Medicare Hospice Regulations and Federal Resources

CMS Responsibilities Main Areas

1. 1. 1. Establish provider regulations and associated standards
         When a law is passed, CMS follows a very specific and well-defined process to promulgate the rules.  The rules for hospice are contained in the Code of Federal Regulations Title 42-Public Health; Chapter IV-Centers for Medicare and Medicaid Services Department of Health and Human Services; Part 418 Hospice Care.  This is broken into 7 Subparts.  Subparts C&D make up the Medicare Hospice Conditions of Participation and apply to all patients while Subparts B, E, F, G and H apply to only Medicare beneficiaries.

         Subpart A General Provision and Definitions
         Subpart B Eligibility, Election and Duration of Benefits
         Subpart C Conditions of Participation – Patient Care
         Subpart D Conditions of Participation - Organizational Environment
         Subpart E Conditions of Participation – Removed and Reserved
         Subpart F Covered Services
         Subpart G Payment for Hospice Care
         Subpart H Coinsurance

      2. Monitor providers to assure they are meeting the Medicare regulations and associated standards.
         CMS monitors providers through surveys.  The survey (inspection) is done on behalf of CMS by the individual State Survey Agencies (SAs) or Accreditation Organizations (AOs). SA and AO surveyors conduct scheduled and complaint surveys after completing required CMS hospice surveyor training.  Surveys are conducted using the CoPs, interpretive guidelines, and the agency’s policies.  By law, surveys will be a minimum of every 36 months and are unannounced. The three accreditation organizations that are approved by CMS to conduct surveys are the Joint Commission (JC), Community Health Care Accreditation Partners (CHAP) or Accreditation Commission for Health Care (ACHC) if a provider chooses to have (and pays for) a “deemed survey” in lieu of a survey conducted by the state survey agency. The Conditions of participation (CoPs) (Subparts C and D) which define the minimum standards of care apply to every patient to whom the hospice provides care, regardless of who is paying for the care. State licensure surveys are different than Medicare surveys.  State surveys are state specific and vary from state to state.  The state rules co-exist with CoPs and the higher standard prevails.  Note that many states have time frames in their state rule, including their own rules of licensure survey frequency.
      3. Assure that providers are paid for services.
         Medicare Administrative Contractors (MACs) contract with CMS to process claims and are, by law, non-governmental organizations.  The MACs process and pay claims based on the Federal hospice regulations and guidance from CMS.  MACs have their performance assessed regularly by CMS and Office of the Inspector General (OIG). MACs responsibilities include:
         1. • Process claims and make payments to providers
            • Communicate changes to providers
            • Provide education
            • Assist providers and beneficiaries, as needed
            • Conduct audits and reviews
            • Identify and investigate potential problems in claims submission or utilization patterns
            • Make referrals to investigatory bodies as necessary
      4. Provide a process for beneficiaries to appeal provider decisions.
         The Beneficiary and Family Centered Care Quality Improvement Organizations (BFCC-QIOs) are non-profits; one in each state which have a three-year contract cycle (with CMS) known as Scope of Work.  Hospices interact with QIOs through the Expedited Determination Process.  They manage complaints from Medicare patients and quality of care reviews.

Finding the answer

Regulations are arranged in a hierarchy that actually makes sense.  Start from the top and work your way down.

To research a question, these are areas that need to be reviewed.

1. 1. 1. Hospice Regulations (Subparts A – H)
      2. Conditions of Participation (Subparts C and D)
      3. Interpretive Guidelines
      4. Medicare Manuals
      5. Transmittals / Change Requests
      6. State Hospice Licensure Rules
      7. Professional Standards
      8. Occupational Licensing Boards
      9. Accrediting Bodies
      10. Agency Policy
      11. Check with SA

Medicare Internet Only Manuals 

The Medicare Internet Only Manuals (IOMs) (referred to as subregulatory guidance) includes CMS program issuances, day-to-day operating instructions, policies, and procedures which are based on statutes, regulations, guidelines, models, and directives.  The IOMs are used by providers, contractors, Medicare Advantage organizations and state survey agencies to administer CMS programs.  The IOMs are organized by function rather than by provider.  Hospices have the most interest in:

