CMS Issues Proposed Rule for Hospice Services in LTCFs
On October 22, 2010, the Centers for Medicare & Medicaid Services (CMS) issued the long-awaited companion regulations to the June 5, 2008 final rule entitled “Medicare and Medicaid Program: Hospice Conditions of Participation.” The 2008 hospice care final rule set forth new requirements that a Medicare-certified hospice provider must meet when it provides services, including the provision of hospice care to residents of a long-term care facility (LTCF) who elect the hospice benefit. In the proposed rule’s Overview section, the agency states that the proposed rule was crafted to mirror the hospice final rule as much as possible.
The rule entitled “Medicare and Medicaid Programs; Requirements for Long Term Care Facilities; Hospice Services” proposes several new requirements including specifications for a written agreement between a Medicare-certified hospice provider and a long-term care facility. The specifications are designed to provide a clear delineation of each provider’s responsibility for maintaining continuity of care. A signed agreement would be required even if the Medicare-certified hospice and long-term care facility were under common control or ownership.
When AMDA and the National Hospice and Palliative Care Organization met with CMS in September 2008, AMDA expressed concerns about how the regulations would consider the provision of joint care. The hospice condition of participation state that the nursing facility is responsible for those “conditions unrelated to hospice care”. The proposed rule addresses the issue. Under the agreement, “the hospice would be responsible for making decisions related to a resident’s care for the palliation and management of the terminal illness and related conditions…The LTC facility would be responsible for making decisions that were not related to a resident’s terminal illness.” The proposed rule adds that the long-term care facility would be responsible for ensuring the hospice provider was informed about changes made to the resident’s care plan.
The rule also proposes that LTCFs that decline to arrange for the provision of hospice services through an agreement with a Medicare-certified hospice provider would be required to assist a resident in transferring to a facility that would arrange for the provision of these services when the resident requested such a transfer. The request for transfer could be written or verbal and would have to be documented in the resident’s record.
The written agreement would have to include, at the very least, the following provisions:
- The services the hospice will provide;
- The hospice’s responsibilities for determining the appropriate hospice plan of care;
- The services the LTC facility will continue to provide, based on each resident’s care plan; and
- A communication process, including how the communication will be documented between the LTC facility and the hospice provider, to ensure that the needs of the resident are addressed and met 24 hours per day.
Additionally, the agreement contains a provision that the LTC facility must notify the hospice provider immediately regarding
- A significant change in the resident’s physical, mental, social, or emotional status;
- Any clinical complication(s) that would suggest a need to alter the plan of care;
- A condition unrelated to the terminal condition that might require transfer of the resident from the facility; or
- The resident’s death.
The hospice must assume responsibility for determining the appropriate course of hospice care, including the determination to change the level of services provided.
The LTC facility must continue to provide 24-hour room and board care, meet the resident’s personal care and nursing needs in coordination with the hospice representative, and ensure that the level of care provided is appropriate based on the individual resident’s needs.
The written agreement includes a delineation of additional hospice responsibilities, which include, but are not limited to:
- Providing medical direction and management of the patient.
- Counseling (including spiritual, dietary, and bereavement).
- Social work; providing medical supplies, durable medical equipment, and drugs necessary for the palliation of pain and symptoms associated with the terminal illness and related conditions.
- All other hospice services that are necessary for the care of the resident’s terminal illness and related conditions.
The agreement includes a provision that the hospice may use LTC facility personnel, where permitted by State law and as specified by the LTC facility, to assist in the administration of prescribed therapies included in the hospice plan of care.
The written agreement contains a provision that the LTC facility must report all alleged violations involving mistreatment, neglect, or verbal, mental, sexual, and physical abuse, including injuries of unknown source, and misappropriation of patient property by hospice personnel, to the hospice administrator immediately when the LTC facility becomes aware of the alleged violation. CMS proposes that the agreement also must include a delineation of the responsibilities of the hospice to offer bereavement services to LTC facility staff.
