Medicare Program; FY 2019 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements, 20934-20970 [2018-08773]

Agencies

• Centers for Medicare & Medicaid Services
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Proposed Rules]
[Pages 20934-20970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08773]



[[Page 20933]]

Vol. 83

Tuesday,

No. 89

May 8, 2018

Part II





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 2019 Hospice Wage Index and Payment Rate Update 
and Hospice Quality Reporting Requirements; Proposed Rule

Federal Register / Vol. 83 , No. 89 / Tuesday, May 8, 2018 / Proposed 
Rules

[[Page 20934]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 418

[CMS-1692-P]
RIN 0938-AT26


Medicare Program; FY 2019 Hospice Wage Index and Payment Rate 
Update and Hospice Quality Reporting Requirements

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would update the hospice wage index, 
payment rates, and cap amount for fiscal year (FY) 2019. The rule also 
proposes to make conforming regulations text changes to recognize 
physician assistants as designated hospice attending physicians 
effective January 1, 2019. Finally, the rule proposes changes to the 
Hospice Quality Reporting Program.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on June 26, 2018.

ADDRESSES: In commenting, please refer to file code CMS-1692-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    Comments, including mass comment submissions, must be submitted in 
one of the following three ways (please 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-1692-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-1692-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: 
    Debra Dean-Whittaker, (410) 786-0848 for questions regarding the 
CAHPS[supreg] Hospice Survey.
    Cindy Massuda, (410) 786-0652 for questions regarding the hospice 
quality reporting program.
    For general questions about hospice payment policy, please send 
your inquiry via email to: [email protected].

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.
    Wage index addenda will be available only through the internet on 
our website at: (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/.)

I. Executive Summary

A. Purpose

    This rule proposes updates to the hospice payment rates for fiscal 
year (FY) 2019, as required under section 1814(i) of the Social 
Security Act (the Act). This rule also proposes conforming regulations 
text changes as a result of section 51006 of the Bipartisan Budget Act 
of 2018, which amended section 1861(dd)(3)(B) of the Act such that, 
effective January 1, 2019, physician assistants (PAs) will be 
recognized as designated hospice attending physicians, in addition to 
physicians and nurse practitioners. Finally, this rule proposes changes 
to the hospice quality reporting program (HQRP), consistent with the 
requirements of section 1814(i)(5) of the Act. In accordance with 
section 1814(i)(5)(A) of the Act, hospices that fail to meet quality 
reporting requirements receive a 2 percentage point reduction to their 
payments.

B. Summary of the Major Provisions

    Section III.A of this proposed rule describes monitoring activities 
intended to identify potential impacts related to the hospice reform 
policies finalized in the FY 2016 Hospice Wage Index and Payment Rate 
Update final rule and analyzes current trends in hospice utilization 
and expenditures.
    Section III.B.1 of this proposed rule proposes updates to the 
hospice wage index with updated wage data and makes the application of 
the updated wage data budget neutral for all four levels of hospice 
care. In section III.B.2 of this proposed rule, we discuss the FY 2019 
hospice payment update percentage of 1.8 percent. Sections III.B.3 and 
III.B.4 of this proposed rule update the hospice payment rates and 
hospice cap amount for FY 2019 by the hospice payment update percentage 
discussed in section III.B.2 of this proposed rule. We also propose 
regulations text changes in section III.C and section III.D pertaining 
to the definition of ``attending physician'' and ``cap period.''
    Finally, in section III.E of this proposed rule, we propose updates 
to the HQRP, including: Data review and correction timeframes for data 
submitted using the HIS; extension of the Consumer Assessment of 
Healthcare Providers and Systems (CAHPS[supreg]) Hospice Survey 
participation requirements, exemption criteria and public reporting 
policies to future years; procedures to announce quality measure 
readiness for public reporting and public reporting timelines; removal 
of routine public reporting of the 7 HIS measures; and public display 
of public use file data on the Hospice Compare website.

C. Summary of Impacts

    The overall economic impact of this proposed rule is estimated to 
be $340 million in increased payments to hospices during FY 2019.

D. Improving Patient Outcomes and Reducing Burden Through Meaningful 
Measures

    Regulatory reform and reducing regulatory burden are high 
priorities for CMS. To reduce the regulatory burden on the healthcare 
industry, lower health care costs, and enhance patient care, in October 
2017, we launched the Meaningful Measures Initiative.\1\ This 
initiative is one component of our agency-wide Patients Over Paperwork 
Initiative,\2\ which is aimed at evaluating and streamlining 
regulations with a goal to reduce unnecessary cost and burden, increase 
efficiencies, and improve beneficiary experience. The Meaningful

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Measures Initiative is aimed at identifying the highest priority areas 
for quality measurement and quality improvement in order to assess the 
core quality of care issues that are most vital to advancing our work 
to improve patient outcomes. The Meaningful Measures Initiative 
represents a new approach to quality measures that fosters operational 
efficiencies, and will reduce the costs including, collection and 
reporting burden while producing quality measurement that is more 
focused on meaningful outcomes.
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    \1\ Meaningful Measures web page: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/MMF/General-info-Sub-Page.html.
    \2\ See Remarks by Administrator Seema Verma at the Health Care 
Payment Learning and Action Network (LAN) Fall Summit, as prepared 
for delivery on October 30, 2017 https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2017-Fact-Sheet-items/2017-10-30.html.
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    The Meaningful Measures Framework has the following objectives:
     Address high-impact measure areas that safeguard public 
health;
     Patient-centered and meaningful to patients;
     Outcome-based where possible;
     Fulfill each program's statutory requirements;
     Minimize the level of burden for health care providers 
(for example, through a preference for EHR-based measures where 
possible, such as electronic clinical quality measures \3\);
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    \3\ See section VIII.A.8.c. of the preamble of this proposed 
rule where we seek comment on the potential future development and 
adoption of eCQMs.
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     Significant opportunity for improvement;
     Address measure needs for population based payment through 
alternative payment models; and
     Align across programs and/or with other payers.
    In order to achieve these objectives, we have identified 19 
Meaningful Measures areas and mapped them to six overarching quality 
priorities as shown in the Table 1 below.

                      Table 1--Meaningful Measures
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            Quality priority                 Meaningful measure area
------------------------------------------------------------------------
Making Care Safer by Reducing Harm       Healthcare-Associated
 Caused in the Delivery of Care.          Infections.
                                         Preventable Healthcare Harm.
Strengthen Person and Family Engagement  Care is Personalized and
 as Partners in Their Care.               Aligned with Patient's Goals.
                                         End of Life Care according to
                                          Preferences.
                                         Patient's Experience of Care.
                                         Patient Reported Functional
                                          Outcomes.
Promote Effective Communication and      Medication Management.
 Coordination of Care.
                                         Admissions and Readmissions to
                                          Hospitals.
                                         Transfer of Health Information
                                          and Interoperability.
Promote Effective Prevention and         Preventive Care.
 Treatment of Chronic Disease.
                                         Management of Chronic
                                          Conditions.
                                         Prevention, Treatment, and
                                          Management of Mental Health.
                                         Prevention and Treatment of
                                          Opioid and Substance Use
                                          Disorders.
                                         Risk Adjusted Mortality.
Work with Communities to Promote Best    Equity of Care.
 Practices of Healthy Living.
                                         Community Engagement.
Make Care Affordable...................  Appropriate Use of Healthcare.
                                         Patient-focused Episode of
                                          Care.
                                         Risk Adjusted Total Cost of
                                          Care.
------------------------------------------------------------------------

    By including Meaningful Measures in our programs, we believe that 
we can also address the following cross-cutting measure criteria:
     Eliminating disparities;
     Tracking measurable outcomes and impact;
     Safeguarding public health;
     Achieving cost savings;
     Improving access for rural communities; and
     Reducing burden.
    We believe that the Meaningful Measures Initiative will improve 
outcomes for patients, their families, and health care providers while 
reducing burden and costs for clinicians and providers as well as 
promoting operational efficiencies.

E. Advancing Health Information Exchange

    The Department of Health and Human Services (HHS) has a number of 
initiatives designed to encourage and support the adoption of 
interoperable health information technology and to promote nationwide 
health information exchange to improve health care. The Office of the 
National Coordinator for Health Information Technology (ONC) and CMS 
work collaboratively to advance interoperability across settings of 
care.
    The Improving Medicare Post-Acute Care Transformation Act of 2014 
(Pub. L. 113 185) (IMPACT Act) requires assessment data to be 
standardized and interoperable to allow for exchange of the data among 
post-acute providers and other providers. To further progress toward 
the goal of interoperability, we are developing a Data Element Library 
to serve as a publically available centralized, authoritative resource 
for standardized data elements and their associated mappings to health 
IT standards. These interoperable data elements can reduce provider 
burden by allowing the use and reuse of healthcare data, support 
provider exchange of electronic health information for care 
coordination, person-centered care, and support real-time, data driven, 
clinical decision making. Once available, standards in the Data Element 
Library can be referenced on the CMS website and in the ONC 
Interoperability Standards Advisory (ISA).
    The 2018 Interoperability Standards Advisory (ISA) is available at: 
https://www.healthit.gov/standards-advisory.
    Most recently, the 21st Century Cures Act (Pub. L. 114-255), 
enacted in 2016, requires HHS to take new steps to enable the 
electronic sharing of health information ensuring interoperability for 
providers and settings across the care continuum. Specifically, the 
Congress directed ONC to ``develop or support a trusted exchange 
framework, including a common agreement among health information 
networks nationally.'' This framework (https://beta.healthit.gov/topic/interoperability/trusted-exchange-framework-and-common-agreement) 
outlines a common set of principles for trusted exchange and minimum 
terms and conditions for trusted exchange in order to enable 
interoperability across disparate health information networks. In 
another

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important provision, the Congress established new authority for HHS to 
discourage ``information blocking'', defined as practices likely to 
interfere with, prevent, or materially discourage access, exchange, or 
use of electronic health information. We invite providers to learn more 
about these important developments and how they are likely to affect 
hospices.

II. Background

A. Hospice Care

    Hospice care is a comprehensive, holistic approach to treatment 
that recognizes that the impending death of an individual, upon his or 
her choice, warrants a change in the focus from curative care to 
palliative care for relief of pain and for symptom management. Medicare 
regulations define ``palliative care'' as patient and family-centered 
care that optimizes quality of life by anticipating, preventing, and 
treating suffering. Palliative care throughout the continuum of illness 
involves addressing physical, intellectual, emotional, social, and 
spiritual needs and to facilitate patient autonomy, access to 
information, and choice (42 CFR 418.3). Palliative care is at the core 
of hospice philosophy and care practices, and is a critical component 
of the Medicare hospice benefit.
    The goal of hospice care is to help terminally ill individuals 
continue life with minimal disruption to normal activities while 
remaining primarily in the home environment. A hospice uses an 
interdisciplinary approach to deliver medical, nursing, social, 
psychological, emotional, and spiritual services through a 
collaboration of professionals and other caregivers, with the goal of 
making the beneficiary as physically and emotionally comfortable as 
possible. Hospice is compassionate beneficiary and family/caregiver-
centered care for those who are terminally ill.
    As referenced in our regulations at Sec.  418.22(b)(1), to be 
eligible for Medicare hospice services, the patient's attending 
physician (if any) and the hospice medical director must certify that 
the individual is ``terminally ill,'' as defined in section 
1861(dd)(3)(A) of the Act and our regulations at Sec.  418.3; that is, 
the individual's prognosis is for a life expectancy of 6 months or less 
if the terminal illness runs its normal course. The regulations at 
Sec.  418.22(b)(3) require that the certification and recertification 
forms include a brief narrative explanation of the clinical findings 
that support a life expectancy of 6 months or less.
    Under the Medicare hospice benefit, the election of hospice care is 
one a patient choice and once a terminally ill patient elects to 
receive hospice care, a hospice interdisciplinary group is essential in 
the seamless provision of services. These hospice services are provided 
primarily in the individual's home. The hospice interdisciplinary group 
works with the beneficiary, family, and caregivers to develop a 
coordinated, comprehensive care plan; reduce unnecessary diagnostics or 
ineffective therapies; and maintain ongoing communication with 
individuals and their families about changes in their condition. The 
beneficiary's care plan will shift over time to meet the changing needs 
of the individual, family, and caregiver(s) as the individual 
approaches the end of life.
    While the goal of hospice care is to allow the beneficiary to 
remain in his or her home, circumstances during the end of life may 
necessitate short-term inpatient admission to a hospital, skilled 
nursing facility (SNF), or hospice facility for necessary pain control 
or acute or chronic symptom management that cannot be managed in any 
other setting. These acute hospice care services ensure that any new or 
worsening symptoms are intensively addressed so that the beneficiary 
can return to his or her home. Limited, short-term, intermittent, 
inpatient respite care (IRC) is also available because of the absence 
or need for relief of the family or other caregivers. Additionally, an 
individual can receive continuous home care (CHC) during a period of 
crisis in which an individual requires continuous care to achieve 
palliation or management of acute medical symptoms so that the 
individual can remain at home. Continuous home care may be covered for 
as much as 24 hours a day, and these periods must be predominantly 
nursing care, in accordance with our regulations at Sec.  418.204. A 
minimum of 8 hours of nursing care, or nursing and aide care, must be 
furnished on a particular day to qualify for the continuous home care 
rate (Sec.  418.302(e)(4)).
    Hospices are expected to comply with all civil rights laws, 
including the provision of auxiliary aids and services to ensure 
effective communication with patients and patient care representatives 
with disabilities consistent with section 504 of the Rehabilitation Act 
of 1973 and the Americans with Disabilities Act. Additionally, they 
must provide language access for such persons who are limited in 
English proficiency, consistent with Title VI of the Civil Rights Act 
of 1964. Further information about these requirements may be found at 
https://www.hhs.gov/ocr/civilrights.

B. Services Covered by the Medicare Hospice Benefit

    Coverage under the Medicare Hospice benefit requires that hospice 
services must be reasonable and necessary for the palliation and 
management of the terminal illness and related conditions. Section 
1861(dd)(1) of the Act establishes the services that are to be rendered 
by a Medicare-certified hospice program. These covered services 
include: Nursing care; physical therapy; occupational therapy; speech-
language pathology therapy; medical social services; home health aide 
services (now called hospice aide services); physician services; 
homemaker services; medical supplies (including drugs and biologicals); 
medical appliances; counseling services (including dietary counseling); 
short-term inpatient care in a hospital, nursing facility, or hospice 
inpatient facility (including both respite care and procedures 
necessary for pain control and acute or chronic symptom management); 
continuous home care during periods of crisis, and only as necessary to 
maintain the terminally ill individual at home; and any other item or 
service which is specified in the plan of care and for which payment 
may otherwise be made under Medicare, in accordance with Title XVIII of 
the Act.
    Section 1814(a)(7)(B) of the Act requires that a written plan for 
providing hospice care to a beneficiary who is a hospice patient be 
established before care is provided by, or under arrangements made by, 
that hospice program and that the written plan be periodically reviewed 
by the beneficiary's attending physician (if any), the hospice medical 
director, and an interdisciplinary group (described in section 
1861(dd)(2)(B) of the Act). The services offered under the Medicare 
hospice benefit must be available to beneficiaries as needed, 24 hours 
a day, 7 days a week (section 1861(dd)(2)(A)(i) of the Act).
    Upon the implementation of the hospice benefit, the Congress also 
expected hospices to continue to use volunteer services, though these 
services are not reimbursed by Medicare (see section 1861(dd)(2)(E) of 
the Act). As stated in the FY 1983 Hospice Wage Index and Rate Update 
proposed rule (48 FR 38149), the hospice interdisciplinary group should 
comprise paid hospice employees as well as hospice volunteers, and that 
``the hospice benefit and the resulting Medicare reimbursement is not 
intended to diminish the voluntary

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spirit of hospices.'' This expectation supports the hospice philosophy 
of community based, holistic, comprehensive, and compassionate end-of-
life care.

C. Medicare Payment for Hospice Care

    Sections 1812(d), 1813(a)(4), 1814(a)(7), 1814(i), and 1861(dd) of 
the Act, and our regulations in part 418, establish eligibility 
requirements, payment standards and procedures; define covered 
services; and delineate the conditions a hospice must meet to be 
approved for participation in the Medicare program. Part 418, subpart 
G, provides for a per diem payment in one of four prospectively-
determined rate categories of hospice care (routine home care (RHC), 
CHC, IRC, and general inpatient care (GIP)), based on each day a 
qualified Medicare beneficiary is under hospice care (once the 
individual has elected). This per diem payment is to include all of the 
hospice services and items needed to manage the beneficiary's care, as 
required by section 1861(dd)(1) of the Act. There has been little 
change in the hospice payment structure since the benefit's inception. 
The per diem rate based on level of care was established in 1983, and 
this payment structure remains today with some adjustments, as noted 
below.
1. Omnibus Budget Reconciliation Act of 1989
    Section 6005(a) of the Omnibus Budget Reconciliation Act of 1989 
(Pub. L. 101-239) amended section 1814(i)(1)(C) of the Act and provided 
changes in the methodology concerning updating the daily payment rates 
based on the hospital market basket percentage increase applied to the 
payment rates in effect during the previous federal fiscal year.
2. Balanced Budget Act of 1997
    Section 4441(a) of the Balanced Budget Act of 1997 (BBA) (Pub. L. 
105-33) established that updates to the hospice payment rates beginning 
FY 2002 and subsequent FYs be the hospital market basket percentage 
increase for the FY.
3. FY 1998 Hospice Wage Index Final Rule
    The FY 1998 Hospice Wage Index final rule (62 FR 42860), 
implemented a new methodology for calculating the hospice wage index 
and instituted an annual Budget Neutrality Adjustment Factor (BNAF) so 
aggregate Medicare payments to hospices would remain budget neutral to 
payments calculated using the 1983 wage index.
4. FY 2010 Hospice Wage Index Final Rule
    The FY 2010 Hospice Wage Index and Rate Update final rule (74 FR 
39384) instituted an incremental 7-year phase-out of the BNAF beginning 
in FY 2010 through FY 2016. The BNAF phase-out reduced the amount of 
the BNAF increase applied to the hospice wage index value, but was not 
a reduction in the hospice wage index value itself or in the hospice 
payment rates.
5. The Affordable Care Act
    Starting with FY 2013 (and in subsequent FYs), the market basket 
percentage update under the hospice payment system referenced in 
sections 1814(i)(1)(C)(ii)(VII) and 1814(i)(1)(C)(iii) of the Act is 
subject to annual reductions related to changes in economy-wide 
productivity, as specified in section 1814(i)(1)(C)(iv) of the Act. In 
FY 2013 through FY 2019, the market basket percentage update under the 
hospice payment system will be reduced by an additional 0.3 percentage 
point (although for FY 2014 to FY 2019, the potential 0.3 percentage 
point reduction is subject to suspension under conditions specified in 
section 1814(i)(1)(C)(v) of the Act).
    In addition, sections 1814(i)(5)(A) through (C) of the Act, as 
added by section 3132(a) of the Affordable Care Act, require hospices 
to begin submitting quality data, based on measures to be specified by 
the Secretary of the Department of Health and Human Services (the 
Secretary), for FY 2014 and subsequent FYs. Beginning in FY 2014, 
hospices that fail to report quality data will have their market basket 
percentage increase reduced by 2 percentage points.
    Section 1814(a)(7)(D)(i) of the Act, as added by section 3132(b)(2) 
of the
    Affordable Care Act, requires, effective January 1, 2011, that a 
hospice physician or nurse practitioner have a face-to-face encounter 
with the beneficiary to determine continued eligibility of the 
beneficiary's hospice care prior to the 180th-day recertification and 
each subsequent recertification, and to attest that such visit took 
place. When implementing this provision, we finalized in the FY 2011 
Hospice Wage Index final rule (75 FR 70435) that the 180th-day 
recertification and subsequent recertifications would correspond to the 
beneficiary's third or subsequent benefit periods. Further, section 
1814(i)(6) of the Act, as added by section 3132(a)(1)(B) of the 
Affordable Care Act, authorizes the Secretary to collect additional 
data and information determined appropriate to revise payments for 
hospice care and other purposes. The types of data and information 
suggested in the Affordable Care Act could capture accurate resource 
utilization, which could be collected on claims, cost reports, and 
possibly other mechanisms, as the Secretary determined to be 
appropriate. The data collected could be used to revise the methodology 
for determining the payment rates for RHC and other services included 
in hospice care, no earlier than October 1, 2013, as described in 
section 1814(i)(6)(D) of the Act. In addition, we were required to 
consult with hospice programs and the Medicare Payment Advisory 
Commission (MedPAC) regarding additional data collection and payment 
revision options.
6. FY 2012 Hospice Wage Index Final Rule
    In the FY 2012 Hospice Wage Index final rule (76 FR 47308 through 
47314) we announced that beginning in 2012, the hospice aggregate cap 
would be calculated using the patient-by-patient proportional 
methodology, within certain limits. We allowed existing hospices the 
option of having their cap calculated via the original streamlined 
methodology, also within certain limits. As of FY 2012, new hospices 
have their cap determinations calculated using the patient-by-patient 
proportional methodology. If a hospice's total Medicare payments for 
the cap year exceed the hospice aggregate cap, then the hospice must 
repay the excess back to Medicare.
7. FY 2015 Hospice Wage Index and Payment Rate Update Final Rule
    The FY 2015 Hospice Wage Index and Rate Update final rule (79 FR 
50452) finalized a requirement that requires the Notice of Election 
(NOE) be filed within 5 calendar days after the effective date of 
hospice election. If the NOE is filed beyond this 5-day period, hospice 
providers are liable for the services furnished during the days from 
the effective date of hospice election to the date of NOE filing (79 FR 
50474). Similar to the NOE, the claims processing system must be 
notified of a beneficiary's discharge from hospice or hospice benefit 
revocation within 5 calendar days after the effective date of the 
discharge/revocation (unless the hospice has already filed a final 
claim) through the submission of a final claim or a Notice of 
Termination or Revocation (NOTR).
    The FY 2015 Hospice Wage Index and Rate Update final rule (79 FR 
50479) also finalized a requirement that the

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election form include the beneficiary's choice of attending physician 
and that the beneficiary provide the hospice with a signed document 
when he or she chooses to change attending physicians.
    Hospice providers are required to begin using a Hospice Experience 
of Care Survey for informal caregivers of hospice patients as of 2015. 
The FY 2015 Hospice Wage Index and Rate Update final rule (79 FR 50496) 
provided background, eligibility criteria, survey respondents, and 
implementation of the Hospice Experience of Care Survey for informal 
caregivers, that hospices are required to use as of 2015.
    Finally, the FY 2015 Hospice Wage Index and Rate Update final rule 
required providers to complete their aggregate cap determination not 
sooner than 3 months after the end of the cap year, and not later than 
5 months after, and remit any overpayments. Those hospices that fail to 
timely submit their aggregate cap determinations will have their 
payments suspended until the determination is completed and received by 
the Medicare contractor (79 FR 50503).
8. IMPACT Act of 2014
    The Improving Medicare Post-Acute Care Transformation Act of 2014 
(IMPACT Act) (Pub. L. 113-185) became law on October 6, 2014. Section 
3(a) of the IMPACT Act mandated that all Medicare certified hospices be 
surveyed every 3 years beginning April 6, 2015 and ending September 30, 
2025. In addition, section 3(c) of the IMPACT Act requires medical 
review of hospice cases involving beneficiaries receiving more than 180 
days care in select hospices that show a preponderance of such 
patients; section 3(d) of the IMPACT Act contains a new provision 
mandating that the cap amount for accounting years that end after 
September 30, 2016, and before October 1, 2025 be updated by the 
hospice payment update rather than using the consumer price index for 
urban consumers (CPI-U) for medical care expenditures.
9. FY 2016 Hospice Wage Index and Payment Rate Update Final Rule
    In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR 
47172), we created two different payment rates for RHC that resulted in 
a higher base payment rate for the first 60 days of hospice care and a 
reduced base payment rate for subsequent days of hospice care. We also 
created a Service Intensity Add-on (SIA) payment payable for services 
during the last 7 days of the beneficiary's life, equal to the CHC 
hourly payment rate multiplied by the amount of direct patient care 
provided by a registered nurse (RN) or social worker that occurs during 
the last 7 days (80 FR 47177).
    In addition to the hospice payment reform changes discussed, the FY 
2016 Hospice Wage Index and Rate Update final rule (80 FR 47186) 
implemented changes mandated by the IMPACT Act, in which the cap amount 
for accounting years that end after September 30, 2016 and before 
October 1, 2025 is updated by the hospice payment update percentage 
rather than using the CPI-U. This was applied to the 2016 cap year, 
starting on November 1, 2015 and ending on October 31, 2016. In 
addition, we finalized a provision to align the cap accounting year for 
both the inpatient cap and the hospice aggregate cap with the fiscal 
year for FY 2017 and thereafter. Finally, the FY 2016 Hospice Wage 
Index and Rate Update final rule (80 FR 47144) clarified that hospices 
must report all diagnoses of the beneficiary on the hospice claim as a 
part of the ongoing data collection efforts for possible future hospice 
payment refinements.
10. FY 2017 Hospice Wage Index and Payment Rate Update Final Rule
    In the FY 2017 Hospice Wage Index and Rate Update final rule (81 FR 
52160), we finalized several new policies and requirements related to 
the HQRP. First, we codified our policy that if the National Quality 
Forum (NQF) makes non-substantive changes to specifications for HQRP 
measures as part of the NQF's re-endorsement process, we will continue 
to utilize the measure in its new endorsed status, without going 
through new notice-and-comment rulemaking. We will continue to use 
rulemaking to adopt substantive updates made by the NQF to the endorsed 
measures we have adopted for the HQRP; determinations about what 
constitutes a substantive versus non-substantive change will be made on 
a measure-by-measure basis. Second, we finalized two new quality 
measures for the HQRP for the FY 2019 payment determination and 
subsequent years: Hospice Visits when Death is Imminent Measure Pair 
and Hospice and Palliative Care Composite Process Measure-Comprehensive 
Assessment at Admission (81 FR 52173). The data collection mechanism 
for both of these measures is the HIS, and the measures are effective 
April 1, 2017. Regarding the CAHPS[supreg] Hospice Survey, we finalized 
a policy that hospices that receive their CMS Certification Number 
(CCN) after January 1, 2017 for the FY 2019 Annual Payment Update (APU) 
and January 1, 2018 for the FY 2020 APU will be exempted from the 
Hospice Consumer Assessment of Healthcare Providers and Systems 
(CAHPS[supreg]) requirements due to newness (81 FR 52182). The 
exemption is determined by CMS and is for 1 year only.

