Medicare Program; FY 2024 Hospice Wage Index and Payment Rate Update, Hospice Conditions of Participation Updates, Hospice Quality Reporting Program Requirements, and Hospice Certifying Physician Provider Enrollment Requirements, 51164-51199 [2023-16116]

Agencies

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

[Federal Register Volume 88, Number 147 (Wednesday, August 2, 2023)]
[Rules and Regulations]
[Pages 51164-51199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16116]



[[Page 51163]]

Vol. 88

Wednesday,

No. 147

August 2, 2023

Part IV





Department of Health and Human Services





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Centers for Medicare & Medicaid Services





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42 CFR Parts 418 and 424





Medicare Program; FY 2024 Hospice Wage Index and Payment Rate Update, 
Hospice Conditions of Participation Updates, Hospice Quality Reporting 
Program Requirements, and Hospice Certifying Physician Provider 
Enrollment Requirements; Final Rule

Federal Register / Vol. 88 , No. 147 / Wednesday, August 2, 2023 / 
Rules and Regulations

[[Page 51164]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 418 and 424

[CMS-1787-F]
RIN 0938-AV10


Medicare Program; FY 2024 Hospice Wage Index and Payment Rate 
Update, Hospice Conditions of Participation Updates, Hospice Quality 
Reporting Program Requirements, and Hospice Certifying Physician 
Provider Enrollment Requirements

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of 
Health and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: This final rule updates the hospice wage index, payment rates, 
and aggregate cap amount for Fiscal Year (FY) 2024. This rule discusses 
the comments received regarding information related to the provision of 
higher levels of hospice care; spending patterns for non-hospice 
services provided during the election of the hospice benefit; ownership 
transparency; equipping patients and caregivers with information to 
inform hospice selection; and ways to examine health equity under the 
hospice benefit. This rule also finalizes conforming regulations text 
changes related to the expiration of the COVID-19 public health 
emergency. In addition, this rule updates the Hospice Quality Reporting 
Program; discusses the Hospice Outcomes and Patient Evaluation tool; 
provides an update on Health Equity and future quality measures; and 
provides updates on the Consumer Assessment of Healthcare Providers and 
Systems, Hospice Survey Mode Experiment. This rule also codifies 
hospice data submission thresholds and discusses updates to hospice 
survey and enforcement procedures. Additionally, the rule requires 
hospice certifying physicians to be Medicare-enrolled or to have 
validly opted-out.

DATES: These regulations are effective on October 1, 2023. The 
implementation date for the provider enrollment provisions in this 
final rule is May 1, 2024.

FOR FURTHER INFORMATION CONTACT: For general questions about hospice 
payment policy, send your inquiry via email to: 
[email protected].
    For questions regarding the CAHPS[supreg] Hospice Survey, contact 
Lauren Fuentes at (410) 786-2290.
    For questions regarding the hospice conditions of participation 
(CoPs), contact Mary Rossi-Coajou at (410) 786-6051.
    For questions regarding the hospice public reporting, contact 
Charles Padgett at (410) 786-2811.
    For questions regarding the hospice quality reporting program, 
contact Jermama Keys at (410) 786-7778.
    For questions regarding hospice certifying physician provider 
enrollment, contact Frank Whelan at (410) 786-1302.
    For information regarding the hospice special focus program, send 
your inquiry via email to [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose

    This final rule updates the hospice wage index, payment rates, and 
cap amount for Fiscal Year (FY) 2024 as required under section 1814(i) 
of the Social Security Act (the Act). This rule discusses the comments 
received regarding information related to the provision of higher 
levels of hospice care; spending patterns for non-hospice services 
provided during the election of the hospice benefit; ownership 
transparency; equipping patients and caregivers with information to 
inform hospice selection; and ways to examine health equity under the 
hospice benefit and finalizes regulations text changes to align with 
the expiration of the COVID-19 public health emergency (PHE). This 
final rule also discusses updates to the Hospice Quality Reporting 
Program (HQRP) and the further development of the Hospice Outcomes and 
Patient Evaluation (HOPE) tool with national beta test analyses; and 
discusses updates on Health Equity and future quality measures (QMs). 
It also provides updates on the Consumer Assessment of Healthcare 
Providers and Systems (CAHPS), Hospice Survey Mode Experiment. This 
rule codifies hospice data submission thresholds and discusses updates 
to hospice survey and enforcement procedures.
    In addition, this final rule finalizes provider enrollment 
requirements for certifying physicians for hospice services. This rule 
also finalizes text changes to regulations that align with the 
expiration of the COVID-19 PHE.

B. Summary of the Major Provisions

    In section III.A of this final rule, we discuss the comments 
received related to the following: increasing access to higher levels 
of hospice care; our analysis of non-hospice spending during a hospice 
election; ownership transparency; hospice election decision-making; and 
ways to examine health equity under the hospice benefit.
    In section III.B of this rule, we finalize the FY 2024 hospice 
payment update percentage of 3.1 percent, update the hospice payment 
rates and the hospice cap amount for FY 2024 by the hospice payment 
update percentage of 3.1 percent. We also discuss the finalized text 
changes to the regulations related to the expiration of the COVID-19 
PHE.
    In section III.C of this final rule, we update the HQRP including 
the HOPE tool and update the Health Equity and future quality measures; 
update the CAHPS[supreg] Hospice Survey Mode Experiment; and finalize 
our proposal to codify the hospice data submission threshold.
    In section III.D of this final rule, we update the hospice survey 
and enforcement procedures.
    Finally, in section III.E of this final rule, we discuss our 
requirement that physicians who certify hospice services for Medicare 
beneficiaries be enrolled in or validly opted-out of Medicare as a 
prerequisite for the payment of the hospice service in question.

C. Summary of Impacts

    The overall economic impact of this final rule is estimated to be 
$780 million in increased payments to hospices in FY 2024.

II. Background

A. Hospice Care

    Hospice care is a comprehensive, holistic approach to treatment 
that recognizes the impending death of a terminally ill individual and 
warrants a change in the focus from curative care to palliative care 
for relief of pain and for symptom management. Medicare regulations 
define ``palliative care'' as patient and family centered care that 
optimizes quality of life by anticipating, preventing, and treating 
suffering. Palliative care throughout the continuum of illness involves 
addressing physical, intellectual, emotional, social, and spiritual 
needs and to facilitate patient autonomy, access to information, and 
choice (Sec.  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,

[[Page 51165]]

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 has a medical prognosis that his or her life expectancy 
is 6 months or less if the illness runs its normal course. The 
regulations at Sec.  418.22(b)(2) require that clinical information and 
other documentation that support the medical prognosis accompany the 
certification and be filed in the medical record with it and 
regulations at Sec.  418.22(b)(3) require that the certification and 
recertification forms include a brief narrative explanation of the 
clinical findings that support a life expectancy of 6 months or less.
    Under the Medicare hospice benefit, the election of hospice care is 
a patient choice and once a terminally ill patient elects to receive 
hospice care, a hospice interdisciplinary group is essential in the 
seamless provision of primarily home-based services. The hospice 
interdisciplinary group works with the beneficiary, family, and 
caregivers to develop a coordinated, comprehensive care plan; reduce 
unnecessary diagnostics or ineffective therapies; and maintain ongoing 
communication with individuals and their families about changes in 
their condition. The beneficiary's care plan will shift over time to 
meet the changing needs of the individual, family, and caregiver(s) as 
the individual approaches the end of life.
    If, in the judgment of the hospice interdisciplinary group, which 
includes the hospice physician, the patient's symptoms cannot be 
effectively managed at home, then the patient is eligible for general 
inpatient care (GIP), a more medically intense level of care. GIP must 
be provided in a Medicare-certified hospice freestanding facility, 
skilled nursing facility, or hospital. GIP is provided to ensure that 
any new or worsening symptoms are intensively addressed so that the 
beneficiary can return to their home and continue to receive routine 
home care. Limited, short-term, intermittent, inpatient respite care 
(IRC) is also available because of the absence or need for relief of 
the family or other caregivers. Additionally, an individual can receive 
continuous home care (CHC) during a period of crisis in which an 
individual requires continuous care to achieve palliation or management 
of acute medical symptoms so that the individual can remain at home. 
CHC may be covered for as much as 24 hours a day, and these periods 
must be predominantly nursing care, in accordance with the regulations 
at Sec.  418.204. A minimum of 8 hours of nursing care or nursing and 
aide care must be furnished on a particular day to qualify for the CHC 
rate (Sec.  418.302(e)(4)).
    Hospices covered by this rule must comply with applicable civil 
rights laws, including section 1557 of the Affordable Care Act, section 
504 of the Rehabilitation Act of 1973 and the Americans with 
Disabilities Act, which require covered programs to take appropriate 
steps to ensure effective communication with patients with disabilities 
and patient companions with disabilities, including the provisions of 
auxiliary aids and services when necessary for effective 
communication.\1\ Further information may be found at: https://www.hhs.gov/ocr/civilrights.
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    \1\ Hospices receiving Medicare Part A funds or other federal 
financial assistance from the Department are also subject to 
additional federal civil rights laws, including the Age 
Discrimination Act, and are subject to conscience and religious 
freedom laws where applicable.
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    Title VI of the Civil Rights Act of 1964 prohibits discrimination 
on the basis of race, color or national origin in federally assisted 
programs or activities. This includes a requirement that recipients of 
Federal financial assistance take reasonable steps to provide 
meaningful access to their programs or activities to individuals with 
limited English proficiency (LEP) (Lau v. Nichols, 414 U.S. 563 
(1974)). Similarly, Section 1557's implementing regulation requires 
covered entities to take reasonable steps to provide meaningful access 
to LEP individuals in federally funded health programs and activities 
(45 CFR 92.101(a)). Meaningful access may require the provision of 
services and translated materials (45 CFR 92.101(a)(2)).

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 (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, 
the hospice program; and that the written plan be periodically reviewed 
by the beneficiary's attending physician (if any), the hospice medical 
director, and an interdisciplinary group (section 1861(dd)(2)(B) of the 
Act). The services offered under the Medicare hospice benefit must be 
available to beneficiaries as needed, 24 hours a day, 7 days a week 
(section 1861(dd)(2)(A)(i) of the Act).
    Upon the implementation of the hospice benefit, the Congress also 
expected hospices to continue to use volunteer services, although 
Medicare does not pay for these volunteer services (section 
1861(dd)(2)(E) of the Act). As stated in the Health Care Financing 
Administration's (now Centers for Medicare & Medicaid Services (CMS)) 
proposed rule ``Medicare Program; Hospice Care (48 FR 38149), the 
hospice must have an interdisciplinary group composed of paid hospice 
employees as well as hospice volunteers, and that ``the hospice benefit 
and the resulting Medicare reimbursement is not intended to diminish 
the voluntary spirit of hospices.'' This expectation supports the 
hospice philosophy of community based, holistic, comprehensive, and 
compassionate end of life care.

C. Medicare Payment for Hospice Care

    Sections 1812(d), 1813(a)(4), 1814(a)(7), 1814(i), and 1861(dd) of 
the Act, and the regulations in 42 CFR part

[[Page 51166]]

418, establish eligibility requirements, payment standards and 
procedures; define covered services; and delineate the conditions a 
hospice must meet to be approved for participation in the Medicare 
program. Part 418, subpart G, provides for a per diem payment based on 
one of four prospectively determined rate categories of hospice care 
(RHC, CHC, IRC, and GIP), based on each day a qualified Medicare 
beneficiary is under hospice care (once the individual has elected the 
benefit). This per diem payment is meant to cover all hospice services 
and items needed to manage the beneficiary's care, as required by 
section 1861(dd) (1) of the Act.
    While payment made to hospices is to cover all items, services, and 
drugs for the palliation and management of the terminal illness and 
related conditions, federal funds cannot be used for prohibited 
activities, even in the context of a per diem payment. While a recent 
article in a policy journal \2\ discussed the potential role hospices 
could play in medical aid in dying (MAID) where such practices have 
been legalized in certain states, the Assisted Suicide Funding 
Restriction Act of 1997 (Pub. L. 105-12, April 30, 1997) prohibits the 
use of federal funds to provide or pay for any health care item or 
service or health benefit coverage for the purpose of causing, or 
assisting to cause, the death of any individual including ``mercy 
killing, euthanasia, or assisted suicide''. However, the prohibition 
does not pertain to the provision of an item or service for the purpose 
of alleviating pain or discomfort, even if such use may increase the 
risk of death, so long as the item or service is not furnished for the 
specific purpose of causing or accelerating death.
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    \2\ Nelson, R., Should Medical Aid in Dying Be Part of Hospice 
Care? Medscape Nurses. February 26, 2020. https://www.medscape.com/viewarticle/925769#vp_1.
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    The Medicare hospice benefit had been revised and refined since its 
implementation after various Acts of Congress and Medicare rules. For a 
historical list of changes and regulatory actions, we refer readers to 
the background section of previous Hospice Wage Index and Payment Rate 
Update rules.\3\
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    \3\ Hospice Regulations and Notices. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Regulations-and-Notices.
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III. Provisions of the Final Rule

A. Hospice Utilization and Spending Patterns

    In the FY 2024 Hospice Wage Index and Rate Update proposed rule (88 
FR 20022), CMS provided data analysis on hospice utilization trends 
from FY 2013 through FY 2022. The analysis included data on the number 
of beneficiaries using the hospice benefit, live discharges, reported 
diagnoses on hospice claims, Medicare hospice spending, Parts A, B and 
D non-hospice spending during a hospice election, as well as services 
used outside of the hospice benefit while a patient is under a hospice 
election. The proposed rule solicited comments from the public, hospice 
providers, patients, and advocates regarding utilization of, and 
barriers to higher levels of hospice care and complex palliative 
treatments; our analysis of non-hospice spending during a hospice 
election; ownership transparency; and hospice election decision making. 
Additionally, we solicited comments on ways to examine health equity 
under the hospice benefit. Several commenters thanked CMS for 
continuing to incorporate monitoring and data analysis into its 
proposed hospice payment rule.
1. Correction to Figure 3 in the FY 2024 Hospice Proposed Rule
    In the FY 2024 Hospice Wage Index and Rate Update proposed rule (88 
FR 20032), we inadvertently provided incorrect data for Figure 3. 
Figure 3--Length of Stay Intervals Distribution for Live Discharges, 
FYs 2019 to 2022 is corrected to read as follows:

[[Page 51167]]

[GRAPHIC] [TIFF OMITTED] TR02AU23.077

2. Request for Information (RFI) on Hospice Utilization; Non-Hospice 
Spending; Ownership Transparency; and Hospice Election Decision-Making
    As we continue to focus on improved access and value within the 
hospice benefit, in the FY 2024 Hospice Wage Index and Rate Update 
proposed rule (88 FR 20022), we solicited comments from the public, 
including hospice providers as well as patients and advocates, 
regarding certain notable trends in the analysis that coincide with 
hospice misinformation obtained anecdotally from beneficiaries; that 
is, information related to the provision of higher levels of hospice 
care (specifically, CHC, IRC, and GIP) and procedures (specifically, 
chemotherapy/radiation, blood transfusions, or dialysis) administered 
for palliation when a patient is under a hospice election. We queried 
interested parties on potentially restrictive admission policies for 
beneficiaries requiring higher-intensity end-of-life and/or palliative 
care, the frequency and modality in which hospices educate themselves 
on the distinction between curative and complex palliative treatments, 
and the way they communicate this information to patients throughout 
the hospice election. We solicited comments specifically on how 
hospices address financial risks associated with providing such 
services, overcome barriers to providing higher intensity levels of 
hospice care and complex palliative treatments, and provide necessary 
information to patients and families about coverage, staffing levels, 
staff encounters, and utilization of higher levels of care. We asked 
for feedback on how CMS can work with hospice providers to ensure 
Medicare beneficiaries and their families are aware of the coverage 
under the hospice benefit and how we can enhance transparency in 
ownership trends for beneficiaries selecting hospice care. More 
generally, we solicited comments on how CMS can assist hospices in 
better serving vulnerable and underserved populations and address 
barriers to access.
    In total, we received 39 comments in response to our request for 
information on hospice utilization, non-hospice spending, ownership 
transparency, and hospice election decision-making. These comments and 
our responses are summarized in this section of the rule.
    Comment: Commenters expressed general concerns about potential 
admission policies that could restrict access to higher cost end-of-
life palliative care and discussed inconsistencies in beneficiary 
access to treatments that may be based on specific hospice policy or 
disease states. They emphasized the need for definitive instruction and 
clear expectations from CMS regarding expectations of hospice providers 
in determining curative versus palliative treatment coverage under the 
hospice benefit. Respondents stated that in providing this additional 
guidance CMS should be mindful of the importance of individual hospice 
policies; however, education and clear guidance from CMS is crucial in 
avoiding confusion as to what treatments can be provided under the 
hospice benefit.
    Commenters also identified general challenges that could lead to 
barriers to providing higher levels of hospice care, such as limited 
bed capacity in skilled nursing facilities, difficulties in obtaining 
and maintaining contracts with inpatient facilities, staffing 
challenges/volunteer shortages, and restrictive rules on the provision 
of GIP and CHC. Recommendations included exploring options for in-home 
respite care, extending the duration of inpatient respite care, and 
providing CHC during

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the actively dying phase to improve patient care and reduce unnecessary 
hospitalizations, as it was noted that current policy guidance is not 
clear as to whether it is permissible to provide GIP and/or CHC only 
during periods of active crisis or if it could be provided during the 
entirety of the ``active dying'' phase.
    Commenters also highlighted increased costs associated with 
providing complex palliative treatments and higher intensity levels of 
hospice care and they stated that these costs may pose financial risks 
to hospices when enrolling such patients. Respondents strongly 
suggested exploring flexibilities or additional payments 
(recommendations included the implementation of a risk adjusted, add-on 
and/or outlier payment models) to ensure appropriate payment and timely 
hospice admission. Several commenters requested that CMS address the 
potential correlation between costs and financial risks associated with 
providing complex palliative treatments (that is, chemotherapy/
radiation, blood transfusions or dialysis), stating that the current 
bundled per diem payment is not reflective of the increased expenses 
associated with higher-cost and outlier patient subgroups.
    Commenters emphasized the need for CMS education directed towards 
patients and families about transitioning from curative interventions 
to palliative interventions at the time of hospice admission. 
Specifically, a few commenters suggested that the Patient Notification 
of Hospice Non-Covered Items, Services, and Drugs should be provided to 
all prospective patients at the time of hospice election or as part of 
the care plan. Commenters suggestions also included clarifying coverage 
for procedures related to the primary diagnosis and exploring the use 
of Advanced Beneficiary Notices (ABNs). Commenters noted that hospice 
providers, non-hospice providers, Medicare beneficiaries, and their 
families need more information to understand these distinctions and 
that hospice providers must share the information with patients at the 
time of election and throughout the hospice election. However, to the 
contrary, several other interested parties raised concerns about 
administrative burden regarding the provision of more information 
during a period in which beneficiaries and their families are 
overwhelmed and that such education may not serve its intended purpose.
    Commenters raised concerns about the growth of non-hospice spending 
for beneficiaries who elect hospice, particularly with those hospice 
agencies who intentionally focus on long-term, low-cost patients, as 
the analysis included in the proposed rule highlighted these spending 
patterns. Respondents discussed potential policies beyond prior 
authorization and the hospice election statement addendum, to ensure 
appropriate coverage of prescription drugs and services related to 
terminal illnesses and related conditions for hospice patients. They 
suggested the need for additional coordination and communication 
between hospices, providers, and Part D plans to streamline the 
coverage process and ensure timely access to necessary medications and 
services.
    Regarding CMS' inquiry on how to increase transparency to promote 
informed decision-making when choosing a hospice, respondents 
recommended providing public information about hospice staffing levels, 
frequency of hospice staff encounters, and utilization of higher levels 
of care. They suggested including this information on Medicare's Care 
Compare website or other accessible platforms to ensure transparency 
and facilitate informed decision-making. They also suggested CMS 
improve transparency around ownership trends and provide information 
about hospice ownership publicly, as ultimately, this information would 
be helpful for beneficiaries seeking to select a hospice for end-of-
life care. Respondents recommended differentiating between nonprofit 
and for-profit hospices and examining ownership trends.
    Response: We appreciate the comments and suggestions received 
regarding hospice utilization, non-hospice spending, ownership 
transparency, and hospice election decision-making. We acknowledge 
commenters' statements and concerns related to the increase in non-
hospice spending, barriers associated with the provision of GIP, IRC, 
CHC and complex palliative procedures (such as chemotherapy/radiation, 
blood transfusions, or dialysis) under the hospice election, as well as 
the financial risks associated with providing these services.
    Regarding the use of CHC during the active dying phase, as 
established in 1983 Hospice Care final rule (48 FR 56008) and amended 
in the FY 2010 Hospice Wage Index final rule (74 FR 39384), we would 
like to remind commenters that a period of crisis is a period in which 
a patient requires continuous care, which is predominantly nursing 
care, to achieve palliation or management of acute medical symptoms and 
thus CHC may be provided only during a period of crisis as necessary to 
maintain an individual at home. A patient who is actively dying may or 
may not require continuous home care and each patient must be evaluated 
to determine the intensity of care needs. If a patient is having a 
period of crisis, requires a minimum of 8 hours of nursing, hospice 
aide, and/or homemaker care during a 24-hour day, which begins and ends 
at midnight, and is actively dying, then continuous home care can be 
provided. We continue to encourage hospice visits when the patient is 
actively dying, and where the need for greater family and caregivers 
support is evident, by reminding readers of the service intensity add-
on (SIA) payment in the last 7 days of life, as finalized in the FY 
2016 Hospice Wage Index and Payment Rate Update and Hospice Quality 
Reporting Requirements (80 FR 47142).
    Overall, the insights and suggestions provided by all respondents 
will help inform our policy-making measures and will aid our efforts of 
continuous improvements to hospice policies to ensure better access and 
quality of care for Medicare beneficiaries. We intend to consider all 
comments and suggestions to potentially enhance policy development, 
address barriers, and promote transparency under the hospice benefit 
for potential future rulemaking.
3. RFI on Health Equity Under the Hospice Benefit
    In the FY 2024 Hospice Wage Index and Rate Update proposed rule (88 
FR 20022), CMS solicited comments from interested parties on health 
equity under the hospice benefit. The proposed rule also solicited 
comments from the public, hospice providers, patients, and advocates 
regarding how hospices are measuring impact on health equity, barriers 
in electing and accessing hospice care, and challenges faced by 
hospices in collecting and analyzing information related to social 
determinants of health (SDOH). We also solicited comments on what data 
should be collected to evaluate health equity, geographical area 
indices that can be used to assess disparities in hospice, and how CMS 
can collect and share information to help hospices serve vulnerable and 
underserved populations and address barriers to access.
    We received 20 comments in response to our request for information 
on health equity under the hospice benefit. The following is a summary 
of these comments:
    Comment: Commenters described the various barriers and challenges 
in collecting information on SDOH and health equity data, such as 
patient resistance, difficulty in appropriately