The LTC facility that arranges for the provision of hospice care under a written agreement must designate a member of the facility’s interdisciplinary team to be responsible for working with hospice representatives to coordinate care provided by the LTC facility and hospice staff to the resident. This individual must be responsible for:
- Collaborating with hospice representatives and coordinating LTC facility staff participation in the hospice care planning process for those residents receiving these services;
- Communicating with hospice representatives and other healthcare providers participating in the provision of care for the terminal illness, related conditions, and other conditions to ensure quality of care for the patient and family;
- Ensuring that the LTC facility communicates with the hospice medical director, the patient’s attending physician, and other physicians participating in the provision of care to the patient as needed to coordinate the hospice care of the hospice patient with the medical care provided by other physicians;
- Obtaining pertinent information from the hospice (that is, the most recent hospice plan of care specific to each patient; hospice election form and any advance directives specific to each patient; physician certification and recertification of the terminal illness specific to each patient; names and contact information for hospice personnel involved in hospice care of each patient; instructions on how to access the hospice’s 24-hour on-call system; hospice medication information specific to each patient; and hospice physician and attending physician (if any) orders specific to each patient); and
- Ensuring that the LTC facility staff provide orientation in the policies and procedures of the facility, including patient rights, appropriate forms, and record keeping requirements, to hospice staff furnishing care to LTC residents.
Each LTC facility providing hospice care under a written agreement must ensure that each resident’s written plan of care includes both the hospice plan of care and a description of the services furnished by the LTC facility to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being.
AMDA is reviewing the proposed rule, particularly the sections that discuss the roles of the LTC facility’s medical director and attending physician in providing hospice services. CMS’ comment period on the proposed rule closes December 21, 2010.
Physician Role Under the Revised Interpretative Guidance for the Hospice Conditions of Participation
October 2009—CMS has issued an advance copy of the Hospice State Operations Manual (SOM) Sections 2080-2089, which includes revised interpretive guidance related to the revised Hospice Conditions of Participation that were effective December 2, 2008. (See Caring for the Ages, CMS Announces New Hospice Regulations.) Specifically, the advance copy updates the hospice sections of Chapter Two of the SOM. An advanced copy of the guidance was published September 18, 2009 and is effective immediately: Hospice State Operations Manual (SOM) Sections 2080-2089.
The guidance includes information on the role of the physician. The table below excerpts the sections of the guidance related to physicians.
2080A – Citations; Eligibility Requirements
Referrals may come from any source, but patients must be assessed by the hospice medical director for appropriateness of admission in consultation with the patient’s attending physician (if the individual has one). The hospice medical director must consider the diagnosis of the terminal condition of the patient, other health conditions, whether related or unrelated to the terminal illness, and current clinically relevant information supporting all diagnoses. The medical director may consult with the attending physician directly or through information obtained indirectly. Information could be obtained through the hospice nurse or others who would bring the attending physician’s knowledge of the patient to the medical director when the admission decision is being made.
The hospice must obtain written certification of terminal illness within 2 calendar days for each of the benefit periods listed in §418.21, even if a single election continues in effect for an unlimited number of periods. If the hospice cannot obtain the written certification within 2 calendar days, after a period begins, it must obtain oral certification within 2 calendar days and written certification before a claim for payment is submitted.
For the initial 90-day period, certification of terminal illness must be obtained from the medical director of the hospice or the physician member of the hospice interdisciplinary group (IDG) and the individual’s attending physician (if the individual has one). Recertification for subsequent periods only requires the certification of the hospice medical director or the physician member of the IDG. Certification statements must be on file and dated by the physician before the hospice submits a claim for payment. (See §418.22.)
2080B – Description
Hospice care means a comprehensive set of services described in §1861(dd)(1) of the Act, identified and coordinated by the individual’s attending physician, medical director and by an interdisciplinary group to provide for the physical, psychosocial, spiritual and emotional needs of a terminally ill patient and family members, as delineated in a specific patient plan of care.
2080D - Hospice Required Services
The hospice is required by the CoPs at §418.100 to make nursing services, physician services, drugs, and biologicals routinely available on a 24-hour basis, 7 days a week. It also has to make all other covered services available on a 24-hour basis, 7 days a week, when reasonable and necessary to meet the needs of the patient and family.