D. Trends in Medicare Hospice Utilization

    Since the implementation of the hospice benefit in 1983, and 
especially within the last decade, there has been substantial growth in 
hospice benefit utilization. The number of Medicare beneficiaries 
receiving hospice services has grown from 513,000 in FY 2000 to nearly 
1.5 million in FY 2017. Similarly, Medicare hospice expenditures have 
risen from $2.8 billion in FY 2000 to approximately $17.5 billion in FY 
2017. Our Office of the Actuary (OACT) projects that hospice 
expenditures are expected to continue to increase, by approximately 8 
percent annually, reflecting an increase in the number of Medicare 
beneficiaries, more beneficiary awareness of the Medicare hospice 
benefit for end-of-life care, and a growing preference for care 
provided in home and community-based settings.
    There have also been changes in the diagnosis patterns among 
Medicare hospice enrollees. While in 2002, lung cancer was the top 
principal diagnosis, neurologically based diagnoses have topped the 
list for the past 5 years. Additionally, in FY 2013, ``debility'' and 
``adult failure to thrive'' were the first and sixth most common 
hospice claims-reported diagnoses, respectively, accounting for 
approximately 14 percent of all diagnoses; however, effective October 
1, 2014, these diagnoses are no longer permitted as principal diagnosis 
codes on hospice claims. As a result of this, the most common hospice 
claims-reported diagnoses have changed from primarily cancer diagnoses 
to neurological and organ-based failure diagnoses. The top 20 most 
frequently hospice claims-reported diagnoses for FY 2017 are in Table 2 
below.

[[Page 20939]]



      Table 2--The Top Twenty Principal Hospice Diagnoses, FY 2017
------------------------------------------------------------------------
                        ICD-10/reported
         Rank              principal           Count        Percentage
                           diagnosis
------------------------------------------------------------------------
1....................  G30.9 Alzheimer's         155,066              10
                        disease,
                        unspecified.
2....................  J44.9 Chronic              77,758               5
                        obstructive
                        pulmonary
                        disease.
3....................  I50.9 Heart                69,216               4
                        failure,
                        unspecified.
4....................  G31.1 Senile               66,309               4
                        degeneration of
                        brain, not
                        elsewhere
                        classified.
5....................  C34.90 Malignant           53,137               3
                        Neoplasm Of Unsp
                        Part Of Unsp
                        Bronchus Or Lung.
6....................  G20 Parkinson's            40,186               3
                        disease.
7....................  G30.1 Alzheimer's          38,710               2
                        disease with
                        late onset.
8....................  I25.10                     34,761               2
                        Atherosclerotic
                        heart disease of
                        native coronary
                        art without
                        angina pectoris.
9....................  J44.1 Chronic              33,547               2
                        obstructive
                        pulmonary
                        disease with
                        (acute)
                        exacerbation.
10...................  I67.2 Cerebral             30,146               2
                        atherosclerosis.
11...................  C61 Malignant              25,215               2
                        neoplasm of
                        prostate.
12...................  I63.9 Cerebral             22,825               1
                        infarction,
                        unspecified.
13...................  N18.6 End stage            21,549               1
                        renal disease.
14...................  C18.9 Malignant            21,543               1
                        neoplasm of
                        colon,
                        unspecified.
15...................  C25.9 Malignant            20,851               1
                        neoplasm of
                        pancreas,
                        unspecified.
16...................  I51.9 Heart                18,794               1
                        disease,
                        unspecified.
17...................  I11.0                      18,345               1
                        Hypertensive
                        heart disease
                        with heart
                        failure.
18...................  I67.9                      18,234               1
                        Cerebrovascular
                        disease,
                        unspecified.
19...................  I13.0                      15,632               1
                        Hypertensive
                        heart and
                        chronic kidney
                        disease with
                        heart failure
                        and stage 1
                        through stage 4
                        chronic kidney
                        disease, or
                        unspecified
                        chronic kidney
                        disease.
20...................  A41.9 Sepsis,              14,012               1
                        unspecified
                        organism.
------------------------------------------------------------------------
Note(s): The frequencies shown represent beneficiaries that had a least
  one claim with the specific ICD-10 code reported as the principal
  diagnosis. Beneficiaries could be represented multiple times in the
  results if they have multiple claims during that time period with
  different principal diagnoses.
Source: FY 2017 hospice claims data from the CCW, accessed and merged
  with ICD-10 codes on January 10, 2018.

    In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR 
47201), we clarified that hospices will report all diagnoses identified 
in the initial and comprehensive assessments on hospice claims, whether 
related or unrelated to the terminal prognosis of the individual, 
effective October 1, 2015. Analysis of FY 2017 hospice claims show that 
100 percent of hospices reported more than one diagnosis, 89 percent 
submitted at least two diagnoses, and 81 percent included at least 
three diagnoses.

III. Provisions of the Proposed Rule

A. Monitoring for Potential Impacts--Affordable Care Act Hospice Reform

1. Hospice Payment Reform: Research and Analyses
    This section of the proposed rule describes current trends in 
hospice utilization and provider behavior, such as lengths of stay, 
live discharge rates, skilled visits during the last days of life, and 
non-hospice spending. Utilization data on these metrics were examined 
to determine the potential impacts related to the hospice reform 
policies finalized in the FY 2016 Hospice Wage Index and Rate Update 
final rule (80 FR 47142), if any. Moreover, in response to Office of 
Inspector General (OIG) report ``Hospice Inappropriately Billed 
Medicare Over $250 Million for General Inpatient Care'' (OEI-02-10-
00491) released in March 2016, which identified the drugs paid for by 
Part D and provided to beneficiaries during GIP stays, we have also 
continued to monitor non-hospice spending during a hospice election as 
described in this section. Additionally, we have included information 
on the costs of hospice care using data from the new hospice Medicare 
cost report, effective for cost reporting periods that began on or 
after October 1, 2014 (FY 2015). Section 1814(i)(6) of the Act, as 
amended by section 3132(a)(1)(B) of the Affordable Care Act, authorized 
the Secretary to collect additional data and information determined 
appropriate to revise payments for hospice care and other purposes, 
including such data sources as the Medicare cost reports. These 
preliminary analyses may inform future work that could include such 
refinements to hospice payment rates.
a. Length of Stay and Live Discharges
Hospice Length of Stay
    Eligibility under the Medicare hospice benefit is predicated on the 
individual being certified as terminally ill. Medicare regulations at 
Sec.  418.3 define ``terminally ill'' to mean that the individual has a 
medical prognosis that his or her life expectancy is 6 months or less 
if the illness runs its normal course. However, we have recognized in 
previous rules that prognostication is not an exact science (79 FR 
50470), and thus, a beneficiary may be under a hospice election longer 
than 6 months, as long as there remains a reasonable expectation that 
the individual has a life expectancy of 6 months or less.
    The number of days that a hospice beneficiary receives care under a 
hospice election is referred to as the hospice length of stay. Hospice 
length of stay can be influenced by a number of factors including 
disease course, timing of referral, decision to resume curative 
treatment, and/or stabilization or improvement where the individual is 
no longer certified as terminally ill. Longer lengths of stay in 
hospice may reflect admission to hospice earlier in the disease 
trajectory or miscalculation of prognosis, among other situations. 
Shorter lengths of stay in hospice may reflect hospice election late in 
the disease trajectory or a rapidly progressing acute condition. This 
also may be due to individual reluctance to accept that his or her 
condition is terminal and choose the hospice benefit; inadequate 
knowledge regarding the breadth of services available under hospice 
care; cultural, ethnic, and/or religious backgrounds inhibiting or even 
precluding the use of hospice services; and other reasons.\4\ As such, 
hospice lengths of stay are variable.
---------------------------------------------------------------------------

    \4\ Vig, E., Starks, H., Taylor, J., Hopley, E., Fryer-Edwards, 
K. (2010). ``Why Don't Patients Enroll in Hospice? Can We Do 
Anything About It?'' Journal of General Internal Medicine. 25(10): 
1009-19. Doi: 10.1007/s11606-010-1423-9.
---------------------------------------------------------------------------

    We examined length of stay, meaning the number of hospice days 
during a single hospice election at the date of live discharge or 
death. We also examined total lifetime length of stay, which would 
include the sum of all days of hospice care across all hospice 
elections. This would mean if a beneficiary had one hospice election,

[[Page 20940]]

was discharged alive, and then re-elected the benefit at a later date, 
the sum of both elections would count towards their lifetime length of 
stay. In FY 2017, the average length of stay in hospice was 79.7 days 
and the average lifetime length of stay in hospice was 96.2 days. The 
average length of stay was 78.1 days in FY 2015, 79.2 days in FY 2016, 
and 79.7 days in FY 2017. The average lifetime length of stay similarly 
remained virtually the same between FY 2016 and FY 2017, 96.1 and 96.2 
days, respectively.
    The median (50th percentile) length of stay in FY 2017 was 18 days. 
This means that half of hospice beneficiaries received care for fewer 
than 18 days and half received care for more than 18 days. While the 
median length of stay has remained relatively constant over the past 
several years, the average length of stay has increased from year to 
year.
    The Medicare hospice benefit provides four levels of care: Routine 
home care, general inpatient care, continuous home care, and inpatient 
respite care. The majority of hospice patient care is provided at the 
RHC level of care and can be provided wherever the patient calls 
``home,'' including nursing homes and assisted living facilities. As 
indicated in Table 3 below, most hospice care (98 percent) provided is 
RHC. Approximately 56 percent of all hospice days are provided at the 
RHC level of care in the patient's residence whereas 41 percent is 
provided at the RHC level of care to patients that reside in a nursing 
home or assisted living facility.

Table 3--Share of Hospice Days by Level of Care and Site of Service, for
          Beneficiaries Discharged Alive or Deceased in FY 2017
------------------------------------------------------------------------
                                             Number of       % of all
    Level of care       Site of service    hospice days    hospice days
------------------------------------------------------------------------
RHC..................  Home + Hospice         66,320,796           55.75
                        Residential
                        Facility.
                       SNF/NF...........      28,656,850           24.09
                       Assisted Living        20,299,401           17.06
                        Facility.
                       Other............       1,351,575            1.14
                                         -------------------------------
                          Total.........     116,628,622           98.04
------------------------------------------------------------------------
GIP..................  Inpatient                 409,123            0.34
                        Hospital.
                       Inpatient Hospice       1,158,985            0.97
                        Facility.
                       Skilled Nursing            64,349            0.05
                        Facility.
                       Other............           5,571            0.01
                                         -------------------------------
                          Total.........       1,638,028            1.38
------------------------------------------------------------------------
CHC..................  Home + Hospice            199,595            0.17
                        Residential
                        Facility.
                       SNF/NF...........          47,098            0.04
                       Assisted Living            78,927            0.07
                        Facility.
                       Other............           3,758            0.00
                                         -------------------------------
                          Total.........         329,378            0.28
------------------------------------------------------------------------
IRC..................  Inpatient                  32,397            0.03
                        Hospital.
                       Inpatient Hospice         121,597            0.10
                        Facility.
                       SNF/NF...........         206,983            0.17
                       Other............           1,558            0.00
                                         -------------------------------
                          Total.........         362,535            0.30
                                         -------------------------------
    Total............  .................     118,958,563             100
------------------------------------------------------------------------
Source: Common Working File (CWF) All hospice claims from 2006 to 2017
  were included, for beneficiaries whose final claim in FY 2017,
  according to through date, for a hospice discharge (excluded status
  code ``30'', indicating a continuing patient). Hospice days with
  invalid or missing site of service HCPCS code are excluded.

    In addition to analyzing the hospice average and average lifetime 
lengths of stay, we examined the average lifetime lengths of stay 
associated with hospice principal diagnoses by site of service at 
admission in FY 2017 (see Table 4 below). We limited our analysis to 
those beneficiaries that were receiving RHC at admission. As noted in 
Table 3 above, RHC was the level of care for 98 percent of all hospice 
days. We found that beneficiaries with chronic, progressive 
neurological diseases such as Alzheimer's disease and related 
dementias, and Parkinson's disease had the longest average lifetime 
lengths of stay at 177 days in FY 2017. Beneficiaries with Chronic 
Kidney Disease and cancer had shorter average lifetime lengths of stay, 
56.8 and 63 days, respectively. For all diagnoses, the average lifetime 
length of stay was 113.5 days in FY 2017 when level of care at 
admission is RHC.

[[Page 20941]]



  Table 4--Average Lifetime Length of Stay by Diagnosis and Site of Service on the Day of Admission in FY 2017, When Level of Care at Admission is RHC
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Home + hospice        Assisted living      SNF + LTC or non-          Other *        All sites of service
                                            residential facility        facility           skilled nursing   -------------------------------------------
                                           --------------------------------------------       facility
                                                                                       ----------------------             Average               Average
  Primary hospice diagnosis at admission                Average               Average               Average   Number of   lifetime  Number of   lifetime
                                            Number of   lifetime  Number of   lifetime  Number of   lifetime    benes    length of    benes    length of
                                              benes    length of    benes    length of    benes    length of                stay                  stay
                                                          stay                  stay                  stay
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Diagnoses.............................    582,280     110.59    115,742     162.60    219,063     102.87     47,700      79.33    964,785     113.53
Alzheimer's, Dementia, and Parkinson's....     75,915     191.29     39,288     204.24     60,895     143.63      6,741     173.29    182,839     177.00
CVA/Stroke................................     18,514     176.77      9,013     200.25     14,364     142.65      1,730     141.33     43,621     169.19
Cancers...................................    223,000      63.21     12,408      97.53     30,219      62.22     17,916      40.23    283,543      62.92
Chronic Kidney Disease....................     12,319      60.69      1,436      81.71      5,537      45.09        952      38.90     20,244      56.84
Heart (CHF and Other Heart Disease).......    101,059     130.39     22,138     144.68     36,694      87.61      7,596      94.51    167,487     120.96
Lung (COPD and Pneumonias)................     57,733     142.60      7,309     152.88     16,286      88.89      3,863      72.27     85,191     131.23
All Other Diagnoses.......................     93,740     110.34     24,150     138.44     55,068      89.83      8,902      67.27    181,860     106.43
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Common Working File (CWF) All hospice claims from 2006 to 2017 were included, for beneficiaries whose final claim in FY 2017, according to
  through date, for a hospice discharge (excluded status code ``30'', indicating a continuing patient). Diagnosis code and site of service were
  determined by the first hospice claim for a beneficiary. Diagnosis categories are consistent with those outlined in Abt's 2015 technical report
  (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/December-2015-Technical-Report.pdf).
Note: ``Other'' category includes inpatient hospital, inpatient hospice facility, LTCH, IPF, and places not otherwise specified. Although dementia was
  no longer a valid primary diagnosis for the hospice benefit, our study time period examines primary diagnoses dating back to 2006.

    As we indicated above, the average lifetime length of stay across 
all levels of care at admission was 96.2 days in FY 2017. However, the 
average lifetime length of stay was 113.5 days in FY 2017 when the 
level of care was RHC at admission (see Table 5 below). This suggests 
that beneficiaries not receiving RHC level of care at admission had 
shorter lifetime lengths of stay compared to the beneficiaries whose 
level of care was RHC at admission. In particular, those beneficiaries 
who are admitted to hospice at the GIP level of care typically are more 
acute and often die without transitioning to RHC and thus, have overall 
shorter lengths of stay. Therefore, the shorter lengths of stay for 
those admitted at the GIP level of care affect the overall average 
lifetime length of stay across all levels of care.

           Table 5--Average Lifetime Length of Stay Level of Care to RHC at Admission, FY 2016-FY 2017
----------------------------------------------------------------------------------------------------------------
                                                              FY 2016                         FY 2017
                                                 ---------------------------------------------------------------
                                                                      Average                         Average
                                                     Number of       lifetime        Number of       lifetime
                                                       benes      length of stay       benes      length of stay
----------------------------------------------------------------------------------------------------------------
Any Level of Care at Admission..................       1,117,643           96.14       1,176,946           96.17
RHC at Admission................................         909,961          114.02         964,785          113.53
----------------------------------------------------------------------------------------------------------------
Source: Common Working File (CWF) All hospice claims were included, for beneficiaries whose final claim in FY
  2017, according to through date, for a hospice discharge (excluded status code ``30'', indicating a continuing
  patient).

Live Discharges
    A beneficiary who has elected hospice may revoke his or her hospice 
election at any time and for any reason. The regulations state that if 
the hospice beneficiary (or his or her representative) revokes the 
hospice election, the beneficiary may, at any time, re-elect to receive 
hospice coverage for any other hospice election period that he or she 
is eligible to receive (Sec. Sec.  418.24(e) and 418.28(c)(3)). 
Immediately upon hospice revocation, Medicare coverage resumes for 
those Medicare benefits previously waived with the hospice election. A 
revocation can only be made by the beneficiary, in writing, and must 
specify the effective date of the revocation. A hospice cannot 
``revoke'' a beneficiary's hospice election, nor is it appropriate for 
hospices to encourage, request, or demand that the beneficiary or his 
or her representative revoke his or her hospice election. Like the 
hospice election, a hospice revocation is to be an informed choice 
based on the beneficiary's goals, values and preferences for the 
services the person wishes to receive through Medicare.
    Federal regulations limit the circumstances in which a Medicare 
hospice provider may discharge a patient from its care. In accordance 
with Sec.  418.26, discharge from hospice care is permissible when the 
patient moves out of the provider's service area, is determined to be 
no longer terminally ill, or for cause. Hospices may not discharge the 
patient at their discretion, even if the care may be costly or 
inconvenient for the hospice program. As we indicated in the FY 2015 
Hospice Wage Index and Payment Rate Update proposed and final rules, we 
understand that the rate of live discharges should not be zero, given 
the uncertainties of prognostication and the ability of beneficiaries 
and their families to revoke the hospice election at any time (79 FR 
26549 and 79 FR 50463). On July 1, 2012, we began collecting discharge 
information on the claim to capture the reason for all types of 
discharges which includes, death, revocation, transfer to another 
hospice, moving out of the hospice's service area, discharge for cause, 
or due to the beneficiary no longer being considered terminally ill 
(that is, no longer qualifying for hospice services). In FY 2017, 
approximately 16.7 percent of hospice beneficiaries were discharged 
alive (see Figure 1 below). Beneficiary revocations represented 44 
percent of all live discharges whereas 45 percent of live discharges 
were instances where the beneficiary was discharged because the 
beneficiary was considered no longer terminally ill, and 9 percent of 
live discharges were instances where beneficiaries transferred to other 
hospices. In analyzing hospice live discharge rates over time, Figure 1 
demonstrates an incremental decrease in average annual rates of live 
discharge rates from FY 2007 to FY 2015, but an increase in the live 
discharge rate

[[Page 20942]]

between FY 2015 and FY 2016, and a slight decrease between FY 2016 and 
FY 2017. Between FY 2007 and FY 2017, there has been a reduction in the 
live discharge rate of 23.7 percent over this time period.
[GRAPHIC] [TIFF OMITTED] TP08MY18.000

    As part of our ongoing monitoring efforts, we analyzed the 
distribution of live discharge rates among hospices with 50 or more 
discharges (discharged alive or deceased). Table 6 shows that there is 
significant variation in the rate of live discharge between the 10th 
and 90th percentiles. Most notably, hospices at the 95th percentile 
discharged 47.6 percent of their patients alive in FY 2017.

 Table 6--Distribution of Live Discharge Rates for Hospices With 50 or More Live Discharges, FY 2015 to FY 2017
----------------------------------------------------------------------------------------------------------------
                                                                              Live discharge rate (%)
                           Statistics                            -----------------------------------------------
                                                                      FY 2015         FY 2016         FY 2017
----------------------------------------------------------------------------------------------------------------
5th Percentile..................................................            6.9%            7.0%            6.9%
10th Percentile.................................................            8.5%            8.5%            8.4%
25th Percentile.................................................           11.6%           11.8%           11.7%
Median..........................................................           16.8%           17.1%           17.3%
75th Percentile.................................................           24.7%           25.6%           25.4%
90th Percentile.................................................           35.9%           37.8%           37.3%
95th Percentile.................................................           45.6%           49.2%           47.6%
# Providers.....................................................           3,215           3,268           3,312
----------------------------------------------------------------------------------------------------------------
Source: FY 2015, FY 2016, and FY 2017 hospice claims data from Common Working File (CWF) that list a discharge
  status code (meaning claims were excluded if they listed status code 30, indicating a continuing patient).
  Live discharges were defined as hospice claims with a status code of ``01''.

    Finally, we looked at the distribution of live discharges by length 
of stay intervals. In looking at the length of stay intervals, 22 
percent of the live discharges occurred within 30 days of the start of 
hospice care, 10 percent between 31 to 60 days, 14 percent between 61 
to 90 days, 20 percent between 91 to 180 days, and 35 percent of live 
discharges occurred after a length of stay over 180 days of hospice 
care (see Figure 2 below). The proportion of live discharges occurring 
between the length of stay intervals was relatively constant from FY 
2013 to FY 2017. However, we will continue to monitor the data 
available so as to identify any concerning behavior in response to 
recent payment policy reforms.