[[Page 51169]]

recording SDOH using electronic medical records (EMR), lack of 
specificity in the Consumer Assessment of Healthcare Providers and 
Systems (CAHPS) questionnaires provided to patients' families, and 
limited resources for data collection. One commenter suggested that CMS 
should change the terminology used from ``health equity'' to 
``healthcare equity'' to capture what can be measured in terms of 
processes of care or outcomes of care. Commenters also noted their 
efforts to employ and recruit diverse staff to better represent and 
serve underserved populations, in addition to holding trainings to 
address any barriers patients may experience related to SDOH. 
Commenters provided recommendations for CMS to consider, such as 
developing educational tools about cultural norms to facilitate 
discussions about hospice care, and implementing a nationally 
recognized, standardized, and required assessment tool with data 
elements collecting SDOH data. They suggested examples of SDOH data 
that should be collected that included health literacy, race, ethnicity 
and language data, sexual orientation and gender identity data, housing 
security, air and water pollution, food security, living in heat 
islands, and access to health care. One commenter also suggested that 
any health equity data elements should be exempt from the Hospice 
Quality Reporting Program (HQRP) data completion threshold due to the 
sensitivity and potential communication issues present at end of life. 
Several commenters also recommended the development of a universal 
database accessible across the government to enable programs to 
accurately assess the extent of the disparities and barriers existing 
today and to measure progress made by hospice in promoting health 
equity over time.
    Response: We appreciate the comments provided in response to our 
request for information regarding health equity under the hospice 
benefit. We plan to consider these comments and suggestions for 
potential future rulemaking as we explore all opportunities to collect 
and measure data impacting health equity, examine barriers in electing 
and accessing hospice care, assess disparities in the provision of 
care, and improve how CMS can help hospices serve vulnerable and 
underserved populations. Public input is very valuable for the 
continuing development of CMS' health equity efforts and broader 
commitment to health equity; a key pillar of our strategic vision as 
further described here, https://www.cms.gov/files/document/health-equity-fact-sheet.pdf.

B. FY 2024 Hospice Wage Index and Rate Update

1. FY 2024 Hospice Wage Index
    The hospice wage index is used to adjust payment rates for hospices 
under the Medicare program to reflect local differences in area wage 
levels, based on the location where services are furnished. The hospice 
wage index utilizes the wage adjustment factors used by the Secretary 
for purposes of section 1886(d)(3)(E) of the Act for hospital wage 
adjustments. Our regulations at Sec.  418.306(c) require each labor 
market to be established using the most current hospital wage data 
available, including any changes made by the Office of Management and 
Budget (OMB) to the Metropolitan Statistical Areas (MSAs) definitions.
    In general, OMB issues major revisions to statistical areas every 
10 years, based on the results of the decennial census. However, OMB 
occasionally issues minor updates and revisions to statistical areas in 
the years between the decennial censuses. On March 6, 2020, OMB issued 
Bulletin No. 20-01, which provided updates to and superseded OMB 
Bulletin No. 18-04 that was issued on September 14, 2018. The 
attachments to OMB Bulletin No. 20-01 provided detailed information on 
the update to statistical areas since September 14, 2018, and were 
based on the application of the 2010 Standards for Delineating 
Metropolitan and Micropolitan Statistical Areas to Census Bureau 
population estimates for July 1, 2017, and July 1, 2018. For a copy of 
this bulletin, we refer readers to the following website: https://www.whitehouse.gov/wp-content/uploads/2020/03/Bulletin-20-01.pdf. In 
OMB Bulletin No. 20-01, OMB announced one new Micropolitan Statistical 
Area, one new component of an existing Combined Statistical Area (CSA), 
and changes to New England City and Town Area (NECTA) delineations. In 
the FY 2021 Hospice Wage Index final rule (85 FR 47070), we stated that 
if appropriate, we would propose any updates from OMB Bulletin No. 20-
01 in future rulemaking. After reviewing OMB Bulletin No. 20-01, we 
determined that the changes in Bulletin 20-01 encompassed delineation 
changes that would not affect the Medicare wage index for FY 2022. 
Specifically, the updates consisted of changes to NECTA delineations 
and the redesignation of a single rural county into a newly created 
Micropolitan Statistical Area. The Medicare wage index does not utilize 
NECTA definitions, and, as most recently discussed in the FY 2021 
Hospice Wage Index final rule (85 FR 47070), we include hospitals 
located in Micropolitan Statistical areas in each state's rural wage 
index.
    In the FY 2020 Hospice Wage Index final rule (84 FR 38484), we 
finalized the proposal to use the current FY's hospital wage index data 
to calculate the hospice wage index values. In the FY 2021 Hospice Wage 
Index final rule (85 FR 47070), we adopted the revised OMB delineations 
with a 5-percent cap on wage index decreases, where the estimated 
reduction in a geographic area's wage index would be capped at 5 
percent in FY 2021 and no cap would be applied to wage index decreases 
for the second year (FY 2022). In the FY 2023 Hospice Wage Index final 
rule (87 FR 45673), we finalized for FY 2023 and subsequent years, the 
application of a permanent 5-percent cap on any decrease to a 
geographic area's wage index from its wage index in the prior year, 
regardless of the circumstances causing the decline, so that a 
geographic area's wage index would not be less than 95 percent of its 
wage index calculated in the prior FY.
    For FY 2024, the final hospice wage index is based on the FY 2024 
hospital pre-floor, pre-reclassified wage index for hospital cost 
reporting periods beginning on or after October 1, 2019 and before 
October 1, 2020 (FY 2020 cost report data). The final FY 2024 hospice 
wage index does not 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 final FY 2024 hospice wage index 
includes a 5-percent cap on wage index decreases. The appropriate wage 
index value would be applied to the labor portion of the hospice 
payment rate based on the geographic area in which the beneficiary 
resides when receiving RHC or CHC. The appropriate 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 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 2024, the only CBSA without a hospital from which hospital wage 
data can be derived is 25980, Hinesville-Fort Stewart, Georgia

[[Page 51170]]

and the wage index value for Hinesville-Fort Stewart, Georgia is 
0.8732.
    To address rural 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 would 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 
of almost all of Puerto Rico's various urban areas to non-urban areas, 
this methodology would produce a wage index for rural Puerto Rico that 
is higher than that in half of its urban areas); instead, we would 
continue to use the most recent wage index previously available for 
that area. For FY 2024, we proposed to continue using 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. As 
previously discussed, the pre-floor, pre-reclassified hospital wage 
index values below 0.8 would be further adjusted by a 15 percent 
increase subject to a maximum wage index value of 0.8. For example, if 
County A has a pre-floor, pre-reclassified hospital wage index value of 
0.3994, we would multiply 0.3994 by 1.15, which equals 0.4593. Since 
0.4593 is not greater than 0.8, then County A's hospice wage index 
would be 0.4593. In another example, if County B has a pre-floor, pre-
reclassified hospital wage index value of 0.7440, we would multiply 
0.7440 by 1.15, which equals 0.8556. Because 0.8556 is greater than 
0.8, County B's hospice wage index would be 0.8.
    The final hospice wage index applicable for FY 2024 (October 1, 
2023 through September 30, 2024) is available on the CMS website at: 
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Wage-Index.html.
    We received 15 comments on the proposed FY 2024 hospice wage index 
from various stakeholders, including hospices and national industry 
associations. A summary of these comments and our responses to those 
comments are as follows:
    Comment: A few commenters expressed concern with the CBSA 
designations and wage index values assigned to their geographic areas. 
Several commenters representing hospices in Coeur d'Alene, ID stated 
that the economy and cost-of-living of Coeur d'Alene, ID is not 
reflective of the rest of the Idaho region, but rather is reflective of 
the ``Pacific'' region that includes the Spokane, WA CBSA. These 
commenters recommended that Coeur d'Alene, ID be reassigned to the 
Spokane, WA CBSA and assigned the wage index value of that CBSA. 
Another commenter stated that hospices in Montgomery County, MD should 
be paid the same as hospices in the Washington, DC area because 
Montgomery County, MD has a similar cost of living as Washington, DC 
and shares the same labor market when competing for labor. This 
commenter recommended that the wage index for the Montgomery County/
Fredrick, MD CBSA be reassigned to the Washington, DC CBSA or be 
assigned the highest wage index valuation from among the MSAs 
metropolitan divisions for the purpose of hospice Medicare payment for 
a time limited period, such as five years, in order to evaluate the 
impact on Montgomery County hospices.
    Response: We thank the commenters for these recommendations. 
However, we have used CBSAs for determining hospice payments since FY 
2006 and continue to believe that the OMB's geographic area 
delineations represent a useful proxy for differentiating between labor 
markets and that the geographic area delineations are appropriate for 
use in determining Medicare hospice payments. CBSAs provide a uniform 
and consistent basis for determining statistical area delineations, 
based on long-standing statistical standards maintained by OMB. 
Further, OMB conducts periodic review of the standards to ensure their 
continued usefulness and relevance. Additionally, other provider types, 
such as Inpatient Prospective Payment System (IPPS) hospitals, home 
health agencies (HHAs), skilled nursing facilities (SNFs), inpatient 
rehabilitation facilities (IRFs), and dialysis facilities, all use 
CBSAs to define their labor market areas. Therefore, we believe it is 
important to apply this method consistently among providers. Using the 
most current OMB delineations provides an accurate representation of 
geographic variation in wage levels; therefore, we do not believe it 
would be appropriate to allow hospices in Coeur d'Alene, ID or 
Montgomery County, MD to be reassigned into a higher CBSA designation. 
However, if OMB redesignates Coeur d'Alene, ID or Montgomery County, MD 
into the Spokane, WA or the Washington, DC CBSAs (respectively), we 
would propose this change in future rulemaking consistent with our 
longstanding approach of adopting OMB statistical area delineations 
outlined in the most recent OMB bulletins.
    Comment: A few commenters expressed concern that the wage index 
values assigned to rural areas negatively impacts rural hospice care. 
One commenter stated that hospices that serve rural patients receiving 
services in their homes are subject to a trend of reduced wage index 
values, creating a continued reduction in their Medicare rates as 
compared to the national average. Another commenter recommended that 
CMS assign the wage index value based on a hospice's office location 
rather than the beneficiary's location. This commenter suggested that 
it costs more for their hospice to serve rural areas due to the great 
distance they are required to travel despite being paid at only 80 
percent of the wage index.
    Response: We thank the commenters for their recommendations. We 
understand there are variables in providing care that are unique to 
both urban and rural areas. For instance, rural hospices note higher 
mileage costs between patients, while urban hospices note additional 
costs associated with necessary security measures and traffic 
congestion. However, these factors do not result in lower hospice wage 
index values in rural areas versus urban areas. The hospice wage index 
reflects the wages that inpatient hospitals pay in their local 
geographic areas. Regarding the recommendation to assign the wage index 
value based on the location of the hospice's office, we continue to 
believe that is more appropriate to assign the wage index value based 
on the site of service (the location of the beneficiary) rather than 
the hospice's office location. Therefore, we apply the wage index value 
to the labor portion of the hospice payment rate based on the 
geographic area in which the beneficiary resides when receiving RHC or 
CHC and the

[[Page 51171]]

geographic location of the facility for beneficiaries receiving GIP or 
IRC.
    Comment: Several commenters recommended more far-reaching revisions 
and reforms to the wage index methodology used under Medicare fee-for-
service. These recommendations included: geographic reclassification, 
implementing an out-migration adjustment for non-hospital providers 
using the post floor- post reclassified IPPS wage index as the basis 
for the hospice wage index, and reinstituting the rural floor policy so 
that no hospice is paid below the rural floor for their state. Another 
commenter recommended CMS explore policies that seek to reduce the 
continual wage index disparities between high wage index hospices and 
low wage index hospices such as has been done in the hospital space. 
Finally, MedPAC recommended that Congress repeal the existing Medicare 
wage index statutes, including current exceptions, and require the 
Secretary to phase in new Medicare wage index systems for hospitals and 
other types of providers that: use all-employer, occupation-level wage 
data with different occupation weights for the wage index of each 
provider type; reflect local area level differences in wages between 
and within metropolitan statistical areas and statewide rural areas; 
and smooth wage index differences across adjacent local areas.
    Response: We appreciate the commenters' recommendations; however, 
these comments are outside the scope of the proposed rule. Any changes 
regarding the adjustment of the hospice payments to account for 
geographic wage differences, beyond the wage index proposals discussed 
in the FY 2024 Hospice Wage Index and Rate Update proposed rule, would 
have to go through notice and comment rulemaking. While CMS and other 
interested parties, such as MedPAC, have explored potential 
alternatives to the current CBSA-based labor market system, no 
consensus has been achieved regarding how best to implement a 
replacement system. we believe that in the absence of hospice specific 
wage data, using the pre-floor, pre-reclassified hospital wage data is 
appropriate and reasonable for hospice payments. Additionally, the 
regulations that govern hospice payment do not provide a mechanism for 
allowing hospices to seek geographic reclassification or to utilize the 
rural floor provisions that exist for IPPS hospitals. The 
reclassification provision found in section 1886(d)(10) of the Act is 
specific to hospitals. Section 4410(a) of the Balanced Budget Act of 
1997 (Pub. L. 105-33) provides that the area wage index applicable to 
any hospital that is located in an urban area of a state may not be 
less than the area wage index applicable to hospitals located in rural 
areas in that state. This rural floor provision is also specific to 
hospitals. Because the reclassification provision and the hospital 
rural floor applies only to hospitals, and not to hospices, we continue 
to believe the use of the pre-floor and pre-reclassified hospital wage 
index results is the most appropriate adjustment to the labor portion 
of the hospice payment rates. This position is longstanding and 
consistent with other Medicare payment systems (for example, SNF PPS, 
IRF PPS, and HH PPS). However, the hospice wage index does include the 
hospice floor, which is applicable to all CBSAs, both rural and urban. 
The hospice floor adjusts pre-floor, pre-reclassified hospital wage 
index values below 0.8 by a 15 percent increase subject to a maximum 
wage index value of 0.8.
    Comment: One commenter recommended lowering the permanent 5-percent 
cap on wage index decreases to a 3-percent cap to protect hospice 
providers who are already operating with negative or razor-thin 
operating margins.
    Response: We thank the commenter for their recommendation. However, 
this is outside the scope of the proposed rule. The policy to apply a 
permanent 5-percent cap on wage index decreases was finalized in the FY 
2023 hospice final rule (87 FR 45677). Any changes to the permanent cap 
policy would have to be proposed and finalized through the rulemaking 
process and we have not proposed to make any changes to the cap policy 
for the upcoming fiscal year.
    Final Decision: We are finalizing our proposal to use the FY 2024 
pre-floor, pre-reclassified hospital wage index data as the basis for 
the FY 2024 hospice wage index. The wage index applicable for FY 2024 
is available on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/Hospice-Wage-Index. The hospice wage 
index for FY 2024 is effective October 1, 2023 through September 30, 
2024.
2. FY 2024 Hospice Payment Update Percentage
    Section 4441(a) of the 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 hospital 
market basket percentage increase for that FY. In the FY 2022 IPPS 
final rule we finalized the rebased and revised IPPS market basket to 
reflect a 2018 base year. We refer readers to the FY 2022 IPPS final 
rule (86 FR 45194 through 45208) for further information.
    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) as projected by the Secretary 
for the 10-year period ending with the applicable FY, year, cost 
reporting period, or other annual period) (the ``productivity 
adjustment''). The United States Department of Labor's Bureau of Labor 
Statistics (BLS) publishes the official measures of productivity for 
the United States economy. We note that previously the productivity 
measure referenced in section 1886(b)(3)(B)(xi)(II) was published by 
BLS as private nonfarm business multifactor productivity. Beginning 
with the November 18, 2021 release of productivity data, BLS replaced 
the term ``multifactor productivity'' with ``total factor 
productivity'' (TFP). BLS noted that this is a change in terminology 
only and would not affect the data or methodology. As a result of the 
BLS name change, the productivity measure referenced in section 
1886(b)(3)(B)(xi)(II) of the Act is now published by BLS as ``private 
nonfarm business total factor productivity.'' However, as mentioned, 
the data and methods are unchanged. We refer readers to https://www.bls.gov for the BLS historical published TFP data. A complete 
description of IGI's TFP projection methodology is available on the CMS 
website at https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/MedicareProgramRatesStats/MarketBasketResearch. In addition, in the FY 2022 IPPS final rule (86 
FR 45214), we noted that beginning with FY 2022, CMS changed the name 
of this adjustment to refer to it as the

[[Page 51172]]

