rule that may: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, or the President's priorities.
A regulatory impact analysis (RIA) must be prepared for a
regulatory action that is significant under section 3(f)(1) of E.O.
12866. Based on our estimates, OMB's Office of Information and
Regulatory Affairs has determined this rulemaking is significant per
section 3(f)(1) of E.O. 12866. Accordingly, we have prepared a
regulatory impact analysis that presents the costs and benefits of the
rulemaking to the best of our ability.
1. Hospice Payment
We estimate that the aggregate impact of the payment provisions in
this proposed rule would result in an estimated increase of $695
million in payments to hospices, resulting from the proposed hospice
payment update percentage of 2.4 percent for FY 2026. The impact
analysis of this proposed rule represents the projected effects of the
changes in hospice payments from FY 2025 to FY 2026. Using the most
recent complete data available at the time of rulemaking, in this case
FY 2024 hospice claims data as of January 13, 2025, we simulate total
payments using the FY 2025 wage index (pre-floor, pre-reclassified
hospital wage index with the hospice floor, and the 5 percent cap on
wage index decreases) and FY 2025 payment rates and compare it to our
simulation of total payments using FY 2024 utilization claims data, the
final FY 2026 Hospice Wage Index (pre-floor, pre-reclassified hospital
wage index with hospice floor, and the 5 percent cap on wage index
decreases) and FY 2025 payment rates. By dividing payments for each
level of care (RHC days 1 through 60, RHC days 61+, CHC, IRC, and GIP)
using the FY 2025 wage index and payment rates for each level of care
by the proposed FY 2026 wage index and FY 2025 payment rates, we obtain
a wage index standardization factor for each level of care. We apply
the wage index standardization factors so that the aggregate simulated
payments do not increase or decrease due to changes in the wage index.
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.
2. Hospice Quality Reporting Program
There are no new proposals related to the Hospice Quality Reporting
Program for FY 2026; accordingly, there are no impacts.
C. Detailed Economic Analysis
1. Proposed Hospice Payment Update for FY 2026
The FY 2026 hospice payment impacts appear in Table 9. 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, and facility size. The second column shows the
number of hospices in each of the categories in the first column. The
third column shows the effect of using the FY 2026 updated wage index
data with a 5 percent cap on wage index decreases. The aggregate impact
of the change in column three is zero percent, due to the hospice wage
index standardization factors. However, there are distributional
effects of using the FY 2026 hospice wage index. The fourth column
shows the effect of the hospice payment update percentage as mandated
by section 1814(i)(1)(C) of the Act and is consistent for all
providers. The hospice payment update percentage of 2.4 percent is
based on the proposed 3.2 percent inpatient hospital market basket
percentage increase reduced by a proposed 0.8 percentage point
productivity adjustment. The fifth column shows the total effect of the
updated wage data and the hospice payment update percentage on FY 2026
hospice payments. As illustrated in Table 9, the combined effects vary
by specific types of providers and by location. We note that simulated
[[Page 18584]]
payments are based on utilization in FY 2024 as seen on Medicare
hospice claims (accessed from the CCW on January 13, 2025) 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 9, the combined effects vary by specific
types of providers and by location.
Table 9--Impact to Hospices for FY 2026
----------------------------------------------------------------------------------------------------------------
FY 2026
FY 2026 proposed
updated hospice Overall total
Hospice subgroup Hospices wage data payment impact for FY
(%) update 2026 (%)
(2.4%)
----------------------------------------------------------------------------------------------------------------
All Hospices............................................. 6,695 0.0 2.4 2.4
Hospice Type and Control:
Freestanding/Non-Profit.............................. 790 0.2 2.4 2.6
Freestanding/For-Profit.............................. 4,596 -0.1 2.4 2.3
Freestanding/Government.............................. 34 0.6 2.4 3.0
Freestanding/Other................................... 0 0.0 2.4 2.4
Facility/HHA Based/Non-Profit........................ 267 0.6 2.4 3.0
Facility/HHA Based/For-Profit........................ 4 0.4 2.4 2.8
Facility/HHA Based/Government........................ 97 0.2 2.4 2.6
Facility/HHA Based/Other............................. 0 0.0 2.4 2.4
------------------------------------------------------
Subtotal: Freestanding Facility Type............. 5,420 0.0 2.4 2.4
------------------------------------------------------
Subtotal: Facility/HHA Based Facility Type....... 368 0.5 2.4 2.9
------------------------------------------------------
Subtotal: Non-Profit............................. 1,068 0.2 2.4 2.6