[[Page 20943]]

[GRAPHIC] [TIFF OMITTED] TP08MY18.001

b. Skilled Visits in the Last Days of Life
    As we noted in both the FY 2016 and FY 2017 Hospice Wage Index and 
Rate Update final rules (80 FR 47164 and 81 FR 52143, respectively), we 
are concerned that many hospice beneficiaries may not be receiving 
skilled visits during the last days of life. In the period of time 
immediately preceding death, patient needs typically surge and more 
intensive services are warranted, so we expect that the provision of 
care would proportionately escalate in order to meet the increased 
clinical, emotional, and other needs of the hospice beneficiary and his 
or her family and caregiver(s). The last week of life is typically the 
period within the terminal illness trajectory that is associated with 
the highest symptom burden, typically marked by impactful physical and 
emotional symptoms, necessitating attentive care and engagement from 
the integrated hospice team. In the FY 2016 Hospice Wage Index and Rate 
Update final rule (80 FR 47164 through 47177), the SIA payment policy 
was finalized with an implementation date of January 1, 2016. This 
payment was developed in part with the objective of encouraging visits 
during the last days of life. Additionally, in the FY 2017 Hospice Wage 
Index and Rate Update final rule (81 FR 52143), we finalized two new 
hospice HQRP measures effective April 1, 2017: (1) Hospice Visits When 
Death is Imminent, assessing hospice staff visits to patients and 
caregivers in the last week of life; and (2) Hospice and Palliative 
Care Composite Process Measure, assessing the percentage of hospice 
patients who received care processes consistent with existing 
guidelines. These efforts represent meaningful advances in encouraging 
visits to hospice beneficiaries during the time period preceding death.
    In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR 
47164), commenters expressed concern regarding potential impacts of the 
new payment policies. Some noted that the new payment structures could 
potentially impact patient access to hospice care and articulated 
concerns around beneficiary discharges, specifically around the 60-day 
mark of a hospice stay. In response to these concerns, we pledged to 
monitor real-time hospice data, evaluating for any shifts in 
utilization or provision of services to Medicare beneficiaries.
    As part of our monitoring efforts, we assessed the delivery of 
hospice care during the period of time preceding death. Analysis of FY 
2017 claims data, which encompasses hospice claims from October 1, 2016 
through September 30, 2017, shows that on any given day during the last 
7 days of a hospice election, nearly 42 percent of the time the patient 
has not received a skilled visit (skilled nursing or social worker 
visit) (see Table 7 below). This figure represents an incremental 
improvement when compared to the figures presented in our FY 2018 
Hospice Wage Index and Rate Update proposed rule (82 FR 20762), where 
FY 2016 claims showed approximately 44 percent for this metric. 
Additionally, Table 7 shows that approximately 20 percent of 
beneficiaries did not receive a skilled visit (skilled nursing or 
social work visit) on the day of death in FY 2017. This value also 
indicates an improvement compared to the FY 2016 claims data, in which 
nearly 21 percent of hospice beneficiaries did not receive a skilled 
visit on the day of death (82 FR 20762).

[[Page 20944]]



Table 7--Frequency and Length of Skilled Nursing and Social Work Visits (Combined) During the Last 7 Days of a Hospice Election Ending in Death, FY 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Days before death
                                                 -------------------------------------------------------------------------------------------
                  Visit length                       0 Days                                                                                   All 7 days
                                                    (day of     1 Day (%)    2 Days (%)   3 Days (%)   4 Days (%)   5 Days (%)   6 Days (%)    combined
                                                   death) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No Visit........................................         19.9         34.6         42.3         47.7         51.7         55.0         57.4         42.3
15 Minutes to 1 Hour............................         26.3         31.1         29.0         27.4         26.0         25.0         24.2         27.2
1 Hour, 15 Minutes to 2 Hours...................         27.3         20.7         18.3         16.4         15.0         13.6         12.8         18.4
2 Hours, 15 Minutes to 3 Hours..................         13.9          7.4          6.0          5.1          4.4          3.9          3.5          6.8
3 Hours, 15 Minutes to 3 Hours, 45 Minutes......          4.9          2.3          1.8          1.4          1.2          1.0          0.9          2.1
4 or More Hours.................................          7.7          3.9          2.6          2.0          1.6          1.3          1.2          3.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: FY 2017 hospice claims data from Common Working File (CWF) (as of January 1, 2018).

    While Table 7 above shows the frequency and length of skilled 
nursing and social work visits combined during the last 7 days of a 
hospice election in FY 2017, Tables 8 and 9 below show the frequency 
and length of visits for skilled nursing and social work separately. 
Analysis of FY 2017 claims data shows that on any given day during the 
last 7 days of a hospice election, almost 45 percent of the time the 
patient had not received a visit by a skilled nurse, and 89 percent of 
the time the patient had not received a visit by a social worker (see 
Tables 8 and 9, respectively). We believe it is important to ensure 
that beneficiaries and their families and caregivers are, in fact, 
receiving the level of care necessary during critical periods such as 
the very end of life.

              Table 8--Frequency and Length of Skilled Nursing Visits During the Last 7 Days of a Hospice Election Ending in Death, FY 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Days before death
                                                 -------------------------------------------------------------------------------------------
                  Visit length                    0 Days (day                                                                                 All 7 days
                                                   of death)    1 Day (%)    2 Days (%)   3 Days (%)   4 Days (%)   5 Days (%)   6 Days (%)    combined
                                                      (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No Visit........................................         21.3         37.3         45.3         50.9         55.0         58.3         60.8         45.1
15 Minutes to 1 Hour............................         27.3         33.3         30.3         28.1         26.2         24.9         23.9         28.1
1 Hour, 15 Minutes to 2 Hours...................         27.9         19.6         17.1         15.2         13.8         12.5         11.6         17.6
2 Hours, 15 Minutes to 3 Hours..................         13.3          5.5          4.3          3.6          3.1          2.7          2.4          5.4
3 Hours, 15 Minutes to 3 Hours, 45 Minutes......          4.2          1.6          1.1          0.9          0.8          0.6          0.6          1.5
4 or More Hours.................................          6.1          2.8          1.8          1.4          1.1          0.9          0.8          2.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: FY 2017 hospice claims data from Common Working File (CWF) (as of January 1, 2018).


                Table 9--Frequency and Length of Social Work Visits During the Last 7 Days of a Hospice Election Ending in Death, FY 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Days before death
                                                 -------------------------------------------------------------------------------------------
                  Visit length                    0 Days (day                                                                                 All 7 days
                                                   of death)    1 Day (%)    2 Days (%)   3 Days (%)   4 Days (%)   5 Days (%)   6 Days (%)    combined
                                                      (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
No Visit........................................         89.5         86.5         88.2         89.5         90.2         90.9         91.3         89.3
15 Minutes to 1 Hour............................          6.6          9.3          8.2          7.4          7.0          6.5          6.2          7.4
1 Hour, 15 Minutes to 2 Hours...................          2.8          3.5          3.0          2.7          2.5          2.2          2.1          2.8
2 Hours, 15 Minutes to 3 Hours..................          0.7          0.5          0.4          0.3          0.3          0.3          0.2          0.4
3 Hours, 15 Minutes to 3 Hours, 45 Minutes......          0.2          0.1          0.1          0.0          0.0          0.0          0.0          0.1
4 or More Hours.................................          0.2          0.1          0.1          0.0          0.0          0.0          0.0          0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: FY 2017 hospice claims data from Common Working File (CWF) (as of January 1, 2018).


[[Page 20945]]

    Additionally, we have analyzed the overall levels of nursing and 
medical social services provided during the 7 days prior to death. In 
an assessment of FY 2015 claims, we estimate that the total number of 
hours of skilled services, including skilled nursing (as reported with 
code G0154) and medical social services visits, provided to Medicare 
hospice beneficiaries in the RHC level of care in the 7 days preceding 
death was approximately 1.6 hours per day. As depicted in Figure 3 
below, from our analysis of FY 2016 and 2017 hospice claims data that 
begins January 1, 2016 and spans through September 30, 2017, a 
relatively consistent level of nursing and medical social services 
visits are being provided among RHC days in the 7 days prior to death, 
averaging around 1.6 hours per day. For the period spanning January 1, 
2016 through September 30, 2017, our analysis shows that approximately 
1.24 hours of services were provided by RNs, 0.18 hours were provided 
by Licensed Practical Nurses (LPNs), and 0.18 hours were provided by 
social workers per day. We note that for purposes of the SIA payment, 
only those hours of service provided by an RN, which became separately 
categorized as G0299 beginning January 1, 2016, and medical social 
worker count toward the calculation of the SIA payment. Additionally, 
we note that G0154 was retired as of January 1, 2016; however, this 
code was still reported by some providers in the months of January and 
February 2016, and thus was included in Figure 3.
[GRAPHIC] [TIFF OMITTED] TP08MY18.002

    Given this evaluation of this more comprehensive dataset, which 
encompasses the payment policy changes that began on January 1, 2016, 
we are concerned at the lack of increase in visits to hospice patients 
at the end of life. Beneficiaries appear to be receiving similar levels 
of care when compared to time periods prior to the implementation of 
the payment policy reforms, which may indicate that hospices are not 
providing additional resources to patients during a time of increased 
need. We expect that hospices would be increasing visit frequency at 
the end of life, as the SIA payment serves to compensate providers for 
the cost of providing additional, more intensive care at the end of 
life, in addition to the payment already made for those RHC level of 
care days that qualify for the SIA.
    Moreover, as described in the FY 2017 Hospice Wage Index and Rate 
Update final rule (81 FR 52173), our quality reporting program started 
data collection effective April 1, 2017 for the quality measure pair, 
Hospice Visits When Death is Imminent, via the implementation of the 
new Hospice Item Set (HIS) V2.00. This measure pair assesses hospice 
staff visits to patients at the end of life. Measure 1 assesses the 
percentage of patients receiving at least one visit from registered 
nurses, physicians, nurse practitioners, or physician assistants in the 
last 3 days of life while Measure 2 measures the percentage of patients 
receiving at least two visits from medical social workers, chaplains or 
spiritual counselors, LPNs, or hospice aides in the last 7 days of 
life. Data collected on these measures for the time period of 2017 will 
be applied to the Hospice Quality Reporting Program's Annual Payment 
Update (APU) in FY 2019, impacting provider payment based on quality of 
hospice care provided to Medicare beneficiaries. We will continue to 
monitor the provision of hospice services at end-of-life and impacts of 
the SIA payment and other policies.
c. Non-Hospice Spending
    When a beneficiary elects the Medicare hospice benefit, he or she 
waives the right to Medicare payment for services related to the 
treatment of the individual's condition with respect to which a 
diagnosis of terminal illness has been made, except for services

[[Page 20946]]

provided by the designated hospice and the attending physician. Hospice 
services are comprehensive and we have reiterated since 1983 that 
``virtually all'' care needed by the terminally ill individual would be 
provided by hospice. We believe that it would be unusual and 
exceptional to see services provided outside of hospice for those 
individuals who are approaching the end of life. However, we continue 
to conduct ongoing analysis of non-hospice spending during a hospice 
election and the results of our analysis seems to suggest the 
unbundling of items and services that perhaps should have been provided 
and covered under the Medicare hospice benefit.
    We first reported findings on 2012 non-hospice spending during a 
hospice election in the FY 2015 Hospice Wage Index and Payment Rate 
Update final rule (79 FR 50452). This proposed rule updates our 
analysis of non-hospice spending during a hospice election using FY 
2017 data. We found that in FY 2017, Medicare paid over $900 million 
for items and services under Parts A, B, and D for beneficiaries during 
a hospice election. Medicare payments for non-hospice Part A and Part B 
items and services received by hospice beneficiaries during hospice 
election were $730 million in FY 2011, $745 million in FY 2012, $709 
million in FY 2013, $621 million in FY 2014, $591 million in FY 2015, 
$586 million in FY 2016, and $566 million in FY 2017 (see Figure 4 
below). The beneficiary cost sharing amount in FY 2017 was $138 
million. Non-hospice spending for Part A and Part B items and services 
has decreased each year since we began reporting these findings. 
Overall, from FY 2011 to FY 2017 non-hospice Medicare spending for 
Parts A and B during hospice election declined 23 percent. However, 
there continues to be a non-trivial amount of non-hospice Parts A and B 
spending on beneficiaries under a hospice election, and we will 
continue to monitor data regarding this issue.
[GRAPHIC] [TIFF OMITTED] TP08MY18.003

    We also examined Part D spending from FY 2011 to FY 2017 for those 
beneficiaries under a hospice election. The data shows Medicare 
payments for non-hospice Part D drugs received by hospice beneficiaries 
during a hospice election were $325 million in FY 2011, $331 million in 
FY 2012, $348 million in FY 2013, $294 million in FY 2014, $314 million 
in FY 2015, $351 million in FY 2016, and $380 million in FY 2017 (see 
Figure 5). In contrast to non-hospice spending during a hospice 
election for Medicare Parts A and B items and services, non-hospice 
spending for Part D drugs increased in FY 2017 compared to FY 2011.
    Recent analyses of Part D prescription drug event (PDE) data 
suggest that the current prior authorization (PA) has reduced Part D 
program payments for drugs in four targeted categories (analgesics, 
anti-nauseants, anti-anxiety, and laxatives). However, under Medicare 
Part D there has been an increase in hospice beneficiaries filling 
prescriptions for a separate category of drugs we refer to as 
maintenance drugs, as recently analyzed by CMS (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/2016-11-15-Part-D-Hospice-Guidance.pdf). Currently, maintenance drugs for 
beneficiaries under a hospice election are not subject to the Part D PA 
process. After a hospice election, many maintenance drugs as well as 
drugs used to treat or cure a condition are typically discontinued as 
the focus of care shifts to palliation and comfort measures. However, 
there are maintenance drugs that are appropriate to continue as they 
may offer symptom relief for the palliation and management of the 
terminal illness and related conditions, and therefore should be 
covered under the hospice benefit, not Part D. Examples of maintenance 
drugs are those used to treat high blood pressure, heart disease, 
asthma and diabetes. These categories include beta blockers, calcium 
channel blockers, corticosteroids, and insulin.

[[Page 20947]]

[GRAPHIC] [TIFF OMITTED] TP08MY18.004

    Table 10 below details the various components of Part D spending 
for patients receiving hospice care for FY 2017. The portion of the 
$474.2 million total Part D spending that was paid by Medicare is the 
sum of the Low Income Cost-Sharing Subsidy (row 2 in Table 10) and the 
Covered Drug Plan Paid Amount (row 5), or approximately $380.5 million. 
The beneficiary cost sharing amount was approximately $68.6 million, 
including patient pay amount (row 1), other true out-of-pocket amount 
(row 3), and patient liability reduction due to other payer amount (row 
4).

  Table 10--Drug Cost Sources for Hospice Beneficiaries' FY 2017 Drugs
                         Received Through Part D
------------------------------------------------------------------------
                                                              FY 2017
                        Component                          expenditures
------------------------------------------------------------------------
Patient Pay Amount......................................     $50,903,365
Low Income Cost-Sharing Subsidy.........................     111,159,483
Other True Out-of-Pocket Amount.........................       1,555,456
Patient Liability Reduction due to Other Payer Amount...      16,153,569
Covered Drug Plan Paid Amount...........................     269,308,517
Non-Covered Plan Paid Amount............................       8,664,146
Six Payment Amount Totals...............................     457,744,535
Unknown/Unreconciled....................................      16,425,792
                                                         ---------------
  Gross Total Drug Costs, Reported......................     474,170,328
------------------------------------------------------------------------
Source: Analysis of 100% FY 2017 Medicare Claim Files. For more
  information on the components above and on Part D data, go to the
  Research Data Assistance Center's (ResDAC's) website at: https://www.resdac.org/.

    Hospices are responsible for covering drugs and biologicals related 
to the palliation and management of the terminal illness and related 
conditions while the patient is under hospice care. For a prescription 
drug to be covered under Part D for an individual enrolled in hospice, 
the drug must be for treatment unrelated to the terminal illness or 
related conditions. As noted above, after a hospice election, many 
maintenance drugs or drugs used to treat or cure a condition are 
typically discontinued as the focus of care shifts to palliation and 
comfort measures. However, those same drugs may be appropriate to 
continue as they may offer symptom relief for the palliation and 
management of the terminal prognosis.\5\ In our ongoing analysis of 
non-hospice spending, we remain concerned that common palliative and 
other disease-specific drugs for hospice beneficiaries that are covered 
under the Part A Medicare hospice benefit are instead being covered and 
paid for through Part D. Based on our own analysis as demonstrated in 
the data provided above and similar analyses conducted by the OIG 
regarding Part D drug expenditures for Medicare hospice beneficiaries, 
we believe that Medicare could be paying twice for drugs that are 
already covered under the hospice per diem payment by also paying for 
them under Part D.\6\
---------------------------------------------------------------------------

    \5\ https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Downloads/2016-11-15-Part-D-Hospice-Guidance.pdf.
    \6\ https://oig.hhs.gov/oas/reports/region6/61000059.asp, 
``Medicare Could Be Paying Twice for Prescriptions for Beneficiaries 
in Hospice.''
---------------------------------------------------------------------------

    We continue to expect that hospices should be providing virtually 
all of the care needed by terminally ill individuals, including related 
prescription drugs. The comprehensive nature of the services covered 
under the Medicare hospice benefit is structured such that hospice 
beneficiaries should not have to routinely seek items, services, and/or 
medications beyond those provided by hospice. The hospice medical 
director, the attending physician (if any), and the hospice 
interdisciplinary group (IDG) determine, on a case-by-case basis, what 
items and services are related and unrelated to the palliation and 
management of the terminal illness and related conditions during the 
admission process, the initial and comprehensive assessments, and in

[[Page 20948]]

the development of the hospice plan of care (Sec. Sec.  418.25, 418.54, 
and 418.56).
    To the extent that individuals receive services outside of the 
Medicare hospice benefit, Medicare coverage is determined by whether or 
not the services are for the treatment of a condition completely 
unrelated to the individual's terminal illness and related conditions 
(48 FR 38148). However, we have presented hospice monitoring data from 
the past several years, as seen above, that continue to show a non-
trivial amount of items, services, and medications being furnished 
outside of the Medicare hospice benefit to beneficiaries under a 
hospice election. We encourage hospices to educate beneficiaries 
regarding the comprehensive nature of the hospice benefit. Although it 
should be rare, if any conditions are identified by the hospice as 
unrelated to the terminal illness and related conditions, we further 
encourage hospices to inform the beneficiary (or representative) at or 
near the time of election and provide the clinical rationale for such 
determinations. The regulations at Sec.  476.78 state that providers 
must inform Medicare beneficiaries at the time of admission, in 
writing, that the care for which Medicare payment is sought will be 
subject to Quality Improvement Organization (QIO) review. If a 
beneficiary disagrees with the hospice determination of what conditions 
are unrelated to the terminal illness and related conditions (and thus 
arguably not provided as part of the hospice benefit), we strongly 
encourage hospices to work to resolve the disagreement with the 
beneficiary (or representative), taking into consideration his or her 
wishes, treatment preferences and goals. If a resolution cannot be 
reached, the beneficiary and the hospice can agree to participate in a 
flexible, dialogue-based resolution process, called immediate advocacy, 
which is coordinated by the QIO. We will continue to monitor non-
hospice spending during a hospice election and consider ways to address 
this issue through future regulatory and/or program integrity efforts, 
if needed.
2. Initial Analysis of Revised Hospice Cost Report Data
a. Background
    As mentioned in section II.B of this proposed rule, the Medicare 
hospice per diem payment amounts were developed to cover all services 
needed for the palliation and management of the terminal illness and 
related conditions, as described in section 1861(dd)(1) of the Act. 
Services provided under a written plan of care could include: Nursing 
care provided by or under the supervision of a registered professional 
nurse; physical therapy, occupational therapy, speech-language 
pathology services; counseling (including dietary counseling); medical 
social services under the direction of a physician; services of a home 
health aide; homemaker services; medical supplies (including drugs and 
biologicals) and the use of durable medical equipment; physician 
services; short-term inpatient care (including both respite care and 
care necessary for pain control and acute and chronic symptom 
management) in a qualified inpatient facility; or any other item or 
service which has been specified in the plan of care for which payment 
may be made under Medicare. Under the current payment system, hospices 
are paid for each day that a beneficiary is enrolled in hospice care, 
regardless of whether services are rendered on any given day.
    As described in the FY 2016 Hospice Wage Index and Rate Update 
final rule, we finalized changes to the hospice cost report form in 
order to broaden the scope and detail of data we collect regarding the 
costs of providing hospice care (80 FR 47150).\7\ We believed that 
changes were needed to the hospice cost report in order to collect data 
on the costs of services provided at each level of care, rather than by 
costs per day, regardless of the level of care. The revisions to the 
cost report form for freestanding hospices became effective for cost 
reporting periods beginning on or after October 1, 2014. The 
instructions for completing the revised freestanding hospice cost 
report form are found in the Medicare Provider Reimbursement Manual-
Part 2, chapter 43.\8\ Medicare-certified institutional providers are 
required to submit an annual cost report to a Medicare contractor. The 
cost report contains provider information such as facility 
characteristics, utilization data, costs by cost center (for all payers 
as well as Medicare), Medicare settlement data, and financial statement 
data.
---------------------------------------------------------------------------

    \7\ CMS Transmittal 2864. ``Additional Data Reporting 
Requirements for Hospice Claims'', Available at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R2864CP.pdf.
    \8\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R1P243.pdf.
---------------------------------------------------------------------------

b. Methodology
    Section 1814(i)(6) of the Act, as amended by section 3132(a)(1)(B) 
of the Affordable Care Act, authorized the Secretary to collect 
additional data and information determined appropriate to revise 
payments for hospice care and other purposes. The data collected may be 
used to revise the methodology for determining the payment rates for 
RHC and other services included in hospice care. Effective October 1, 
2014, we finalized changes to the hospice cost report to improve data 
collection on the costs of providing hospice care. We conducted an 
updated analysis of the revised cost report data (CMS Form 1984-14) for 
freestanding hospices with cost reporting periods in FY 2016, which 
totaled 2,867 reports. Using this data we calculated preliminary 
estimates of total costs per day by level of care. It is important to 
note that the values we computed for cost per day include all payer 
sources, both Medicare and non-Medicare; however, we believe that the 
total cost figures represent a reasonable proxy for estimating costs 
related to the provision of care for Medicare beneficiaries. In order 
to compute total Medicare-related costs by level of care, we multiplied 
the computed cost per day by level of care (as reported on Worksheet C) 
for each hospice by the number of Medicare days by level of care. We 
then calculated total payments by level of care for each hospice by 
multiplying the FY 2016 Medicare hospice payments by level of care by 
the number of Medicare days by level of care. Total costs, payments, 
and days by level of care were summed for each unique hospice. In order 
to more accurately account for the hourly CHC cost per day, we used 
data from Medicare claims in order to quantify the hours of CHC 
provided by summing the values reported in revenue center 0652, which 
tallies the units of CHC care. We then divided the CHC costs by the 
number of CHC hours as reported in revenue center 0652 to calculate a 
CHC per-hour value. Additionally, we obtained hospice provider 
characteristics from the Provider of Services (POS) file from December 
2016; from that dataset, 4,367 unique providers were identified.
    In order to evaluate the cost report data for implausible cost 
reports or cost reports that included unexpected data values, we 
applied three distinct trimming methodologies. The first trim applied a 
simple truncation at the statistical ends of the data. For each 
calculated outcome (for example, total RHC costs per day), we excluded 
those values that are above the 99th percentile and those values that 
are below the 1st percentile. For the purposes of this discussion, we 
refer to this trim as the ``1% Trim.''
    The second trim is a more robust trim meant to remove unexpected 
results from the cost report data. For the

[[Page 20949]]

purposes of this discussion, we refer to this trim as the ``CMS Trim.'' 
The following list shows the exclusion criteria used for this trimming 
approach. For each element we have listed the number of hospices 
impacted by each exclusion criteria with the notation ``n=XX''. 
Additionally, we note that an individual hospice's cost report may have 
been impacted by multiple exclusion criteria.
    1. We exclude cost reports less than 10 months or more than 14 
months in length (n=130).
    2. We excluded hospices with missing payment (n=2) or cost 
information (n=0).
    3. We excluded hospices with negative payment (n=0) or cost 
information (n=21).
    4. We exclude hospices that are in the 1st or 99th percentile of 
cost per day (n=60). Cost is determined from Worksheet F-2--Row 41--
Colum 2 (Total operating expenses). Days are determined from Worksheet 
S-1--Row 34--Column 4 (Total unduplicated days). Note that these values 
compute cost per day including all payer sources.
    5. We exclude hospices that are in the top and bottom 5 percent of 
hospices in terms of margins (n=290). Margins were computed including 
all payer sources. Cost is determined from Worksheet F-2--Row 41--Colum 
2 (Total operating expenses). Payments come from worksheet F-2--Row 
26--Column 4 (Total Revenues).
    6. We exclude hospices that have extreme payment or cost values 
(n=108). This trimming criterion included agencies where the log of the 
ratio of payment to cost exceeded the 90th percentile of its 
distribution plus 1.5 times the interdecile range or if it was less 
than the 10th percentile minus 1.5 times its interdecile range.
    In order to improve the quality of data submitted on the cost 
report, industry representatives suggested various edits, which, for 
the purposes of this discussion will be labeled ``Level 1 Edits'' as 
they would cause the hospice cost report to be revised before being 
accepted by the Medicare Administrative Contractors (MACs). These types 
of edits could force adherence to certain cost reporting principles and 
could lead to the reporting of higher-quality hospice cost data. The 
suggested edits would cause Worksheet A to generate a Level 1 Edit and 
reject a cost report if no costs were included in the following 
recommended Cost Centers:

Line 3--Employee Benefits
Line 4--Administrative and General
Line 5--Plant Operations and Maintenance
Line 13--Volunteer Services Coordination
Line 14--Pharmacy
Line 28--Registered Nurse
Line 37--Hospice Aide and Homemaker Services
Line 38--Durable Medical Equipment/Oxygen
Line 41--Labs and Diagnostics
Line 1--Capital Related Costs--Building and Fixtures and
Line 33--Medical Social Services

    In order to estimate the potential impact of the application of 
these possible edits, we analyzed the 2016 hospice cost report data and 
applied the edits to the cost centers highlighted by industry 
representatives and removed cost reports where data was not submitted 
for the lines of interest. For each of the cost centers identified, we 
excluded those cost reports that provided no cost data on the line 
items. In total, almost 66 percent of the cost reports submitted by 
hospices for 2016 were missing data on one of the reporting lines 
identified as essential.