``productivity adjustment'' rather than the ``MFP adjustment''.
    In the FY 2024 Hospice Wage Index and Payment Rate Update proposed 
rule (88 FR 20039), we proposed to apply a market basket percentage 
increase of 3.0 percent for FY 2024 using the most current estimate of 
the inpatient hospital market basket (based on IHS Global Inc.'s fourth 
quarter 2022 forecast with historical data through the third quarter of 
2022). Due to the requirements at sections 1886(b)(3)(B)(xi)(II) and 
1814(i)(1)(C)(v) of the Act, the proposed inpatient hospital market 
basket percentage increase for FY 2024 of 3.0 percent is required to be 
reduced by a productivity adjustment as mandated by the Affordable Care 
Act (estimated in the proposed rule to be 0.2 percentage point for FY 
2024). Therefore, the proposed hospice payment update percentage for FY 
2024 was 2.8 percent. We stated that if more recent data became 
available after the publication of the proposed rule and before the 
publication of the final rule (for example, a more recent estimate of 
the inpatient hospital market basket update or productivity 
adjustment), we would use such data, if appropriate, to determine the 
hospice payment update percentage for FY 2024 in the final rule. For 
this final rule, based on IHS Global Inc.'s (IGI) second quarter 2023 
forecast with historical data through the first quarter of 2023, the 
inpatient hospital market basket percentage increase for FY 2024 is 3.3 
percent. The forecast of the productivity adjustment for FY 2024 for 
this final rule, based on IGI's second quarter 2023 forecast, is 0.2 
percent. Therefore, the hospice payment update percentage for FY 2024, 
based on more recent data, is 3.1 percent.
    We continue to believe it is appropriate to routinely update the 
hospice payment system so that it reflects the best available data 
about differences in patient resource use and costs among hospices as 
required by the statute. Therefore, we are updating hospice payments 
using the methodology outlined and apply the 2018-based IPPS market 
basket percentage increase for FY 2024 of 3.3 percent, reduced by the 
statutorily required productivity adjustment of 0.2 percentage point 
along with the wage index budget neutrality adjustment to update the 
payment rates. We are using the FY 2024 hospice wage index, which uses 
the FY 2024 pre-floor, pre-reclassified IPPS hospital wage index as its 
basis.
    In the FY 2022 Hospice Wage Index final rule (86 FR 42532 through 
42539), we rebased and revised the labor shares for RHC, CHC, GIP, and 
IRC using MCR data for freestanding hospices (CMS Form 1984-14, OMB 
Control Number 0938-0758) from 2018. The current labor portion of the 
payment rates are: RHC, 66.0 percent; CHC, 75.2 percent; GIP, 63.5 
percent; and IRC, 61.0 percent. The non-labor portion is equal to 100 
percent minus the labor portion for each level of care. The non-labor 
portion of the payment rates are as follows: RHC, 34.0 percent; CHC, 
24.8 percent; GIP, 36.5 percent; and IRC, 39.0 percent.
    We received 40 comments on the proposed hospice update percentage 
of 2.8 percent. A summary of the comments and our responses to those 
comments are as follows:
    Comment: Two commenters, including MedPAC, expressed support for 
the proposed payment update percentage. MedPAC, stated that they 
believe the statutorily required market basket payment update for FY 
2024 is adequate for hospice payments. The Commission stated that the 
March 2023 MedPAC report found that indicators of payment adequacy for 
hospices--including beneficiary access to care, quality of care, 
provider access to capital, and Medicare payments relative to 
providers' costs--are generally positive. In particular, the report 
found that 2020 Medicare margins were 14.2 percent and projected 2023 
Medicare margins to be around 8 percent.
    Response: We thank commenters for their support.
    Comment: Many commenters expressed appreciation for the proposed 
2.8 percent increase to hospice payment rates, yet also expressed 
concern that the proposed update is inadequate. These commenters 
highlighted that they have experienced unprecedented wage and 
inflationary pressures over the last several years. They stated that 
wage costs reflect the majority of expenses and in order to recruit and 
retain staff they have had to dramatically increase salary and benefit 
costs as well as rely on more contract labor. They also state that 
inflation for other goods and services, such as drugs and medical 
supplies, have contributed to a significant increase in operating 
costs. Some commenters stated that increased transportation costs, like 
gasoline prices, have a disproportionate impact on hospice providers, 
particularly those serving rural patients.
    Response: We appreciate the support for the statutorily required 
hospice payment update, and understand commenter concerns; however, as 
directed by section 1814(i)(1)(C)(ii)(VII) of the Act, we are required 
to update hospice payments by the Inpatient Hospital PPS (IPPS) market 
basket percentage increase (as defined in section 1886(b)(3)(B)(iii)) 
for the fiscal year, adjusted for productivity (as required by section 
1814(i)(1)(C)(iv)(I) of the Act). Section 1886(b)(3)(B)(iii) of the Act 
defines the market basket percentage increase to be based on an index 
of appropriately weighted indicators of changes in wages and prices 
which are representative of the mix of goods and services included in 
such inpatient hospital services. The 2018-based IPPS market basket is 
a fixed-weight, Laspeyres-type index that measures price changes over 
time and would not reflect increases in costs associated with changes 
in the volume or intensity of input goods and services. As such, the 
inpatient hospital market basket percentage increase would reflect the 
prospective price pressures described by the commenters during a high 
inflation period (such as faster wage growth or higher energy prices) 
but might not reflect other factors that could increase costs such as 
the quantity of labor used or any shifts between contract and staff 
nurses. We note that cost changes (that is, the product of price and 
quantities) would only be reflected when a market basket is rebased, 
and the base year weights are updated to a more recent time period.
    We agree with the commenters that recent higher inflationary trends 
have impacted the outlook for price growth over the next several 
quarters. At the time of the FY 2024 Hospice proposed rule, based on 
IGI's fourth quarter 2022 forecast with historical data through the 
third quarter of 2022, the 2018-based inpatient hospital market basket 
percentage increase was forecasted to be 3.0 percent for FY 2024 
reflecting a 3.9-percent forecasted compensation price increase. As 
stated, in the FY 2024 Hospice proposed rule, we proposed that if more 
recent data became available, we would use such data, if appropriate, 
to derive the final FY 2024 inpatient hospital market basket update for 
the final rule. For this final rule, we are using an updated forecast 
of the price proxies underlying the market basket that incorporates 
more recent historical data and reflects a revised outlook regarding 
the U.S. economy, including compensation and inflationary pressures. As 
stated previously, based on IGI's second quarter 2023 forecast with 
historical data through first quarter 2023, the FY 2024 inpatient 
hospital market basket percentage increase is 3.3 percent (reflecting 
forecasted compensation price growth of 4.3 percent) and the FY 2024 
productivity adjustment is 0.2 percentage point. After consideration of

[[Page 51173]]

the comments received, for FY 2024, the final hospice payment update is 
3.1 percent (3.3 percent inpatient hospital market basket percentage 
increase less a 0.2 percentage point productivity adjustment), compared 
to the proposed hospice payment update for FY 2024 of 2.8 percent.
    Comment: Several commenters stated that the IPPS market basket 
reflects a 2018 base year and while more recent final data may not yet 
be available, it should be clear that providers' cost structures have 
changed since 2018. Commenters were also concerned that the lag in the 
cost reporting and other structures and/or indexes that are used as 
inputs in determining hospice payment in this proposed rule fail to 
capture the inflationary pressures that providers must bear to provide 
care in real time and request that CMS consider this fact for the final 
rule.
    Response: The IPPS market basket measures price changes (including 
changes in the prices for wages and salaries) over time and would not 
reflect increases in costs associated with changes in the volume or 
intensity of input goods and services until the market basket is 
rebased. We appreciate the commenter's request to rebase the IPPS 
market basket more frequently. Section 404 of the Medicare Prescription 
Drug, Improvement, and Modernization Act of 2003 (Pub. L. 108-173) 
states the Secretary shall establish a frequency for revising the cost 
weights of the IPPS market basket more frequently than once every 5 
years. We established a rebasing frequency of every four years, in part 
because the cost weights obtained from the Medicare cost reports do not 
indicate much of a change in the weights from year to year. The most 
recent rebasing of the IPPS market basket was for the FY 2022 payment 
update (86 FR 45194 through 45207) and reflected a base year of 2018 
costs. Despite this established frequency, we regularly monitor the 
Medicare cost report data to assess whether a rebasing is technically 
appropriate, and we will continue to do so in the future. In this 
Medicare report we share some preliminary analysis of the Medicare cost 
report data for IPPS hospitals for 2021 that became available for this 
final rule. For 2021, the IPPS compensation cost weight is estimated to 
be about 1 percentage point lower than the 2018-based IPPS market 
basket compensation cost weight of 53.0 percent and reflects a combined 
decrease in the salary and benefit cost weights that is larger than the 
increase in the contract labor cost weight. The major cost categories 
that preliminarily show an increase in the cost weight over this period 
are pharmaceuticals (proxied by the PPI--Commodity--Special Index--
Pharmaceuticals for human use, prescription) and home office contract 
labor compensation costs (which, would be proxied by the ECI for 
Professional and Related workers). We plan to review the 2021 Medicare 
cost report data in more detail as well as 2022 Medicare cost report 
data as soon as complete information is available and evaluate these 
data for future rebasing of the IPPS market basket.
    Comment: Many commenters stated that the unprecedented magnitude of 
the market basket forecast error over 2021 and 2022 warrants special 
consideration to avoid significant long-term underfunding of the 
hospice benefit and to help address current workforce challenges. 
Several commenters noted that in FY 2021 and FY 2022, CMS forecasted 
2.4 percent and 2.7 percent cost inflation while the commenters stated 
that the actual cost inflation borne by hospice providers was 3.1 
percent and 5.7 percent respectively, which the commenters calculated 
to be a 3.7 percent payment update error. Commenters requested that CMS 
use the special exceptions and adjustments authority to apply a one-
time cumulative retrospective adjustment of 3.7 percent for FYs 2021 
and 2022 to ensure that Medicare payments more accurately reflect the 
cost of providing hospice care. The commenters highlighted that the law 
does not prohibit CMS from adjusting the annual IPPS operating market 
basket increase (and by extension, the annual hospice rate increases) 
based on later known errors in historical forecasting. Several of the 
commenters stated that unlike other healthcare providers, such as 
hospitals, hospices have a large percentage (nearly 90 percent) of 
their revenues that originate from the Medicare program. They state 
that any insufficient payments from Medicare will have a more 
significant impact on hospice providers revenue since they do not have 
the ability to negotiate higher rates with private insurers.
    Response: We thank the commenters for their recommendation. 
However, the inpatient hospital market basket percentage increases are 
required by law to be set prospectively, which means that the update 
relies on a mix of both historical data for part of the period for 
which the update is calculated and forecasted data for the remainder. 
There is currently no mechanism to adjust for market basket forecast 
error in the hospice payment update. Furthermore, beginning in 1989, 
the Congress gave hospices their first increase (20 percent) in payment 
since 1986 and tied future increases to the annual increase in the 
hospital market basket through a provision contained in the Omnibus 
Budget Reconciliation Act of 1989. While the projected inpatient 
hospital market basket percentage increases for FY 2021 and FY 2022 
were underforecast (actual increases less forecasted increases were 
positive), this was largely due to unanticipated inflationary and labor 
market pressures as the economy emerged from the COVID-19 PHE. 
Importantly, the hospital market basket has been used for many years to 
update hospice payment rates and an analysis of the forecast error over 
a longer period of time shows that the forecast error has been both 
positive and negative. For example, the 10-year cumulative forecast 
error (excluding FY 2018 when the hospice payment update was 
statutorily required to be 1.0 percent) showed a negative forecast 
error (that is, forecasted increases were greater than actual 
increases), of 0.9 percentage point (2013-2022). In addition, for each 
year from 2012 through 2020 (again excluding 2018), the final FY 
inpatient hospital market basket percentage increase (implemented in 
the final rule) was higher than the actual inpatient hospital market 
basket percentage increase once historical data were available; with 7 
out of the 8 years having a forecast error greater than 0.5 percentage 
point (in absolute terms). Only considering the forecast error for 
years when the final inpatient hospital market basket percentage 
increase was lower than the actual inpatient hospital market basket 
percentage increase does not consider the numerous years that providers 
benefited from the forecast error.
    Comment: One commenter stated concern about the quality of cost 
report data, especially with regard to capturing labor costs. They 
specifically recommend that the cost reports be amended to allow for a 
greater breakdown of costs for contracted versus hospice-administered 
inpatient services to apportion the labor share appropriately. 
Additionally, the commenter requested that CMS clarify how frequently 
they intend to update the labor shares component moving forward and 
clarify the development and methodology around the ``standardization 
factor''.
    Response: While we did not solicit comments on the quality of cost 
report data, we appreciate the commenter's request for future changes 
to the hospice cost report and we will consider this comment when 
working on any future modifications to the hospice cost report.

[[Page 51174]]

    Comment: A few commenters cited the resumption of the sequestration 
policy in 2022 as a concern regarding the adequacy of the proposed 
payment update percentage.
    Response: We note that Medicare sequestration affects all payment 
systems and is not unique to the Medicare hospice benefit or the 
statutory authority governing the payment rate update. As such, 
comments regarding sequestration are outside the scope of this final 
rule.
    Final Decision: We are finalizing the hospice payment update 
percentage of 3.1 percent for FY 2024. Based on IHS Global, Inc.'s more 
recent forecast of the inpatient hospital market basket percentage 
increase and the productivity adjustment, the hospice payment update 
percentage for FY 2024 will be 3.1 percent for hospices that submit the 
required quality data and -0.9 percent (FY 2024 hospice payment update 
of 3.1 percent minus 4 percentage points) for hospices that do not 
submit the required quality data.
3. FY 2024 Hospice Payment Rates
    There are four payment categories that are distinguished by the 
location and intensity of the hospice services provided. The base 
payments are adjusted for geographic differences in wages by 
multiplying the labor share, which varies by category, of each base 
rate by the applicable hospice wage index. A hospice is paid the RHC 
rate for each day the beneficiary is enrolled in hospice, unless the 
hospice provides CHC, IRC, or GIP. CHC is provided during a period of 
patient crisis to maintain the patient at home; IRC is short-term care 
to allow the usual caregiver to rest and be relieved from caregiving; 
and GIP care is intended to treat symptoms that cannot be managed in 
another setting.
    As discussed in the FY 2016 Hospice Wage Index and Rate Update 
final rule (80 FR 47172), we implemented two different RHC payment 
rates, one RHC rate for the first 60 days and a second RHC rate for 
days 61 and beyond. In addition, in that final rule, we implemented an 
SIA payment for RHC when direct patient care is provided by an 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. To maintain budget 
neutrality, as required under section 1814(i)(6)(D)(ii) of the Act, the 
new RHC rates were adjusted by a service intensity add-on budget 
neutrality factor (SBNF). The SBNF is used to reduce the overall RHC 
rate in order to ensure that SIA payments are budget neutral. At the 
beginning of every FY, SIA utilization is compared to the prior year in 
order calculate a budget neutrality adjustment.
    In the FY 2017 Hospice Wage Index and Rate Update final rule (81 FR 
52156), we initiated a policy of applying a wage index standardization 
factor to hospice payments in order to eliminate the aggregate effect 
of annual variations in hospital wage data. For FY 2024 hospice rate 
setting, we are continuing our longstanding policy of using the most 
recent data available. Specifically, we are using FY 2022 claims data 
for the FY 2024 payment rate updates. In order to calculate the wage 
index standardization factor, we simulate total payments using FY 2022 
hospice utilization claims data with the FY 2023 wage index (pre-floor, 
pre-reclassified hospital wage index with the hospice floor, and the 5-
percent cap on wage index decreases) and FY 2023 payment rates and 
compare it to our simulation of total payments using FY 2022 
utilization claims data, the FY 2024 hospice wage index (pre-floor, 
pre-reclassified hospital wage index with hospice floor, and the 5-
percent cap on wage index decreases) and FY 2023 payment rates. By 
dividing payments for each level of care (RHC days 1 through 60, RHC 
days 61+, CHC, IRC, and GIP) using the FY 2023 wage index and payment 
rates for each level of care by the FY 2024 wage index and FY 2023 
payment rates, we obtain a wage index standardization factor for each 
level of care. The wage index standardization factors for each level of 
care are shown in the Tables 1 and 2.
    The FY 2024 RHC rates are shown in Table 1. The FY 2024 payment 
rates for CHC, IRC, and GIP are shown in Table 2.
[GRAPHIC] [TIFF OMITTED] TR02AU23.078


[[Page 51175]]


[GRAPHIC] [TIFF OMITTED] TR02AU23.079

    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 and Rate Update final rule 
(76 FR 47320 through 47324), we implemented a HQRP as required by those 
sections. Hospices were required to begin collecting quality data in 
October 2012 and submit those quality data in 2013. Section 
1814(i)(5)(A)(i) of the Act requires that beginning with FY 2014 
through FY 2023, the Secretary shall reduce the market basket 
percentage increase by 2 percentage points for any hospice that does 
not comply with the quality data submission requirements with respect 
to that FY. Section 1814(i)(5)(A)(i) of the Act was amended by section 
407(b) of Division CC, Title IV of the CAA, 2021 to change the payment 
reduction for failing to meet hospice quality reporting requirements 
from 2 to 4 percentage points. This policy would apply beginning with 
the FY 2024 Annual Payment Update (APU) that is based on CY 2022 
quality data. Specifically, the Act requires that, for FY 2014 through 
FY 2023, the Secretary shall reduce the market basket percentage 
increase by 2 percentage points and beginning with the FY 2024 APU and 
for each subsequent year, the Secretary shall reduce the market basket 
percentage increase by 4 percentage points for any hospice that does 
not comply with the quality data submission requirements for that FY. 
The FY 2024 rates for hospices that do not submit the required quality 
data would be updated by -0.9 percent, which is the FY 2024 hospice 
payment update percentage of 3.1 percent minus 4 percentage points. 
These rates are shown in Tables 3 and 4.
[GRAPHIC] [TIFF OMITTED] TR02AU23.080


[[Page 51176]]


[GRAPHIC] [TIFF OMITTED] TR02AU23.081

    We did not receive any comments on the proposed FY 2024 hospice 
payment rates.
    Final Decision: We are finalizing the FY 2024 payment rates in 
accordance with statutorily mandated requirements.
4. Hospice Cap Amount for FY 2024
    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. Specifically, we stated that for accounting years that end 
after September 30, 2016 and before October 1, 2025, the hospice cap is 
updated by the hospice payment update percentage rather than using the 
CPI-U. Division CC, section 404 of the CAA, 2021 extended the 
accounting years impacted by the adjustment made to the hospice cap 
calculation until 2030. In the FY 2022 Hospice Wage Index final rule 
(86 FR 42539), we finalized conforming regulations text changes at 
Sec.  418.309 to reflect the provisions of the CAA, 2021. Division P, 
section 312 of the CAA, 2022 amended section 1814(i)(2)(B) of the Act 
and extended the provision that mandates the hospice cap be updated by 
the hospice payment update percentage (hospital market basket 
percentage increase reduced by the productivity adjustment) rather than 
the CPI-U for accounting years that end after September 30, 2016 and 
before October 1, 2031. Division FF, section 4162 of the CAA, 2023 
amended section 1814(i)(2)(B) of the Act and extended the provision 
that currently mandates the hospice cap be updated by the hospice 
payment update percentage (hospital market basket percentage increase 
reduced by the productivity adjustment) rather than the CPI-U for 
accounting years that end after September 30, 2016 and before October 
1, 2032. Before the enactment of this provision, the hospice cap update 
was set to revert to the original methodology of updating the annual 
cap amount by the CPI-U beginning on October 1, 2031. Therefore, for 
accounting years that end after September 30, 2016 and before October 
1, 2032, the hospice cap amount is updated by the hospice payment 
update percentage rather than the CPI-U. As a result of the changes 
mandated by the CAA, 2023, we are proposing conforming regulation text 
changes at Sec.  418.309 to reflect the new language added to section 
1814(i)(2)(B) of the Act.
    The hospice cap amount for the FY 2024 cap year is $33,494.01, 
which is equal to the FY 2023 cap amount ($32,486.92) updated by the FY 
2024 hospice payment update percentage of 3.1 percent.
    We received a few comments regarding the hospice cap amount. A 
summary of these comments and our responses to those comments are as 
follows:
    Comment: One commenter expressed support for the FY 2024 hospice 
cap.
    Response: We thank the commenter for their support.
    Comment: A few commenters, including MedPAC, opposed an increase to 
the hospice cap. One commenter suggested that reducing the hospice cap 
level would generate savings to the hospice program and encourage all 
providers to focus on enhancing efforts to meet hospice eligibility and 
provide care for all beneficiaries. Another commenter stated that there 
are data that support that a lower cap results in fewer agencies 
exceeding it. This commenter believes that reducing the cap could 
decrease hospice spending by a significant amount and recommended that 
the cap remain at its current amount $32,486.92 with reconsideration of 
the cap being wage-adjusted. MedPAC recommended that the hospice 
aggregate cap be wage adjusted and reduced by 20 percent.
    Response: We thank the commenters for their recommendations to 
improve the hospice cap; however, we are required by law to update the 
hospice cap amount from the preceding year by the hospice payment 
update percentage, in accordance with section 1814(i)(2)(B)(ii) of the 
Act. Therefore, we do not have the statutory authority to reduce the 
aggregate cap amount.
    Final Decision: We are finalizing the update to the hospice cap 
amount for FY 2024 in accordance with statutorily mandated 
requirements.
5. Conforming Text Revisions for Telehealth Services
    In the FY 2024 Hospice Wage Index and Rate Update proposed rule (88 
FR 20041), we proposed to revise the regulations text at Sec.  
418.22(a)(4)(ii) in accordance with Division FF, section 4113(f) of the 
CAA, 2023, effective January 1, 2024. Additionally, we proposed to 
remove Sec.  418.204(d), effective retroactively to May 12, 2023 to 
align with the end of the COVID-19 PHE. In the first COVID-19 interim 
final rule ``Medicare and Medicaid Programs; Policy and Regulatory 
Revisions in Response to the COVID-19 Public Health Emergency'' (85 FR 
19230, 19289) (April 6, 2020), we amended the hospice regulations at 
Sec.  418.204 on an interim basis to specify that when a patient is 
receiving routine home care,

[[Page 51177]]

hospices could provide services via a telecommunications system, if it 
is feasible and appropriate to ensure that Medicare patients can 
continue receiving services that are reasonable and necessary for the 
palliation and management of a patients' terminal illness and related 
conditions without jeopardizing the patients' health or the health of 
those who are providing such services during the COVID-19 PHE. We 
stated that this change was effective for the duration of the COVID-19 
PHE. Specifically, we proposed to:
     Revise Sec.  418.22(a)(4)(ii), which outlines the 
certification of terminal illness requirements to add ``or through 
December 31, 2024, whichever is later'' after ``During a Public Health 
Emergency, as defined in Sec.  400.200 of this chapter.''
     Revise Sec.  418.204, to remove subsection (d) to 
eliminate the use of technology in furnishing services during a PHE.
    We received several comments regarding the regulations text 
revisions for telehealth services. A summary of these comments and our 
responses to those comments are as follows:
    Comment: In general commenters appreciated the extension of the 
telehealth face-to-face coverage through the end of calendar year 2024. 
Commenters highlighted the benefits to patients and families, 
particularly in rural areas. Many commenters encouraged CMS to consider 
making this a permanent provision. Commenters cited benefits of 
continuing telehealth under hospice, such as helping to alleviate 
staffing concerns and enhanced streamlining of hospice admission.
    Response: We thank commenters for their consideration of the 
regulation changes regarding the use of telehealth under the Medicare 
hospice benefit and we agree that the use of telehealth benefits 
patients and their families, particularly in rural areas. We note that, 
at this time, the statute only authorized the Secretary extend this 
flexibility through December 31, 2024. Additionally, while we 
acknowledge the usefulness of telehealth, we continue to believe that 
hospice at its core is a benefit best provided in-person and stress the 
importance of in-person services. Currently, we do not have plans to 
make this provision permanent, nor do we believe that we have the 
statutory authority to do so.
    Comment: Some commenters encouraged CMS to develop modifiers or 
codes for telehealth services and require reporting on the hospice 
claim, similar to what was finalized in the CY 2023 HH PPS final rule, 
and to allow that these costs be considered allowable administrative 
costs on the hospice agency cost report.
    Response: We will take into consideration comments requesting that 
supplemental telehealth contact be reported on hospice claims and as 
allowable administrative costs; however, upon expiration of the face-
to-face flexibility on December 31, 2024, we would expect telehealth 
services be summarily limited to follow-up contact with patients and 
would not expect to see the provision of hospice services furnished via 
telecommunications systems. As such, the value of claims reporting for 
this type of contact is not apparent at this time.
    Final Decision: We are finalizing the conforming regulations text 
revisions for telehealth as proposed.