2080D.1 - Hospice Interdisciplinary Group (IDG)
Hospices participating in the Medicare program must use an interdisciplinary approach to assessing and meeting the physical, medical, psychosocial, emotional, and spiritual needs of the hospice patients and families facing terminal illness and bereavement. The hospice IDG members include, but are not limited to, the hospice physician (doctor of medicine or osteopathy) who must be an employee of or under contract with the hospice, registered nurse, social worker, and pastoral or other counselor. The IDG is required to conduct a comprehensive assessment of the patient and update the assessment at required time points. In addition, the group, in consultation with the patient's attending physician, if the patient has one, must prepare a written plan of care for each patient that reflects patient and family goals and interventions based on the needs identified in the initial, comprehensive, and updated assessments. The plan of care must include all services necessary for the palliation and management of the terminal illness and related conditions.
The attending physician may be either a doctor of medicine or osteopathy or a nurse practitioner. This person is identified by the individual, at the time he or she elects to receive hospice care, as having the most significant role in the determination and delivery of the individual’s medical care. In the event that a beneficiary’s attending physician is a nurse practitioner, the hospice medical director and/or physician designee must certify or re-certify the terminal illness. Nurse practitioners cannot certify a terminal diagnosis or the prognosis of six months or less, if the illness or disease runs its normal course, or re-certify a terminal diagnosis or prognosis.
The hospice IDG is responsible for developing and maintaining a system of communication, coordination and integration of services that ensures that the plan of care is reviewed and updated no less frequently than every 15 calendar days. It is not permissible for either the attending physician or the hospice medical director to provide the sole guidance for the plan of care. The law and regulations require that it be the combined work of the IDG.
2082 – Discharge from Hospice Care
Prior to discharging a patient for any reason stated above, the hospice IDG must obtain a written physician’s discharge order from the hospice medical director. If a patient has an attending physician involved in his or her care, this physician should be consulted before discharge and his/her review and decision included in the discharge note.
CMS Issues Advance Copy of the Hospice State Operations Manual
September 2009---CMS has issued an advanced copy of the Hospice State Operations Manual (SOM) Sections 2080-2089, which includes revised interpretive guidance related to the revised Hospice Conditions of Participation that were effective December 2, 2008. (See Caring for the Ages, CMS Announces New Hospice Regulations.) Specifically, the advance copy updates the hospice sections of Chapter Two of the SOM.
The guidance includes information on the role of the hospice interdisciplinary group and information on when the hospice provides care to residents of a SNF/NF or ICF/MR. An advanced copy of the guidance was published September 18, 2009 and is effective immediately: Hospice State Operations Manual (SOM) Sections 2080-2089
CMS Issues Draft Hospice Guidance to Surveyors
CMS has issued an advanced copy of the Medicare State Operations Manual, Appendix M, Guidance to Surveyors: Hospice. The guidance contains the L-tags, and probes and the guidance that surveyors use when they try to make a determination about a hospice’s compliance with the regulations. A final copy of the guidance is expected to be published after the new year. An advanced copy of the guidance was published January 2, 2009
AMDA is working with the National Hospice and Palliative Care Organization to educate our respective memberships on the new Hospice Conditions of Participation (COP). The hospice regulations were the subject of a March 6th session at the AMDA Annual Symposium. The session entitled “National Hospice and Palliative Care Organization (NHPCO) and AMDA: Bringing Quality Hospice Care to the Nursing Home” discussed the recent implementation of revised Hospice Conditions of Participation (COP) and describe the opportunities and potential pitfalls in meeting the palliative care needs of long term care residents through the revised Hospice COP and pending companion Nursing Facility Rule standards.
Advance Copy Hospice Program Interpretive Guidance Version 1.1
The Facts About Management of Hospice Patients in Long-Term Care Facilities
June 5, 2008 Hospice Conditions of Participation Final Rule
Survey & Certification - Guidance To Laws & Regulations: Hospice
Caring for the Ages Article on FAQs on the New Hospice Regulations: Management of Hospice Patients in LTC