 Table 11--Number and Percentage of Freestanding Hospice Cost Reports With Missing Information in Worksheet A--
                                           Column 7--``Level 1 Edits''
----------------------------------------------------------------------------------------------------------------
                                                                                                    N that are
                     Part of the cost report                           Line          % missing        missing
----------------------------------------------------------------------------------------------------------------
Employee Benefits...............................................               3           13.80             385
Administrative & General........................................               4            0.29               8
Plant Operations and Maintenance................................               5           45.16           1,260
Volunteer Services Coordination.................................              13           37.71           1,052
Pharmacy........................................................              14           12.47             348
Registered Nurse................................................              28            1.22              34
Hospice Aide and Homemaker Services.............................              37            2.69              75
Durable Medical Equipment/Oxygen................................              38           11.65             325
Labs Diagnostics................................................              41           22.83             637
Capital Related Costs--Building and Fixtures....................               1           17.13             478
Medical Social Services.........................................              33            4.37             122
Missing Any of the Above........................................  ..............           65.59           1,830
----------------------------------------------------------------------------------------------------------------
Source: Medicare hospice cost report data for FY 2016.

    Given the high volume of cost reports that show zero costs on lines 
that are expected to be populated, it is evident that hospices may not 
be providing thorough and representative cost data currently. If we 
were to implement the industry-requested Level 1 edits to the 2016 cost 
reports, nearly two thirds of the reports would be rejected based on 
missing cost data. Given that these edits are for consideration only 
and have not yet been proposed, we plan to continue collaborating with 
the provider community to identify ways in which we may foster the 
submission of high quality hospice cost data. We reiterate that this 
``Potential Level 1 Edit'' approach is for discussion purposes only and 
may be considered for potential future use.
c. Overall Payments and Costs and Costs by Level of Care
    For the purposes of evaluating calculated costs per day by level of 
care compared to Medicare payment amounts, we compared the reported 
costs on the Medicare cost report to the FY 2016 per diem payment rates 
by level of care. In order to estimate the potential impact of the 
application of the three different trim methodologies mentioned above, 
we analyzed the 2016 hospice cost report data and applied the three 
sets of edits. Table 12 below shows the distribution of the calculated 
Average Cost Per Day by Level of Care, using data from Worksheet C--
Rows 3, 8, 13, 18--Column 3.

[[Page 20950]]



                                    Table 12--Total Cost per Diem by Level of Care Applying Three Trim Methodologies
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                FY 2016
                                               Number of               Weighted     Minimum      25th                    75th       Maximum    per diem
                Level of care                    cost        Mean        mean        value    percentile    Median    percentile     value      payment
                                                reports                                                                                         amounts
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHC:
    1% Trim.................................       1,171          78          51           2          19          51          90       1,576   * $944.79
    CMS Trim................................       1,111         135          52           0          18          51          91      19,864
    Level 1 Edits...........................         425         129          53           0          23          52          86      19,864
RHC:
    1% Trim.................................       2,715         133         125          64         107         127         151         315      161.89
    CMS Trim................................       2,465         148         124           6         106         126         149      19,372
    Level 1 Edits...........................         967         139         123           1         105         125         145       3,487
IRC:
    1% Trim.................................       1,987         498         397          52         215         313         483       6,678      167.45
    CMS Trim................................       1,828         629         448           2         214         311         489      67,766
    Level 1 Edits...........................         800         602         415           2         215         299         492      25,817
GIP:
    1% Trim.................................       1,794       1,040         841          75         586         856       1,187      10,370      720.11
    CMS Trim................................       1,664       1,353         834           2         590         858       1,192     149,422
    Level 1 Edits...........................         737       1,287         880          19         596         835       1,094      60,779
--------------------------------------------------------------------------------------------------------------------------------------------------------
* $39.37/hr.
Source: Medicare hospice cost report & claims data for FY 2016.
Note: Weighted means are computed based on the number of days by level of care.

    As described above, the cost report data analyzed were trimmed to 
minimize the effect of statistical anomalies. Nevertheless, there is 
substantial variation in the reported cost per day by hospices under 
each of the three trimming methodologies. The results displayed in 
Table 12 indicate that applying the 1% Trim leads to the exclusion of 
the least number of cost reports, while applying Level 1 Edits leads to 
the exclusion of the largest number of cost reports. For instance, when 
total RHC costs per day are trimmed based on the 1% Trim, 2,715 cost 
reports are retained. Applying the CMS Trim slightly reduces the number 
of cost reports to 2,465, while applying Level 1 Edits reduces the 
sample to 967 reports. However, we note that reductions in sample size 
do not necessarily lead to the exclusion of the largest outliers. For 
instance, the maximum value for total RHC costs per day is $315 after 
the 1% Trim, the analogous value after the CMS Trim is $19,372, and the 
analogous value after Level 1 Edits is $3,487. For mean values, we 
calculated both unweighted means as well as the means that are weighted 
by the number of days by level of care. Weighted means are closer to 
the medians than unweighted means, suggesting that extreme values come 
from smaller hospices with fewer hospices days. The estimated median 
cost values are lower than the base payment rate for RHC, but not for 
CHC, IRC, or GIP.
    Total cost per day values in the four levels of care span from a 
minimum of $1 to maximum values in the tens of thousands. Because of 
this wide range of values in the distribution, we used the median as 
well as the mean values weighted by the number of days by level of care 
as reference points in these preliminary analyses. When compared with 
the FY 2016 per diem payment rates, the calculated median and weighted 
mean costs associated with providing RHC are lower than the base 
payment rates. As noted in section III.A of this proposed rule, the RHC 
level of care accounts for over 98 percent of all hospice days based on 
our analysis of claims for FY 2017. The median and weighted mean costs 
for the provision of RHC under all three trim methodologies cluster 
around an estimated $126 and $124 respectively, with both figures 
presenting lower values than the single RHC FY 2016 per diem payment 
rate of $161.89, a difference of approximately $38 and $38 
respectively.
    Conversely, for CHC the estimated median and weighted mean costs 
per day under each of the three trim methodologies hover around $51 and 
52 per hour, respectively. The FY 2016 payment rate for CHC was $39.37 
per hour. The CHC level of care accounts for approximately 0.28 percent 
of all hospice days in FY 2017, as noted in section III.A of this 
proposed rule. Similarly, the median and weighted mean costs per day 
associated with the provision of GIP care under all three trim 
methodologies is estimated in the mid-$800 range, while the FY 2016 per 
diem payment amount for GIP was $720.11. As noted in section III.A of 
this proposed rule, the GIP level of care accounts for approximately 
1.38 percent of all hospice days based on our analysis of FY 2017 
claims. Likewise, costs per day associated with the IRC level of care 
are estimated at around $300 for median values and in a range of $397 
to nearly $450 under the three trimming methodologies for weighted mean 
values. We note that the per diem payment amount for the IRC level of 
care for FY 2015 was $167.45, showing a gap between the estimated costs 
and current payment rate. We estimate that IRC days represent 
approximately 0.30 percent of all hospice days in FY 2017 claims as 
described in section III.A of this proposed rule.
    As we continue to gather more cost report data, we plan to conduct 
more thorough analyses of the cost report data and fully assess 
Medicare-related hospice costs as compared with Medicare hospice 
payments by level of care. We encourage hospices to continue to submit 
the most accurate data possible on Medicare cost reports and invite 
feedback regarding potential edits and other strategies for improving 
the data for hospice providers.

B. Proposed FY 2019 Hospice Wage Index and Rate Update

1. Proposed FY 2019 Hospice Wage Index
    The hospice wage index is used to adjust payment rates for hospice 
agencies under the Medicare program to reflect local differences in 
area wage levels, based on the location where services are furnished. 
The hospice wage index utilizes the wage adjustment factors used by the 
Secretary for purposes of section 1886(d)(3)(E) of the Act for hospital 
wage adjustments. Our regulations at Sec.  418.306(c) require each

[[Page 20951]]

labor market to be established using the most current hospital wage 
data available, including any changes made by Office of Management and 
Budget (OMB) to the Metropolitan Statistical Areas (MSAs) definitions.
    We use the previous FY's hospital wage index data to calculate the 
hospice wage index values. For FY 2019, the hospice wage index will be 
based on the FY 2018 hospital pre-floor, pre-reclassified wage index. 
This means that the hospital wage data used for the hospice wage index 
are not adjusted to take into account any geographic reclassification 
of hospitals including those in accordance with section 1886(d)(8)(B) 
or 1886(d)(10) of the Act. The appropriate wage index value is applied 
to the labor portion of the payment rate based on the geographic area 
in which the beneficiary resides when receiving RHC or CHC. The 
appropriate wage index value is applied to the labor portion of the 
payment rate based on the geographic location of the facility for 
beneficiaries receiving GIP or IRC.
    In the FY 2006 Hospice Wage Index final rule (70 FR 45135), we 
adopted the policy that, for urban labor markets without a hospital 
from which hospital wage index data could be derived, all of the Core-
Based Statistical Areas (CBSAs) within the state would be used to 
calculate a statewide urban average pre-floor, pre-reclassified 
hospital wage index value to use as a reasonable proxy for these areas. 
For FY 2019, the only CBSA without a hospital from which hospital wage 
data can be derived is 25980, Hinesville-Fort Stewart, Georgia.
    There exist some geographic areas where there were no hospitals, 
and thus, no hospital wage data on which to base the calculation of the 
hospice wage index. In the FY 2008 Hospice Wage Index final rule (72 FR 
50217 through 50218), we implemented a methodology to update the 
hospice wage index for rural areas without hospital wage data. In cases 
where there was a rural area without rural hospital wage data, we use 
the average pre-floor, pre-reclassified hospital wage index data from 
all contiguous CBSAs, to represent a reasonable proxy for the rural 
area. The term ``contiguous'' means sharing a border (72 FR 50217). 
Currently, the only rural area without a hospital from which hospital 
wage data could be derived is Puerto Rico. However, for rural Puerto 
Rico, we would not apply this methodology due to the distinct economic 
circumstances that exist there (for example, due to the close proximity 
to one another of almost all of Puerto Rico's various urban and non-
urban areas, this methodology would produce a wage index for rural 
Puerto Rico that is higher than that in half of its urban areas); 
instead, we would continue to use the most recent wage index previously 
available for that area. For FY 2019, we propose to continue to use the 
most recent pre-floor, pre-reclassified hospital wage index value 
available for Puerto Rico, which is 0.4047, subsequently adjusted by 
the hospice floor.
    As described in the August 8, 1997 Hospice Wage Index final rule 
(62 FR 42860), the pre-floor and pre-reclassified hospital wage index 
is used as the raw wage index for the hospice benefit. These raw wage 
index values are subject to application of the hospice floor to compute 
the hospice wage index used to determine payments to hospices. Pre-
floor, pre-reclassified hospital wage index values below 0.8 are 
adjusted by a 15 percent increase subject to a maximum wage index value 
of 0.8. For example, if County A has a pre-floor, pre-reclassified 
hospital wage index value of 0.3994, we would multiply 0.3994 by 1.15, 
which equals 0.4593. Since 0.4593 is not greater than 0.8, then County 
A's hospice wage index would be 0.4593. In another example, if County B 
has a pre-floor, pre-reclassified hospital wage index value of 0.7440, 
we would multiply 0.7440 by 1.15 which equals 0.8556. Because 0.8556 is 
greater than 0.8, County B's hospice wage index would be 0.8.
    On February 28, 2013, OMB issued OMB Bulletin No. 13-01, announcing 
revisions to the delineation of MSAs, Micropolitan Statistical Areas, 
and Combined Statistical Areas, and guidance on uses of the delineation 
in these areas. In the FY 2016 Hospice Wage Index and Rate Update final 
rule (80 FR 47178), we adopted the OMB's new area delineations using a 
1-year transition. In that final rule, we also stated that beginning 
October 1, 2016, the wage index for all hospice payments would be fully 
based on the new OMB delineations.
    On August 15, 2017, OMB issued bulletin No. 17-01, which is 
available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2017/b-17-01.pdf. In this bulletin, OMB announced that one 
Micropolitan Statistical Area, Twin Falls, Idaho, now qualifies as a 
Metropolitan Statistical Area. The new CBSA (46300) comprises the 
principal city of Twin Falls, Idaho in Jerome County, Idaho and Twin 
Falls County, Idaho. The FY 2019 hospice wage index value for CBSA 
46300, Twin Falls, Idaho, will be 0.8000.
    The proposed hospice wage index applicable for FY 2019 (October 1, 
2018 through September 30, 2019) is available on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/.
2. Proposed FY 2019 Hospice Payment Update Percentage
    Section 4441(a) of the Balanced Budget Act of 1997 (BBA) (Pub. L. 
105-33) amended section 1814(i)(1)(C)(ii)(VI) of the Act to establish 
updates to hospice rates for FYs 1998 through 2002. Hospice rates were 
to be updated by a factor equal to the inpatient hospital market basket 
percentage increase set out under section 1886(b)(3)(B)(iii) of the 
Act, minus 1 percentage point. Payment rates for FYs since 2002 have 
been updated according to section 1814(i)(1)(C)(ii)(VII) of the Act, 
which states that the update to the payment rates for subsequent FYs 
must be the inpatient market basket percentage increase for that FY. 
The Act historically required us to use the inpatient hospital market 
basket as the basis for the hospice payment rate update.
    Section 3401(g) of the Affordable Care Act mandated that, starting 
with FY 2013 (and in subsequent FYs), the hospice payment update 
percentage would be annually reduced by changes in economy-wide 
productivity as specified in section 1886(b)(3)(B)(xi)(II) of the Act. 
The statute defines the productivity adjustment to be equal to the 10-
year moving average of changes in annual economy-wide private nonfarm 
business multifactor productivity (MFP). In addition to the MFP 
adjustment, section 3401(g) of the Affordable Care Act also mandated 
that in FY 2013 through FY 2019, the hospice payment update percentage 
would be reduced by an additional 0.3 percentage point (although for FY 
2014 to FY 2019, the potential 0.3 percentage point reduction is 
subject to suspension under conditions specified in section 
1814(i)(1)(C)(v) of the Act).
    The proposed hospice payment update percentage for FY 2019 is based 
on the estimated inpatient hospital market basket update of 2.9 percent 
(based on IHS Global Inc.'s first quarter 2018 forecast with historical 
data through the fourth quarter 2017). Due to the requirements at 
sections 1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) of the Act, the 
estimated inpatient hospital market basket update for FY 2019 of 2.9 
percent must be reduced by a MFP adjustment as mandated by Affordable 
Care Act (currently estimated to be 0.8 percentage point for FY 2019). 
The estimated inpatient hospital market basket update for FY 2019 is 
reduced

[[Page 20952]]

further by 0.3 percentage point, as mandated by the Affordable Care 
Act. In effect, the proposed hospice payment update percentage for FY 
2019 is 1.8 percent.
    Currently, the labor portion of the hospice payment rates is as 
follows: For RHC, 68.71 percent; for CHC, 68.71 percent; for General 
Inpatient Care, 64.01 percent; and for Respite Care, 54.13 percent. The 
non-labor portion is equal to 100 percent minus the labor portion for 
each level of care. Therefore, the non-labor portion of the payment 
rates is as follows: For RHC, 31.29 percent; for CHC, 31.29 percent; 
for General Inpatient Care, 35.99 percent; and for Respite Care, 45.87 
percent. Beginning with cost reporting periods starting on or after 
October 1, 2014, freestanding hospice providers are required to submit 
cost data using CMS Form 1984-14 (https://www.cms.gov/Research-Statistics-Data-and-Systems/Downloadable-Public-Use-Files/Cost-Reports/Hospice-2014.html). We are currently analyzing this data for possible 
use in updating the labor portion of the hospice payment rates. Any 
changes to the labor portions would be proposed in future rulemaking 
and would be subject to public comments.
3. Proposed FY 2019 Hospice Payment Rates
    There are four payment categories that are distinguished by the 
location and intensity of the services provided. The base payments are 
adjusted for geographic differences in wages by multiplying the labor 
share, which varies by category, of each base rate by the applicable 
hospice wage index. A hospice is paid the RHC rate for each day the 
beneficiary is enrolled in hospice, unless the hospice provides CHC, 
IRC, or GIP. CHC is provided during a period of patient crisis to 
maintain the patient at home; IRC is short-term care to allow the usual 
caregiver to rest and be relieved from caregiving; and GIP is to treat 
symptoms that cannot be managed in another setting.
    As discussed in the FY 2016 Hospice Wage Index and Rate Update 
final rule (80 FR 47172), we implemented two different RHC payment 
rates, one RHC rate for the first 60 days and a second RHC rate for 
days 61 and beyond. In addition, in that final rule, we implemented a 
Service Intensity Add-on (SIA) payment for RHC when direct patient care 
is provided by a RN or social worker during the last 7 days of the 
beneficiary's life. The SIA payment is equal to the CHC hourly rate 
multiplied by the hours of nursing or social work provided (up to 4 
hours total) that occurred on the day of service, if certain criteria 
are met. In order to maintain budget neutrality, as required under 
section 1814(i)(6)(D)(ii) of the Act, the new RHC rates were adjusted 
by a SIA budget neutrality factor.
    As discussed in the FY 2016 Hospice Wage Index and Rate Update 
final rule (80 FR 47177), we will continue to make the SIA payments 
budget neutral through an annual determination of the SIA budget 
neutrality factor (SBNF), which will then be applied to the RHC payment 
rates. The SBNF will be calculated for each FY using the most current 
and complete utilization data available at the time of rulemaking. For 
FY 2018, we calculated the SBNF using FY 2017 utilization data. For FY 
2019, the SBNF that would apply to days 1 through 60 is calculated to 
be 0.9991. The SBNF that would apply to days 61 and beyond is 
calculated to be 0.9998.
    In the FY 2017 Hospice Wage Index and Rate Update final rule (81 FR 
52156), we initiated a policy of applying a wage index standardization 
factor to hospice payments in order to eliminate the aggregate effect 
of annual variations in hospital wage data. In order to calculate the 
wage index standardization factor, we simulate total payments using the 
FY 2019 hospice wage index and compare it to our simulation of total 
payments using the FY 2018 hospice wage index. By dividing payments for 
each level of care using the FY 2019 wage index by payments for each 
level of care using the FY 2018 wage index, we obtain a wage index 
standardization factor for each level of care (RHC days 1 through 60, 
RHC days 61+, CHC, IRC, and GIP). The wage index standardization 
factors for each level of care are shown in the tables below.
    The proposed FY 2019 RHC rates are shown in Table 13. The proposed 
FY 2019 payment rates for CHC, IRC, and GIP are shown in Table 14.

                                                  Table 13--Proposed FY 2019 Hospice RHC Payment Rates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Proposed  FY
                                                                             FY 2018       SIA budget       Wage index     2019  hospice    Proposed FY
                Code                             Description             payment  rates    neutrality    standardization      payment      2019  payment
                                                                                             factor           factor          update           rates
--------------------------------------------------------------------------------------------------------------------------------------------------------
651.................................  Routine Home Care (days 1-60)....         $192.78        x 0.9991         x 1.0009         x 1.018         $196.25
651.................................  Routine Home Care (days 61+).....          151.41        x 0.9998         x 1.0007         x 1.018          154.21
--------------------------------------------------------------------------------------------------------------------------------------------------------


                       Table 14--Proposed FY 2019 Hospice CHC, IRC, and GIP Payment Rates
----------------------------------------------------------------------------------------------------------------
                                                                                   Proposed  FY
                                                     FY 2018        Wage index     2019  hospice   Proposed  FY
          Code                 Description       payment  rates  standardization      payment      2019  payment
                                                                      factor          update           rates
----------------------------------------------------------------------------------------------------------------
652.....................  Continuous Home Care.         $976.42         x 1.0048         x 1.018         $998.77
                          Full Rate = 24 hours
                           of care.
                          $41.62 = hourly rate.
655.....................  Inpatient Respite              172.78         x 1.0007         x 1.018          176.01
                           Care.
656.....................  General Inpatient              743.55         x 1.0015         x 1.018          758.07
                           Care.
----------------------------------------------------------------------------------------------------------------

    Sections 1814(i)(5)(A) through (C) of the Act require that hospices 
submit quality data, based on measures to be specified by the 
Secretary. In the FY 2012 Hospice Wage Index final rule (76 FR 47320 
through 47324), we

[[Page 20953]]

implemented a Hospice Quality Reporting Program (HQRP) as required by 
section 3004 of the Affordable Care Act. Hospices were required to 
begin collecting quality data in October 2012, and submit that quality 
data in 2013. Section 1814(i)(5)(A)(i) of the Act requires that 
beginning with FY 2014 and each subsequent FY, the Secretary shall 
reduce the market basket update by 2 percentage points for any hospice 
that does not comply with the quality data submission requirements with 
respect to that FY. The proposed FY 2019 rates for hospices that do not 
submit the required quality data would be updated by the proposed FY 
2019 hospice payment update percentage of 1.8 percent minus 2 
percentage points. These rates are shown in Tables 15 and 16.