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

1. Background and Statutory Authority
    The Hospice Quality Reporting Program (HQRP) specifies reporting 
requirements for the Hospice Item Set (HIS), administrative data, and 
Consumer Assessment of Healthcare Providers and Systems (CAHPS[supreg]) 
Hospice Survey. Section 1814(i)(5) of the Act requires the Secretary to 
establish and maintain a quality reporting program for hospices. 
Section 1814(i)(5)(A)(i) of the Act was amended by section 407(b) of 
Division CC, Title IV of the CAA, 2021 to change the payment reduction 
for failing to meet hospice quality reporting requirements from 2 to 4 
percentage points. Specifically, the Act requires that, beginning with 
FY 2014 through FY 2023, the Secretary shall reduce the market basket 
percentage increase by 2 percentage points and beginning with the FY 
2024 APU and for each subsequent year, the Secretary shall reduce the 
market basket percentage increase by 4 percentage points for any 
hospice that does not comply with the quality data submission 
requirements for that FY. This payment penalty increase to 4 percent is 
statutorily required; as discussed in the following paragraphs, we 
proposed to codify its application and set completeness thresholds at 
Sec.  418.312(j).
    Depending on the amount of the annual update for a particular year, 
a reduction of 4 percentage points beginning in FY 2024 could result in 
the annual inpatient hospital market basket percentage increase being 
less than zero percent for a FY and may result in payment rates that 
are less than payment rates for the preceding FY. Any reduction based 
on failure to comply with the reporting requirements, as required by 
section 1814(i)(5)(B) of the Act, would apply only for the specified 
year. Typically, about 18 percent of Medicare-certified hospices are 
found non-compliant with the HQRP reporting requirements and subject to 
the APU payment reduction for a given FY.
    In the FY 2022 Hospice Wage Index and Payment Rate Update final 
rule (86 FR 42552), we finalized two new measures using claims data: 
(1) Hospice Visits in the Last Days of Life (HVLDL); and (2) Hospice 
Care Index (HCI). We also finalized a policy that claims-based measures 
would use 8 quarters of data in order to publicly report on more 
hospices.
    In addition, we removed the seven Hospice Item Set (HIS) Process 
Measures from the program as individual measures and public reporting 
because the HIS Comprehensive Assessment Measure is sufficient for 
measuring care at admission without the seven individual process 
measures. For a detailed discussion of the historical use for measure 
selection and removal for the HQRP quality measures, we refer readers 
to the FY 2016 Hospice Wage Index and Rate Update final rule (80 FR 
47142) and the FY 2019 Hospice Wage Index and Rate Update final rule 
(83 FR 38622). In the FY 2022 Hospice Wage Index and Rate Update final 
rule (86 FR 42553), we finalized Sec.  418.312(b)(2), which requires 
hospices to provide administrative data, including claims-based 
measures, as part of the HQRP requirements for Sec.  418.306(b). In 
that same final rule, we provided CAHPS Hospice Survey updates. We 
finalized temporary changes to our public reporting policies based on 
the March 27, 2020 memorandum \4\ and provided another tip sheet, 
referred to as the ``Third Edition HQRP Public Reporting Tip Sheet'' on 
the HQRP Requirements and Best Practices web page.
---------------------------------------------------------------------------

    \4\ Exceptions and Extensions for Quality Reporting Requirements 
for Acute Care Hospitals, PPS-Exempt Cancer Hospitals, Inpatient 
Psychiatric Facilities, Skilled Nursing Facilities, Home Health 
Agencies, Hospices, Inpatient Rehabilitation Facilities, Long-Term 
Care Hospitals, Ambulatory Surgical Centers, Renal Dialysis 
Facilities, and MIPS Eligible Clinicians Affected by COVID-19 are 
available at: https://www.cms.gov/files/document/guidance-memo-exceptions-and-extensions-quality-reporting-and-value-based-purchasing-programs.pdf.
---------------------------------------------------------------------------

    As finalized in the FY 2022 Hospice Wage Index and Payment Rate 
Update final rule (86 FR 42552), public reporting of the two new 
claims-based quality measures (QMs), the Hospice Visits in Last Days of 
Life (HVLDL) and the Hospice Care Index (HCI) is available on the Care 
Compare/Provider

[[Page 51178]]

Data Catalogue (PDC) web pages as of the August 2022 refresh. In the FY 
2023 Hospice proposed rule, we did not propose any new quality 
measures. However, we provided updates on already-adopted measures. 
Table 5 shows current quality measures finalized since the FY 2022 
Hospice Wage Index and Payment Rate Update final rule.
[GRAPHIC] [TIFF OMITTED] TR02AU23.082

2. Hospice Outcomes & Patient Evaluation (HOPE) Update
    As finalized in the FY 2020 Hospice Wage Index and Payment Rate 
Update and Hospice Quality Reporting Requirements final rule (84 FR 
38484), we are developing a hospice instrument named Hospice Outcomes & 
Patient Evaluation (HOPE). Our primary objectives for HOPE are to 
provide quality data for the HQRP requirements through standardized 
data collection; and provide additional clinical data that could inform 
future payment refinements. To the extent that the instrument utilizes 
data already being collected for the Hospice QRP, our statutory 
authority for the HOPE instrument derives from section 1814(i)(5)(C) of 
the Act. In addition, statutory language at section 1861(aa)(2)(G) of 
the Act permits the Secretary to impose ``such other requirements as 
the Secretary may find necessary in the interest of the health and 
safety of the individuals who are provided care and services.''

[[Page 51179]]

    The HOPE tool will be a component of implementing high-quality and 
safe hospice care for patients, both in Medicare and non-Medicare. HOPE 
would also contribute to the patient's plan of care through providing 
patient data ongoing throughout the hospice stay. By providing data 
from multiple time points across the hospice stay, HOPE would provide 
information to hospice providers to improve practice and care quality. 
HOPE is intended to provide quality data to calculate outcomes and 
develop additional quality measures.
    We stated in the FY 2022 Hospice Wage Index and Payment Update 
final rule (86 FR 42528) that while the standardized patient assessment 
data elements for certain post-acute care providers required under the 
IMPACT Act of 2014 are not applicable to hospices, it would be 
reasonable to include some of those standardized elements that 
appropriately and feasibly apply to hospice to the extent permitted by 
our statutory authority. Many patients move through other providers 
within the healthcare system to hospice. Therefore, considering 
tracking key demographic and social risk factor items that apply to 
hospice could support our goals for continuity of care, overall patient 
care and well-being, development of infrastructure for the 
interoperability of electronic health information, and health equity 
which is also discussed in this rule.
    In the FY 2023 Hospice Final Rule (87 FR 45669), we outlined the 
testing phases HOPE has undergone, including cognitive, pilot, alpha 
testing, and national beta field testing. National beta testing, 
completed at the end of October 2022, allowed us to obtain input from 
participating hospice teams about the assessment instrument and field 
testing to refine and support the final draft items and time points for 
HOPE. It also allowed us to estimate the time to complete the HOPE data 
items and establish the interrater reliability of each item.
    We continue HOPE development in accordance with the Blueprint for 
the CMS Measures Management System. The development of HOPE is grounded 
in information gathering activities to identify and refine hospice 
domains and candidate items. We appreciate the industry's and trade 
associations' engagement in providing input through information sharing 
activities, including listening sessions, expert interviews, key 
stakeholder interviews, and focus groups to support HOPE development. 
As CMS proceeds with the refinement of HOPE, we will continue to engage 
with stakeholders through sub-regulatory channels. We intend to 
continue to host HQRP Forums to allow hospices and other interested 
parties to engage with us on the latest updates and ask questions on 
the development of HOPE and related quality measures as appropriate. We 
also have a dedicated email account, [email protected], for 
comments about HOPE. We will use field test results to create a final 
version of HOPE to propose in future rulemaking for national 
implementation. We will continue to inform all stakeholders throughout 
this process by using a variety of sub-regulatory channels and regular 
HQRP communication strategies, such as Open-Door Forums (ODF), Medicare 
Learning Network (MLN), CMS.gov website announcements, listserv 
messaging, and other ad hoc publicly announced opportunities. We 
appreciate the support for HOPE and reiterate our commitment to 
providing updates and engaging stakeholders through sub-regulatory 
means. HOPE updates can be found at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/HOPE and engagement opportunities, including those regarding 
HOPE are at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-QRP-Provider-Engagement-Opportunities.
    We plan to provide additional information regarding HOPE testing 
results on the HQRP website in fall of 2023.
    Comment: Public comments generally supported development of HOPE. 
However, commenters requested more stakeholder engagement and a 
generous implementation lead time. Several comments expressed concern 
about the potential administrative burden or workflow changes the new 
instrument would impose. Some commenters expressed interest in the role 
HOPE will play in advancing health equity, including voicing support 
for the collection of social risk data, including social determinants 
of health (SDOH) data. One commenter recommended that CMS review LCD 
guidelines in the context of health equity. One commenter encouraged 
CMS to recognize the role of occupational therapists within the IDG 
while finalizing HOPE.
    Response: We appreciate all stakeholders' input regarding HOPE 
development and will take these comments into consideration. We are 
committed to developing and implementing HOPE with a minimum burden to 
stakeholders. Additional information about HOPE will be presented to 
the public as appropriate.
3. Update on Future Quality Measure (QM) Development
    In the FY 2020 Hospice Wage Index and Payment Rate Update final 
rule (84 FR 38484), we provided updates related to CMS's process for 
identifying high priority areas of quality measurement and improvement 
and for developing quality measures that address those priorities. 
Information on the current HQRP quality measures can be found at: 
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Current-Measures.
    In this final rule, we provide updates on the status of current 
HQRP measures, and the development of hospice quality measure concepts 
based on the future use of HOPE, administrative, and health equity 
data. On July 26, 2022, the CBE endorsed the claims-based Hospice 
Visits in the Last Days of Life measure (HVLDL). More information can 
be found on the HQRP Quality Measure Development web page: https://www.cms.gov/medicare/hospice-quality-reporting-program/quality-measure-development. CMS intends to develop several quality measures based on 
information collected by HOPE when it is implemented. Currently, CMS 
intends to develop at least two HOPE-based process and outcome quality 
measures: (1) Timely Reassessment of Pain Impact; and (2) Timely 
Reassessment of Non-Pain Symptom Impact. Additional information about 
CMS's HOPE-based measure development efforts is available in the 2021 
technical expert panel (TEP) Summary Reports and the 2021 Information 
Gathering Report, available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-QRP-Provider-Engagement-Opportunities.
    Comment: Commenters were generally supportive of the two HOPE-based 
measures currently in development, but also requested additional 
information about the measure specifications and more stakeholder 
engagement opportunities. One commenter expressed concern about added 
regulatory burdens or workflow changes from adopting new quality 
measures. Several commenters encouraged CMS to allow reassessments to 
be completed telephonically or via remote patient monitoring (RPM), or 
to allow any member of the interdisciplinary care team to perform the 
assessment. Some commenters suggested reducing the reassessment

[[Page 51180]]

timeframe to one day instead of two, especially if the reassessment 
were allowed to be conducted telephonically. Commenters encouraged CMS 
to develop outcome measures as well as process measures, and to 
incorporate patient preferences into future quality measures.
     Response: We appreciate all stakeholders' input regarding quality 
measure development and will take these comments into consideration for 
future QM development initiatives. We remain committed to building a 
robust, evidence-based set of HQRP measures that holistically and 
reliably reflect the quality of hospice care.
    As development of the HOPE-based quality measures Timely 
Reassessment of Pain Impact and Timely Reassessment of Non-Pain Symptom 
Impact continues, CMS will keep stakeholders informed of progress and 
will offer opportunities for stakeholders to learn more and provide 
feedback. We appreciate the input regarding quality measure development 
and will take these comments into consideration for future QM 
development initiatives. We are committed to the Meaningful Measures 
Initiative (https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/CMS-Quality-Strategy) 
and Measures Management System Blueprint (https://mmshub.cms.gov/blueprint-measure-lifecycle-overview) that informs and guides quality 
measure development priorities and processes.
4. Health Equity Updates Related to HQRP
a. Background
    In the FY 2023 Hospice Payment Rate Update proposed rule (87 FR 
19442), we included a Request for Information (RFI) on hospices' 
current health equity activities and a future approach to advancing 
health equity in hospice. We define health equity as ``the attainment 
of the highest level of health for all people, where everyone has a 
fair and just opportunity to attain their optimal health regardless of 
race, ethnicity, disability, sexual orientation, gender identity, 
socioeconomic status, geography, preferred language, or other factors 
that affect access to care and health outcomes.'' We are working to 
advance health equity by designing, implementing, and operationalizing 
policies and programs that support health for all the people served by 
our programs, eliminating avoidable differences in health outcomes 
experienced by people who are disadvantaged or underserved, and 
providing the care and support that our enrollees need to thrive. CMS' 
goals outlined in the CMS Framework for Health Equity 2022-2023 are in 
line with Executive Order 13985, ``Advancing Racial Equity and Support 
for Underserved Communities Through the Federal Government.'' \5\ The 
goals included in the CMS Framework for Health Equity serve to further 
advance health equity, expand coverage, and improve health outcomes for 
the more than 170 million individuals supported by our programs, and 
sets a foundation and priorities for our work, including: strengthening 
our infrastructure for assessment, creating synergies across the health 
care system to drive structural change, and identifying and working to 
eliminate barriers to CMS-supported benefits, services, and coverage.
---------------------------------------------------------------------------

    \5\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/.
---------------------------------------------------------------------------

    In addition to the CMS Framework for Health Equity, CMS seeks to 
``advance health equity'' as one of eight goals comprising the CMS 
National Quality Strategy (NQS).\6\ The NQS identifies a wide range of 
potential quality levers that can support our advancement of equity, 
including: establishing a standardized approach for patient-reported 
data and stratification; employing quality and value-based programs to 
publicly report and incentivize closing equity gaps; and developing 
equity-focused performance metrics, regulations, oversight strategies, 
and quality improvement initiatives.
---------------------------------------------------------------------------

    \6\ Centers for Medicare & Medicaid Services. What is the CMS 
Quality Strategy? Available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy.
---------------------------------------------------------------------------

    A goal of this NQS is to address persistent disparities that 
underly our healthcare system. Racial disparities, in particular, are 
estimated to cost the U.S. $93 billion in excess medical costs and $42B 
in lost productivity per year, in addition to economic losses due to 
premature deaths.\7\ At the same time, racial and ethnic diversity has 
increased in recent years with an increase in the percentage of people 
who identify as two or more races accounting for most of the change, 
rising from 2.9 percent to 10.2 percent between 2010 and 2020.\8\ 
Therefore, we need to consider ways to reduce disparities, achieve 
equity, and support our diverse population through the way we measure 
quality and display of data.
---------------------------------------------------------------------------

    \7\ Ani Turner, The Business Case for Racial Equity, A Strategy 
for Growth, W.K. Kellogg Foundation and Altarum, April 2018.
    \8\ 2022 National Healthcare Quality and Disparities Report. 
Content last reviewed November 2022. Agency for Healthcare Research 
and Quality, Rockville, MD. https://www.ahrq.gov/research/findings/nhqrdr/nhqdr22/.
---------------------------------------------------------------------------

    We solicited public comments via the aforementioned RFI on a 
potential health equity structural composite measure in the Hospice 
Quality Reporting Program. We refer readers to the FY 2023 Hospice 
Payment Rate Update final rule (87 FR 45669) for a summary of the 
public comments and suggestions received in response to the health 
equity RFI.
    We took these comments into account, and we continue to work to 
develop policies, quality measures, and measurement strategies on this 
important topic. After considering public comments, CMS decided to 
convene a health equity technical expert panel to provide additional 
input to inform the development of health equity quality measures. The 
work of this technical expert panel is described in detail below.
Home Health and Hospice Health Equity Technical Expert Panel
    To support new health equity measure development, the Home Health 
and Hospice Health Equity Technical Expert Panel (Home Health & Hospice 
HE TEP) was convened by a CMS contractor in Fall 2022. The Home Health 
& Hospice HE TEP comprised health equity experts from hospice and home 
health settings, specializing in quality assurance, patient advocacy, 
clinical work, and measure development. The TEP was charged with 
providing input on a potential cross-setting health equity structural 
composite measure concept as set forth in the FY 2023 Hospice Payment 
Rate Update proposed rule (87 FR 19442) as part of an RFI related to 
the HQRP Health Equity Initiative. Specifically, the TEP assessed the 
face validity and feasibility of the potential structural measure. The 
TEP also provided input on possible confidential feedback report 
options to be used for monitoring health equity. TEP members also had 
the opportunity to provide ideas for additional health equity measure 
concepts or approaches to addressing health equity in hospice and home 
health settings.
    Broad themes that recurred throughout discussions were community 
access and alignment between the community population and the 
organization's patient population. A detailed summary of the Home 
Health & Hospice HE TEP meetings and final TEP recommendations is 
available on the Hospice QRP Health Equity web page: https://
www.cms.gov/medicare/hospice-

[[Page 51181]]

quality-reporting-program/hospice-qrp-health-equity. CMS is taking the 
TEP feedback into consideration as we continue to develop health equity 
concepts and policies related to HQRP.
Universal Foundation
    To further the goals of the CMS National Quality Strategy (NQS), 
CMS leaders from across the Agency have come together to move towards a 
building-block approach to streamline quality measures across CMS 
quality programs for the adult and pediatric populations. This 
``Universal Foundation'' of quality measure will focus provider 
attention, reduce burden, identify disparities in care, prioritize 
development of interoperable, digital quality measures, allow for 
cross-comparisons across programs, and help identify measurement gaps. 
The development and implementation of the Preliminary Adult and 
Pediatric Universal Foundation Measures will promote the best, safest, 
and most equitable care for individuals as we all come together on 
these critical quality areas. As CMS moves forward with the Universal 
Foundation, we will be working to identify foundational measures in 
other specific settings and populations to support further measure 
alignment across CMS programs as applicable.
    To learn more the impact and next steps of the Universal 
Foundation, read the recent publication of `Aligning Quality Measures 
Across CMS--the Universal Foundation' in the New England Journal of 
Medicine.
b. Anticipated Future State
Possible Future Health Equity Efforts
    We are committed to developing approaches to meaningfully 
incorporate the advancement of health equity into the HQRP. One 
consideration is including social determinants of health into our 
quality measures and data stratification. Social determinants of 
health--social, economic, environmental, and community conditions--may 
have a stronger influence on the population's health and well-being 
than services delivered by practitioners and healthcare delivery 
organizations.\9\ Given these impacts, measure stratification is 
important. Measure stratification helps identify disparities by 
calculating quality measure outcomes separately for different 
beneficiary populations. By looking at measure results for different 
populations separately, CMS and providers can see how care outcomes may 
differ between certain patient populations in a way that would not be 
apparent from an overall score (that is, a score averaged over all 
beneficiaries). This helps CMS to better fulfill our health equity 
goals. For example, when certain quality measures from the past two 
decades related to healthcare outcomes for children are stratified by 
race, ethnicity, and income, they show that important health 
disparities have been narrowed, because outcomes for children in the 
lowest income households and for Black and Hispanic children improved 
faster than outcomes for children in the highest income households or 
for White children.\10\ This differential impact would not be apparent 
without stratification. This work supports our desire to understand 
with providers what can be learned from stratifying our quality 
measures by race, ethnicity, and income.
---------------------------------------------------------------------------