Benefit Policy Manual – Chapter 9
State Operations Manual (Surveyor Interpretive Guidelines – Appendix M)
Claims Processing Manual – Chapter 11
CMS Online Manuals 

CMS Program Transmittals 

The CMS Program Transmittals are the manner used to communicate new or changed policies, and/or procedures that are being incorporated into a specific CMS program manual.  There is a cover page (or transmittal page) that summarizes the change.  Each has a Change Request (CR) number which is more commonly referred to by providers than the Transmittal number.  Medicare Learning Network will also issue an MLN Matters article on new information, which is a bit easier to understand.

• • • MLN Homepage
    • CMS Change Requests
    • CMS Hospice Center

CMS Hospice Center, in the “Spotlights” section includes: Wage Index Values; Change Requests; Final Rules; Proposed Rules and Q&A Documents along with Links to General Information.

Monitoring for changes and staying current:

Membership in NHPCO and State Associations

Consider subscribing to list serves depending on area of responsibility and interest.

1. 1. 1. CMS.gov Email Updates | CMS
      2. MACs
         1. 1. Jurisdiction M HHH - Hospice (palmettogba.com)
            2. Home Health and Hospice (cgsmedicare.com)
            3. HHH - Welcome to NGSMedicare.com
      3. Open Door Forum (ODF) Home Health, Hospice & DME Open Door Forum Mailing List Sign-Up
      4. Hospice Quality Reporting Program (HQRP) Subscribe to the Post-Acute Quality Reporting Program (PAC QRP) listserv for the latest Hospice quality reporting information including but not limited to training, stakeholder engagement opportunities, and general updates about reporting requirements, quality measures, and reporting deadlines.
      5. PEPPER (Payment for Evaluating Payment Patterns Electronic Report) Join Our Email List
      6. Office of Inspector General (OIG)

Cross Reference

• • • Medical Review
    • Program Integrity
    • Survey Readiness

The Medicare Hospice regulations are updated daily and can be found in the electronic Code of Federal Regulations (eCFR).

Download a copy of the NHPCO Medicare Hospice Regulations, including the Medicare Hospice Conditions of Participation (COPs) in easy to read format

• • • Subpart A of this part sets forth the statutory basis and scope and defines terms used in this part. Subpart B specifies the eligibility and election requirements and the benefit periods.
    • Subparts C and D specify the conditions of participation for hospices. Subpart E is reserved for future use.
    • Subparts F and G specify coverage and payment policy.
    • Subpart H specifies coinsurance amounts applicable to hospice care.

Hospice Center 

Subregulatory Guidance

• • • Medicare Benefit Policy Manual Chapter 9-Coverage of Hospice Services Medicare Benefit Policy Manual (cms.gov)
    • State Operations Manual SOM - Exhibit (cms.gov)
    • Medicare Claims Processing Manual Chapter 11 - Processing Hospice Claims Medicare Claims Processing Manual (cms.gov)
    • State Medicaid Manual (See Section 4305 – Hospice Services)

Cross Reference

• • • Medical Review
    • Program Integrity

The Medicaid Hospice benefit is almost identical to HMB, but may differ based on state options.  There is no separate provider certification process.  States have separate payment rates (slightly different from Medicare), separate reporting rules and survey requirements. States may process claims themselves or work through fiscal agents.

Refer to State Specific Resources for links to specific state Medicaid regulations.

Subregulatory Guidance

• • • State Medicaid Manual (See Section 4305 – Hospice Services)

Resources

• • • Memorandum: Hogan Lovells Comparison of the Medicare and Medicaid Hospice Benefits.