                     Table 15--Proposed FY 2019 Hospice RHC Payment Rates for Hospices That Do Not Submit the Required Quality Data
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Proposed  FY
                                                                                                                           2019  hospice
                                                                                           SIA budget       Wage index        payment      Proposed  FY
                Code                             Description                 FY 2018       neutrality    standardization     update of     2019  payment
                                                                         payment  rates      factor           factor       1.8% minus  2       rates
                                                                                                                            percentage
                                                                                                                          points = -0.2%
--------------------------------------------------------------------------------------------------------------------------------------------------------
651.................................  Routine Home Care (days 1-60)....         $192.78        x 0.9991         x 1.0009         x 0.998         $192.39
651.................................  Routine Home Care (days 61+).....          151.41        x 0.9998         x 1.0007         x 0.998          151.18
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 16--Proposed FY 2019 Hospice CHC, IRC, and GIP Payment Rates for Hospices That Do Not Submit the Required
                                                  Quality Data
----------------------------------------------------------------------------------------------------------------
                                                                                   Proposed  FY
                                                                                   2019  hospice
                                                                    Wage index        payment      Proposed  FY
          Code                 Description           FY 2018     standardization     update of     2019  payment
                                                 payment  rates       factor       1.8% minus  2       rates
                                                                                    percentage
                                                                                  points = -0.2%
----------------------------------------------------------------------------------------------------------------
652.....................  Continuous Home Care.         $976.42         x 1.0048         x 0.998         $979.14
                          Full Rate= 24 hours
                           of care.
                          $40.80 = hourly rate.
655.....................  Inpatient Respite              172.78         x 1.0007         x 0.998          172.56
                           Care.
656.....................  General Inpatient              743.55         x 1.0015         x 0.998          743.18
                           Care.
----------------------------------------------------------------------------------------------------------------

4. Proposed Hospice Cap Amount for FY 2019
    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 (P. L. 113-185). Specifically, for accounting years that 
end after September 30, 2016 and before October 1, 2025, the hospice 
cap is updated by the hospice payment update percentage rather than 
using the CPI-U. The proposed hospice cap amount for the 2019 cap year 
will be $29,205.44, which is equal to the 2018 cap amount ($28,689.04) 
updated by the proposed FY 2019 hospice payment update percentage of 
1.8 percent.

C. Request for Information Update--Comments Related to Hospice Claims 
Processing

    In the FY 2018 Hospice Wage Index and Rate Update proposed rule (82 
FR 20789), we invited public comments to start a national conversation 
about improvements that can be made to the health care delivery system 
that reduce unnecessary burdens for clinicians, other providers, and 
patients and their families. We specifically stated that we would not 
respond to the comment submissions in the final rule. Instead, we would 
review the submitted request for information comments and actively 
consider them as we develop future regulatory proposals or future sub-
regulatory policy guidance.
    After reviewing all submitted requests for information, we believe 
one recommendation in particular warranted a revision to our current 
policy. Commenters suggested that CMS remove the requirement to report 
detailed drug data on the hospice claim as a way to reduce burden for 
hospices. We initially began asking for this information via Hospice 
Change Request 8358 in support of hospice payment reform [https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Transmittals-Items/Hospice-CR8358-R2747CP.html]. After determining that 
this information is not currently used for quality, payment, or program 
integrity purposes, we are removing this requirement effective October 
1, 2018. We also believe this could result in a significant reduction 
of burden to Medicare hospices, potentially reducing the number of line 
items on hospice claims by approximately 21.5 million, in aggregate. We 
will allow hospices two options for reporting hospice drug information. 
Providers will have the option to continue to report infusion pumps and 
drugs, with corresponding NDC information, on the hospice claim as 
separate line items. This submission option will no longer be 
mandatory. Alternatively, hospices can submit total, aggregate DME and 
drug charges on the claim. We believe that removing the requirement for 
the separate submission of detailed drug information on hospice claim 
lines and offering the alternative option to submit aggregate, total 
charge amounts provides flexibility for hospices as well as potentially 
reducing burden. In order to effectuate this change, we will issue a 
detailed sub-

[[Page 20954]]

regulatory change request, effective October 1, 2018.
    Another suggestion which we would like to highlight was for CMS to 
remove the sequential billing requirement, which requires that claims 
are submitted in chronological order. While we are always evaluating 
ways to make operational improvements, sequential billing for hospice 
claims is required because of how hospice benefit periods are 
constructed in statute. Specifically, section 1812(a)(4) of the Social 
Security Act creates a sequence of benefit periods, defining coverage 
for periods of ``hospice care with respect to the individual during up 
to two benefit periods of 90 days each and an unlimited number of 
subsequent periods of 60 days each . . .'' Sequential billing ensures 
that Medicare systems create and exhaust each period before creating a 
later period, maintaining the statutorily-required sequence. In 
addition, as finalized in the FY 2016 Hospice Wage Index and Payment 
Rate Update final rule (80 FR 47142), payment for routine home care now 
varies depending on length of stay (a higher rate for days 1-60 and a 
lower rate for days 61+) making the sequential billing of hospice 
claims necessary to accurately pay claims and ensure the system applies 
benefit periods. Sequential billing ensures correct payments are made 
and to providers, minimizes the need to resubmit claims or face claims 
denials, and ultimately reduces burden. As a result, we are not able to 
eliminate the sequential billing requirement for hospice claims.
    While we are not proposing changes to either the hospice billing 
procedures or payment regulations in this proposed rule, we will 
consider whether future regulatory or sub-regulatory changes are 
warranted to reduce unnecessary burden. We thank the commenters for 
taking the time to convey their thoughts and suggestions on this 
initiative.

D. Proposed Regulations Text Changes in Recognition of Physician 
Assistants as Designated Attending Physicians

    When electing the Medicare hospice benefit, the beneficiary agrees 
to forgo the right to have Medicare payment made for services related 
to the beneficiary's terminal illness and related conditions, except 
when such services are provided by the designated hospice and the 
beneficiary's designed attending physician as outlined in section 
1812(d)(2)(A) of the Act. The designated attending physician plays an 
important role in the care of a Medicare hospice beneficiary. If a 
beneficiary designates an attending physician, the beneficiary or his 
or her representative acknowledges that the identified attending 
physician was his or her choice and that the attending physician 
identified by the beneficiary, at the time he or she elects to receive 
hospice care, has the most significant role in the determination and 
delivery of the individual's medical care. The designated attending 
physician is required to certify that the beneficiary is terminally ill 
and participates as a member of the hospice IDG that establishes and/or 
or updates the individual's plan of care, ensuring that the Medicare 
beneficiary receives high quality hospice care.
    Under the current hospice regulations at 42 CFR 418.3, the 
attending physician is defined as a doctor of medicine or osteopathy 
who is legally authorized to practice medicine or surgery by the state 
in which he or she performs that function, or a nurse practitioner, and 
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. A nurse 
practitioner is defined as a registered nurse who performs such 
services as legally authorized to perform (in the state in which the 
services are performed) in accordance with state law (or state 
regulatory mechanism provided by state law) and who meets training, 
education, and experience requirements described in 42 CFR 410.75.
    Section 51006 of the Bipartisan Budget Act of 2018 (Pub. L. 115-
123) amended section 1861(dd)(3)(B) of the Social Security Act such 
that, effective January 1, 2019, physician assistants (PAs) will be 
recognized as designated hospice attending physicians, in addition to 
physicians and nurse practitioners. We define the PA as a professional 
who has graduated from an accredited physician assistant educational 
program who performs such services as he or she is legally authorized 
to perform (in the state in which the services are performed) in 
accordance with state law (or state regulatory mechanism provided by 
state law) and who meets the training, education, and experience 
requirements as the Secretary may prescribe. The PA qualifications for 
eligibility for furnishing services under the Medicare program can be 
found in the regulations at 42 CFR 410.74(c). We note section 
1861(s)(2)(K)(i) of the Act states that PAs are authorized to furnish 
physician services under their State scope of practice, under the 
general supervision of a physician; therefore the regulations at 42 CFR 
410.150(a)(15) require that payment for PA services may be made to the 
employer or contractor of a PA.
    Effective January 1, 2019, Medicare will pay for medically 
reasonable and necessary services provided by PAs to Medicare 
beneficiaries who have elected the hospice benefit and who have 
selected a PA as their attending physician. PAs are paid 85 percent of 
the fee schedule amount for their services as designated attending 
physicians. Attending physician services provided by PAs may be 
separately billed to Medicare only if the PA is the beneficiary's 
designated attending physician, services are medically reasonable and 
necessary, services would normally be performed by a physician in the 
absence of the PA, whether or not the PA is directly employed by the 
hospice, and services are not related to the certification of terminal 
illness.
    Since PAs are not physicians, as defined in 1861(r)(1) of the Act, 
they may not act as medical directors or physicians of the hospice or 
certify the beneficiary's terminal illness and hospices may not 
contract with a PA for their attending physician services as described 
in section 1861(dd)(2)(B)(i)(III) of the Act, which outlines the 
requirements of the interdisciplinary group as including at least one 
physician, employed by or under contract with the agency or 
organization. All of these provisions apply to PAs without regard to 
whether they are hospice employees.
    Finally, we note that the Bipartisan Budget Act of 2018 did not 
make changes to which practitioners can certify terminal illness for a 
Medicare beneficiary nor who may perform the face-to-face encounter. 
Section 1814(a)(7)(A)(i)(I) of the Act was amended by section 51006 of 
the Bipartisan Budget Act of 2018 to specify that certification of 
terminal illness for hospice benefits shall be based on the clinical 
judgment of the hospice medical director or physician member of the IDG 
and the individual's attending physician, if he or she has one (except 
for the purposes of certifying terminal illness the individual's 
attending physician does not include a nurse practitioner or a 
physician assistant [emphasis added]), regarding the normal course of 
the individual's illness. No one other than a medical doctor or doctor 
of osteopathy can certify or re-certify terminal illness. PAs were not 
authorized by section 51006 of the Bipartisan Budget Act of 2018 (Pub. 
L. 115-123) to perform the required hospice face-to-face encounter for 
recertifications. The hospice face-to-face encounter is required per 
section 1814(a)(7)(D)(i) of the Act, which continues to state that only 
a hospice

[[Page 20955]]

physician or a hospice nurse practitioner can perform the encounter. 
The regulations at 42 CFR 418.22 will continue to state that the 
hospice face-to-face encounter must be performed by a hospice physician 
or hospice nurse practitioner.
    In summary, we propose to make statutorily-required updates to 
Sec.  418.3 in the Hospice Care regulations to expand the definition of 
attending physician to include physician assistants (PA). We also 
propose to amend 42 CFR 418.304 (Payment for physician and nurse 
practitioner services) in the Hospice Care regulations to include the 
details outlined above regarding Medicare payment for designated 
hospice attending physician services provided by physician assistants. 
We are soliciting comments on these proposed changed to the regulations 
at Sec. Sec.  418.3 and 418.304.

E. Proposed Technical Correction Regarding Hospice Cap Period 
Definition

    In the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR 
47142), we finalized aligning the cap period, for both the inpatient 
cap and the hospice aggregate cap, with the federal FY for FY 2017 and 
later. Therefore, the cap year now begins October 1 and ends on 
September 30 (80 FR 47186). We propose to make a technical correction 
in Sec.  418.3 to reflect the revised timeframes for hospice cap 
periods. Specifically, we propose that 42 CFR 418.3 would specify that 
the cap period means the twelve-month period ending September 30 used 
in the application of the cap on overall hospice reimbursement 
specified in Sec.  418.309. We are soliciting comments on this 
technical change to our regulations at Sec.  418.3.

F. Updates to the Hospice Quality Reporting Program (HQRP)

1. Background and Statutory Authority
    The Hospice Quality Reporting Program includes HIS and CAHPS. 
Section 3004(c) of the Affordable Care Act amended section 1814(i)(5) 
of the Act to authorize a quality reporting program for hospices. 
Section 1814(i)(5)(A)(i) of the Act requires that beginning with FY 
2014 and each subsequent FY, the Secretary shall reduce the market 
basket update by 2 percentage points for any hospice that does not 
comply with the quality data submission requirements for that FY. 
Depending on the amount of the annual update for a particular year, a 
reduction of 2 percentage points could result in the annual market 
basket update being less than 0 percent for a FY and may result in 
payment rates that are less than payment rates for the preceding FY. 
Any reduction based on failure to comply with the reporting 
requirements, as required by section 1814(i)(5)(B) of the Act, would 
apply only for the particular year involved. Any such reduction would 
not be cumulative nor be taken into account in computing the payment 
amount for subsequent FYs. Section 1814(i)(5)(C) of the Act requires 
that each hospice submit data to the Secretary on quality measures 
specified by the Secretary. The data must be submitted in a form, 
manner, and at a time specified by the Secretary.
2. General Considerations Used for Selection of Quality Measures for 
the Hospice QRP
a. Background
    The ``Meaningful Measures'' initiative is intended to provide a 
framework for quality measurement and improvement work at CMS. While 
this framework serves to focus on those core issues that are most vital 
to providing high-quality care and improving patient outcomes, it also 
takes into account opportunities to reduce paperwork and reporting 
burden on providers associated with quality measurement. To that end, 
we have begun assessing our programs' quality measures in accordance 
with the Meaningful Measures framework. We refer readers to the 
Executive Summary, for more information on the ``Meaningful Measures'' 
initiative.
b. Accounting for Social Risk Factors in the Hospice QRP
    In the FY 2018 Hospice Wage Index final rule (82 FR 36652 through 
36654), we discussed the importance of improving beneficiary outcomes 
including reducing health disparities. We also discussed our commitment 
to ensuring that medically complex patients, as well as those with 
social risk factors, receive excellent care. We discussed how studies 
show that social risk factors, such as being near or below the poverty 
level, as set out annually in HHS guidelines, https://www.federalregister.gov/documents/2018/01/18/2018-00814/annual-update-of-the-hhs-poverty-guidelines, belonging to a racial or ethnic minority 
group, or living with a disability, can be associated with poor health 
outcomes and how some of this disparity is related to the quality of 
health care.\9\ Among our core objectives, we aim to improve health 
outcomes, attain health equity for all beneficiaries, and ensure that 
complex patients as well as those with social risk factors receive 
excellent care. Within this context, reports by the Office of the 
Assistant Secretary for Planning and Evaluation (ASPE) and the National 
Academy of Medicine have examined the influence of social risk factors 
in CMS value-based purchasing programs.\10\ As we noted in the FY 2018 
Hospice Wage Index final rule (82 FR 36652 through 36654), ASPE's 
report to Congress, which was required by section 2(d) of the IMPACT 
Act, found that, in the context of value-based purchasing programs, 
dual eligibility was the most powerful predictor of poor health care 
outcomes among those social risk factors that they examined and tested. 
ASPE is continuing to examine this issue in its second report required 
by the IMPACT Act, which is due to Congress in the fall of 2019. In 
addition, as we noted in the FY 2018 IPPS/LTCH PPS final rule (82 FR 
38428), the National Quality Forum (NQF) undertook a 2-year trial 
period in which certain new measures and measures undergoing 
maintenance review have been assessed to determine if risk adjustment 
for social risk factors is appropriate for these measures.\11\ The 
trial period ended in April 2017 and a final report is available at: 
https://www.qualityforum.org/SES_Trial_Period.aspx. The trial concluded 
that ``measures with a conceptual basis for adjustment generally did 
not demonstrate an empirical relationship'' between social risk factors 
and the outcomes measured. This discrepancy may be explained in part by 
the ``methods used for adjustment and the limited availability of 
robust data on social risk factors''. NQF has extended the 
socioeconomic status (SES) trial,\12\ allowing further examination of 
social risk factors in outcome measures.
---------------------------------------------------------------------------

    \9\ See, for example United States Department of Health and 
Human Services. ``Healthy People 2020: Disparities. 2014.'' 
Available at: https://www.healthypeople.gov/2020/about/foundation-health-measures/Disparities; or National Academies of Sciences, 
Engineering, and Medicine. Accounting for Social Risk Factors in 
Medicare Payment: Identifying Social Risk Factors. Washington, DC: 
National Academies of Sciences, Engineering, and Medicine 2016.
    \10\ Department of Health and Human Services Office of the 
Assistant Secretary for Planning and Evaluation (ASPE), ``Report to 
Congress: Social Risk Factors and Performance Under Medicare's 
Value-Based Purchasing Programs.'' December 2016. Available at: 
https://aspe.hhs.gov/pdf-report/report-congress-social-risk-factors-and-performance-under-medicares-value-based-purchasing-programs.
    \11\ Available at: https://www.qualityforum.org/SES_Trial_Period.aspx.
    \12\ Available at: https://www.qualityforum.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=86357.
---------------------------------------------------------------------------

    In the FY 2018/CY 2018 proposed rules for our quality reporting and

[[Page 20956]]

value-based purchasing programs, we solicited feedback on which social 
risk factors provide the most valuable information to stakeholders and 
the methodology for illuminating differences in outcomes rates among 
patient groups within provider that would also allow for a comparison 
of those differences, or disparities, across providers. Feedback we 
received across our quality reporting programs included encouraging CMS 
to explore whether factors that could be used to stratify or risk 
adjust the measures (beyond dual eligibility); considering the full 
range of differences in patient backgrounds that might affect outcomes; 
exploring risk adjustment approaches; and offering careful 
consideration of what type of information display would be most useful 
to the public.
    We also sought public comment on confidential reporting and future 
public reporting of some of our measures stratified by patient dual-
eligibility. In general, commenters noted that stratified measures 
could serve as tools for hospitals to identify gaps in outcomes for 
different groups of patients, improve the quality of health care for 
all patients, and empower consumers to make informed decisions about 
health care. Commenters encouraged us to stratify measures by other 
social risk factors such as age, income, and educational attainment. 
With regard to value-based purchasing programs, commenters also 
cautioned CMS to balance fair and equitable payment while avoiding 
payment penalties that mask health disparities or discouraging the 
provision of care to more medically complex patients. Commenters also 
noted that value-based payment program measure selection, domain 
weighting, performance scoring, and payment methodology must account 
for social risk.
    As a next step, we are considering options to improve health 
disparities among patient groups within and across hospitals by 
increasing the transparency of disparities as shown by quality 
measures. We also are considering how this work applies to other CMS 
quality programs in the future. We refer readers to the FY 2018 IPPS/
LTCH PPS final rule (82 FR 38403 through 38409) for more details, where 
we discuss the potential stratification of certain Hospital Inpatient 
Quality Reporting Program outcome measures. Furthermore, we continue to 
consider options to address equity and disparities in our value-based 
purchasing programs.
    We plan to continue working with ASPE, the public, and other key 
stakeholders on this important issue to identify policy solutions that 
achieve the goals of attaining health equity for all beneficiaries and 
minimizing unintended consequences.
c. New Measure Removal Factor
    In the FY 2016 Hospice Final Rule (80 FR 47186), we adopted seven 
factors for measure removal. We are adopting an eighth factor to 
consider when evaluating measures for removal from the HQRP measure 
set: The costs associated with a measure outweighs the benefit of its 
continued use in the program.
    As we discussed in the Executive Summary, we are engaging in 
efforts to ensure that the HQRP measure set continues to promote 
improved health outcomes for beneficiaries while minimizing the overall 
costs associated with the program. We believe these costs are multi-
faceted and includes not only the burden associated with reporting, but 
also the costs associated with complying with the program. We have 
identified several different types of costs, including, but not limited 
to: (1) Provider and clinician information collection burden and burden 
associated with the submitting/reporting of quality measures to CMS; 
(2) the provider and clinician cost associated with complying with 
other Hospital IQR programmatic requirements; (3) the provider and 
clinician cost associated with participating in multiple quality 
programs, and tracking multiple similar or duplicative measures within 
or across those programs; (4) the cost to CMS associated with the 
program oversight of the measure including measure maintenance and 
public display; and/or (5) the provider and clinician cost associated 
with compliance to other federal and/or state regulations (depending 
upon the measure). For example, it may be needlessly costly and/or of 
limited benefit to retain or maintain a measure for which our analyses 
show no longer meaningfully supports program objectives (for example, 
informing beneficiary choice or payment scoring). It may also be costly 
for health care providers to track the confidential feedback and 
preview reports, as well as publicly reported information on a measure 
we use in more than one program. We may also have to expend unnecessary 
resources to maintain the specifications for the measure, including the 
tools we need to collect, validate, analyze, and publicly report the 
measure data. Furthermore, beneficiaries may find it confusing to see 
public reporting on the same measure in different programs. There also 
may be other burdens associated with a measure that arise on a case-by-
case basis.
    When these costs outweigh the evidence supporting the continued use 
of a measure in the HQRP, we believe it may be appropriate to remove 
the measure from the program. Although we recognize that one of the 
main goals of the HQRP is to improve beneficiary outcomes by 
incentivizing health care providers to focus on specific care issues 
and making public data related to those issues, we also recognize that 
those goals can have limited utility where, for example, the publicly 
reported data is of limited use because it cannot be easily interpreted 
by beneficiaries and used to influence their choice of providers. In 
these cases, removing the measure from the HQRP may better accommodate 
the costs of program administration and compliance without sacrificing 
improved health outcomes and beneficiary choice.
    We are proposing that we would remove measures based on this factor 
on a case-by-case basis. We might, for example, decide to retain a 
measure that is burdensome for health care providers to report if we 
conclude that the benefit to beneficiaries justifies the reporting 
burden. Our goal is to move the program forward in the least burdensome 
manner possible, while maintaining a parsimonious set of meaningful 
quality measures and continuing to incentivize improvement in the 
quality of care provided to patients.
    We are inviting public comment on our proposal to adopt an 
additional measure removal factor, ``the costs associated with a 
measure outweighs the benefit of its continued use in the program,'' 
beginning with the FY 2019 Hospice Wage Index final rule.
3. Previously Adopted Quality Measures for FY 2019 Payment 
Determination and Future Years
    In the FY 2014 Hospice Wage Index final rule (78 FR 48257), and in 
compliance with section 1814(i)(5)(C) of the Act, we finalized the 
specific collection of data items that support the following 7 National 
Quality Forum (NQF)-endorsed measures for hospice:
     NQF #1617 Patients Treated with an Opioid who are Given a 
Bowel Regimen,
     NQF #1634 Pain Screening,
     NQF #1637 Pain Assessment,
     NQF #1638 Dyspnea Treatment,
     NQF #1639 Dyspnea Screening,
     NQF #1641 Treatment Preferences,
     NQF #1647 Beliefs/Values Addressed (if desired by the 
patient)
    We finalized the following 2 additional measures in the FY 2017 
Hospice Wage Index final rule, effective

[[Page 20957]]

April 1, 2017. Data collected will, if not reported, affect payments 
for FY 2019 and subsequent years. (81 FR 52163 through 52173):

 Hospice Visits when Death is Imminent
 Hospice and Palliative Care Composite Process Measure--
Comprehensive Assessment at Admission

    The Hospice and Palliative Care Composite Process Measure--
Comprehensive Assessment at Admission measure (hereafter referred to as 
``the Hospice Comprehensive Assessment Measure'') underwent an off-
cycle review by the NQF Palliative and End-of-Life Standing Committee 
and successfully received NQF endorsement in July 2017.
    Data for the Hospice Visits when Death is Imminent measure pair is 
being collected using new items added to the HIS V2.00.0, effective 
April 1, 2017. We will need at least 4 quarters of reliable data to 
conduct the necessary analyses to support submission to NQF. We will 
also need to assess the quality of data submitted in the first quarter 
of item implementation to determine whether they can be used in the 
analyses. We have begun analysis of the data, and, pending analysis, we 
will submit the Hospice Visits when Death is Imminent measure pair to 
NQF for endorsement review in accordance with NQF project timelines and 
call for measures. We will use a similar process to analyze and submit 
new quality measures to NQF for endorsement in future years. Providers 
will be notified of measure endorsement and the public reporting 
through sub-regulatory channels.
    In the FY 2015 Hospice Wage Index final rule (79 FR 50491 through 
50496), we also finalized the Consumer Assessment of Healthcare 
Providers and Systems (CAHPS[supreg]) Hospice Survey to support quality 
measures based on patient and family experience of care. We refer 
readers to section III.D.5 of the FY 2019 Proposed Rule for details 
regarding the CAHPS[supreg] Hospice Survey, including public reporting 
of selected survey measures.