------------------------------------------------------
Subtotal: For Profit............................. 5,095 -0.1 2.4 2.3
------------------------------------------------------
Subtotal: Government............................. 132 0.3 2.4 2.7
------------------------------------------------------
Subtotal: Other.................................. 10 0.2 2.4 2.6
------------------------------------------------------
Hospice Type and Control: Rural:
Freestanding/Non-Profit.............................. 206 0.3 2.4 2.7
Freestanding/For-Profit.............................. 391 0.2 2.4 2.6
Freestanding/Government.............................. 24 0.6 2.4 3.0
Freestanding/Other................................... 0 0.0 2.4 2.4
Facility/HHA Based/Non-Profit........................ 113 1.0 2.4 3.4
Facility/HHA Based/For-Profit........................ 0 0.0 2.4 2.4
Facility/HHA Based/Government........................ 71 0.2 2.4 2.6
Facility/HHA Based/Other............................. 0 0.0 2.4 2.4
Hospice Type and Control: Urban:
Freestanding/Non-Profit.............................. 584 0.2 2.4 2.6
Freestanding/For-Profit.............................. 4,205 -0.1 2.4 2.3
Freestanding/Government.............................. 10 0.5 2.4 2.9
Freestanding/Other................................... 0 0.0 2.4 2.4
Facility/HHA Based/Non-Profit........................ 154 0.5 2.4 2.9
Facility/HHA Based/For-Profit........................ 4 0.4 2.4 2.8
Facility/HHA Based/Government........................ 26 0.3 2.4 2.7
Facility/HHA Based/Other............................. 0 0.0 2.4 2.4
Hospice Location: Urban or Rural:
Rural................................................ 819 0.3 2.4 2.7
Urban................................................ 5,876 0.0 2.4 2.4
Hospice Location: Region of the Country (Census
Division):
New England.......................................... 159 1.4 2.4 3.8
Middle Atlantic...................................... 280 0.1 2.4 2.5
South Atlantic....................................... 649 0.2 2.4 2.6
East North Central................................... 654 0.5 2.4 2.9
East South Central................................... 251 0.2 2.4 2.6
West North Central................................... 441 0.9 2.4 3.3
West South Central................................... 1,247 -0.4 2.4 2.0
Mountain............................................. 700 0.1 2.4 2.5
Pacific.............................................. 2,266 -1.0 2.4 1.4
Outlying............................................. 48 -0.4 2.4 2.0
Hospice Size:
0-3,499 RHC Days (Small)............................. 1,727 -0.7 2.4 1.7
3,500-19,999 RHC Days (Medium)....................... 3,006 -0.4 2.4 2.0
20,000+ RHC Days (Large)............................. 1,962 0.1 2.4 2.5
----------------------------------------------------------------------------------------------------------------
Source: FY 2024 hospice claims data from CCW accessed on January 13, 2025.
Note: The overall total impact reflects the addition of the individual impacts, which includes the wage index
impact as well as the proposed hospice payment update of 2.4 percent.
[[Page 18585]]
Due to missing Provider of Services file and Cost Report information (from which hospice characteristics are
obtained), some subcategories in the impact tables have fewer agencies represented than the overall total (of
6,695). Subtypes involving ownership only add up to 6,305 while subtypes involving facility type only add up
to 5,788.
Region Key:
New England = Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont.
Middle Atlantic = Pennsylvania, New Jersey, New York.
South Atlantic = Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina,
Virginia, West Virginia.
East North Central = Illinois, Indiana, Michigan, Ohio, Wisconsin.
D. Regulatory Review Cost Estimation
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
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 believe that the
number of past commenters would be a fair estimate of the number of
reviewers of this rule. We welcome any comments on the approach in
estimating the number of entities which will review this proposed rule.
We also recognize that different types of entities are in many
cases affected by mutually exclusive sections of this proposed rule,
and therefore for the purposes of our estimate we assume that each
reviewer reads approximately 50 percent of the rule. We seek comments
on this assumption.
Using the May 2023 National median hourly wage rate (doubled for
benefits and overhead) for medical and health service managers (Code
11-9111); we estimate that the cost of reviewing this rule is $106.42
per hour, including overhead and fringe benefits (https://www.bls.gov/oes/current/oes_nat.htm). Assuming an average reading speed we estimate
that it would take approximately 1.76 hours for staff to review half of
this proposed rule. For each hospice that reviews the rule, the
estimated cost is $187.30 (1.76 hours x $106.42). Therefore, we
estimate that the total cost of reviewing this regulation is $18,355.40
($187.30 x 98 reviewers (based on last year's comments received).