Regulations

• • • Subpart I - Advance Directives

Subregulatory Guidance

• • • Internet-Only Manuals (IOMs) | CMS
    • State Operations Manual Appendix Z- Emergency Preparedness for All Provider and Certified Supplier Types Interpretive Guidance

• • • Centers for Disease Control (CDC) works to protect America from health, safety, and security threats. The Centers for Disease Control (CDC) provide resources for infection control and diseases with a webpage dedicated to Covid 19.
      • • Center for Disease Control (CDC)
        • Waived Tests | CDC

• • • Federal Emergency Management Agency (FEMA) provides help for people before, during and after disasters. FEMA provides resources for a hospice’s emergency response plan.
      • • Federal Emergency Management Agency (FEMA)
    • Drug Enforcement Administration (DEA) mission is to enforce the controlled substances laws and regulations of the United States. DEA provides guidance on drug disposal including national take back days and drug abuse resource guidance.
      • • Drug Enforcement Agency (DEA) Office of Diversion Control
    • The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) enforces federal civil rights laws, conscience and religious freedom laws, the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules, and the Patient Safety Act and Rule, which together protect the fundamental rights of nondiscrimination, conscience, religious freedom, and health information privacy. OCR provides Civil Rights Clearance for Medicare Provider Applicants.
      • • Office for Civil Rights (OCR) | HHS.gov
        • On June 12, 2020, HHS OCR announced a final rule revising its Section 1557 regulations.  Read the final rule |  Read the Fact Sheet - PDFExecutive Summary of the Final Rule
    • HHS Office for Civil Rights §1557

45 C.F.R. § 92.8(d)(1)

Kaiser Family Foundation resource 

Section 1557 is a provision from the Affordable Care Act prohibiting discrimination based on race, color, national origin, sex, age, or disability in federally funded health programs. In addition, this section requires covered entities to post taglines in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant State. Section 1557 has been the subject of rulemaking by the Obama and Trump Administrations which are the subject of pending litigation. The Biden Administration is expected to further revise the rules.

Cross Reference

• • • HIPAA
    • Data Dashboard

Medicare Hospice Statutes

Congress added a hospice benefit to the Medicare statutes under the Social Security Act in 1982.  The following is a list of relevant statutes and their links.

• • • SSA 1812(a) – Scope of hospice benefits and educational consultation for beneficiaries who are terminally but have not elected the hospice benefit.
    • SSA 1812(d) – Scope of hospice benefits and waiver of other services, revocation and transfer.
    • SSA 1813(a)(4) – Deductibles and coinsurance applicable to hospice care.
    • SSA 1814(a)(7) – Certification of terminal illness, plan of care, face-to-face encounter.
    • SSA 1814(i) –Payment for hospice care, including payment reform, hospice cap, aggregate cap, data collection and cost reporting requirements.
    • SSA 1861(dd) – Definitions, hospice care, hospice program, attending physician, terminally ill, interdisciplinary group, use of volunteers, traveling patients, multiple locations, and specialized nursing.
    • SSA 1862 – Exclusions from coverage; in the case of hospice care, excludes from coverage items and services not reasonable and necessary for the palliation or management of terminal illness.

Medicaid Hospice Statutes

Congress added a hospice benefit to the Medicare statutes under the Social Security Act in 1982.  The following is a list of relevant statutes and their links.

• • • SSA 1902(a)(10) – For individuals electing to receive hospice care, such assistance may not be made available in an amount, duration or scope less than that provided under Medicare.
    • SSA 1902(a)(13)(B) –Medicaid payment for hospice care must be no less than Medicare mounts, and must use the same methodology, and must pay for nursing home room and board for certain dual eligible patients, at a rate that is 95% of what the State otherwise would have paid for that individual in that facility.
    • SSA 1902(w) – Advance directives; information must be provided to hospice patients at the time of initial receipt of care.
    • SSA 1905(a) –The term “medical assistance” includes hospice care.
    • SSA 1905(o) –Optional hospice benefits; definition of hospice care; coverage of nursing home and ICF/MR room and board, which must be paid to the hospice, for dual eligibles.
    • SSA 1916(a) – No deductibles, cost sharing or similar charges for individuals receiving hospice care.
    • SSA 1927(k)(3) – The term “covered outpatient drug” doesn’t include any drug provided as part of hospice services.