    \9\ 2022 National Healthcare Quality and Disparities Report. 
Content last reviewed November 2022. Agency for Healthcare Research 
and Quality, Rockville, MD. https://www.ahrq.gov/research/findings/nhqrdr/nhqdr22/.
    \10\ 2022 National Healthcare Quality and Disparities Report. 
Content last reviewed November 2022. Agency for Healthcare Research 
and Quality, Rockville, MD. https://www.ahrq.gov/research/findings/nhqrdr/nhqdr22/.
---------------------------------------------------------------------------

    As part of our efforts to advance health equity in hospice, we are 
taking into consideration the health equity measures used in other 
health care provider settings. There are social determinants of health 
(SDOH) data items in the standardized patient assessment instruments 
used in the post-acute care (PAC) settings, and data items related to 
social drivers of health in acute care settings such as the hospital 
inpatient quality reporting program. We see value in aligning SDOH data 
items across all care settings and might consider adding SDOH data 
items used by other care settings into HQRP as we develop future health 
equity quality measures under our HQRP statutory authority.\11\ This 
would further the NQS to align quality measures across our programs as 
part of the Universal Foundation.\12\
---------------------------------------------------------------------------

    \11\ https://www.nejm.org/doi/full/10.1056/NEJMp2215539, 
February 1, 2023.
    \12\ https://www.nejm.org/doi/full/10.1056/NEJMp2215539, 
February 1, 2023.
---------------------------------------------------------------------------

    As we move this important work forward, we will continue to take 
input from hospice stakeholders into account and monitor the 
application of proposed health equity policies across CMS and other HHS 
initiatives. The Initial Proposals for Updating OMB's Race and 
Ethnicity Statistical Standards, 88 FR 5375, sought public comments 
through April 27, 2023. Also, the Office of the National Coordinator 
for Health IT (ONC) welcomes input on data classes and data elements 
for future versions of the United States Core Data for Interoperability 
(USCDI)--a standardized set of health data classes and constituent data 
elements for nationwide, interoperable health information exchange.\13\ 
In addition, while the anticipated health equity efforts that impact 
policy changes would proceed through the notice and comment rulemaking 
process, other activities would be completed through sub-regulatory 
channels and regular communication strategies, such as Open-Door 
Forums, Medicare Learning Network, CMS.gov website announcements, 
listserv messaging, and other opportunities.
---------------------------------------------------------------------------

    \13\ https://www.healthit.gov/sites/isa/files/2023-01/Draft-USCDI-Version-4-January-2023-Final.pdf.
---------------------------------------------------------------------------

    Comment: Commenters generally encouraged CMS to expand health 
equity measurement. However, several commenters encouraged CMS to wait 
until HOPE is implemented to better utilize that instrument for health 
equity measurement. These commenters expressed concern about 
implementing new health equity measures without an established 
instrument that could be used to track relevant patient data. Another 
commenter suggested that CMS review LCD guidelines for health equity 
guidance.
    Response: We appreciate all stakeholder feedback received regarding 
health equity. These comments will help inform our future efforts to 
incorporate health equity and social determinants of health into HQRP. 
We will consider the implications of HOPE implementation for ongoing 
health equity efforts.
5. CAHPS Hospice Survey Updates
CAHPS Hospice Survey Mode Experiment
    In the FY 2023 Hospice Payment Rate Update final rule (87 FR 
45669), we provided information on a mode experiment CMS conducted in 
2021. The purpose of the experiment was to test:
     A web-mail mode (email invitation to a web survey, with 
mail follow-up to non-responders).
     A revised survey version, which is shorter and simpler 
than the current survey, and includes new questions on topics suggested 
by stakeholders.
     Modifications to survey administration protocols designed 
to improve overall response rates, such as a prenotification letter and 
extended field period.
    Fifty-six large hospices participated in the mode experiment, 
representing a range of geographic regions, ownership,

[[Page 51182]]

and past performance on the CAHPS Hospice Survey. A total of 15,515 
decedents/caregivers were randomly sampled from these hospices. Sampled 
decedents/caregivers were randomly assigned to one of four modes of 
administration (mail only, telephone only, mail-telephone, webmail); 
mail only cases were randomly assigned to be administered either the 
revised or the current survey.
    The information received on the CAHPS Hospice Survey Mode 
Experiment CMS conducted in 2021, resulted in the following findings:
     Response rates to the revised survey were 35.1 percent in 
mail only mode, 31.5 percent in telephone only mode, 45.3 percent in 
mail-telephone, and 39.7 percent in webmail mode.
     Response rates to web-mail mode were similar to mail only 
mode for those without email addresses (35.2 percent vs. 34.4 percent), 
but 13 percentage points higher for those with email addresses (49.6 
percent vs. 36.7 percent).
     Response rates to mail-only administration of the revised 
and current survey were similar (35.1 percent vs. 34.2 percent).
     Mailing of a prenotification letter resulted in an 
increased response rate of 2.4 percentage points.
     Extending the field period to 49 days (from the current 42 
days) resulted in an increased response rate of 2.5 percentage points 
in the mail only mode.
    In addition, the following changes were tested as part of the 
revised CAHPS Hospice Survey:
     Removal of one survey item regarding confusing or 
contradictory information from the Hospice Team Communication measure.
     Replacement of the multi-item Getting Hospice Care 
Training measure with a new, one-item summary measure.
     Addition of a new, two-item Care Preferences measure.
     Simplified wording to component items in the Hospice Team 
Communication, Getting Timely Care, and Treating Family Member with 
Respect measures.
    CMS will use mode experiment results to inform decisions about 
potential changes to administration protocols and survey instrument 
content. Potential measure changes will be submitted to the Measures 
Under Consideration (MUC) process in 2023 and may be proposed in future 
rulemaking. We are not finalizing any changes in this rule.
    Comment: Commenters overwhelmingly supported implementation of a 
web based CAHPS[supreg] Hospice Survey mode. Several commenters also 
encouraged CMS to review the CAHPS[supreg] Hospice Survey through an 
equity lens, including looking for opportunities to increase response 
rates for non-English-speaking families, making the survey available in 
more languages, and ensuring that survey questions are culturally 
sensitive. Several commenters recommended that CMS shorten or simplify 
the survey to make it easier for caregivers to complete. One commenter 
asked CMS to provide more clarification to caregivers of patients who 
resided in facilities or had recent hospitalizations, as caregivers may 
become confused about which survey applies to each care setting. Once 
commenter encouraged CMS to collect CAHPS[supreg] Hospice Survey 
responses from families and caregivers closer to the time of a 
patient's death. Another commenter observed that the CAHPS[supreg] 
Hospice Survey is unique, as the individual who completes the survey is 
not the patient who received the service and may have different 
perceptions of the care provided. One commenter also encouraged CMS to 
update Care Compare without explicit suggested updates.
    Response: We thank commenters for their interest in the 
CAHPS[supreg] Hospice Survey. We appreciate the support of a web-based 
mode of survey administration and simpler CAHPS[supreg] Hospice Survey 
instrument. If and when a web-based mode is made available as one of 
the approved modes of CAHPS Hospice Survey administration, hospices 
would continue to have the option to choose among all approved modes 
(that is, web-based mode would not be required). Prior to introducing a 
revised survey instrument and/or new approved mode of administration, 
we will release detailed information regarding proposed changes to 
survey instrument content, survey administration protocols, and data 
adjustment procedures needed to promote fair comparisons between 
hospices selecting different modes of survey administration.
    The CAHPS[supreg] Hospice Survey will continue to be completed by 
caregivers. The Hospice CAHPS Survey is completed by the primary 
caregiver out of respect for the patient receiving end of life care. We 
believe it would not be appropriate to have hospice patients fill out a 
survey about the care they are receiving at the very end of their life. 
We will also consider opportunities to make the CAHPS[supreg] Hospice 
Survey easier for caregivers to understand and complete.
    We will consider commenters' feedback and suggestions in the 
context of ongoing efforts to improve health equity. We also encourage 
hospices to consider their patient/caregiver population and work with 
their survey vendor to determine the best mode of data collection.
6. Form, Manner, and Timing of Quality Data Submission
a. Statutory Penalty for Failure to Report
    Section 1814(i)(5)(C) of the Act requires that each hospice submit 
data to the Secretary on quality measures specified by the Secretary. 
The data must be submitted in a form and manner, and at a time 
specified by the Secretary. Section 1814(i)(5)(A)(i) of the Act was 
amended by the CAA, 2021 and the payment reduction for failing to meet 
hospice quality reporting requirements is increased from 2 percent to 4 
percent beginning with FY 2024. The Act requires that, beginning with 
FY 2014 through FY 2023, the Secretary shall reduce the market basket 
percentage increase by 2 percentage points and then beginning in FY 
2024 and for each subsequent year, the Secretary shall reduce the 
market basket percentage increase by 4 percentage points for any 
hospice that does not comply with the quality data submission 
requirements for that FY. In the FY 2023 Hospice Wage Index and Payment 
Rate Update proposed rule (87 FR 19442), we revised our regulations at 
Sec.  418.306(b)(2) in accordance with this statutory change (86 FR 
42605). We are not proposing any new public reporting proposals in this 
rule.
b. Compliance
    HQRP Compliance requires understanding three timeframes for both 
HIS and CAHPS: (1) The relevant Reporting Year, payment FY and the 
Reference Year. The ``Reporting Year'' (HIS)/``Data Collection Year'' 
(CAHPS). This timeframe is based on the calendar year (CY). It is the 
same CY for both HIS and CAHPS. If the CAHPS Data Collection year is CY 
2023, then the HIS reporting year is also CY 2023; (2) The APU is 
subsequently applied to FY payments based on compliance in the 
corresponding Reporting Year/Data Collection Year; and (3) For the 
CAHPS Hospice Survey, the Reference Year is the CY before the Data 
Collection Year. The Reference Year applies to hospices submitting a 
size exemption from the CAHPS survey (there is no similar exemption for 
HIS). For example, for the CY 2023 data collection year, the Reference 
Year, is CY 2022. This means providers seeking a size exemption for 
CAHPS in CY 2023 will base it on their

[[Page 51183]]

hospice size in CY 2022. Submission requirements are codified in Sec.  
418.312.
    For every CY, all Medicare-certified hospices are required to 
submit HIS and CAHPS data according to the requirements in Sec.  
418.312. Table 6 summarizes the three timeframes. It illustrates how 
the CY interacts with the FY payments, covering the CY 2022 through CY 
2025 data collection periods and the corresponding APU application from 
FY 2024 through FY 2027.
[GRAPHIC] [TIFF OMITTED] TR02AU23.083

    As illustrated in Table 7, CY 2022 data submissions compliance 
impacts the FY 2024 APU. CY 2023 data submissions compliance impacts 
the FY 2025 APU. CY 2024 data submissions compliance impacts FY 2026 
APU. This CY data submission impacting FY APU pattern follows for 
subsequent years.
c. Submission of Data Requirements
    As finalized in the FY 2016 Hospice Wage Index and Payment Rate 
Update final rule (80 FR 47142, 47192), hospices' compliance with HIS 
requirements beginning with the FY 2020 APU determination (that is, 
based on HIS Admission and Discharge records submitted in CY 2018) are 
based on a timeliness threshold of 90 percent. This means CMS requires 
that hospices submit 90 percent of all required HIS records within 30 
days of the event (that is, patient's admission or discharge), known. 
The 90-percent threshold is hereafter referred to as the timeliness 
compliance threshold. Ninety percent of all required HIS records must 
be submitted and accepted within the 30-day submission deadline to 
avoid the statutorily-mandated payment penalty. Hospice compliance with 
claims data requirements is based on administrative data collection. 
Since Medicare claims data are already collected from claims, hospices 
are considered 100 percent compliant with the submission of these data 
for the HQRP. There is no additional submission requirement for 
administrative data.
    To comply with CMS' quality reporting requirements for CAHPS, 
hospices are required to collect data monthly using the CAHPS Hospice 
Survey. Hospices comply by utilizing a CMS-approved third-party vendor. 
Approved Hospice CAHPS vendors must successfully submit data on the 
hospice's behalf to the CAHPS Hospice Survey Data Center. A list of the 
approved vendors can be found on the CAHPS Hospice Survey website: 
www.hospicecahpssurvey.org. Table 7. HQRP Compliance Checklist 
illustrates the APU and timeliness threshold requirements.

[[Page 51184]]

[GRAPHIC] [TIFF OMITTED] TR02AU23.084

    Most hospices that fail to meet HQRP requirements do so because 
they miss the 90 percent threshold. We offer many training and 
education opportunities through our website, which are available 24/7, 
365 days per year, to enable hospice staff to learn at the pace and 
time of their choice. We want hospices to be successful with meeting 
the HQRP requirements. We encourage hospices to use the website at: 
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-Quality-Reporting-Training-Training-and-Education-Library. For more information about 
HQRP Requirements, we refer readers to visit the frequently-updated 
HQRP website and especially the Best Practice, Education and Training 
Library, and Help Desk web pages at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting. We also encourage readers to visit the HQRP web page and 
sign-up for the Hospice Quality ListServ to stay informed about HQRP.
d. Codification of HQRP Data Completion Thresholds
    As previously noted, we proposed to add a new paragraph (j) to 
Sec.  418.312 for data completion thresholds. In the FY 2016 Hospice 
Wage Index final rule (80 FR 47192 through 47193), we finalized HQRP 
thresholds for completeness of HQRP data submissions. To ensure that 
hospices are meeting an acceptable standard for completeness of 
submitted data, we finalized the policy that, beginning with the FY 
2018 HQRP, hospices must meet or exceed one data submission threshold. 
Hospices must meet or exceed a data submission threshold set at 90 
percent of all required HIS or successor instrument records within 30 
days of the event (that is, patient's admission or discharge).
    Under our finalized policy, some assessment data did not obtain a 
response and, in those circumstances, are not ``missing'' nor is the 
data incomplete. For example, in the case of a patient who does not 
have any of the medical conditions in a ``check all that apply'' 
listing, the absence of a response of a health condition indicates that 
the condition is not present, and it would be incorrect to consider the 
absence of such data as missing in a threshold determination.
    In the FY 2017 Hospice Wage Index proposed rule, we received 
comments on our previously finalized policies for form, manner, and 
timing of data collection. These public comments were considered and 
summarized in the FY 2017 Hospice Wage Index final rule. In the FY 2022 
Hospice Wage Index and Payment Rate Update final rule and the FY 2023 
Hospice Wage Index and Payment Rate Update final rule, we provided an 
HQRP Compliance Checklist, which illustrated additional details about 
how the compliance thresholds applied to APUs by FY.
    We proposed to, and are finalizing the decision to, codify these 
data completeness thresholds at Sec.  418.312(j)(1) for measures data 
collected using the HIS or a successor

[[Page 51185]]

instrument. Under this section, we proposed to codify our requirement 
that hospices must meet or exceed a data submission threshold set at 90 
percent of all required HIS or successor instrument records within 30 
days of the event (that is, patient's admission or discharge) and 
submit the data through the CMS designated data submission systems. 
This threshold would apply to all HIS or successor instrument-based 
measures and data elements adopted into HQRP. We are also finalizing 
the decision to codify Sec.  418.312(j)(2) that a hospice must meet or 
exceed this threshold to avoid receiving a 4-percentage point reduction 
to its annual payment update for a given FY as codified at Sec.  
418.306(b)(2).
    We solicited public comment on our proposal to codify in 
regulations text the HQRP data completion thresholds at Sec.  
418.312(j) for measures and standardized patient assessment elements 
collected using the HIS or successor instrument and compliance 
threshold to avoid receiving 4 percentage point reduction as described 
under Sec.  418.306(b)(2).
    Comment: One commenter supported CMS's proposal to codify the data 
submission requirements, but encouraged CMS to amend the requirements 
in future rulemaking once HOPE is officially proposed for data 
collection. One commenter expressed concern that the proposed data 
submission threshold would be overly burdensome for hospices that are 
already struggling with technological or other barriers to meeting HQRP 
requirements.
    Response: We appreciate stakeholders' feedback and engagement 
related to HQRP. We are finalizing the data submission thresholds 
regulation text at Sec.  418.312(j) as established in prior rulemaking. 
We may consider revisions to data collection thresholds when 
implementing HOPE in future rulemaking. The 4 percent APU penalty is 
established at Sec.  418.306(b)(2).

D. Establishing Hospice Program Survey and Enforcement Procedures Under 
the Medicare Program; Provisions Update (CAA, 2021, Section 407)

    Division CC, section 407 of the CAA, 2021, amended Part A of Title 
XVIII of the Act to add a new section 1822, and amended sections 
1864(a) and 1865(b) of the Act, establishing new hospice program survey 
and enforcement requirements, required public reporting of survey 
information, and a new hospice hotline.
    This law (CAA, 2021) requires public reporting of hospice program 
surveys conducted by both State Agencies (SAs) and Accrediting 
Organizations (AOs), as well as enforcement actions taken as a result 
of these surveys on the CMS website in a manner that is prominent, 
easily accessible, searchable, and presented in a readily 
understandable format. It removes the prohibition at section 1865(b) of 
the Act of public disclosure of hospice surveys performed by AOs, and 
requires that AOs use the same survey deficiency reports as SAs (Form 
CMS-2567, ``Statement of Deficiencies'' or a successor form) to report 
survey findings.
    The CAA, 2021 also requires hospice programs to measure and reduce 
inconsistency in the application of survey results among all hospice 
program surveyors, and requires the Secretary to provide comprehensive 
training and testing of SA and AO hospice program surveyors, including 
training with respect to review of written plans of care. The CAA, 2021 
prohibits SA surveyors from surveying hospice programs for which they 
have worked in the last 2 years or have a financial interest, requires 
hospice program SAs and AOs to use a multidisciplinary team of 
individuals for surveys conducted with more than one surveyor to 
include at least one RN and provides that each SA must establish a 
dedicated toll-free hotline to collect, maintain, and update 
information on hospice programs and to receive complaints.
    The provisions in the CAA, 2021 also direct the Secretary to create 
a Special Focus Program (SFP) for poor-performing hospice programs, 
sets out authority for imposing enforcement remedies for noncompliant 
hospice programs, and requires the development and implementation of a 
range of remedies as well as procedures for appealing determinations 
regarding these remedies. These remedies can be imposed instead of, or 
in addition to, termination of a hospice programs' participation in the 
Medicare program. The remedies include civil money penalties (CMPs), 
suspension of all or part of payments, and appointment of temporary 
management to oversee operations.
    In the CY 2022 Home Health Prospective Payment System (HH PPS) 
final rule (86 FR 62240), we addressed provisions related to the 
hospice survey enforcement and other activities described in this 
section. A summary of the finalized CAA, 2021 provisions can be found 
in the CY 2022 HH PPS final rule: https://www.govinfo.gov/content/pkg/FR-2021-11-09/pdf/2021-23993.pdf. We finalized all the CAA provisions 
in CY 2022 rulemaking except for special focus program (SFP). As 
outlined in the CY 2022 HH PPS final rule, we stated that we would take 
into account comments that we received and work on a revised proposal, 
seeking additional collaboration with stakeholders to further develop 
the methodology for the SFP since the publication of the CY 2022 HH PPS 
final rule.
    In the FY 2023 Hospice Wage Index and Payment Rate Update and 
Hospice Quality Reporting Requirements (87 FR 45669) final rule, we 
affirmed our intention to initiate a hospice special focus program 
Technical Expert Panel (TEP) to provide input on the structure and 
methodology of the SFP. Public comments received in response to the FY 
2023 Hospice Wage Index and Payment Rate Update proposed rule were 
generally supportive of CMS's efforts to establish an SFP and to 
convene a TEP to provide feedback on the development of the SFP. A TEP 
convened by a CMS contractor provided feedback and considerations on 
the preliminary SFP concepts, including the development of a 
methodology to identify hospice poor-performers, as well as graduation 
and termination criteria, and public reporting. A 30-day call for 
nominations was held July 14 through August 14, 2022 and nine TEP 
members were selected, representing a diverse range of experience and 
expertise related to hospice care and quality. Details from the TEP 
meetings, including their recommendations, are available in the TEP 
summary report \14\ on the CMS website at https://www.cms.gov/medicare/quality-safety-oversight-certification-compliance/hospice-special-focus-program. The final TEP feedback is publicly available on the CMS 
website.
---------------------------------------------------------------------------

    \14\ 2022 Technical Expert Panel and Stakeholder Listening 
Sessions: Hospice Special Focus Program Summary Report (April 28, 
2023).
---------------------------------------------------------------------------

    Accordingly, we proposed to implement an SFP in the CY 2024 Home 
Health Prospective Payment Update Rate proposed rule, which will be 
available on the Home Health Prospective Payment System Regulations and 
Notices page of the CMS website: https://www.federalregister.gov/public-inspection/2023-14044/medicare-program-calendar-year-2024-home-health-prospective-payment-system-rate-update-home-health.
    Comment: Several public comments expressed concerns about the SFP 
and asked for further information as CMS designs this program. 
Commenters emphasized the need for a standardized survey process and 
increased training to better educate surveyors on hospice regulations. 
Some commenters

[[Page 51186]]

expressed concern about a quota system being used for the SFP. 
Commenters encouraged CMS to focus on problematic and non-compliant 
hospices and asked that non-compliant hospices receive an opportunity 
to rectify their issues prior to being penalized. One comment simply 
noted and appreciated the SFP update.
    Response: We appreciate stakeholders' interest and engagement 
related to the hospice SFP. We will consider these comments as we 
continue to develop the SFP.