  Table 17--Previously Finalized Quality Measures Affecting the FY 2019
               Payment Determination and Subsequent Years
------------------------------------------------------------------------
                                                        Year the measure
                                                            was first
            NQF No.                Hospice item set      adopted for use
                                    quality measure          in APU
                                                          determination
------------------------------------------------------------------------
1641..........................  Treatment Preferences.  FY 2016.
1647..........................  Beliefs/Values          FY 2016.
                                 Addressed (if desired
                                 by the patient).
1634..........................  Pain Screening........  FY 2016.
1637..........................  Pain Assessment.......  FY 2016.
1639..........................  Dyspnea Screening.....  FY 2016.
1638..........................  Dyspnea Treatment.....  FY 2016.
1617..........................  Patients Treated with   FY 2016.
                                 an Opioid Who are
                                 Given a Bowel Regimen.
3235..........................  The Hospice and         FY 2019.
                                 Palliative Care
                                 Composite Process
                                 Measure--Comprehensiv
                                 e Assessment at
                                 Admission.
TBD...........................  Hospice Visits when     FY 2019.
                                 Death is Imminent.
------------------------------------------------------------------------

4. Form, Manner, and Timing of Quality Data Submission
a. Background
    Section 1814(i)(5)(C) of the Act requires that each hospice submit 
data to the Secretary on quality measures specified by the Secretary. 
Such data must be submitted in a form and manner, and at a time 
specified by the Secretary. Section 1814(i)(5)(A)(i) of the Act 
requires that beginning with the FY 2014 and for each subsequent FY, 
the Secretary shall reduce the market basket update by 2 percentage 
points for any hospice that does not comply with the quality data 
submission requirements for that FY.
b. Revised Data Review and Correction Timeframes for Data Submitted 
Using the HIS
    In the FY 2015 Hospice Wage Index final rule (79 FR 50486), we 
finalized our policy requiring that hospices complete and submit HIS 
records for all patient admissions to hospice on or after July 1, 2014. 
For each HQRP reporting year, we require that hospices submit data in 
accordance with the reporting requirements specified in the FY 2015 
Hospice final rule (79 FR 50486) for the designated reporting period. 
Electronic submission is required for all HIS records. For more 
information about HIS data collection and submission policies and 
procedures, we refer readers to the FY 2018 Hospice Wage Index final 
rule (82 FR 36663) and the CMS HQRP website: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-Item-Set-HIS.html. For more information about 
CAHPS[supreg] Hospice Survey data submission policies and timelines, we 
refer readers to section III.D.5 of the FY 2019 proposed rule.
    Hospices currently have 36 months to modify HIS records. However, 
only data modified before the public reporting ``freeze date'' are 
reflected in the corresponding CMS Hospice Compare website refresh. For 
more information about the HIS ``freeze date'', please see the Public 
Reporting: Key Dates for Providers page on the CMS HQRP website: 
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-Key-Dates-for-Providers.html.
    To ensure that the data reported on Hospice Compare is accurate, we 
propose that hospices be provided a distinct period of time to review 
and correct the data that is to be publically reported. This approach 
would allow hospices a time frame in which they may analyze their data 
and make corrections (up until 11:59:59 p.m. PST of the quarterly 
deadline) prior to receiving their preview reports. Once the preview 
reports are received, it is infeasible to make corrections to the data 
underlying the quality measure scores that are to be made public. 
Therefore, we are proposing that for data reported using the HIS that 
there be a specified time period for data review and a correlating data 
correction deadline for public reporting at which point the data is 
frozen for the associated quarter. Similar to the policies outlined in 
the FY 2016 SNF final rule (81 FR 24271) and the FY 2016 IPPS/LTCH 
final rule (80 FR 49754), at this deadline for public reporting, we 
propose that data from HIS records with target dates within the 
correlating quarter become a frozen ``snapshot'' of data for public 
reporting purposes. Any record-level data correction after the date on 
which the data are frozen will not be incorporated into measure 
calculation for the

[[Page 20958]]

purposes of public reporting on the CMS Hospice Compare website. For 
each calendar quarter of data submitted using the HIS, approximately 
4.5 months after the end of each CY quarter we are proposing a 
deadline, or freeze date for the submissions of corrections to records. 
We note that this newly proposed data correction deadline for HIS 
records is separate and apart from the established 30-day data 
submission deadline. More information about the data submission 
deadline can be found at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/.
    Specifically, each deadline would occur on the 15th of the CY month 
that is approximately 4.5 months after the end of each CY quarter, and 
that hospices would have up until 11:59:59 p.m. PST on that date to 
submit corrections or requests for inactivation of their data for the 
quarter involved. For example, for data reported in CY Q1, the freeze 
date would be August 15th, for CY Q2 the freeze date would be November 
15th and so on. Under this policy, any modification to or inactivation 
of records that occur after the proposed correction deadline would not 
be reflected in publicly reported data on the CMS Hospice Compare 
website. For example, for the data collected during the 1st quarter, 
that is January 1st through March 31st of a given year, the hospice 
will have until 11:59:59 p.m. PST on August 15th of that year to ensure 
all of their data is correct. Any modifications to first quarter data 
that are submitted to us after August 15th would not be reflected 
during any subsequent Hospice Compare refresh. We believe that this is 
a reasonable amount of time to allow providers to make any necessary 
corrections to submitted data prior to public reporting. This revised 
policy aligns HQRP with the policies and procedures that exist in our 
other quality reporting programs including the post-acute care 
programs, which also enables providers to review their data and make 
necessary corrections within the specified time frame of approximately 
4.5 months following the end of a given CY quarter and prior to the 
public reporting of such data.
    We propose that beginning January 1, 2019, HIS records with target 
dates on or after January 1, 2019 will have a data correction deadline 
for public reporting of approximately 4.5 months after the end of each 
CY quarter in which the target date falls, and that hospices will have 
until 11:59:59 p.m. PST on the deadline to submit corrections.
    We also propose that for the purposes of public reporting, the 
first quarterly freeze date for CY 2019 data corrections will be August 
15, 2019. To accommodate those HIS records with target dates prior to 
January 1, 2019 and still within a target period for public reporting, 
we also propose to extend to hospices the opportunity to review their 
data and submit corrections up until the CY 19 Q1 deadline of 11:59:59 
p.m. PST on August 15, 2019. Table 18 presents the proposed data 
correction deadlines for public reporting beginning in CY 2019.

  Table 18--Data Correction Deadlines for Public Reporting Beginning CY
                                  2019
------------------------------------------------------------------------
                                              Data correction  deadline
         Data reporting  period *              for public  reporting *
------------------------------------------------------------------------
Prior to January 1, 2019..................  August 15, 2019.
January 1, 2019-March 31, 2019............  August 15, 2019.
April 1, 2019-June 30, 2019...............  November 15, 2019.
July 1, 2019-September 30, 2019...........  February 15, 2020.
October 1, 2019-December 31, 2019.........  May 15, 2020.
------------------------------------------------------------------------
* This CY time period involved is intended to inform both CY 2019 data
  and to serve as an illustration for the review and correction
  deadlines that are associated with each calendar year of data
  reporting quarter.

    We are soliciting public comments on these proposals.
5. CAHPS[supreg] Hospice Survey Participation Requirements for the FY 
2023 APU and Subsequent Years
    The CAHPS[supreg] Hospice Survey of CMS' HQRP 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 are 
referred to our extensive discussion of the Hospice Experience of Care 
prior to our proposal for the public reporting of measures may refer to 
79 FR 50452 and 78 FR 48261.
a. Background and Description of the CAHPS[supreg] Hospice Survey
    The CAHPS[supreg] Hospice Survey is the first standardized national 
survey available to collect information on patients' and informal 
caregivers' experience of hospice care. Patient-centered experience 
measures are a key component of the CMS Quality Strategy, emphasizing 
patient-centered care by rating experience as a means to empower 
patients and their caregivers and improving the quality of their care. 
In addition, the survey introduces standard survey administration 
protocols that allow for fair comparisons across hospices.
    Although the development of the CAHPS[supreg] Hospice Survey 
predates the Meaningful Measures initiative, it used many of the 
Meaningful Measure principles in its development. The overarching 
quality priority of ``Strengthen Person and Family Engagement as 
Partners in Their Care'' includes Meaningful Measure areas such as 
``Care is personalized and Aligned with Patient's Goals,'' ``End of 
Life Care According to Preferences'' and ``Patients Experience of 
Care.'' The survey questions were developed with input from caregivers 
of patients who died under hospice care. The survey focuses on topics 
that are meaningful to caregivers/patients and supports CMS's efforts 
to put the patient and their family members first.
    Details regarding CAHPS[supreg] Hospice Survey national 
implementation, survey administration, participation requirements, 
exemptions from the survey's requirements, hospice patient and 
caregiver eligibility criteria, fielding schedules, sampling 
requirements, survey instruments, and the languages that are available 
for the survey, are all available on the official CAHPS[supreg] Hospice 
Survey website: https://www.HospiceCAHPSsurvey.org, and in the 
CAHPS[supreg] Hospice Survey Quality Assurance Guidelines (QAG), which 
are posted on the website.
b. Overview of the CAHPS[supreg] Hospice Survey Measures
    The CAHPS[supreg] Hospice Survey is administered after the patient 
is deceased and queries the decedent's primary, informal caregiver 
(usually a family member) regarding the patient and family experience 
of care, unlike the Hospital CAHPS[supreg] Survey deployed in 2006 (71 
FR 48037 through 48039) and other subsequent CAHPS[supreg] surveys. 
National implementation of the CAHPS[supreg] Hospice Survey commenced 
January 1, 2015 as stated in the FY 2015 Hospice Wage Index and Payment 
Rate Update final rule (79 FR 50452).
    The survey consists of 47 questions and is available (using the 
mailed version) in English, Spanish, Chinese, Russian, Portuguese, 
Vietnamese, Polish, and Korean. It covers topics such as access to 
care, communications, getting help for symptoms, and interactions with 
hospice staff. The survey also contains 2 global rating questions and 
asks for self-reported demographic information (race/ethnicity, 
educational attainment level, languages spoken at home, among others). 
The CAHPS[supreg] Hospice Survey

[[Page 20959]]

measures received NQF endorsement on October 26th, 2016 (NQF #2651). 
Measures derived from the CAHPS[supreg] Hospice Survey include 6 multi-
item (composite) measures and 2 global ratings measures. They received 
NQF endorsement on October 26, 2016 (NQF #2651). We adopted these 8 
survey-based measures for the CY 2018 data collection period and for 
subsequent years. These 8 measures are reported on Hospice Compare.
c. Data Sources
    As discussed in the CAHPS[supreg] Hospice Survey QAG V4.0 (https://www.hospiceCAHPSsurvey.org/en/quality-assurance-guidelines/), the 
survey has three administration methods: mail only, telephone only, and 
mixed mode (mail with telephone follow-up of non-respondents). We 
previously finalized the participation requirements for the FY 2020, FY 
2021, and FY 2022 APUs (82 FR 36673). We propose to extend the same 
participation requirements to all future years, for example, the FY 
2023, FY 2024 and FY 2025 Annual Payment and subsequent updates. To 
summarize, to meet the CAHPS[supreg] Hospice Survey requirements for 
the HQRP, we propose that hospice facilities must contract with a CMS-
approved vendor to collect survey data for eligible patients on a 
monthly basis and report that data to CMS on the hospice's behalf by 
the quarterly deadlines established for each data collection period. 
The list of approved vendors is available at: https://www.hospiceCAHPSsurvey.org/en/approved-vendor-list.
    Hospices are required to provide lists of the patients who died 
under their care, along with the associated primary caregiver 
information, to their respective survey vendors to form the samples for 
the CAHPS[supreg] Hospice Survey. We emphasize the importance of 
hospices providing complete and accurate information to their 
respective survey vendors in a timely manner.
    Hospices must contract with an approved CAHPS[supreg] Hospice 
Survey vendor to conduct the survey on their behalf. Hospices are 
responsible for making sure their respective survey vendors meet all 
data submission deadlines. Vendor failures to submit data on time are 
the responsibility of the hospices. We invite public comment on this 
proposal.
d. Public Reporting of CAHPS[supreg] Hospice Survey Results
    We began public reporting of the results of the CAHPS[supreg] 
Hospice Survey on Hospice Compare as of February 2018. The first report 
of CAHPS[supreg] data covered survey results from deaths occurring 
between Quarter 2, 2015 and Quarter 1, 2017. We report the most recent 
8 quarters of data on the basis of a rolling average with the most 
recent quarter of data being added and the oldest quarter of data 
removed from the averages for each data refresh. We detailed the 
calculation of these measures in 82 FR 36674. We refresh the data 4 
times a year in the months of February, May, August, and November. We 
will not publish CAHPS[supreg] data for any hospice that has fewer than 
30 completed surveys due to concerns about statistical reliability. We 
propose to use the same public reporting policies in future years. We 
are soliciting comments on this proposal.
e. Volume-Based Exemption for CAHPS[supreg] Hospice Survey Data 
Collection and Reporting Requirements
    We previously finalized a volume-based exemption for CAHPS[supreg] 
Hospice Survey Data Collection and Reporting requirements in the FY 
2017 final rule (82 FR 36671). We propose to continue our policy for a 
volume-based exemption for CAHPS[supreg] Hospice Survey Data Collection 
for FY 2023 and every year thereafter. For example, for the FY 2023 
APU, hospices that have fewer than 50 survey eligible decedents/
caregivers in the period from January 1, 2020 through December 31, 2020 
(reference year) are eligible to apply for an exemption from 
CAHPS[supreg] Hospice Survey data collection and reporting requirements 
(corresponds to the CY 2021 data collection period). To qualify, 
hospices must submit an exemption request form for the FY 2023 APU. The 
exemption request form is available on the official CAHPS[supreg] 
Hospice Survey website: https://www.hospiceCAHPSsurvey.org.
    Hospices that intend to claim the size exemption are required to 
submit to CMS their total unique patient count for the period of 
January 1, 2020 through December 31, 2020 (reference year). The due 
date for submitting the exemption request form for the FY 2023 APU is 
December 31, 2021. Exemptions for size are active for 1 year only. If a 
hospice continues to meet the eligibility requirements for this 
exemption in future FY APU periods, the organization needs to request 
the exemption annually for every applicable FY APU period.
    For FY 2024 APU, hospices that have fewer than 50 survey eligible 
decedents/caregivers in the period from January 1, 2021 through 
December 31, 2021 (reference year) are eligible to apply for an 
exemption from CAHPS[supreg] Hospice Survey data collection and 
reporting requirements. Hospices that intend to claim the size 
exemption are required to submit to CMS their total unique patient 
count for the period of January 1, 2021 through December 31, 2021. The 
due date for submitting the exemption request form for the FY 2024 APU 
is December 31, 2022. Exemptions for size are active for 1 year only. 
If a hospice continues to meet the eligibility requirements for this 
exemption in future FY APU periods, the organization must request the 
exemption annually for every applicable FY APU period.
    For the FY 2025 APU, hospices that have fewer than 50 survey 
eligible decedents/caregivers in the period from January 1, 2022 
through December 31, 2022 (reference year) are eligible to apply for an 
exemption from CAHPS[supreg] Hospice Survey data collection and 
reporting requirements for the FY 2025 payment determination. Hospices 
that intend to claim the size exemption are required to submit to CMS 
their total unique patient count for the period of January 1, 2022 
through December 31, 2022. The due date for submitting the exemption 
request form for the FY 2025 APU is December 31, 2023. If a hospice 
continues to meet the eligibility requirements for this exemption in 
future FY APU periods, the organization must request the exemption 
annually for every applicable FY APU period.

                         Table 19--Size Exemption Key Dates FY 2023, FY 2024 and FY 2025
----------------------------------------------------------------------------------------------------------------
                                                                 Reference year
                                                                  (count total
                 Fiscal year                   Data collection  number of unique       Size exemption  form
                                                    year          patients  in          submission deadline
                                                                   this year)
----------------------------------------------------------------------------------------------------------------
FY 2023.....................................              2021              2020  December 31, 2021.
FY 2024.....................................              2022              2021  December 31, 2022.
FY 2025.....................................              2023              2022  December 31, 2023.
----------------------------------------------------------------------------------------------------------------


[[Page 20960]]

f. Newness Exemption for CAHPS[supreg] Hospice Survey Data Collection 
and Reporting Requirements
    We previously finalized a one-time newness exemption for hospices 
that meet the criteria (81 FR 52181). We propose to continue the 
newness exemption for FY 2023, FY 2024, FY 2025, and all future years.
    Specifically, hospices that are notified about their Medicare CCN 
after January 1, 2021 are exempted from the FY 2023 APU CAHPS[supreg] 
Hospice Survey requirements due to newness. Likewise, hospices notified 
about their Medicare CCN after January 1, 2022 are exempted from the FY 
2024 APU CAHPS[supreg] Hospice Survey requirements due to newness. 
Hospices notified about their Medicare CCN after January 1, 2023 are 
exempted from the FY 2025 APU CAHPS[supreg] Hospice Survey requirements 
due to newness. No action is required on the part of the hospice to 
receive this exemption. The newness exemption is a one-time exemption 
from the survey. We encourage hospices to keep the letter they receive 
providing them with their CCN. The letter can be used to show when you 
received your number.
    We propose that this newness exemption to the CAHPS[supreg] Hospice 
Survey will apply to all future years. We invite public comment on this 
proposal.
g. Requirements for the FY 2023 APU
    To meet participation requirements for the FY 2023 APU, Medicare-
certified hospices must collect CAHPS[supreg] Hospice Survey data on an 
ongoing monthly basis from January 2021 through December 2021 (all 12 
months) to receive their full payment for the FY 2023 APU. All data 
submission deadlines for the FY 2023 APU are in Table 20. CAHPS[supreg] 
Hospice Survey vendors must submit data by the deadlines listed in 
Table 20 for all APU periods listed in the table and moving forward. 
There are no late submissions permitted after the deadlines, except for 
extraordinary circumstances beyond the control of the provider as 
discussed above.

Table 20--CAHPS[supreg] Hospice Survey Data Submission Dates for the APU
                    in FY 2023, FY 2024, and FY 2025
------------------------------------------------------------------------
                                                CAHPS Quarterly data
    Sample months \1\ (month of death)        submission deadlines \2\
------------------------------------------------------------------------
                               FY 2023 APU
------------------------------------------------------------------------
CY January-March 2021 (Quarter 1).........  August 11, 2021.
CY April-June 2021 (Q2)...................  November 10, 2021.
CY July-September 2021 (Q3)...............  February 9, 2022.
CY October-December 2021 (Q4).............  May 11, 2022.
------------------------------------------------------------------------
                               FY 2024 APU
------------------------------------------------------------------------
CY January-March 2022 (Q1)................  August 10, 2022.
CY April-June 2022 (Q2)...................  November 9, 2022.
CY July-September 2022 (Q3)...............  February 8, 2023.
CY October-December 2022 (Q4).............  May 10, 2023.
------------------------------------------------------------------------
                               FY 2025 APU
------------------------------------------------------------------------
CY January-March 2023 (Q1)................  August 9, 2023.
CY April-June 2023 (Q2)...................  November 8, 2023.
CY July-September 2023 (Q3)...............  February 14, 2024.
CY October-December 2023 (Q4).............  May 8, 2024.
------------------------------------------------------------------------
\1\ Data collection for each sample month initiates 2 months following
  the month of patient death (for example, in April for deaths occurring
  in January).
\2\ Data submission deadlines are the second Wednesday of the submission
  months, which are the months August, November, February, and May.

h. Requirements for the FY 2024 APU
    To meet participation requirements for the FY 2024 APU, Medicare-
certified hospices must collect CAHPS[supreg] Hospice Survey data on an 
ongoing monthly basis from January 2022 through December 2022 (all 12 
months) to receive their full payment for the FY 2024 APU. All data 
submission deadlines for the FY 2024 APU are in Table 20. CAHPS[supreg] 
Hospice Survey vendors must submit data by the deadlines listed in 
Table 20 for all APU periods listed in the table and moving forward. 
There are no late submissions permitted after the deadlines, except for 
extraordinary circumstances beyond the control of the provider as 
discussed above.
i. Requirements for the FY 2025 APU
    To meet participation requirements for the FY 2025 APU, Medicare-
certified hospices must collect CAHPS[supreg] Hospice Survey data on an 
ongoing monthly basis from January 2023 through December 2023 (all 12 
months) to receive their full payment for the FY 2025 APU. All data 
submission deadlines for the FY 2025 APU are in Table 20. CAHPS[supreg] 
Hospice Survey vendors must submit data by the deadlines listed in 
Table 20 for all APU periods listed in the table and moving forward. 
There are no late submissions permitted after the deadlines, except for 
extraordinary circumstances beyond the control of the provider as 
discussed above.
j. For Further Information About the CAHPS[supreg] Hospice Survey
    We encourage hospices and other entities to learn more about the 
survey on: https://www.hospiceCAHPSsurvey.org. For direct questions, 
please contact the CAHPS[supreg] Hospice Survey Team at 
[email protected] or telephone 1-844-472-4621.
6. Public Display of Quality Measures and Other Hospice Data for the 
HQRP
    Under section 1814(i)(5)(E) of the Act, the Secretary is required 
to establish procedures for making any quality data submitted by 
hospices available to the public. These procedures shall ensure that a 
hospice has the opportunity to review the data that is to be made 
public prior to such data being made public; the data will be available 
on our public website.
    To meet the Affordable Care Act's requirement for making quality 
measure data public, we launched the Hospice Compare website in August 
2017. This website allows consumers, providers, and other stakeholders 
to search for all Medicare-certified hospice providers and view their 
information and quality measure scores. Since its release, the CMS 
Hospice Compare website has reported 7 HIS Measures (NQF #1641, NQF 
#1647, NQF #1634, NQF #1637, NQF #1639, NQF #1638, and NQF #1617). In 
February 2018, CAHPS[supreg] Hospice Survey measures (NQF #2651) were 
added to the website.
a. Adding Quality Measures to Publically Available Websites--Procedures 
To Determine Quality Measure Readiness for Public Reporting
    Quality measures are added to Hospice Compare once they meet 
readiness standards for public reporting, which is determined through 
the following processes.
    First, we assess the reliability and validity of each quality 
measure to determine the scientific acceptability of each measure. This 
acceptability analysis is the first step in determining a measure's 
readiness for public reporting. We evaluate the quality