E. Alternatives Considered
1. Hospice Payment
Since the hospice payment update percentage is determined based on
statutory requirements, we did not consider alternatives to updating
the hospice payment rates by the hospice payment update percentage. The
proposed 2.4 percent hospice payment update percentage for FY 2026 is
based on a proposed 3.2 percent inpatient hospital market basket
percentage increase for FY 2026, reduced by a proposed 0.8 percentage
point productivity adjustment. Payment rates since FY 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 years must
be the market basket percentage increase for that fiscal year. Section
3401(g) of the Affordable Care Act also mandates that, starting with FY
2013 (and in subsequent years), the hospice payment update percentage
will be annually reduced by changes in economy-wide productivity as
specified in section 1886(b)(3)(B)(xi)(II) of the Act. For FY 2026,
since the hospice payment update percentage is determined based on
statutory requirements at section 1814(i)(1)(C) of the Act, we did not
consider alternatives for the hospice payment update percentage.
F. Accounting Statement and Table
Consistent with OMB Circular A-4 (available at https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf), we have prepared an accounting statement in Table 10
showing the classification of the expenditures associated with the
provisions of this proposed rule. Table 10 provides our best estimate
of the possible changes in Medicare payments under the hospice benefit
as a result of the policies in this proposed rule. This estimate is
based on the data for 6,695 hospices in our impact analysis file, which
was constructed using FY 2024 claims (accessed from the CCW on January
13, 2025). All expenditures are classified as transfers to hospices.
Table 10 also provides the impact costs associated with the Hospice
Quality Reporting Program starting FY 2026.
Table 10--Accounting Statement Classification of Estimated Transfers and
Costs
------------------------------------------------------------------------
Hospice payment update category FY 2025 to FY 2026 transfers
------------------------------------------------------------------------
Annualized Monetized Transfers......... $695 million.*
From Whom to Whom?..................... Federal Government to Medicare
Hospices.
------------------------------------------------------------------------
* The increase of $695 million in transfer payments is a result of the
proposed 2.4 percent hospice payment update compared to payments in FY
2025.
G. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, small entities
include small businesses, nonprofit organizations, and small
jurisdictions. We consider all hospices as small entities as that term
is used in the RFA. The North American Industry Classification System
(NAICS) was adopted in 1997 and is the current standard used by the
Federal statistical agencies related to the U.S. business economy.
There is no NAICS code specific to hospice services. Therefore, we
utilized the NAICS U.S. industry title ``Home Health Care Services''
and corresponding NAICS code 621610 in determining impacts for small
entities. The NAICS code 621610 has a size standard of $19 million.\14\
Table 11 shows the number of firms, revenue, and estimated impact per
home health care service category.
---------------------------------------------------------------------------
\14\ https://www.sba.gov/sites/sbagov/files/2023-03/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%281%29%20%281%29_0.pdf.
[[Page 18586]]
Table 11--Number of Firms, Revenue, and Estimated Impact of Home Health Care Services by NAICS Code 621610
----------------------------------------------------------------------------------------------------------------
Estimated impact
NAICS code NAICS description Enterprise size Number of Receipts ($1,000) per
firms ($1,000) enterprise size
----------------------------------------------------------------------------------------------------------------
621610.................. Home Health Care <100............... 5,861 210,697 $35.95
Services.
621610.................. Home Health Care 100-499............ 5,687 1,504,668 264.58
Services.
621610.................. Home Health Care 500-999............ 3,342 2,430,807 727.35
Services.
621610.................. Home Health Care 1,000-2,499........ 4,434 7,040,174 1,587.77
Services.
621610.................. Home Health Care 2,500-4,999........ 1,951 6,657,387 3,412.29
Services.
621610.................. Home Health Care 5,000-7,499........ 672 3,912,082 5,821.55
Services.
621610.................. Home Health Care 7,500-9,999........ 356 2,910,943 8,176.81
Services.
621610.................. Home Health Care 10,000-14,999...... 346 3,767,710 10,889.34
Services.
621610.................. Home Health Care 15,000-19,999...... 191 2,750,180 14,398.85
Services.
621610.................. Home Health Care >=20,000........... 961 51,776,636 53,877.87
Services.
---------------------------------------------
621610.................. Home Health Care Total........... 23,801 82,961,284 3,485.62
Services.
----------------------------------------------------------------------------------------------------------------
Source: Data obtained from United States Census Bureau table ``us_6digitnaics_rcptsize_2017'' (SOURCE: 2017
County Business Patterns and Economic Census) Release Date: 5/28/2021: https://www2.census.gov/programs-surveys/susb/tables/2017/ surveys/susb/tables/2017/.
Notes: Estimated impact is calculated as Receipts ($1,000)/Number of firms.