E. Hospice Certifying Physician Enrollment

1. Medicare Provider Enrollment
    Section 1866(j)(1)(A) of the Act requires the Secretary to 
establish a process for the enrollment of providers and suppliers into 
the Medicare program. The overarching purpose of the enrollment process 
is to help confirm that providers and suppliers furnishing services or 
items (or ordering/certifying the provision thereof) to Medicare 
beneficiaries meet all applicable federal and state requirements. The 
process is, to an extent, a ``gatekeeper'' that prevents unqualified 
and potentially fraudulent individuals and entities from entering and 
inappropriately billing Medicare. Since 2006, we have undertaken 
rulemaking efforts to outline our enrollment procedures. These 
regulations are generally codified in 42 CFR part 424, subpart P 
(currently Sec. Sec.  424.500 through 424.575 and hereafter 
occasionally referenced as subpart P). They address, among other 
things, requirements that providers and suppliers must meet to enroll 
in Medicare.
    As outlined in Sec.  424.510, one requirement is that the provider 
or supplier must complete, sign, and submit to its assigned Medicare 
Administrative Contractor (MAC) the appropriate enrollment form, 
typically the Form CMS-855 (OMB Control No. 0938-0685). The Form CMS-
855, which can be submitted via paper or electronically through the 
internet-based Provider Enrollment, Chain, and Ownership System (PECOS) 
process (SORN: 09-70-0532), collects important information about the 
provider or supplier. Such data includes, but is not limited to, 
general identifying information (for example, legal business name), 
licensure and/or certification data, and practice locations. After 
receiving the provider's or supplier's initial enrollment application, 
CMS or the MAC reviews and confirms the information thereon and 
determines whether the provider or supplier meets all applicable 
Medicare requirements. We believe this screening process has greatly 
assisted CMS in executing its responsibility to prevent Medicare fraud, 
waste, and abuse.
    As previously mentioned, over the years we have issued various 
final rules pertaining to provider enrollment. These rules were 
intended not only to clarify or strengthen certain components of the 
enrollment process but also to enable us to take further action against 
providers and suppliers: (1) engaging (or potentially engaging) in 
fraudulent or abusive behavior; (2) presenting a risk of harm to 
Medicare beneficiaries or the Medicare Trust Funds; or (3) that are 
otherwise unqualified to furnish Medicare services or items. Consistent 
with this, and for reasons explained in section III.E.2. of this rule, 
we proposed to require physicians who certify hospice services for 
Medicare beneficiaries (hereafter occasionally referenced as ``hospice 
physicians'') to be enrolled in or validly opted-out of Medicare as a 
prerequisite for the payment of the hospice service in question.
2. Statutory and Policy Background
    Section 6405(a) of the Affordable Care Act (which amended section 
1834(a)(11)(B) of the Act) states that the Secretary may require that a 
physician ordering durable medical equipment, prosthetics, orthotics, 
and supplies (DMEPOS) be enrolled in Medicare for payment for the 
DMEPOS item to be made. Section 6405(b) of the Affordable Care Act 
(which amended sections 1814(a)(2) and 1835(a)(2) of the Act) contains 
a similar provision regarding the certification of a physician (or 
certain eligible professionals) for Part A and B home health services. 
Section 6405(c) of the Affordable Care Act, meanwhile, authorizes the 
Secretary to extend the requirements of sections 6405(a) and (b) to all 
other categories of items or services under title XVIII of the Act 
(including covered Part D drugs) that are ordered, prescribed, or 
referred by a physician or eligible professional enrolled in Medicare 
under section 1866(j) of the Act.
    Pursuant to this authority, we finalized 42 CFR 424.507(a) and (b) 
in an April 27, 2012 final rule titled ``Medicare and Medicaid 
Programs; Changes in Provider and Supplier Enrollment, Ordering and 
Referring, and Documentation Requirements; and Changes in Provider 
Agreements'' (77 FR 25284). Sections 424.507(a) and (b) collectively 
state that for payment to be made for ordered imaging services, 
clinical laboratory services, DMEPOS items, or home health services, 
the service or item must have been ordered or certified by a physician 
or, when permitted, an eligible professional who--(1) is enrolled in 
Medicare in an approved status; or (2) has a valid opt-out affidavit on 
file with a Part A and B MAC. The purpose of Sec.  424.507(a) and (b) 
is to confirm that the physicians and eligible professionals who order 
or certify the items and services referenced in those paragraphs are 
qualified.
    We constantly review program integrity trends to determine whether 
certain provider and supplier types and services warrant closer 
scrutiny from a provider enrollment perspective. During this process, 
we have remained ready to propose expansions to Sec.  424.507(a) and 
(b) should circumstances warrant. We believe that the latter situation 
currently exists with respect to hospices.
    The OIG in July 2018 issued a study titled ``Vulnerabilities in the 
Medicare Hospice Program Affect Quality Care and Program Integrity'' 
(OEI-02-16-00570). This report noted that Medicare in 2016 spent about 
$16.7 billion for hospice care for 1.4 million beneficiaries, up from 
$9.2 billion for fewer than 1 million beneficiaries in 2006.'' \15\ The 
report described how some hospice fraud schemes involved paying 
recruiters to target beneficiaries who are not eligible for hospice 
care; other schemes involved physicians falsely certifying 
beneficiaries as terminally ill when they were not.\16\ (Pursuant to 42 
CFR 418.20(b), a physician must certify the beneficiary as being 
terminally ill for the beneficiary to be eligible to elect hospice 
care.) The OIG cited several examples of this behavior, including the 
following:
---------------------------------------------------------------------------

    \15\ https://oig.hhs.gov/oei/reports/oei-02-16-00570.pdf, p. 1.
    \16\ Ibid., 6.
---------------------------------------------------------------------------

     Two certifying physicians from a California hospice were 
convicted of health care fraud for falsely certifying beneficiaries as 
terminally ill. The false certifications were part of a wider fraud 
scheme that the hospice owner organized. The scheme involved illegal 
payments to patient recruiters for bringing in beneficiaries, 
establishing fraudulent diagnoses, and altering medical records.\17\
---------------------------------------------------------------------------

    \17\ Ibid., p. 7.
---------------------------------------------------------------------------

     A Mississippi hospice owner used patient recruiters to 
solicit beneficiaries who were not eligible for hospice care. These 
patients were unaware of their enrollment in hospice care. The owner 
submitted fraudulent charges and received more than $1 million from 
Medicare.\18\
---------------------------------------------------------------------------

    \18\ Ibid.

---------------------------------------------------------------------------

[[Page 51187]]

     A Minnesota-based hospice chain agreed to pay $18 million 
to resolve allegations that it improperly billed Medicare for care 
provided to beneficiaries who were ineligible for hospice because they 
were not terminally ill. The hospice chain also allegedly discouraged 
physicians from discharging ineligible beneficiaries.\19\
---------------------------------------------------------------------------

    \19\ Ibid.
---------------------------------------------------------------------------

     A hospice physician improperly certified a beneficiary who 
a hospital determined to be in ``good shape'' only days before as 
terminally ill.\20\
---------------------------------------------------------------------------

    \20\ Ibid., p. 6.
---------------------------------------------------------------------------

     A hospice falsely informed a beneficiary that she could 
remain on a liver transplant list even if she chose hospice care. 
However, she was removed from the transplant list when she elected 
hospice care. When the beneficiary learned of this, she ceased hospice 
care so she could be reinstated on the transplant list.\21\
---------------------------------------------------------------------------

    \21\ Ibid.
---------------------------------------------------------------------------

     A physician received kickbacks for recruiting 
beneficiaries, many of whom were not terminally ill but seeking 
opioids.\22\
---------------------------------------------------------------------------

    \22\ Ibid., p. 12.
---------------------------------------------------------------------------

    More generally, the OIG expressed concern that: (1) beneficiaries 
are put at risk when they are inappropriately enrolled in hospice care 
because they might be unwittingly forgoing needed treatment; \23\ (2) 
``some hospice physicians are not always meeting requirements when 
certifying beneficiaries for hospice care;'' \24\ and (3) hospice fraud 
schemes are growing.\25\
---------------------------------------------------------------------------

    \23\ Ibid., p. 6.
    \24\ Ibid., p. 12.
    \25\ Ibid.
---------------------------------------------------------------------------

    The Government Accountability Office (GAO) in October 2019 issued a 
report titled, ``Medicare Hospice Care: Opportunities Exist to 
Strengthen CMS Oversight of Hospice Providers'' (GAO-20-10).\26\ The 
GAO observed therein that the number of: (1) Medicare hospice 
beneficiaries had almost tripled to nearly 1.5 million by FY 2017; and 
(2) Medicare hospice providers had doubled.\27\ The GAO stated that in 
light of this growth: ``It is imperative that CMS's oversight of the 
quality of Medicare hospice care keeps pace with changes so that the 
agency can ensure the health and safety of these terminally ill 
beneficiaries.'' \28\
---------------------------------------------------------------------------

    \26\ https://www.gao.gov/assets/gao-20-10.pdf.
    \27\ Ibid., p. 25.
    \28\ Ibid.
---------------------------------------------------------------------------

    In light of the foregoing, we believe that expanding Sec.  
424.507(a) and (b) to include hospice services could strengthen the 
program integrity aspect of physician certifications. The careful 
screening that the enrollment process entails would help us determine 
whether the physician meets all federal and state requirements (such as 
licensure) or presents any program integrity risks, such as past final 
adverse actions (as that term is defined in Sec.  424.502). If an 
unenrolled physician certifies a Medicare beneficiary's need for 
hospice care, we have insufficient background on the physician to know 
whether he or she was qualified to do so or has an adverse history. We 
believe that some of the aforementioned examples of improper behavior 
the OIG found can be at least partially avoided through closer vetting 
of the physician. Moreover, the screening process could help foster 
beneficiary health and safety by ensuring the physician is 
appropriately licensed.
3. Proposed Provisions
    Using our authority under section 6405(c) of the Affordable Care 
Act, we accordingly proposed the following revisions to Sec.  424.507.
    First, the current title of Sec.  424.507(b) states, ``Conditions 
for payment of claims for covered home health services''. We proposed 
to add ``and hospice'' between ``health'' and ``services'' to account 
for our intended inclusion of hospice services within Sec.  424.507(b).
    Second, the introductory paragraph of Sec.  424.507(b) reads: ``To 
receive payment for covered Part A or Part B home health services, a 
provider's home health services claim must meet all of the following 
requirements:'' To accommodate hospice services, we proposed to revise 
this to state: ``To receive payment for covered Part A or Part B home 
health services or for covered hospice services, a provider's home 
health or hospice services claim must meet all of the following 
requirements:''
    Third, the opening language of Sec.  424.507(b)(1) states: ``The 
ordering/certifying physician, or the ordering/certifying physician 
assistant, nurse practitioner, or clinical nurse specialist working in 
accordance with State law . . .''. Under 42 CFR 418.22(b), and as 
alluded to previously, only a physician (which can include the 
hospice's medical director) can certify that the beneficiary is 
terminally ill. We proposed to revise the beginning of Sec.  
424.507(b)(1) to state: ``The ordering/certifying physician for hospice 
or home health services, or, for home health services, the ordering/
certifying physician assistant, nurse practitioner, or clinical nurse 
specialist working in accordance with State law . . .''. This would 
help clarify that Sec.  424.507(b)(1) should not be read to imply that 
the eligible professionals listed therein can certify the beneficiary's 
terminal status.
    Fourth, Sec. Sec.  418.22(c)(1)(i) and (ii) state that for the 
initial 90-day hospice period, the following physicians, respectively, 
must certify that the beneficiary is terminally ill: (1) the hospice's 
medical director or the physician member of the hospice 
interdisciplinary group (hereafter occasionally referenced collectively 
as the ``hospice physician''); and (2) the individual's attending 
physician (who must meet the definition of physician in Sec.  410.20) 
if the beneficiary has one. For subsequent hospice periods, Sec.  
418.22(c)(2) states that only one of the physicians in Sec.  
418.22(c)(1)(i) must provide the certification. Given the hospice 
program integrity concerns previously mentioned, we believed that each 
certification required under Sec.  418.22(c) should be by an enrolled 
or validly opted-out physician. Therefore, we proposed to add Sec.  
424.507(b)(3) to reflect this requirement and would refer therein to 
the requirements of Sec.  418.22(c).
4. Comments Received and Responses
    We received approximately 21 pieces of timely correspondence in 
response to our proposal. These comments are summarized below. Our 
responses are also included.
    Comment: Several commenters supported our proposal. One commenter 
stated that it could help identify physicians who engage in fraudulent 
or abusive behavior that puts Medicare beneficiaries at risk.
    Response: We appreciate the commenters' support.
    Comment: Several commenters expressed concern about the impact of 
requiring the hospice physician to be enrolled. Their concerns fell 
into three principal categories. First, they believed that having to 
ascertain the physician's enrollment/opt-out status would be 
administratively burdensome on hospices, with one commenter stating 
that home health agencies (HHAs) have been similarly burdened when 
verifying the enrollment/opt-out status of the home health certifying 
physician. Second, if the hospice physician is neither enrolled nor 
opted-out, the hospice will need to find another hospice physician 
(such as the physician member of the hospice interdisciplinary group) 
to sign the certification, which could postpone patient care. Third, 
various hospices employ or contract with physicians who are neither 
enrolled nor opted-out by choice. The commenters believed some of these 
physicians would resign or end

[[Page 51188]]

their contract with the hospice rather than enroll or opt-out, hence 
requiring the hospice to hire replacement physicians. This could prove 
difficult, however, because requiring the hospice physician to be 
enrolled or opted-out might limit the pool of prospective physicians, 
since some physicians will not wish to seek employment or a contractual 
relationship with the hospice if they have to enroll or opt-out. 
Especially in rural areas, this could result in further shortages of 
hospice physicians, which, in turn, might harm patient care.
    Response: We appreciate these comments and address them as follows.
    We do not foresee a significant administrative burden associated 
with confirming the hospice physician's and attending physician's 
enrollment/opt-out statuses. Hospices can quickly verify said status 
using the CMS ordering and referring data file (ORDF),\29\ which lists 
all Medicare-enrolled and opted-out physicians. HHAs, DMEPOS suppliers, 
and suppliers of clinical laboratory and imaging services currently use 
this same means of verifying an ordering/certifying/referring 
physician's enrollment/opt-out status, and we have not been notified by 
these providers and suppliers of any substantial burden associated with 
this activity.
---------------------------------------------------------------------------

    \29\ https://data.cms.gov/provider-characteristics/medicare-provider-supplier-enrollment/order-and-referring/data.
---------------------------------------------------------------------------

    Concerning the commenters' second and third assertions, we believe 
the situations they cite regarding unenrolled or non-opted out hospice 
physicians will be exceedingly rare. We estimated in the ICR section of 
the proposed rule that 2,173 certifying physicians would need to enroll 
or opt-out in order to certify hospice services. This is a very small 
number given the universe of over 2 million physicians nationwide, and 
most certifying physicians are already enrolled or opted-out. We are 
also confident that the vast preponderance of those who currently are 
not will choose to enroll or opt-out, and one commenter, in fact, 
agreed with this based on feedback received from the hospice community. 
Indeed, this was our experience when we implemented the aforementioned 
DMEPOS, HHA, and imaging and clinical laboratory services requirement; 
in general, those physicians and practitioners who were neither 
enrolled nor opted-out elected to complete the enrollment/opt-out 
process in order to continue ordering/certifying/referring the services 
and items in question. We believe the same will occur with our hospice 
proposal, and we do not expect the physician shortages or postponements 
in care that the commenters mentioned to occur.
    Comment: A number of commenters opposed our proposed requirement in 
new Sec.  424.507(b)(3) to also require the beneficiary's attending 
physician to be enrolled/opted-out. Their concerns were generally as 
follows.
    First, requiring the attending physician's enrollment/opt-out 
infringes upon the patient's right to choose their designated attending 
physician.
    Second, if the attending physician is neither enrolled nor opted-
out, the beneficiary would have to find a new attending physician if 
they wish to have one. This could delay the patient's hospice admission 
and their consequent ability to receive pain management and palliative 
care. The patient may even be too ill to select a new attending 
physician or may pass before making their selection. All of this would 
place a tremendous and unnecessary burden on the beneficiary and their 
family or representative. Commenters stated that these vulnerable 
patients in such cases should not have to effectively end their 
relationship with the attending physician (who, in many cases, may have 
been the patient's primary care physician for years) in order to 
receive hospice services.
    Third, and in the previous scenario, the hospice, too, would be 
burdened. The hospice would have to communicate the attending 
physician's non-enrollment/opt-out status to the beneficiary and, in 
some cases, assist in finding a new one. Moreover, the hospice may have 
received a directive from the designated attending physician to address 
immediate patient needs but would have to re-obtain the directive from 
a different physician, during which delay the patient may pass.
    Fourth, commenters stated that simply requiring the hospice 
physician to be enrolled or opted-out should be a sufficient program 
integrity safeguard since both the hospice physician and the attending 
physician (if the beneficiary has one) must certify the initial hospice 
episode. The attending physician can thus further verify the validity 
of the hospice physician's certification.
    In addition, a commenter contended that since the hospice physician 
oversees the beneficiary's plan of care per 42 CFR 418.56(a)(1)(i), 
this physician's enrollment or opt-out status alone should serve as an 
adequate payment safeguard without the need to require the attending 
physician to be enrolled or opted-out.
    Response: We appreciate these comments and understand the concerns 
expressed. We address them in turn.
    First, we do not believe our requirement would infringe upon any 
beneficiary right to choose their attending physician. The beneficiary 
would not only retain the ability to select a new attending physician 
if their chosen one is unenrolled/non-opted out but also need not 
choose to have one at all. Furthermore, this attending physician 
requirement only applies to the signing of the initial certification. 
It does not prohibit the beneficiary's desired attending physician from 
treating the beneficiary in the hospice and then billing for these 
services under Part B, though we note that in that case the physician 
must be enrolled. We therefore respectively disagree that our 
requirement restricts the patient's right to select their attending 
physician or compels the beneficiary to terminate any relationship 
therewith. Our proposal, to reiterate, is strictly limited to the 
attending physician's initial certification and does not affect the 
larger beneficiary-physician relationship.
    Second, and as we previously explained with respect to hospice 
physicians, we believe the situation the commenters describe will be 
extremely rare. In the overwhelming preponderance of cases, a 
beneficiary's attending physician furnishes services to many patients 
other than the beneficiary; for instance, many attending physicians 
have a private practice that treats numerous patients for matters 
unrelated to hospice certifications. This means that the attending 
physician is very likely already enrolled/opted-out and hence can sign 
the hospice beneficiary's certification. We reemphasize that the number 
of unenrolled and non-opted out physicians who certify hospice services 
is very small and that, in our view, these physicians would choose to 
enroll or opt-out pursuant to our requirement.
    Concerning the commenters' third assertion, we again do not 
anticipate the excessive burdens on the hospice community (including 
compliance with the 2-day period) that the commenters cite given the 
very small number of currently unenrolled and non-opted out certifying 
physicians.
    Finally, we disagree with the commenters' contention that merely 
requiring the hospice physician's enrollment/opt-out status should be 
adequate to meet CMS' program integrity concerns. To the contrary, our 
definition of attending physician in Sec.  418.3 describes the latter 
as being identified by the beneficiary, at the time he or she elects to 
receive hospice care, as having the most significant role in the