[[Page 20961]]

measures using the NQF Measure Evaluation Criteria found on the NQF 
website here: https://www.qualityforum.org/Measuring_Performance/Submitting_Standards/Measure_Evaluation_Criteria.aspx#scientific. 
Analyses to assess scientific acceptability of new measures are 
important to determine if the measure produces reliable and credible 
results when implemented. Reliability testing demonstrates that a 
measure is correctly specified by ensuring that ``measure data elements 
are repeatable, producing the same results a high proportion of time 
when assessed in the same population in the same time period and/or 
that the measure score is precise.'' Validity testing demonstrates that 
measure specifications are consistent with the focus of the measure and 
that the measure score can accurately distinguish between quality of 
care provided by providers. Reliability and validity are tested at both 
the data item and quality measure levels. For example, at the item-
level, we examine the missing data rate and cross validate the data 
elements between the assessment data and Medicare claims to ensure 
validity of the data elements. At the quality measure level, we conduct 
split-half analysis, consistency analysis across time, stability 
analysis, and signal-to-noise analysis to demonstrate the reliability 
of the measures. We examine the relationships between different quality 
measures assessing similar quality areas to demonstrate the validity of 
the quality measures.
    To establish reliability and validity of the quality measures, at 
least 4 quarters of data are analyzed. The first quarter of data after 
new adoption of, or changes to, standardized data collection tools may 
reflect the learning curve of the hospices; we first analyze these data 
separately to determine the appropriateness to use them to establish 
reliability and validity of quality measures.
    To further inform which of the measures are eligible for public 
reporting, we then examine the distribution of hospice-level 
denominator size for each quality measure to assess whether the 
denominator size is large enough to generate the statistically reliable 
scores necessary for public reporting. This goal of this analysis is to 
establish the minimum denominator size for public reporting, which is 
referred to as reportability analysis. Reportability analysis is 
necessary because, if a hospice QM score is generated from a 
denominator that is too small, the observed measure score may be a 
biased assessment of the provider's performance, yielding scores that 
are statistically unreliable. Thus, we have set a minimum denominator 
size for public reporting, as well as the data selection period 
necessary to generate the minimum denominator size for the CMS Hospice 
Compare website.
    This approach to testing reliability, validity, and reportability 
of quality measures (QMs) is consistent with the approach taken in 
other CMS quality reporting programs. Further, CMS provides hospices 
the opportunity to review their measures through their Certification 
and Survey Provider Enhanced Reports (CASPER) and additionally 
publishes the methodology related to the calculation of each quality 
measure in the Hospice Quality Measure User's Manual, which is updated 
with the addition of each quality measure to the Hospice QRP. Since 
December 2016, two provider feedback reports have been available to 
providers: The Hospice-Level Quality Measure Report and the Patient 
Stay-Level Quality Measure Report. These confidential feedback reports 
are available to each hospice using the CASPER system, and are part of 
the class of CASPER reports known as QM Reports. These reports are for 
the purposes of internal provider quality improvement and are available 
to hospices on-demand. We encourage providers to use the CASPER QM 
Reports to review their HIS quality measures regularly to ensure 
submitted quality measure data is correct. For more information on the 
CASPER QM Reports, we refer readers to the CASPER QM Factsheet on the 
HQRP website at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/HQRP-Requirements-and-Best-Practices.html.
    Because we follow the above outlined processes in determining the 
readiness for a quality measure to be publicly reported, and perform 
the necessary analysis to determine and demonstrate that our measures 
meet the NQF standards for reliability, validity, and reportability, 
prior to publicly reporting provider performance on these quality 
metrics, we are proposing to announce to providers, any future intent 
to publicly report a quality measure on Hospice Compare, including 
timing, through sub-regulatory means.
    Conducting these analyses and announcing measures timeline and 
readiness for public reporting through sub-regulatory channels will 
allow us to implement measures for public reporting in a more 
expeditious, yet still transparent manner, benefitting the public by 
providing QM data as soon as it is determined to meet the minimum 
standards for public reporting. We will continue to provide updates 
about public reporting of QMs through the normal CMS HQRP communication 
channels, including postings and announcements on the CMS HQRP website, 
MLN eNews communications, national provider association calls, and 
announcements on Open Door Forums. We are soliciting comments on this 
proposal.
b. Quality Measures To Be Displayed on Hospice Compare in FY 2019
    We anticipate that we will begin public reporting of the HIS-based 
Hospice Comprehensive Assessment Measure (NQF #3235), a composite 
measure of the 7 original HIS Measures (NQF #1641, NQF #1647, NQF 
#1634, NQF #1637, NQF #1639, NQF #1638, and NQF #1617), on the CMS 
Hospice Compare website in Fall 2019. For more information on how this 
measure is calculated, please see the HQRP QM User's Manual v2.00 in 
the ``Downloads'' section of the Current Measures page on the CMS HQRP 
website: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Current-Measures.html. 
The reporting period for which the measure will be displayed on the CMS 
Hospice Compare website will align with the currently established 
procedures for the 7 HIS measures. For more information about reporting 
periods, please see the Public Reporting: Key Dates for Providers page 
on the CMS HQRP website: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-Key-Dates-for-Providers.html. We used the analytic 
approach described above to determine reliability, validity, and 
reportability of the HIS-based Hospice Comprehensive Assessment Measure 
(NQF #3235). Reliability and validity testing found that the Hospice 
Comprehensive Assessment Measure had high reliability and validity. For 
more information about the reliability and validity of this measure, 
please see the NQF Palliative and End-of-Life Care Off-Cycle Measure 
Review 2017 Publication available for download here: https://www.qualityforum.org/Publications/2017/09/Palliative_and_End-of-Life_Care_Off-Cycle_Measure_Review_2017.aspx. Per the approach 
described above, we then conducted reportability analysis. Based on 
reportability analysis results, we determined this measure, calculated 
based on a 12-rolling month data selection period, to be eligible for

[[Page 20962]]

public reporting with a minimum denominator size of 20 patient stays. A 
majority of hospices, using rolling 4 quarters of data, have at least 
20 patient stays eligible for the calculation and public reporting of 
the Hospice Comprehensive Assessment Measure. We plan to begin public 
reporting of the Hospice Comprehensive Assessment Measure with a 
minimum denominator size of 20.
    We also anticipate that we will begin public reporting of the HIS-
based Hospice Visits when Death is Imminent Measure Pair in FY 2019. 
This same analytic approach described above will be applied to 
determine the reliability, validity, and reportability of the Hospice 
Visits when Death is Imminent Measure Pair. This measure pair assesses 
hospice staff visits to patients at the end of life. Specifications for 
the Hospice Visits when Death is Imminent measure pair were finalized 
in the FY 2017 Hospice Final Rule (81 FR 52162). Pending the 
finalization of our proposal to announce future intentions to publicly 
display hospice quality measures via sub-regulatory means, the exact 
timeline for public reporting of this measure pair will be announced 
through regular sub-regulatory channels once necessary analyses and 
measure specifications are finalized.
c. Updates to the Public Display of HIS Measures
    As discussed previously, we strive to put patients first, ensuring 
they are empowered to make decisions about their own healthcare, along 
with their clinicians, using data-driven information that are 
increasingly aligned with a parsimonious set of meaningful quality 
measures that drive quality improvement. We recognize that the HQRP 
represents a key component in bringing quality measurement, 
transparency, and improvement to the hospice care setting. To that end, 
we have begun analyzing our programs' measures in accordance with the 
Meaningful Measures framework to ensure high quality care and that 
empowers patients to make decisions about their own healthcare, using 
consumable, data-driven information.
    With this framework in mind, we evaluated our measure set and 
specifically the measure Hospice and Palliative Care Composite Process 
Measure--Comprehensive Assessment at Admission (NQF #3235) which we 
intend to publicly display on the Hospice Compare website in FY 2019. 
Through feedback received, we have learned that while the 7 original 
HIS measures (NQF #1641, NQF #1647, NQF #1634, NQF #1637, NQF #1639, 
NQF #1638, and NQF #1617) that represent the individual care processes 
captured in this composite measure are important, the composite measure 
provides for consumers a more accessible measure for evaluating the 
quality of a hospice.
    The composite measure is more illustrative than the individual, 
high performing measures based on analyses. The hospice performance 
scores on the 7 component measures that comprise the composite measure 
are high (a score of 90 percent or higher on most component measures); 
however, analyses also show that, on average, a much lower percentage 
of patient stays received all seven desirable care processes at 
admission. Thus, by assessing hospices' performance of a comprehensive 
assessment via an all-or-none calculation methodology, the composite 
measure sets a higher standard of care for hospices and reveals a 
larger performance gap. Meaning, the composite measure holds hospices 
to a higher standard by requiring them to perform all seven care 
processes for a given patient admission. The performance gap identified 
by the composite measure creates opportunities for quality improvement 
and may motivate providers to conduct a greater number of high priority 
care processes for as many patients as possible upon admission to 
hospice.
    The table below shows the mean measure score across all hospices 
for Hospice and Palliative Care Composite Process Measure--
Comprehensive Assessment Measure at Admission and the 7 component 
measures that would no longer be routinely individually displayed on 
Hospice Compare once the composite measure would be displayed.

     Table 21--Mean Measure Score of the Hospice and Palliative Care
Composite Process Measure--Comprehensive Assessment Measure at Admission
                  and 7 Original HIS Component Measures
------------------------------------------------------------------------
                                                               Measure
                       Measure title                          score (%)
------------------------------------------------------------------------
Hospice and Palliative Care Composite Process Measure--             71.3
 Comprehensive Assessment at Admission (NQF #3235).........
Component Measure: Treatment Preferences (NQF #1641).......         98.8
Component Measure: Beliefs/Values (NQF #1647)..............         95.9
Component Measure: Pain Screening (NQF #1634)..............         93.2
Component Measure: Pain Assessment (NQF #1637).............         72.5
Component Measure: Dyspnea Screening (NQF #1639)...........         98.5
Component Measure: Dyspnea Treatment (NQF #1638)...........         92.8
Component Measure: Bowl Regimen (NQF #1617)................         97.5
------------------------------------------------------------------------

    Further, we believe the reporting of these 7 component measures 
alongside the composite measure may be redundant and may result in 
confusion and burden for users as they attempt to interpret data 
displayed on the Hospice Compare website. However, we also recognize 
that the component measures may be useful to some individuals using 
Hospice Compare. Therefore, while we intend to no longer directly 
display the 7 component measures as individual measures on Hospice 
Compare, once the composite measure is displayed, we would still 
provide the public the ability to view these component measures in a 
manner that avoids confusion on Hospice Compare. We plan to achieve 
this by reformatting the display of the component measures so that they 
are only viewable in an expandable/collapsible format under the 
composite measure itself, thus allowing users the opportunity to view 
the component measure scores that were used to calculate the main 
composite measure score.
    This proposal would change only the display of data on Hospice 
Compare for the HIS-based measure(s). This proposal would not change 
any current HIS data collection procedures outlined in the FY 2018 
Hospice final rule (82 FR 36663 through 36664). Providers would still 
collect all HIS items in the current version of the HIS (HIS V2.00.0), 
including the 7 aforementioned component measures. Providers would 
continue to follow the coding guidelines and policies outlined in the 
HIS Manual V2.00, which can be found under the Downloads section of the 
HIS page of the HQRP website https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-Item-Set-HIS.html. Therefore, this proposal would not impact 
data collection.

[[Page 20963]]

Additionally, because the composite measure is composed of the 7 
aforementioned component measures, these component measures would still 
be reported on CASPER QM reports and HIS provider preview reports for 
providers' internal quality purposes.
    We invite public comment on our proposal to remove from Hospice 
Compare the direct display of the 7 original HIS measures, allowing for 
the reformatting of the display of these measures under the composite 
measure, once the Hospice Comprehensive Assessment Measure is 
displayed.
d. Display of Public Use File Data and/or Other Publicly Available CMS 
Data on the Hospice Compare Website
    In the FY 2016 Hospice Wage Index final rule (80 FR 47199), we 
announced that we would make available hospice data in a public data 
set, the Medicare Provider Utilization and Payment Data: Physician and 
Other Supplier Public Use File (PUF), as part of our ongoing efforts to 
make healthcare more transparent, affordable, and accountable. Hospice 
data has been available at the provider-level in the Medicare Provider 
Utilization and Payment Data: Physician and Other Supplier PUF since 
2016 and is located at: https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/Hospice.html. The primary data source for the Hospice PUF is the 
CMS Chronic Condition Data Warehouse (CCW), a database with 100 percent 
of Medicare enrollment and fee-for-service adjudicated claims data.
    These Hospice PUFs serve as a resource for the healthcare community 
by providing information on services provided to Medicare beneficiaries 
by hospice providers. The Hospice PUF contains information on 
utilization, payment (Medicare payment and standard payment), submitted 
charges, primary diagnoses, sites of service, and hospice beneficiary 
demographics organized by CMS Certification Number (6-digit provider 
identification number) and state. While these files are extensively 
downloaded by the public and especially researchers, currently the 
files are not in a format that would be considered user-friendly for 
many of the consumers who would look for hospice information to support 
provider selection.
    As part of our ongoing efforts to make the Hospice Compare website 
more informative to our beneficiaries, loved ones, and their families, 
we propose to post information from these PUF and/or other publicly 
available CMS data to the Hospice Compare website in a user-friendly 
way. We propose to use information available in these public files to 
develop a new section of the Hospice Compare website that would provide 
additional information along with the HIS and CAHPS[supreg] quality 
measures and demographic information already displayed. Other Compare 
websites, such as the Nursing Home Compare and the End Stage Renal 
Disease Compare websites, have an information section similar to what 
we anticipate posting.
    Information on the Hospice Compare website for each hospice 
includes data from the PUF and/or other publicly available CMS data 
displayed in a consumer-friendly format. This means that we may display 
the data as shown from the PUF or present the data after additional 
calculations. For example, the data could be averaged over multiple 
years, displayed as a percentage rather than the raw number so it has 
meaning to end-users, or other calculations in a given year or over 
multiple years. Any calculation will be performed on data exclusively 
from the source file like the PUF or other publicly available CMS data. 
The data may be displayed with supporting narrative when needed to make 
the data more understandable.
    Examples, provided for illustration of how CMS could use the PUF or 
other publicly available CMS data, include:
     Percent of days a hospice provided routine home care (RHC) 
to patients, averaged over multiple years,
     Percent of primary diagnosis of patients served by the 
hospice (cancer, dementia, circulatory/heart disease, stroke, 
respiratory disease) which would be a calculation of the total number 
of patients by diagnosis and dividing by the total number of patients 
that the hospice served, and
     Site of service (long term care or non-skilled nursing 
facility, skilled nursing facility, inpatient hospital) with a notation 
of yes, based on whether the hospice serves patients in that facility 
type.
    While these types of information are not quality measures, they 
capture information that many consumers seek during the provider 
selection process and, therefore, will help them to make an informed 
decision. For example, information about conditions treated by the 
hospice could show a patient with dementia if a hospice specializes or 
is experienced in caring for patients with this condition. 
Additionally, if a patient has a specific need, like receiving hospice 
care in a nursing home, information from the PUF could help this 
patient or their loved ones determine if a provider in their service 
area has provided care in this setting. Analyses of the PUF data show 
variation between hospice providers in the data points outlined above, 
indicating that these data points could be meaningful to consumers in 
comparing services provided by hospices based on the factors most 
important to them. PUF data can serve as one more piece of information, 
along with quality of care metrics from the HIS and CAHPS[supreg] 
Hospice Survey, to help consumers effectively and efficiently compare 
hospice providers and make an informed decision about their care in a 
stressful time.
    By averaging or trending data over multiple years, we make it 
fairer so that the data applies to hospices broadly regardless of size 
or location or other factors. We anticipate that over time and as 
appropriate, we may add other items from the PUF or other publicly 
available CMS data to the Hospice Compare website via sub-regulatory 
processes and would plan to inform the public via regular HQRP 
communication strategies, such as Open Door Forums, Medicare Learning 
Network, Spotlight announcements and other opportunities. We invite 
public comment on these proposals.

IV. Request for Information on Possible Establishment of CMS Patient 
Health and Safety Requirements for Hospitals and Other Medicare-
Participating Providers and Suppliers for Electronic Transfer of Health 
Information

    Currently, Medicare- and Medicaid-participating providers and 
suppliers are at varying stages of adoption of health information 
technology (health IT). Many hospitals have adopted electronic health 
records (EHRs), and the Centers for Medicare & Medicaid Services (CMS) 
has provided incentive payments to eligible hospitals, critical access 
hospitals (CAHs), and eligible professionals who have demonstrated 
meaningful use of certified EHR technology under the Medicare EHR 
Incentive Program. As of 2015, 96 percent of Medicare-participating 
non-federal acute care hospitals had adopted certified EHRs with the 
capability to electronically export a summary of clinical care.\13\ 
While both adoption of EHRs and electronic exchange of information have 
grown substantially among hospitals, significant obstacles to 
exchanging electronic health information across the continuum of care 
persist. Routine electronic transfer of information post-discharge has 
not

[[Page 20964]]

been achieved by providers and suppliers in many localities and regions 
throughout the nation.
---------------------------------------------------------------------------

    \13\ These statistics can be accessed at https://dashboard.healthit.gov/quickstats/pages/FIG-Hospital-EHR-Adoption.php.
---------------------------------------------------------------------------

    We are firmly committed to the use of certified health IT and 
interoperable EHR systems for electronic healthcare information 
exchange to effectively help hospitals and other Medicare-participating 
providers and suppliers improve internal care delivery practices, 
support the exchange of important information across care team members 
during transitions of care, and enable reporting of specified 
electronically clinical quality measures (eCQMs). The Office of the 
National Coordinator for Health Information Technology (ONC) acts as 
the principal federal entity charged with coordination of nationwide 
efforts to implement and use health IT and the electronic exchange of 
health information on behalf of the Department of Health and Human 
Services (HHS).
    In 2015, ONC finalized the 2015 Edition health IT certification 
criteria (2015 Edition), the most recent criteria for health IT to be 
certified under the ONC Health IT Certification Program. The 2015 
Edition facilitates greater interoperability for several clinical 
health information purposes and enables health information exchange 
through new and enhanced certification criteria, standards, and 
implementation specifications. CMS requires eligible hospitals and CAHs 
in the Medicare and Medicaid EHR Incentive Programs and eligible 
clinicians in the Quality Payment Program to use EHR technology 
certified to the 2015 Edition beginning in CY 2019.
    In addition, several important initiatives will be implemented over 
the next several years to provide hospitals and other participating 
providers and suppliers with access to robust infrastructure that will 
enable routine electronic exchange of health information. Section 4003 
of the 21st Century Cures Act (Pub. L. 114-255), enacted in 2016, and 
amended section 3000 of the Public Health Service Act (42 U.S.C. 
300jj), requires HHS to take steps to advance the electronic exchange 
of health information and interoperability for participating providers 
and suppliers in various settings across the care continuum. 
Specifically, the Congress directed that ONC ``. . . for the purpose of 
ensuring full network-to-network exchange of health information, 
convene public-private and public-public partnerships to build 
consensus and develop or support a trusted exchange framework, 
including a common agreement among health information networks 
nationally.'' In January 2018, ONC released a draft version of its 
proposal for the Trusted Exchange Framework and Common Agreement,\14\ 
which outlines principles and minimum terms and conditions for trusted 
exchange to enable interoperability across disparate health information 
networks (HINs). The Trusted Exchange Framework (TEF) is focused on 
achieving the following four important outcomes in the long-term:
---------------------------------------------------------------------------

    \14\ The draft version of the trusted Exchange Framework may be 
accessed at https://beta.healthit.gov/topic/interoperability/trusted-exchange-framework-and-common-agreement).
---------------------------------------------------------------------------

     Professional care providers, who deliver care across the 
continuum, can access health information about their patients, 
regardless of where the patient received care.
     Patients can find all of their health information from 
across the care continuum, even if they don't remember the name of the 
professional care provider they saw.
     Professional care providers and health systems, as well as 
public and private health care organizations and public and private 
payer organizations accountable for managing benefits and the health of 
populations, can receive necessary and appropriate information on 
groups of individuals without having to access one record at a time, 
allowing them to analyze population health trends, outcomes, and costs; 
identify at-risk populations; and track progress on quality improvement 
initiatives.
     The health IT community has open and accessible 
application programming interfaces (APIs) to encourage entrepreneurial, 
user-focused innovation that will make health information more 
accessible and improve EHR usability.
    ONC will revise the draft TEF based on public comment and 
ultimately release a final version of the TEF that will subsequently be 
available for adoption by HINs and their participants seeking to 
participate in nationwide health information exchange. The goal for 
stakeholders that participate in, or serve as, a HIN is to ensure that 
participants will have the ability to seamlessly share and receive a 
core set of data from other network participants in accordance with a 
set of permitted purposes and applicable privacy and security 
requirements. Broad adoption of this framework and its associated 
exchange standards is intended to both achieve the outcomes described 
above while creating an environment more conducive to innovation.
    In light of the widespread adoption of EHRs along with the 
increasing availability of health information exchange infrastructure 
predominantly among hospitals, we are interested in hearing from 
stakeholders on how we could use the CMS health and safety standards 
that are required for providers and suppliers participating in the 
Medicare and Medicaid programs (that is, the Conditions of 
Participation (CoPs) and Conditions for Coverage (CfCs)) to further 
advance electronic exchange of information that supports safe, 
effective transitions of care between hospitals and community 
providers. Specifically, CMS might consider revisions to the current 
CMS CoPs for hospitals such as: Requiring that hospitals transferring 
medically necessary information to another facility upon a patient 
transfer or discharge do so electronically; requiring that hospitals 
electronically send required discharge information to a community 
provider through electronic means if possible and if a community 
provider can be identified; and requiring that hospitals make certain 
information available to patients or a specified third-party 
application (for example, required discharge instructions) through 
electronic means if requested.
    On November 3, 2015, we published a proposed rule (80 FR 68126) to 
implement the provisions of the IMPACT Act and to revise the discharge 
planning CoP requirements that hospitals (including Short-Term Acute-
Care Hospitals, Long-Term Care Hospitals (LTCHs), Inpatient 
Rehabilitation Hospitals (IRFs), Inpatient Psychiatric Hospitals 
(IPFs), Children's Hospitals, and Cancer Hospitals), critical access 
hospitals (CAHs), and home health agencies (HHAs) must meet in order to 
participate in the Medicare and Medicaid programs. This proposed rule 
has not been finalized yet. However, several of the proposed 
requirements directly address the issue of communication between 
providers and between providers and patients, as well as the issue of 
interoperability:
     Hospitals and CAHs would be required to transfer certain 
necessary medical information and a copy of the discharge instructions 
and discharge summary to the patient's practitioner, if the 
practitioner is known and has been clearly identified;
     Hospitals and CAHs would be required to send certain 
necessary medical information to the receiving facility/post-acute care 
providers, at the time of discharge; and
     Hospitals, CAHs and HHAs, would need to comply with the 
IMPACT Act requirements that would require hospitals, CAHs, and certain 
post-acute care providers to use data on quality