The Department of Health and Human Services' 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 majority of hospice visits are Medicare paid visits, and therefore
the majority of hospice's revenue consists of Medicare payments. Based
on our analysis, we conclude that the policies proposed in this rule
would result in an estimated total impact of 3 to 5 percent or more on
Medicare revenue for greater than 5 percent of hospices. Therefore, the
Secretary has certified that this hospice proposed rule would have
significant economic impact resulting in a net increase in positive
revenue on a substantial number of small entities. We estimate that the
net impact of the policies in this rule is 2.4 percent or approximately
$695 million in increased revenue to hospices in FY 2026. The 2.4
percent increase in expenditures when comparing FY 2025 payments to
estimated FY 2026 payments is reflected in the last column of the first
row in Table 9 and is driven solely by the impact of the hospice
payment update percentage reflected in the fourth column of the impact
table. In addition, small hospices will experience a lower estimated
increase (1.7 percent), compared to large hospices (2.5 percent) due to
the final updated wage index. Further detail is presented in Table 9 by
hospice type and location. The analysis in this section along with the
rest of the regulatory impact analysis in this proposed rule
constitutes our initial regulatory flexibility analysis.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 603 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 MSA 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 (see Table 9).
H. Unfunded Mandates Reform Act (UMRA)
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. In 2025, that
threshold is approximately $187 million. This rule will not have an
unfunded effect on state, local, or tribal governments, in the
aggregate, or on the private sector that exceeds this threshold in any
1 year.
I. Federalism
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.
J. E.O. 14192, ``Unleashing Prosperity Through Deregulation''
Executive Order 14192, entitled ``Unleashing Prosperity Through
Deregulation'' was issued on January 31, 2025, and requires that ``any
new incremental costs associated with new regulations shall, to the
extent permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This proposed rule, if
finalized as proposed, is not expected to be an E.O. 14192 regulatory
action because it would not impose any more than de minimis regulatory
costs.
K. Conclusion
We estimate that aggregate payments to hospices in FY 2026 will
increase by $695 million as a result of the hospice payment update,
compared to payments in FY 2025. We estimate that in FY 2026, hospices
in urban areas would experience, on average, a 2.4 percent increase in
estimated payments compared to FY 2025; while hospices in rural areas
would experience, on average, a 2.7 percent increase in estimated
payments compared to FY 2025. Hospices providing services in the New
England region would experience the largest estimated increases in
payments of 3.8 percent. Hospices serving patients in the Pacific
region will experience, on average, the lowest estimated increase of
1.4 percent in FY 2026 payments.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
Stephanie Carlton, Acting Administrator of the Centers for Medicare
& Medicaid Services, approved this document on March 31, 2025.
[[Page 18587]]
List of Subjects in 42 CFR Part 418
Health facilities, 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, part 418 as
set forth below:
PART 418--HOSPICE CARE
0
1. The authority citation for part 418 continues to read as follows:
Authority: 42 U.S.C. 1302 and 1395hh.
0
2. Section 418.22 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 418.22 Certification of terminal illness.
* * * * *
(b) * * *
(4) The physician or nurse practitioner who performs the face-to-
face encounter with the patient described in paragraph (a)(4) of this
section must attest in writing that he or she had a face-to-face
encounter with the patient, including the date of that visit. The
attestation must include the physician's or nurse practitioner's
signature and the date it was signed. The attestation, its accompanying
signature, and the date signed, must be a separate and distinct section
of, or an addendum to, the recertification form, and must be clearly
titled. If the face-to-face encounter was not performed by the
certifying physician, the attestation of the physician or nurse
practitioner who performed the face-to-face encounter shall state that
the clinical findings of that visit were provided to the certifying
physician for use in determining continued eligibility for hospice
care.
* * * * *
0
3. Section 418.25 is amended by revising paragraph (a) and paragraph
(b) introductory text to read as follows:
Sec. 418.25 Admission to hospice care.
(a) The hospice admits a patient only on the recommendation of the
medical director (or the physician designee, as defined in Sec. 418.3)
or the physician member of the hospice interdisciplinary group, in
consultation with, or with input from, the patient's attending
physician (if any).
(b) In reaching a decision to certify that the patient is
terminally ill, the hospice medical director (or the physician
designee, as defined in Sec. 418.3) or the physician member of the
hospice interdisciplinary group, must consider at least the following
information:
* * * * *
0
4. Section 418.312 is amended by revising paragraph (j)(2) to read as
follows:
Sec. 418.312 Data submission requirements under the hospice quality
reporting program.
* * * * *
(j) * * *
(2) A hospice must meet or exceed the data submission compliance
threshold in paragraph (j)(1) of this section to avoid receiving a 4-
percentage point reduction to its annual payment update for a given FY
as described under Sec. 418.306(b)(2).
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-06317 Filed 4-11-25; 4:15 pm]
BILLING CODE 4120-01-P