[[Page 51189]]

determination and delivery of the individual's medical care. Given this 
relationship, we believe it is particularly important that the 
attending physician be properly screened before furnishing the required 
certifying statement.
    Comment: A commenter asked CMS to clarify that the term ``ordering/
certifying physician'' for purposes of our proposal does not include 
the referring/attending physician.
    Response: We are finalizing our proposal that attending physicians 
must be enrolled or opted-out to certify hospice services. We note, 
however, that the term ``ordering'' is largely immaterial for purposes 
of the certifications required per Sec.  418.22. That is, in the 
context of Sec.  424.507, ``ordering and certifying'' collectively 
references all the services and items addressed in Sec.  424.507 that a 
physician or practitioner may order or certify. Yet ``ordering'' mostly 
pertains to DMEPOS items and clinical laboratory and imaging services, 
whereas hospice and home health services involve certification of the 
need for said services. As such, the remainder of this section III.E 
will simply reference the ``certification'' of hospice services rather 
than the ``ordering or certifying'' thereof.
    Comment: A commenter sought elucidation on two issues. The first 
was whether and how the hospice must document that the attending 
physician's enrollment or opt-out status was verified. The second was 
how the hospice should proceed if the patient's chosen attending 
physician is neither enrolled nor opted-out; the commenter asked 
whether the patient in that case is deemed ineligible for hospice care 
or the hospice should assign its own attending physician.
    Response: Section 424.507(b) does not itself require the 
documentation of verification of the attending physician's enrollment/
opt-out status. However, the hospice is ultimately responsible for 
confirming this status. Concerning the commenter's second issue, if the 
patient designates an attending physician that is neither enrolled nor 
opted-out, the certification of terminal illness for the initial 90-day 
benefit period would not be valid under Sec.  418.22(c). If the 
beneficiary wants to designate a different attending physician, they 
may choose to do so. If they elect not to designate an attending 
physician, only the hospice certifying physician would certify the 
beneficiary's eligibility for the hospice benefit and he or she must be 
enrolled or opted-out. This is because the requirement that the hospice 
certifying physician and the designated attending physician both must 
sign the initial certification only applies if the beneficiary 
designates an attending physician. If the beneficiary does not have 
one, only the hospice certifying physician must sign the certification.
    Comment: Several commenters recommended that CMS delay 
implementation of our proposal in order to allow physicians enough time 
to enroll or opt-out and for CMS to (1) make system changes and (2) 
perform outreach. They stated that hospices, too, will need time to 
educate their employed physicians, contracted physicians, and 
prospective patients. Suggestions included a 1-year delay.
    Response: We agree that a delay in implementation is warranted for 
the reasons the commenters outlined. We believe that an additional 
seven-months is ample time to ensure certifying hospice and attending 
physicians meet all Medicare requirements, given the pressing program 
integrity concerns as previously discussed. Further, we believe a May 
1, 2024 implementation date strikes a sound balance between addressing 
our payment safeguard concerns while giving stakeholders time to 
prepare. Accordingly, unenrolled and non-opted out hospice and 
attending physicians will have until April 30, 2024 to enroll or opt-
out before the denial of hospice claims commences on May 1, 2024 per 
Sec.  424.507(b).
    Comment: Several commenters asked whether unenrolled and non-opted-
out physicians can serve as hospice medical directors.
    Response: Our provision is restricted to the matter of payment of 
hospice Medicare claims and the certifications addressed in Sec.  
418.22 in the sole context of provider enrollment. Put otherwise, the 
hospice physician, whether the medical director or physician member of 
the interdisciplinary group, must be enrolled or opted-out to certify 
beneficiary eligibility and for payment to consequently be made.
    Comment: Commenters expressed concern that if the patient must 
designate a new attending physician because the physician is neither 
enrolled nor opted-out, the hospice may be unable to obtain a new 
certification from a new attending physician within the required 2-day 
timeframe from the effective date of the hospice election period. (Per 
Sec.  418.22(a)(3)(i), if the hospice cannot obtain the written 
certification required under Sec.  418.22(a)(1) within 2 calendar days 
after an election period begins, it must obtain an oral certification 
within 2 calendar days and the written certification before it submits 
a claim for payment.) Commenters stated that this would negatively 
impact the hospice from a financial perspective since payment could be 
denied due to a late certification. Additionally, a commenter outlined 
a scenario where a patient or representative designates an attending 
physician on the election statement who is neither enrolled nor opted-
out; when the hospice realizes that this is the case the patient may 
have passed, or the hospice cannot contact the patient's representative 
to change the designated attending physician on the election statement. 
This commenter further asked whether the hospice must include the 
attending physician listed on the election statement on the hospice 
claim form in such situations.
    Response: As we previously stated, there is a very small number of 
currently unenrolled and non-opted-out certifying physicians, so we do 
not believe this will be a common issue. Hospices should check the ORDF 
to determine the designated attending physician's enrolled/opt-out 
status. A good standard of practice would be for the hospice to check 
the ORDF in real time at the time the patient or representative is 
signing the election statement that includes the designation of an 
attending physician, or very shortly thereafter. As outlined in Sec.  
418.22, a certification of terminal illness can be completed up to 15 
days prior to the start of the election period. Additionally, as 
outlined in Sec.  418.24(b)(4), the election statement must include the 
effective date of the election, which may be the first day of hospice 
care or a later date, but may be no earlier than the date of the 
election statement. These flexibilities in our regulations should allow 
hospices to ensure that they are complying with the requirement for the 
certifying physician(s) to be enrolled or opted-out of Medicare. The 
designated attending physician listed on the hospice election statement 
must match the information contained in the ``Attending Provider Name 
and Identifiers'' field on the institutional claim if the attending 
physician is a Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.) 
or the ``Other Provider Name and Identifiers'' field on the 
institutional claim if the designated attending physician is a nurse 
practitioner or physician assistant. To change the designated attending 
physician, the patient or representative must sign a statement that 
outlines the change in accordance with the regulations at Sec.  
418.24(h).
    Comment: A commenter asked how CMS would identify when the 
attending physician is a physician assistant or nurse practitioner and 
waive the claim from enrollment edits.

[[Page 51190]]

    Response: An attending physician is defined in Sec.  418.3 as one 
of the following:
     A Doctor of Medicine (M.D.) or osteopathy (D.O.) legally 
authorized to practice medicine and surgery by the state in which he or 
she performs that function or action;
     A nurse practitioner who meets the training, education, 
and experience requirements as described in Sec.  410.75(b); or
     A physician assistant who meets the requirements of Sec.  
410.74(c).
    However, section 1814(a)(7)(A)(i)(I) of the Act does not permit a 
nurse practitioner or a physician assistant to certify that the patient 
is terminally ill. As outlined in the Medicare Claims Processing 
Manual, Section 30.3 of Chapter 11, the ``Attending Provider Name and 
Identifiers'' field on the institutional claim form is to contain the 
National Provider Identifier (NPI) and name of the attending physician 
currently responsible for certifying the terminal illness and signing 
the individual's plan of care for medical care and treatment. If the 
patient does not have an attending physician that is a D.O. or M.D., 
the hospice would enter the NPI and name of the hospice medical 
director or physician member of the interdisciplinary group that 
certified that the patient is terminally ill. As outlined in the 
Medicare Claims Processing Manual, Section 30.3 of Chapter 11, the 
``Other Provider Name and Identifiers'' field on the institutional 
claim form is to contain the NPI and name of attending physician if 
such attending provider is a nurse practitioner or physician assistant. 
In this case, the ``Attending Provider Name and Identifiers'' field 
would contain the NPI and name of the hospice medical director or 
physician member of the hospice interdisciplinary group that certified 
that the patient was terminally ill. When implementing claims 
processing edits to check for whether the attending physician (if an 
M.D. or D.O.) and hospice physician are enrolled or opted-out of 
Medicare, we would do so using PECOS, which can identify whether an NPI 
is associated with a nurse practitioner or physician assistant. If the 
NPI and name of a nurse practitioner or physician assistant appears in 
the ``Other Provider Name and Identifiers'' field on the institutional 
claim form, we would not deny the hospice claim if such nurse 
practitioner or physician assistant was not enrolled or opted-out of 
Medicare.
    Comment: A commenter asked how our provision and the rationale for 
it relates to or impacts: (1) 42 CFR 405.455(b), which prevents 
Medicare Advantage (MA) plans from paying for services rendered by 
opted-out physicians; (2) the ``MA Hospice Carve-In''; and (3) the home 
health face-to-face requirement (HHFFR) in 42 CFR 424.22.
    Response: Our provision is unrelated to MA or the HHFFR. Sections 
424.507(a) and (b) only apply to Medicare Part A and Part B and do not 
pertain to MA payment. Too, whereas Sec.  405.455(b) addresses services 
rendered by opt-out physicians, Sec.  424.507(a) and (b) are restricted 
to the ordering/certifying/referring of services or items. As for the 
HHFFR, program integrity, like with our proposed provision, was a 
consideration in its promulgation. Yet the HHFFR is otherwise unrelated 
to the hospice enrollment/opt-out requirement. For instance, while 
Sec.  424.507(b) will require enrollment/opt-out status for the hospice 
physician and the attending physician, satisfaction of the HHFFR under 
Sec.  424.22 does not require the certifying physician or allowed 
practitioner (as that latter term is described in Sec.  424.22) to be 
enrolled/opted-out.
    Comment: A commenter asked whether there are any temporal 
limitations on certifications issued by an opted-out physician.
    Response: Although we are somewhat unclear as to the commenter's 
precise question, we believe the commenter is inquiring whether a 
certification signed by a hospice physician or attending physician 
under Sec.  418.22 that has opted-out is only valid for a certain 
period of time. Our proposal does not change any existing policies in 
Sec.  418.22 with respect to the length of time for which a particular 
certification remains valid. It only addresses the required enrollment/
opt-out status of the certifying physician and attending physician.
    Comment: In a vein akin to the previous comment, several commenters 
sought clarification about two issues regarding the duration of the 
certification and benefit period. First, they asked whether the hospice 
physician and attending physician must be enrolled/opted-out for the 
entire benefit period attached to the certification/recertification. 
Second, they asked whether, if the certifying physician or attending 
physician later becomes unenrolled and non-opted-out, the hospice must 
obtain a new certification and, if so, whether this would impact the 
benefit period days and any associated face-to-face encounter timing.
    Response: The hospice physician and attending physician need only 
be enrolled/opted-out at the time they make the certification or 
recertification. They need not remain enrolled/opted-out during the 
patient's entire certification and benefit period and, if they become 
unenrolled and non-opted-out, the hospice need not secure a new 
certification to replace the one the previously enrolled/opted-out 
physician signed.
    Comment: Several commenters asked CMS to clarify that physicians 
who complete the Form CMS-855 enrollment application per our proposal 
would neither have to list ``Hospice and Palliative Medicine'' as their 
specialty designation (specialty code 17) nor specify ``Hospice'' as 
among the services they are delivering. They explained that some 
attending physicians do not routinely refer patients to hospice and may 
not anticipate being designated as a hospice attending physician when 
they complete the Medicare enrollment application.
    Response: We agree with this comment to the extent it pertains to 
an attending physician under our proposal. For hospice physicians, 
however, and as with all physicians who complete the Form CMS-855, it 
is important that they accurately and truthfully disclose on the 
application their primary specialty. If the hospice physician's primary 
specialty is indeed hospice/palliative care, this must be reported.
    Comment: Several commenters suggested that in lieu of our proposal, 
CMS should focus on other means of identifying potentially problematic 
hospices, such as: (1) identifying parties that own multiple 
independent hospices with different state licenses and National 
Provider Identifiers; and (2) hospices that are co-located within the 
same physical site. Other commenters stated that measures such as a 
moratorium on new hospice licenses in overserved areas and greater 
scrutiny of high-risk hospices would be more effective in stopping 
problematic hospices than requiring physician enrollment.
    Response: We do not believe our efforts to address hospice program 
integrity and quality of care concerns need to reflect an ``either/or'' 
approach, whereby the adoption of one measure mandates the exclusion of 
another. There are multiple facets of the hospice arena that are 
concerning to us, and our hospice certifying proposal is directly aimed 
at ensuring that physicians who certify hospice services are adequately 
vetted and are confirmed to meet Medicare requirements. In other words, 
this precise concern of ours must be addressed via a specific measure, 
and there is no better means of doing so than our proposal.

[[Page 51191]]

    Comment: A commenter asked CMS to identify in future rulemaking: 
(1) the volume of fraudulent hospice referrals from non-Medicare 
enrolled physicians; and (2) outline the administrative burden of this 
proposal on hospices and not merely physicians. This would allow 
stakeholders to furnish substantive feedback that could help CMS make 
informed policy decisions that improve program integrity without 
creating unnecessary barriers to services.
    Response: We will update the regulatory impact analysis to include 
an estimate of the hour and cost burden our provision could have on 
hospices. As for the volume of fraudulent hospice certifications from 
unenrolled and non-opted-out physicians, our available information is 
mostly limited to enrolled parties. Nonetheless, the close scrutiny and 
screening the enrollment process furnishes has helped ensure that 
Medicare payments are only made to qualified providers and suppliers 
and, more pertinently, that DMEPOS, HHA, imaging, and clinical 
laboratory items and services are ordered/certified by physicians and 
practitioners who meet Medicare requirements. We believe this will be 
the case with our hospice provision, too.
    Comment: A commenter urged CMS to ensure that hospices can 
ascertain a physician's enrollment or opt-out status as easily as 
possible. Although, the commenter noted, enrollment data may be 
available online, the ability to search such data should be as 
intuitive and streamlined as possible to limit burden on hospices.
    Response: We agree. We note that the ORDF has given providers and 
suppliers a simple, expeditious means of confirming a physician's or 
practitioner's enrollment or opt-out status. We will work closely with 
the hospice community when implementing this provision and will furnish 
education and outreach, particularly regarding the matter of 
enrollment/opt-out status verification.
    Comment: A commenter stated that our proposed requirement may not 
resolve concerns related to inappropriate certification and should be 
further considered before implementation to avoid adding barriers to 
care. The commenter explained that given the short-stay of many 
patients, it is important not to impose administrative steps that could 
delay care.
    Response: As with all of our provider enrollment regulatory 
proposals, we carefully considered our hospice enrollment/opt-out 
provision before proposing it and believe it is the best means of 
closing the vulnerability of unscreened hospice physicians certifying 
hospice services. While we recognize that hospice stays are often 
short, we believe that most currently unenrolled/non-opted-out hospice 
physicians and attending physicians (both categories of which we 
believe, as previously mentioned, are very few) will enroll or opt-out 
per our requirements.
    Comment: Several commenters did not believe our proposal would 
significantly aid in preventing hospice fraudulent behavior because 
false certifications will not be identified by the enrollment 
verification when claims are processed. They added that many fraudulent 
activities that CMS cited in the proposed rule (and highlighted by the 
OIG and media reports) involve parties other than physicians; for 
instance, the proposed rule identified activities such as paying 
recruiters to target ineligible beneficiaries and false certifications 
being part of wider fraud schemes orchestrated by hospice owners and 
operators, not by individual physicians.
    Response: We note two things. One is that the principal purpose of 
the enrollment process is to prevent fraud from occurring in the first 
place by screening providers and suppliers before they enroll in 
Medicare and submit claims. Described otherwise, the aim is not to wait 
until claims are submitted to detect fraud but to keep fraudulent 
parties from participating in Medicare altogether. This reflects CMS' 
desire to avoid a ``pay-and-chase'' approach whereby we pay claims and, 
if we find fraud associated with that payment, attempt to recoup the 
monies and take action against the provider or supplier. By being 
proactive, we can stop such activity before it begins. This is the 
objective behind our hospice provision. Carefully screening hospice 
physicians and attending physicians (such as for felony convictions, 
sanctions, etc.) before they are able to certify Medicare hospice 
services will, we believe, significantly reduce the risk that 
problematic physicians will furnish false certifications. The second 
point is that while some hospice fraud schemes do not directly involve 
certifying physicians, some do. Indeed, we previously noted cases where 
physicians made false certifications. We also identified several 
instances of such conduct in the recently published CY 2024 Home Health 
Prospective Payment System proposed rule (88 FR 43654).\30\ We stress 
that simply because a certain fraud scheme was devised by the hospice's 
owner or manager rather than the hospice physician does not excuse any 
participation therein by the latter.
---------------------------------------------------------------------------

    \30\ ``Medicare Program; Calendar Year (CY) 2024 Home Health 
(HH) Prospective Payment System Rate Update; HH Quality Reporting 
Program Requirements; HH Value-Based Purchasing Expanded Model 
Requirements; Home Intravenous Immune Globulin Items and Services; 
Hospice Informal Dispute Resolution and Special Focus Program 
Requirements, Certain Requirements for Durable Medical Equipment 
Prosthetics and Orthotics Supplies; and Provider and Supplier 
Enrollment Requirements.''
---------------------------------------------------------------------------

    Comment: A commenter requested that CMS create an exception to our 
requirement when the hospice makes a good-faith effort to determine but 
cannot confirm the enrollment status of the certifying or attending 
physician. The commenter stated this would prevent unnecessary delays 
to hospice election and care.
    Response: We respectfully disagree. For reasons already outlined, 
we believe it is critical that hospice and attending certifying 
physicians be enrolled or opted-out. We also believe the ORDF will 
enable hospices to expeditiously ascertain the physician's enrollment/
opt-out status. This has been the general experience of other Medicare 
providers and suppliers (such as HHAs) who must verify the enrollment/
opt-out status of physicians and practitioners who order or certify the 
services or items referenced in Sec.  424.507.
    Comment: Several commenters asked whether CMS will update the ORDF 
to include a column for hospices (similar to the existing columns for 
DMEPOS and HHAs).
    Response: We will update the file to accommodate hospices.
    Comment: Commenters recommended that CMS provide education to 
physicians and hospices about the enrollment requirements, processes, 
list of services, and taxonomy codes relevant to our provision.
    Response: CMS will indeed furnish extensive education to the 
hospice community and physicians on the matters the commenters' 
referenced.
5. Final Provisions
    We are finalizing our hospice enrollment provisions as proposed, 
though the implementation date for these provisions will be May 1, 
2024.

IV. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and

[[Page 51192]]

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 solicited public comment on each of these issues for the 
following sections of this rule that contain information collection 
requirements.

A. Hospice Certifying Physician Enrollment

    As finalized in section III E. of this rule, physicians who certify 
hospice services for Medicare beneficiaries must be enrolled in or 
validly opted-out of Medicare as a prerequisite for payment of the 
hospice service in question. Most certifying physicians are already 
Medicare-enrolled or validly opted-out. Nonetheless, we noted in the 
proposed rule that, per CMS data, approximately 2,173 physicians who 
certify Medicare hospice services are not. These physicians, as already 
stated, would have to enroll or opt-out under our provision. However, 
we recently reconsidered this estimate and, based on the latest data, 
have determined that there are only 1,382 physicians who would have to 
enroll or opt-out pursuant to our requirement. We will use this figure 
in our final burden projections.
    Strictly for purposes of establishing an estimate, we project that 
the average physician will complete a Form CMS-855O enrollment 
application (Medicare Enrollment Application--Registration for Eligible 
Ordering and Referring Physicians and Non-Physician Practitioners--OMB 
Control No.: 0938-1135) rather than an opt-out affidavit to comply with 
our requirements. Per previous estimates, it would take approximately 
0.5 hours for a physician to complete the Form CMS-855O application.
    According to the most recent wage data provided by the Bureau of 
Labor Statistics (BLS) for May 2022 (see https://www.bls.gov/oes/current/oes_nat.htm), the mean hourly wage for the general category of 
``Physicians, All Other'' is $114.76. With fringe benefits and 
overhead, the total per hour rate is $229.52. The foregoing wage 
figures are outlined in Table 8:
[GRAPHIC] [TIFF OMITTED] TR02AU23.085

    We project that our provision will therefore result in a 691-hour 
burden (1,382 x 0.5 hr) at a cost of $158,598 (691 x $229.52). (Most of 
these physicians will enroll during the first year of our provision in 
order to continue certifying hospice services.) Averaged over the 3-
year OMB-approval period, this results in annual burdens of 230 hours 
and $52,866. This burden will be updated as part of a separate 
Paperwork Reduction Act submission.
    We received no comments on our proposed ICR estimates and are 
finalizing our revised projections as described.

B. Codification of HQRP Data Completeness Thresholds

    The codifications to the HQRP data completeness thresholds reflects 
the same thresholds which have been applied to the HQRP since the FY 
2018 Hospice Final Rule. As such, this rule does not impose any 
additional collection of information burden on hospices.