[[Page 20965]]

measures and data on resource use measures to assist patients during 
the discharge planning process, while taking into account the patient's 
goals of care and treatment preferences.
    We also published another proposed rule (81 FR 39448), on June 16, 
2016, that updated a number of CoP requirements that hospitals and CAHs 
must meet in order to participate in the Medicare and Medicaid 
programs. This proposed rule has not been finalized yet. One of the 
proposed hospital CoP revisions in this rule directly addresses the 
issues of communication between providers and patients, patient access 
to their medical records, and interoperability. We proposed that 
patients have the right to access their medical records, upon an oral 
or written request, in the form and format requested by such patients, 
if it is readily producible in such form and format (including in an 
electronic form or format when such medical records are maintained 
electronically); or, if not, in a readable hard copy form or such other 
form and format as agreed to by the facility and the individual, 
including current medical records, within a reasonable time frame. The 
hospital must not frustrate the legitimate efforts of individuals to 
gain access to their own medical records and must actively seek to meet 
these requests as quickly as its record keeping system permits.
    Additionally, we specifically invite stakeholder feedback on the 
following questions regarding possible new or revised CoPs/CfCs for 
interoperability and electronic exchange of health information:
     If CMS were to propose a new CoP/CfC standard to require 
electronic exchange of medically necessary information, would this help 
to reduce information blocking as defined in section 4004 of the 21st 
Century Cures Act?
     Should CMS propose new CoPs/CfCs for hospitals and other 
participating providers and suppliers to ensure a patient's (or his or 
her caregiver's or representative's) right and ability to 
electronically access his or her health information without undue 
burden? Would existing portals or other electronic means currently in 
use by many hospitals satisfy such a requirement regarding patient 
access as well as interoperability?
     Are new or revised CMS CoPs/CfCs for interoperability and 
electronic exchange of health information necessary to ensure patients 
and other treating providers routinely receive relevant electronic 
health information from hospitals on a timely basis or will this be 
achieved in the next few years through existing Medicare and Medicaid 
policies, Health Insurance Portability and Accountability Act of 1996 
(HIPAA), and implementation of relevant policies in the 21st Century 
Cures Act?
     What would be a reasonable implementation timeframe for 
compliance with new or revised CMS CoPs/CfCs for interoperability and 
electronic exchange of health information if CMS were to propose and 
finalize such requirements? Should these requirements have delayed 
implementation dates for specific participating providers and 
suppliers, or types of participating providers and suppliers (for 
example, participating providers and suppliers that are not eligible 
for the Medicare and Medicaid EHR Incentive Programs)?
     Do stakeholders believe that new or revised CMS CoPs/CfCs 
for interoperability and electronic exchange of health information 
would help improve routine electronic transfer of health information as 
well as overall patient care and safety?
     Under new or revised CoPs/CfCs, should non-electronic 
forms of sharing medically necessary information (for example, printed 
copies of patient discharge/transfer summaries shared directly with the 
patient or with the receiving provider or supplier, either directly 
transferred with the patient or by mail or fax to the receiving 
provider or supplier) be permitted to continue if the receiving 
provider, supplier, or patient cannot receive the information 
electronically?
     Are there any other operational or legal considerations 
(for example, HIPAA), obstacles, or barriers that hospitals and other 
providers and suppliers would face in implementing changes to meet new 
or revised interoperability and health information exchange 
requirements under new or revised CMS CoPs/CfCs if they are proposed 
and finalized in the future?
     What types of exceptions, if any, to meeting new or 
revised interoperability and health information exchange requirements, 
should be allowed under new or revised CMS CoPs/CfCs if they are 
proposed and finalized in the future? Should exceptions under the 
Quality Payment Program including Certified Electronic Health Record 
Technology hardship or small practices be extended to new requirements? 
Would extending such exceptions impact the effectiveness of these 
requirements?
    We would also like to directly address the issue of communication 
between hospitals (as well as the other providers and suppliers across 
the continuum of patient care) and their patients and caregivers. 
MyHealthEData is a government-wide initiative aimed at breaking down 
barriers that contribute to preventing patients from being able to 
access and control their medical records. Privacy and security of 
patient data will be at the center of all our efforts in this area. CMS 
must protect the confidentiality of patient data, and CMS is completely 
aligned with the Veterans Affairs, the National Institutes of Health, 
ONC, and the rest of the federal government, on this objective. While 
some Medicare beneficiaries have had, for quite some time, the ability 
to download their Medicare claims information, in pdf or Excel formats, 
through the CMS Blue Button platform, the information was provided 
without any context or other information that would help beneficiaries 
understand what the data was really telling them. For beneficiaries, 
their claims information is useless if it is either too hard to obtain 
or, as was the case with the information provided through previous 
versions of Blue Button, hard to understand. In an effort to fully 
contribute to the federal government's MyHealthEData initiative, CMS 
developed and launched the new Blue Button 2.0, which represents a 
major step toward giving patients meaningful control of their health 
information in an easy-to-access and understandable way. Blue Button 
2.0 is a developer-friendly, standards-based API that enables Medicare 
beneficiaries to connect their claims data to secure applications, 
services, and research programs they trust. The possibilities for 
better care through Blue Button 2.0 data are exciting, and might 
include enabling the creation of health dashboards for Medicare 
beneficiaries to view their health information in a single portal, or 
allowing beneficiaries to share complete medication lists with their 
doctors to prevent dangerous drug interactions.
    To fully understand all of these health IT interoperability issues, 
initiatives, and innovations through the lens of its regulatory 
authority, we invite members of the public to submit their ideas on how 
best to accomplish the goal of fully interoperable health IT and EHR 
systems for Medicare- and Medicaid-participating providers and 
suppliers, as well as how best to further contribute to and advance the 
MyHealthEData initiative for patients. We are particularly interested 
in identifying fundamental barriers to interoperability and health 
information exchange, including those specific barriers that prevent 
patients from being able to

[[Page 20966]]

access and control their medical records. We also welcome the public's 
ideas and innovative thoughts on addressing these barriers and 
ultimately removing or reducing them in an effective way, specifically 
through revisions to the current CMS CoPs or CfCs for hospitals and 
other participating providers and suppliers. We have received 
stakeholder input through recent CMS Listening Sessions on the need to 
address health IT adoption and interoperability among providers that 
were not eligible for the Medicare and Medicaid EHR Incentives program, 
including long-term and post-acute care providers, behavioral health 
providers, clinical laboratories and social service providers, and we 
would also welcome specific input on how to encourage adoption of 
certified health IT and interoperability among these types of providers 
and suppliers as well.
    Please note, this is a Request for Information only. Respondents 
are encouraged to provide complete but concise and organized responses, 
including any relevant data and specific examples. However, respondents 
are not required to address every issue or respond to every question 
discussed in this Request for Information to have their responses 
considered. In accordance with the implementing regulations of the 
Paperwork Reduction Act at 5 CFR 1320.3(h)(4), all responses will be 
considered provided they contain information we can use to identify and 
contact the commenter, if needed.
    This Request for Information is issued solely for information and 
planning purposes; it does not constitute a Request for Proposal, 
applications, proposal abstracts, or quotations. This Request for 
Information does not commit the United States (U.S.) Government to 
contract for any supplies or services or make a grant award. Further, 
we are not seeking proposals through this Request for Information and 
will not accept unsolicited proposals. Responders are advised that the 
U.S. Government will not pay for any information or administrative 
costs incurred in response to this Request for Information; all costs 
associated with responding to this Request for Information will be 
solely at the interested party's expense.
    We note that not responding to this Request for Information does 
not preclude participation in any future procurement, if conducted. It 
is the responsibility of the potential responders to monitor this 
Request for Information announcement for additional information 
pertaining to this request. In addition, we note that CMS will not 
respond to questions about the policy issues raised in this Request for 
Information. We will not respond to comment submissions in response to 
this Request for Information in the FY 2019 IPPS/LTCH PPS final rule. 
Rather, we will actively consider all input as we develop future 
regulatory proposals or future subregulatory policy guidance. We may or 
may not choose to contact individual responders. Such communications 
would be for the sole purpose of clarifying statements in the 
responders' written responses. Contractor support personnel may be used 
to review responses to this Request for Information. Responses to this 
notice are not offers and cannot be accepted by the Government to form 
a binding contract or issue a grant. Information obtained as a result 
of this Request for Information may be used by the Government for 
program planning on a non-attribution basis. Respondents should not 
include any information that might be considered proprietary or 
confidential.
    This Request for Information should not be construed as a 
commitment or authorization to incur cost for which reimbursement would 
be required or sought. All submissions become U.S. Government property 
and will not be returned. We may publically post the public comments 
received, or a summary of those public comments.

V. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act 
of 1995 requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    We are soliciting public comment on each of these issues for the 
following sections of this document that contain information collection 
requirements.

A. ICRs Regarding Hospice Item Set

    In the FY 2014 Hospice Wage Index final rule (78 FR 48257), and in 
compliance with section 1814(i)(5)(C) of the Act, we finalized the 
specific collection of data items that support the following 7 NQF 
endorsed measures for hospice:
     NQF #1617 Patients Treated with an Opioid who are Given a 
Bowel Regimen,
     NQF #1634 Pain Screening,
     NQF #1637 Pain Assessment,
     NQF #1638 Dyspnea Treatment,
     NQF #1639 Dyspnea Screening,
     NQF #1641 Treatment Preferences,
     NQF #1647 Beliefs/Values Addressed (if desired by the 
patient).
    We finalized the following two additional measures in the FY 2017 
Hospice Wage Index final rule affecting FY 2019 payment determinations 
(81 FR 52163 through 52173):

 Hospice Visits when Death is Imminent
 Hospice and Palliative Care Composite Process Measure--
Comprehensive Assessment at Admission

    In section III.E of this proposed rule, we propose removal of the 7 
original HIS measures from public reporting display on Hospice Compare. 
This proposal would not change any current HIS data collection 
procedures outlined in the FY 2018 Hospice final rule (82 FR 36663 
through 36664). The HIS V2.00.0 was approved by the OMB on April 17, 
2017 under control number 0938-1153 for 1 year. The information 
collection request (ICR) is currently pending OMB approval for 3 years. 
We are not proposing any new updates or additional collections of 
information in this proposed rule in regards to the HIS.

B. ICRs Regarding CAHPS[reg] Hospice Survey Information Collection 
Requirements

    National Implementation of the Hospice Experience of Care Survey 
(CAHPs Hospice Survey) data measures (82 FR 36672) would not impose any 
new or revised reporting, recordkeeping, or third-party disclosure 
requirements and therefore, does not require additional OMB review 
under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). The information collection requirements and burden have 
been approved by OMB through December 31, 2020 under OMB control number 
0938-1257.

C. Submission of PRA-Related Comments

    We have submitted a copy of this proposed rule to OMB for its 
review of

[[Page 20967]]

the rule's information collection and recordkeeping requirements. The 
requirements are not effective until they have been approved by OMB.
    We invite public comments on these information collection 
requirements. If you wish to comment, please identify the rule (CMS-
1692-P) and, where applicable, the ICR's CFR citation, CMS ID number, 
and OMB control number.
    To obtain copies of a supporting statement and any related forms 
for the proposed collection(s) summarized in this notice, you may make 
your request using one of following:
    1. Access our website address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.
    2. Email your request, including your address, phone number, OMB 
number, and CMS document identifier, to [email protected].
    3. Call the Reports Clearance Office at (410) 786-1326. See this 
rule's DATES and ADDRESSES sections for the comment due date and for 
additional instructions.

VI. 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.

VII. Regulatory Impact Analysis

A. Statement of Need

    This proposed rule meets the requirements of our regulations at 
Sec.  418.306(c), which requires annual issuance, in the Federal 
Register, of the hospice wage index based on the most current available 
CMS hospital wage data, including any changes to the definitions of 
Core-Based Statistical Areas (CBSAs), or previously used Metropolitan 
Statistical Areas (MSAs). This proposed rule would also update payment 
rates for each of the categories of hospice care, described in Sec.  
418.302(b), for FY 2018 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. In addition, the payment rate updates 
may be reduced by an additional 0.3 percentage point (although for FY 
2014 to FY 2019, the potential 0.3 percentage point reduction is 
subject to suspension under conditions specified in section 
1814(i)(1)(C)(v) of the Act). Lastly, section 3004 of the Affordable 
Care Act amended the Act to authorize a quality reporting program for 
hospices and this rule discusses changes in the requirements for the 
hospice quality reporting program in accordance with section 1814(i)(5) 
of the Act.

B. Overall Impacts

    We estimate that the aggregate impact of the payment provisions in 
this proposed rule would result in an increase of $340 million in 
payments to hospices, resulting from the hospice payment update 
percentage of 1.8 percent. The impact analysis of this proposed rule 
represents the projected effects of the changes in hospice payments 
from FY 2018 to FY 2019. Using the most recent data available at the 
time of rulemaking, in this case FY 2017 hospice claims data, we apply 
the current FY 2018 wage index and labor-related share values to the 
level of care per diem payments and SIA payments for each day of 
hospice care to simulate FY 2018 payments. Then, using the same FY 2017 
data, we apply the FY 2019 wage index and labor-related share values to 
simulate FY 2019 payments. Certain events may limit the scope or 
accuracy of our impact analysis, because such an analysis is 
susceptible to forecasting errors due to other changes in the 
forecasted impact time period. The nature of the Medicare program is 
such that the changes may interact, and the complexity of the 
interaction of these changes could make it difficult to predict 
accurately the full scope of the impact upon hospices.
    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, 
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 
1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive 
Order 13771 on Reducing Regulation and Controlling Regulatory Costs 
(January 30, 2017).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Section 
3(f) of Executive Order 12866 defines a ``significant regulatory 
action'' as an action that is likely to result in a rule: (1) (Having 
an annual effect on the economy of $100 million or more in any 1 year, 
or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating a serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    A regulatory impact analysis (RIA) must be prepared for major rules 
with economically significant effects ($100 million or more in any 1 
year). We estimate that this rulemaking is ``economically significant'' 
as measured by the $100 million threshold, and hence also a major rule 
under the Congressional Review Act. Accordingly, we have prepared a RIA 
that, to the best of our ability presents the costs and benefits of the 
rulemaking.

C. Anticipated Effects

    The Regulatory Flexibility Act (RFA) requires agencies to analyze 
options for regulatory relief of small businesses if a rule has a 
significant impact on a substantial number of small entities. The great 
majority of hospitals and most other health care providers and 
suppliers are small entities by meeting the Small Business 
Administration (SBA) definition of a small business (in the service 
sector, having revenues of less than $7.5 million to $38.5 million in 
any 1 year), or being nonprofit organizations. For purposes of the RFA, 
we consider all hospices as small entities as that term is used in the 
RFA. HHS's practice in interpreting the RFA is to consider effects 
economically ``significant'' only if greater than 5 percent of 
providers reach a threshold of 3 to 5 percent or more of total revenue 
or total costs. The effect of the FY 2018 hospice payment update 
percentage results in an overall increase in estimated hospice payments 
of 1.8 percent, or $340 million. Therefore, the Secretary has 
determined that this proposed rule would not create a significant 
economic impact on a substantial number of small entities.

[[Page 20968]]

    In addition, section 1102(b) of the Social Security Act requires us 
to prepare a regulatory impact analysis if a rule may have a 
significant impact on the operations of a substantial number of small 
rural hospitals. This analysis must conform to the provisions of 
section 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 metropolitan statistical area and has fewer than 100 beds. This 
proposed rule would only affect hospices. Therefore, the Secretary has 
determined that this proposed rule would not have a significant impact 
on the operations of a substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. The 2018 UMRA 
threshold is $150 million. This proposed rule is not anticipated to 
have an effect on state, local, or tribal governments, in the 
aggregate, or on the private sector of $150 million or more.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on state 
and local governments, preempts state law, or otherwise has Federalism 
implications. We have reviewed this proposed rule under these criteria 
of Executive Order 13132, and have determined that it would not impose 
substantial direct costs on state or local governments.
    If regulations impose administrative costs on private entities, 
such as the time needed to read and interpret this proposed rule, we 
should estimate the cost associated with regulatory review. Due to the 
uncertainty involved with accurately quantifying the number of entities 
that will review the rule, we assume that the total number of unique 
commenters on last year's proposed rule will be the number of reviewers 
of this proposed rule. We acknowledge that this assumption may 
understate or overstate the costs of reviewing this rule. It is 
possible that not all commenters reviewed last year's rule in detail, 
and it is also possible that some reviewers chose not to comment on the 
proposed rule. For these reasons we thought that the number of past 
commenters would be a fair estimate of the number of reviewers of this 
rule. We welcome any comments on the approach in estimating the number 
of entities which will review this proposed rule.
    Using the wage information from the Bureau of Labor Statistics 
(BLS) for medical and health service managers (Code 11-9111), we 
estimate that the cost of reviewing this rule is $107.38 per hour, 
including overhead and fringe benefits (https://www.bls.gov/oes/current/oes_nat.htm). Assuming an average reading speed of 250 words 
per minute, we estimate that it would take approximately one hour for 
the staff to review half of this proposed rule which consists of 
approximately 30,000 words. For each hospice that reviews the rule, the 
estimated cost is $107.38 (1 hour x $107.38). Therefore, we estimate 
that the total cost of reviewing this regulation is $9,664.20 ($107.38 
x 90 reviewers).
    As we noted in section III.C of this proposed rule, we are making 
optional the requirement to submit specific, detailed data regarding 
drugs on hospice claims, which could result in a significant reduction 
of burden to Medicare hospices. We estimate that the total number of 
lines on hospice claims could be reduced by 21.5 million in the 
aggregate, which corresponds to an average reduction in the total 
number of lines on hospices claims by 5,000 per hospice.

D. Detailed Economic Analysis

    The FY 2019 hospice payment impacts appear in Table 22. We tabulate 
the resulting payments according to the classifications in Table 22 
(for example, facility type, geographic region, facility ownership), 
and compare the difference between current and future payments to 
determine the overall impact.
    The first column shows the breakdown of all hospices by urban or 
rural status, census region, hospital-based or freestanding status, 
size, and type of ownership, and hospice base. The second column shows 
the number of hospices in each of the categories in the first column.
    The third column shows the effect of the annual update to the wage 
index. This represents the effect of using the FY 2019 hospice wage 
index. The aggregate impact of this change is zero percent, due to the 
hospice wage index standardization factor. However, there are 
distributional effects of the FY 2019 hospice wage index.
    The fourth column shows the effect of the hospice payment update 
percentage for FY 2019. The proposed FY 2019 hospice payment update 
percentage of 1.8 percent is mandated by section 1814(i)(1)(C) of the 
Act, and is constant for all providers.
    The fifth column shows the effect of all the proposed changes on FY 
2019 hospice payments. It is projected that aggregate payments would 
increase by 1.8 percent, assuming hospices do not change their service 
and billing practices.
    As illustrated in Table 22, the combined effects of all the 
proposals vary by specific types of providers and by location.

                               Table 22--Projected Impact to Hospices for FY 2019
----------------------------------------------------------------------------------------------------------------
                                                                               FY 2019 hospice
                                              Number of       Updated wage     payment update     FY 2019 total
                                              providers         data (%)             (%)           change (%)
(1)                                                    (2)               (3)               (4)               (5)
----------------------------------------------------------------------------------------------------------------
All Hospices............................             4,408               0.0               1.8               1.8
Urban Hospices..........................             3,523               0.0               1.8               1.8
Rural Hospices..........................               885               0.1               1.8               1.9
Urban Hospices--New England.............               124              -0.1               1.8               1.7
Urban Hospices--Middle Atlantic.........               249               0.1               1.8               1.9
Urban Hospices--South Atlantic..........               443              -0.2               1.8               1.6
Urban Hospices--East North Central......               397              -0.1               1.8               1.7
Urban Hospices--East South Central......               149               0.0               1.8               1.8
Urban Hospices--West North Central......               241               0.2               1.8               2.0
Urban Hospices--West South Central......               691               0.4               1.8               2.2
Urban Hospices--Mountain................               354              -0.3               1.8               1.5
Urban Hospices--Pacific.................               835               0.2               1.8               2.0

[[Page 20969]]

 
Urban Hospices--Outlying................                40               0.4               1.8               2.2
Rural Hospices--New England.............                27               1.5               1.8               3.3
Rural Hospices--Middle Atlantic.........                35               0.0               1.8               1.8
Rural Hospices--South Atlantic..........               108               0.0               1.8               1.8
Rural Hospices--East North Central......               137               0.0               1.8               1.8
Rural Hospices--East South Central......               111               0.0               1.8               1.8
Rural Hospices--West North Central......               167               0.3               1.8               2.1
Rural Hospices--West South Central......               160               0.2               1.8               2.0
Rural Hospices--Mountain................                92              -0.4               1.8               1.4
Rural Hospices--Pacific.................                42               0.1               1.8               1.9
Rural Hospices--Outlying................                 6              -0.3               1.8               1.5
0-3,499 RHC Days (Small)................               975               0.3               1.8               2.1
3,500-19,999 RHC Days (Medium)..........             2,036               0.1               1.8               1.9
20,000+ RHC Days (Large)................             1,397               0.0               1.8               1.8
Non-Profit Ownership....................             1,026               0.0               1.8               1.8
For Profit Ownership....................             2,830               0.0               1.8               1.8
Government Ownership....................               141               0.2               1.8               2.0
Other Ownership.........................               411               0.0               1.8               1.8
Freestanding Facility Type..............             3,608               0.0               1.8               1.8
HHA/Facility-Based Facility Type........               800              -0.1               1.8               1.7
----------------------------------------------------------------------------------------------------------------
Source: FY 2017 hospice claims from the Chronic Conditions Data Warehouse (CCW) Research Identifiable Files
  (RIFs) as of February 2, 2018.
Region Key: New England=Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Middle
  Atlantic=Pennsylvania, New Jersey, New York; South Atlantic=Delaware, District of Columbia, Florida, Georgia,
  Maryland, North Carolina, South Carolina, Virginia, West Virginia; East North Central=Illinois, Indiana,
  Michigan, Ohio, Wisconsin; East South Central=Alabama, Kentucky, Mississippi, Tennessee; West North
  Central=Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota; West South Central=Arkansas,
  Louisiana, Oklahoma, Texas; Mountain=Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Wyoming;
  Pacific=Alaska, California, Hawaii, Oregon, Washington; Outlying=Guam, Puerto Rico, Virgin Islands.

E. Accounting Statement

    As required by OMB Circular A-4 (available at https://www.whitehouse.gov/omb/circulars/a004/a-4.pdf), in Table 23, we have 
prepared an accounting statement showing the classification of the 
expenditures associated with the provisions of this proposed rule. 
Table 23 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 4,408 hospices in 
our impact analysis file, which was constructed using FY 2017 claims 
available in February 2018. All expenditures are classified as 
transfers to hospices.

  Table 23--Accounting Statement: Classification of Estimated Transfers
                   and Costs, From FY 2018 to FY 2019
------------------------------------------------------------------------
                 Category                             Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers............  $ 340 million.*
From Whom to Whom?........................  Federal Government to
                                             Medicare Hospices.
------------------------------------------------------------------------
*The net increase of $340 million in transfer payments is a result of
  the 1.8 percent hospice payment update compared to payments in FY
  2018.

F. Regulatory Reform Analysis Under E.O. 13771

    Executive Order 13771, entitled ``Reducing Regulation and 
Controlling Regulatory Costs,'' was issued on January 30, 2017 (82 FR 
9339, February 3, 2017) and requires that the costs associated with 
significant new regulations ``shall, to the extent permitted by law, be 
offset by the elimination of existing costs associated with at least 
two prior regulations.'' It has been determined that this proposed rule 
is an action that primarily results in transfers and does not impose 
more than de minimis costs as described above and thus is not a 
regulatory or deregulatory action for the purposes of Executive Order 
13771.

G. Conclusion

    We estimate that aggregate payments to hospices in FY 2019 will 
increase by $340 million, or 1.8 percent, compared to payments in FY 
2018. We estimate that in FY 2019, hospices in urban and rural areas 
will experience, on average, 1.8 percent and 1.9 percent increases, 
respectively, in estimated payments compared to FY 2018. Hospices 
providing services in the urban West South Central and Outlying regions 
and the rural New England region would experience the largest estimated 
increases in payments of 2.2 percent and 3.3 percent, respectively. 
Hospices serving patients in rural areas in the Mountain region would 
experience, on average, the lowest estimated increase of 1.4 percent in 
FY 2019 payments.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 418

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


[[Page 20970]]


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

PART 418--HOSPICE CARE

0
1. The authority citation for part 418 continues to read as follows:

    Authority:  Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

0
2. Section 418.3 is amended by revising paragraph (1) of the definition 
of ``Attending physician'' and revising the definition of ``Cap 
period'' to read as follows:


Sec.  418.3  Definitions.

* * * * *
    Attending physician * * *
    (1)(i) Doctor of medicine or osteopathy legally authorized to 
practice medicine and surgery by the State in which he or she performs 
that function or action; or
    (ii) Nurse practitioner who meets the training, education, and 
experience requirements as described in Sec.  410.75 (b) of this 
chapter; or
    (iii) Physician assistant who meets the requirements of Sec.  
410.74 (c) of this chapter.
* * * * *
    Cap period means the twelve-month period ending September 30 used 
in the application of the cap on overall hospice reimbursement 
specified in Sec.  418.309.
* * * * *
0
3. Section 418.304 is amended by revising the section heading and 
adding paragraph (f) to read as follows:


Sec.  418.304  Payment for physician, and nurse practitioner, and 
physician assistant services.

* * * * *
    (f)(1) Effective January 1, 2019, Medicare pays for attending 
physician services provided by physician assistants to Medicare 
beneficiaries who have elected the hospice benefit and who have 
selected a physician assistant as their attending physician. This 
applies to physician assistants without regard to whether they are 
hospice employees.
    (2) The employer or a contractor of a physician assistant must bill 
and receive payment for physician assistant services only if the--
    (i) Physician assistant is the beneficiary's attending physician as 
defined in Sec.  418.3;
    (ii) Services are medically reasonable and necessary;
    (iii) Services are performed by a physician in the absence of the 
physician assistant and, the physician assistant services are furnished 
under the general supervision of a physician; and
    (iv) Services are not related to the certification of terminal 
illness specified in Sec.  418.22.
    (3) The payment amount for physician assistant services when 
serving as the attending physician for hospice patients is 85 percent 
of what a physician is paid under the Medicare physician fee schedule.

    Dated: April 16, 2018.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
    Dated: April 17, 2018.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2018-08773 Filed 4-27-18; 4:15 pm]
 BILLING CODE 4120-01-P