V. Regulatory Impact Analysis

A. Statement of Need

1. Hospice Payment
    This final rule meets the requirements of our regulations at Sec.  
418.306(c) and (d), which require annual issuance, in the Federal 
Register, of the hospice wage index based on the most current available 
CMS hospital wage data, including any changes to the definitions of 
CBSAs or previously used Metropolitan Statistical Areas (MSAs), as well 
as any changes to the methodology for determining the per diem payment 
rates. This rule updates the payment rates for each of the categories 
of hospice care, described in Sec.  418.302(b), for FY 2024 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.
2. Hospice Quality Reporting Program
    Sections 1814(i)(5)(A) through (C) of the Act authorizes the HQRP 
which requires that hospices submit quality data, based on measures to 
be specified by the Secretary. In the FY 2012 Hospice Wage Index and 
Rate Update final rule (76 FR 47320 through 47324), we implemented a 
HQRP as required by those sections. Hospices were required to begin 
collecting quality data in October 2012 and submit those quality data 
in 2013. Section 1814(i)(5)(A)(i) of the Act requires that beginning 
with FY 2014 through FY 2023, the Secretary shall reduce the market 
basket update by 2 percentage points for any hospice that does not 
comply with the quality data submission requirements with respect to 
that FY. Section 1814(i)(5)(A)(i) of the Act was amended by section 
407(b) of Division CC, Title IV of the CAA, 2021 to change the payment 
reduction for failing to meet hospice quality reporting requirements 
from 2 to 4 percentage points. This policy will apply beginning with 
the FY 2024 annual payment update (APU) that is based on CY 2022 
quality data. Specifically, the Act requires that, for FY 2014 through 
FY 2023, the Secretary shall reduce the market basket update by 2 
percentage points and beginning with the FY 2024 APU and for each 
subsequent year, the Secretary shall reduce the market basket update by 
4 percentage points for any hospice that does not comply with the 
quality data submission requirements for that FY.
3. Impact of Hospice Ordering/Certifying Physician Enrollment
    We proposed that physicians who certify hospice services must be 
enrolled in or opted-out of Medicare in order to do so. This proposal 
was needed so that CMS could screen the certifying physician to ensure 
that they are qualified to certify services (for

[[Page 51193]]

example, licensed, do not have adverse legal actions, etc.). Via this 
screening process, we can help protect beneficiaries and the Trust 
Funds from unqualified and problematic physicians.

B. Overall Impacts

1. Hospice Payment
    We estimate that the aggregate impact of the payment provisions in 
this final rule would result in an estimated increase of $780 million 
in payments to hospices, resulting from the hospice payment update 
percentage of 3.1 percent for FY 2024. The impact analysis of this rule 
represents the projected effects of the changes in hospice payments 
from FY 2023 to FY 2024. Using the most recent complete data available 
at the time of rulemaking, in this case FY 2022 hospice claims data as 
of May 11, 2023, we simulate total payments using the FY 2023 wage 
index (pre-floor, pre-reclassified hospital wage index with the hospice 
floor, and the 5-percent cap on wage index decreases) and FY 2023 
payment rates and compare it to our simulation of total payments using 
FY 2022 utilization claims data, the FY 2024 hospice wage index (pre-
floor, pre-reclassified hospital wage index with hospice floor, and the 
5-percent cap on wage index decreases) and FY 2023 payment rates. By 
dividing payments for each level of care (RHC days 1 through 60, RHC 
days 61+, CHC, IRC, and GIP) using the FY 2023 wage index and payment 
rates for each level of care by the FY 2024 wage index and FY 2023 
payment rates, we obtain a wage index standardization factor for each 
level of care. We apply the wage index standardization factors so that 
the aggregate simulated payments do not increase or decrease due to 
changes in the wage index.
    Certain events may limit the scope or accuracy of our impact 
analysis, because such an analysis is susceptible to forecasting errors 
due to other changes in the forecasted impact time period. The nature 
of the Medicare program is such that the changes may interact, and the 
complexity of the interaction of these changes could make it difficult 
to predict accurately the full scope of the impact upon hospices.
    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 14094 on Modernizing Regulatory Review (April 6, 2023), 
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 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), and the 
Congressional Review Act (CRA) (5 U.S.C. 804(2)).
    Executive Orders 12866 (as amended by E.O. 14094) and E.O. 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). Executive Order 14094 amends 3(f) of Executive 
Order 12866 to define a ``significant regulatory action'' as an action 
that is likely to result in a rule that: (1) has an annual effect on 
the economy of $200 million or more in any 1 year, or adversely affect 
in a material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, territorial, or tribal governments or communities; (2) creates a 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially alters the budgetary impacts 
of entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising legal or policy 
issues for which centralized review would meaningfully further the 
President's priorities or the principles set forth in this Executive 
Order.
    A regulatory impact analysis (RIA) must be prepared for major rules 
with significant regulatory action/s and/or with significant effects as 
per section 3(f)(1) of $200 million or more in any 1 year. Based on our 
estimates, OMB'S Office of Information and Regulatory Affairs has 
determined this rulemaking significant under section 3(f)(1) of E.O. 
12866. Accordingly, we have prepared a regulatory impact analysis 
presents the costs and benefits of the rulemaking to the best of our 
ability.

C. Detailed Economic Analysis

1. Hospice Payment Update for FY 2024
    The FY 2024 hospice payment impacts appear in Table 9. We tabulate 
the resulting payments according to the classifications (for example, 
provider type, geographic region, facility size), and compare the 
difference between current and future payments to determine the overall 
impact. The first column shows the breakdown of all hospices by 
provider type and control (non-profit, for-profit, government, other), 
facility location, facility size. The second column shows the number of 
hospices in each of the categories in the first column. The third 
column shows the effect of using the FY 2024 updated wage index data 
with a 5-percent cap on wage index decreases. This represents the 
effect of moving from the FY 2023 hospice wage index to the FY 2024 
hospice wage index. The aggregate impact of the changes in column three 
is zero percent, due to the hospice wage index standardization factor. 
However, there are distributional effects of the FY 2024 hospice wage 
index. The fourth column shows the effect of the hospice payment update 
percentage as mandated by section 1814(i)(1)(C) of the Act and is 
consistent for all providers. The hospice payment update percentage of 
3.1 percent is based on the 3.3 percent inpatient hospital market 
basket percentage increase, reduced by a 0.2 percentage point 
productivity adjustment. The fifth column shows the total effect of the 
updated wage data and the hospice payment update percentage on FY 2024 
hospice payments but does not include the effect of moving from the 2 
percent reduction to the 4 percent reduction for failure to report 
quality data. It is projected aggregate payments would increase by 3.1 
percent; assuming hospices do not change their billing practices. As 
illustrated in Table 9, the combined effects of all the proposals vary 
by specific types of providers and by location. We note that simulated 
payments are based on utilization in FY 2022 as seen on Medicare 
hospice claims (accessed from the CCW on May 11, 2023) and only include 
payments related to the level of care and do not include payments 
related to the service intensity add-on.
    As illustrated in Table 9, the combined effects of all the 
proposals vary by specific types of providers and by location.

[[Page 51194]]

[GRAPHIC] [TIFF OMITTED] TR02AU23.086


[[Page 51195]]


[GRAPHIC] [TIFF OMITTED] TR02AU23.087


[[Page 51196]]


[GRAPHIC] [TIFF OMITTED] TR02AU23.088

2. Regulatory Review Cost Estimation
    If regulations impose administrative costs on private entities, 
such as the time needed to read and interpret this 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 this rule, we assume that the total number of unique 
commenters on this year's proposed rule will be the number of reviewers 
of this final rule. We acknowledge that this assumption may understate 
or overstate the costs of reviewing this rule. It is possible that not 
all commenters reviewed this year's rule in detail, and it is also 
possible that some reviewers chose not to comment on the proposed rule. 
For these reasons we believe that the number of past commenters would 
be a fair estimate of the number of reviewers of this final rule. We 
welcomed public comments on the approach in estimating the number of 
entities that would review the proposed rule. We did not receive any 
public comments specific to our solicitation.
    We also recognize that different types of entities are in many 
cases affected by mutually exclusive sections of this rule, and 
therefore for the purposes of our estimate we assume that each reviewer 
reads approximately 50 percent of the rule. We sought public comments 
on this assumption, and we did not receive any public comments.
    Using the occupational wage information from the BLS for medical 
and health service managers (Code 11-9111) from May 2022; we estimate 
that the cost of reviewing this rule is $115.22 per hour, including 
overhead and fringe benefits (https://www.bls.gov/oes/current/oes119111.htm). This final rule consists of approximately 32,000 words. 
Assuming an average reading speed of 250 words per minute, it would 
take approximately 2 hours for staff to review half of it. For each 
hospice that reviews the rule, the estimated cost is $230.44 (2 hours x 
$115.22). Therefore, we estimate that the total cost of reviewing this 
regulation is $8,756.72 ($115.22 x 76 reviewers).
3. Impacts for the Hospice Quality Reporting Program for FY 2024
    The HQRP requires the active collection under OMB control number 
#0938-1153 (CMS 10390; expiration 02/29/2024) of the Hospice Items Set 
(HIS) and CAHPS[supreg] Hospice Survey (OMB control number 0938-1257 
(CMS-10537; expiration 12/31/2023). Failure to submit data required 
under section 1814(i)(5) of the Act with respect to a CY will result in 
the reduction of the annual hospice market basket percentage increase 
otherwise applicable to a hospice for that calendar year. From FY 2014 
through FY 2023, hospices that failed to report quality data had their 
market basket percentage increase reduced by 2 percentage points. As 
noted in section C.5. of this final rule, section 1814(i)(5)(A)(i) of 
the Act was amended by section 407(b) of Division CC, Title IV of the 
CAA, 2021 (Pub. L. 116-260) to change the payment reduction for failing 
to meet hospice quality reporting requirements to 4 percentage points, 
beginning with FY 2024. This section analyzes the estimated impact of 
the transition from 2 percentage points to 4 percentage points.
    Based on historical performance trends, we estimate that roughly 
18.4 percent of hospices (an estimated 1,049 out of approximately 5,700 
active hospices) will fail to receive the full annual percentage 
increase in FY 2024, if active Medicare-certified hospices perform 
similarly in CY 2022 to hospice performance in previous years. We 
project that the 4 percentage point penalty for hospices will represent 
approximately $82.4 million in hospice payment dollars during the 
reporting period, out of an estimated total $23.9 billion paid to all 
hospices. The net impact of the policy change from 2 percent APU 
penalty to 4 percent APU penalty is estimated to be $41.2 million.
4. Impact of Hospice Certifying Physician Enrollment
    We believe there will be two main impacts of this provision. The 
first is the ICR burden outlined in section IV of this rule regarding 
the completion of the Form CMS-855O, which we projected to be 691 hours 
and $158,598 over a 3-year period, or 230 hours or $52,866 per year. 
The second involves the burden the hospice will incur in verifying the 
physician's enrollment/opt-out status. There are approximately 6,712 
Medicare-enrolled hospices. Based on our experience with providers and 
suppliers such as HHAs and DMEPOS suppliers, we believe it will take a 
hospice approximately 5 minutes to confirm the enrollment/opt-out 
status of the certifying physician(s). Solely for purposes of 
establishing a projection, we will estimate that there are roughly 1.7 
million Medicare hospice beneficiaries per year (or, on average, 253 
per hospice) (1.7 million/6,712), this results in an annual hour burden 
of 141,455 hours (6,712 x 253 x 0.0833). In terms of cost, we believe 
that the hospice's administrative personnel will typically confirm the 
physician's enrollment/opt-out status. Consequently, we will use the 
following wage category and hourly rate from the BLS May 2022 National 
Occupational Employment and Wage Estimates for all salary estimates 
(https://www.bls.gov/oes/current/oes_nat.htm):

[[Page 51197]]

[GRAPHIC] [TIFF OMITTED] TR02AU23.089

    This results in an estimated annual cost of $5,870,383 ($141,455 x 
$41.50).

D. Alternatives Considered

1. Hospice Payment
    Since the hospice payment update percentage is determined based on 
statutory requirements at section 1814(i)(1)(C) of the Act, we did not 
consider updating the hospice payment rates by the payment update 
percentage. The 3.1 percent hospice payment update percentage for FY 
2024 is based on a 3.3 percent inpatient hospital market basket 
percentage increase for FY 2024, reduced by a 0.2 percentage point 
productivity adjustment. Payment rates since FY 2002 have been updated 
according to section 1814(i)(1)(C)(ii)(VII) of the Act, which states 
that the update to the payment rates for subsequent years must be the 
market basket percentage increase for that FY. Section 3401(g) of the 
Affordable Care Act also mandates that, starting with FY 2013 (and in 
subsequent years), the hospice payment update percentage will be 
annually reduced by changes in economy-wide productivity as specified 
in section 1886(b)(3)(B)(xi)(II) of the Act.
2. Hospice Quality Reporting Program
    We did not consider any alternatives in this final rule.
3. Hospice Physician Enrollment
    We did not consider any alternatives to our proposal to require 
physicians who certify hospice services for Medicare beneficiaries to 
be enrolled/opted-out as a prerequisite for the payment of the hospice 
service in question. This is because the enrollment process is the only 
available, feasible means of ascertaining the physician's compliance 
with all applicable requirements and whether he or she has any adverse 
legal history.

E. Accounting Statement

    As required by OMB Circular A-4 (available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf), in Table 11, we have prepared an accounting statement showing 
the classification of the expenditures associated with the provisions 
of this final rule. Table 11 provides our best estimate of the possible 
changes in Medicare payments under the hospice benefit as a result of 
the policies in this rule. This estimate is based on the data for 5,653 
hospices in our impact analysis file, which was constructed using FY 
2022 claims (accessed from the CCW on May 11, 2023). All expenditures 
are classified as transfers to hospices.
[GRAPHIC] [TIFF OMITTED] TR02AU23.090

F. Regulatory Flexibility Act (RFA)

    The RFA requires agencies to analyze options for regulatory relief 
of small entities if a rule has a significant impact on a substantial 
number of small entities. For purposes of the RFA, small entities 
include small businesses, nonprofit organizations, and small 
governmental jurisdictions. We consider all hospices as small entities 
as that term is used in the RFA. The North American Industry 
Classification System (NAICS) was adopted in 1997 and is the current 
standard used by the Federal statistical agencies related to the U.S. 
business economy. There is no NAICS code specific to hospice services. 
Therefore, we utilized the NAICS U.S. industry title ``Home Health Care 
Services'' and corresponding NAICS

[[Page 51198]]

code 621610 in determining impacts for small entities. The NAICS code 
621610 has a size standard of $19 million.\31\ Table 12 shows the 
number of firms, revenue, and estimated impact per home health care 
service category.
---------------------------------------------------------------------------

    \31\ https://www.sba.gov/sites/sbagov/files/2023-03/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%281%29%20%281%29_0.pdf.
[GRAPHIC] [TIFF OMITTED] TR02AU23.091

    The Department of Health and Human Services practice in 
interpreting the RFA is to consider effects economically 
``significant'' only if greater than 5 percent of providers reach a 
threshold of 3 to 5 percent or more of total revenue or total costs. 
The majority of hospice visits are Medicare paid visits and therefore 
the majority of hospice's revenue consists of Medicare payments. Based 
on our analysis, we conclude that the policies finalized in this rule 
would result in an estimated total impact of 3 to 5 percent or more on 
Medicare revenue for greater than 5 percent of hospices. Therefore, the 
Secretary has certified that this hospice final rule would have 
significant economic impact on a substantial number of small entities. 
We estimate that the net impact of the policies in this rule is a 3.1 
percent or approximately $780 million in increased revenue to hospices 
in FY 2024. The 3.1 percent increase in expenditures when comparing FY 
2023 payments to estimated FY 2024 payments is reflected in the last 
column of the first row in Table 9 and is driven solely by the impact 
of the hospice payment update percentage reflected in the fourth column 
of the impact table. In addition, small hospices would experience a 
greater estimated increase (3.2 percent), compared to large hospices 
(3.1 percent) due to the updated wage index. Further detail is 
presented in Table 9, by hospice type and location.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 604 of the RFA. For 
purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside of a MSA and has fewer 
than 100 beds. This rule will only affect hospices. Therefore, the 
Secretary has determined that this rule will not have a significant 
impact on the operations of a substantial number of small rural 
hospitals (see Table 12).

G. Unfunded Mandates Reform Act (UMRA)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2023, that 
threshold is approximately $177 million. This rule is not anticipated 
to have an effect on state, local, or tribal governments, in the 
aggregate, or on the private sector of $177 million or more in any 1 
year.

H. Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on state 
and local governments, preempts state law, or otherwise has Federalism 
implications. We have reviewed this rule under these criteria of 
Executive Order 13132 and have determined that it will not impose 
substantial direct costs on state or local governments.

I. Conclusion

    We estimate that aggregate payments to hospices in FY 2024 will 
increase by $780 million as a result of the hospice payment update, 
compared to payments in FY 2023. We estimate that in FY 2024, hospices 
in urban areas will experience, on average, a 3.1 percent increase in 
estimated payments compared to FY 2023; while hospices in rural areas 
will experience, on average, a 2.8 percent increase in estimated 
payments compared to FY 2023. Hospices providing services in the Middle 
Atlantic and South Atlantic regions would experience the largest 
estimated increases in payments of 3.6 percent and 3.4 percent, 
respectively. Hospices serving patients in areas in the Outlying 
regions would experience, on

[[Page 51199]]

average, the lowest estimated increase of 1.5 percent in FY 2024 
payments.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.
    Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & 
Medicaid Services, approved this document on July 25, 2023.

List of Subjects

42 CFR Part 418

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

42 CFR Part 424

    Health facilities, Health professions, Medicare Reporting and 
recordkeeping requirements.
    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services proposes to amend 42 CFR chapter IV as set forth 
below.

PART 418--HOSPICE CARE

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

    Authority:  42 U.S.C. 1302 and 1395hh.

0
2. Amend Sec.  418.22 by revising paragraph (a)(4)(ii) to read as 
follows:


Sec.  418.22  Certification of terminal illness.

* * * * *
    (a) * * *
    (4) * * *
    (ii) During a Public Health Emergency, as defined in Sec.  400.200 
of this chapter, or through December 31, 2024, whichever is later, if 
the face-to-face encounter conducted by a hospice physician or hospice 
nurse practitioner is for the sole purpose of hospice recertification, 
such encounter may occur via a telecommunications technology and is 
considered an administrative expense. Telecommunications technology 
means the use of interactive multimedia communications equipment that 
includes, at a minimum, the use of audio and video equipment permitting 
two-way, real-time interactive communication between the patient and 
the distant site hospice physician or hospice nurse practitioner.
* * * * *


Sec.  418.204  [Amended]

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3. Amend Sec.  418.204 by removing paragraph (d).


Sec.  418.309  [Amended]

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4. In Sec.  418.309 amend paragraphs (a)(1) and (2) by removing the 
date ``October 1, 2030'' and adding in its place the date ``October 1, 
2032''.

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5. Amend Sec.  418.312 by adding paragraph (j) to read as follows


Sec.  418.312  Data submission requirements under the hospice quality 
reporting program

* * * * *
    (j) Data completion thresholds. (1) Hospices must meet or exceed 
data submission threshold set at 90 percent of all required HIS or 
successor instrument records within 30-days of the beneficiary's 
admission or discharge and submitted through the CMS designated data 
submission systems.
    (2) A hospice must meet or exceed the data submission compliance 
threshold in paragraph (j)(1) of this section to avoid receiving a 4-
percentage point reduction to its annual payment update for a given FY 
as described under Sec.  412.306(b)(2) of this chapter.

PART 424--CONDITIONS FOR MEDICARE PAYMENT

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6. The authority citation for part 424 continues to read as follows:

    Authority:  42 U.S.C. 1302 and 1395hh.

0
7. Amend Sec.  424.507 by--
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a. Revising paragraphs (b) introductory text and (b)(1) introductory 
text; and
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b. Adding new paragraph (b)(3).
    The revisions and addition read as follows:


Sec.  424.507  Ordering covered items and services for Medicare 
beneficiaries.

* * * * *
    (b) Conditions for payment of claims for covered home health and 
hospice services. To receive payment for covered Part A or Part B home 
health services or for covered hospice services, a provider's home 
health or hospice services claim must meet all of the following 
requirements:
    (1) The ordering/certifying physician for hospice or home health 
services, or, for home health services, the ordering/certifying 
physician assistant, nurse practitioner, or clinical nurse specialist 
working in accordance with State law, must meet all of the following 
requirements:
* * * * *
    (3) For claims for hospice services, the requirements of this 
paragraph (b) apply with respect to any physician described in Sec.  
418.22(c) of this chapter who made the applicable certification 
described in Sec.  418.22(c) of this chapter.
* * * * *

Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-16116 Filed 7-28-23; 4:15 pm]
BILLING CODE 4120-01-P