CMS Manual System

CMS Manual System

Pub 100-02 Medicare Benefit Policy

Transmittal 246

Department of Health & Human Services (DHHS)

Centers for Medicare & Medicaid Services (CMS)

Date: September 14, 2018 Change Request 10517

SUBJECT: Manual Updates Related to Payment Policy Changes Affecting the Hospice Aggregate Cap Calculation and the Designation of Hospice Attending Physicians

I. SUMMARY OF CHANGES: This Change Request (CR) updates the Internet Only Manual (IOM) with policies related to section 51006 of the Bipartisan Budget Act of 2018 (Pub. L. 115-123), which amended section 1861(dd)(3)(B) of the Social Security Act (the Act) such that, effective January 1, 2019, physician assistants (PAs) will be recognized as designated hospice attending physicians, in addition to physicians and nurse practitioners. This CR also updates sections of the IOM with policies related to the calculation methodology for the cap amount for hospices required by section 1814(i)(2)(B)(i) and (ii) of the Act, as added by section 3(b) of the Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014 (Pub. L. 113?185). In addition, this CR includes IOM updates to polices regarding timeframe and accounting procedures for the cap amount for hospices as discussed in the fiscal year (FY) 2016 Hospice Wage Index and Payment Rate Update final rule published on August 6, 2015.

EFFECTIVE DATE: December 17, 2018 *Unless otherwise specified, the effective date is the date of service. IMPLEMENTATION DATE: December 17, 2018 Disclaimer for manual changes only: The revision date and transmittal number apply only to red italicized material. Any other material was previously published and remains unchanged. However, if this revision contains a table of contents, you will receive the new/revised information only, and not the entire table of contents.

II. CHANGES IN MANUAL INSTRUCTIONS: (N/A if manual is not updated) R=REVISED, N=NEW, D=DELETED-Only One Per Row.

R/N/D R R R R R R R N R R R R R R R R D R

CHAPTER / SECTION / SUBSECTION / TITLE 9/Table of Contents 9/10 - Requirements - General 9/20.1 - Timing and Content of Certification 9/20.2.1 ? Hospice Election 9/20.2.1.1 - Hospice Notice of Election 9/40.1.3.1 - Attending Physician Services 9/40.1.3.2 - Nurse Practitioners as Attending Physicians 9/40.1.3.3 ? Physician Assistants as Attending Physicians 9/90 - Caps and Limitations on Hospice Payments 9/90.1 - Limitation on Payments for Inpatient Care 9/90.2 - Aggregate Cap on Overall Reimbursement to Medicare-certified Hospices 9/90.2.1 ? New Hospices 9/90.2.2 ? Counting Beneficiaries for Calculation 9/90.2.3 ? Changing Aggregate Cap Calculation Methods 9/90.2.4 ? Other Issues 9/90.2.5 ? Updates to the Cap Amount 9/90.2.6 - Updates to the Cap Amount 9/90.3 - Administrative Appeals

III. FUNDING: For Medicare Administrative Contractors (MACs): The Medicare Administrative Contractor is hereby advised that this constitutes technical direction as defined in your contract. CMS does not construe this as a change to the MAC Statement of Work. The contractor is not obligated to incur costs in excess of the amounts allotted in your contract unless and until specifically authorized by the Contracting Officer. If the contractor considers anything provided, as described above, to be outside the current scope of work, the contractor shall withhold performance on the part(s) in question and immediately notify the Contracting Officer, in writing or by e-mail, and request formal directions regarding continued performance requirements.

IV. ATTACHMENTS:

Business Requirements Manual Instruction

Attachment - Business Requirements

Pub. 100-02 Transmittal: 246

Date: September 14, 2018 Change Request: 10517

SUBJECT: Manual Updates Related to Payment Policy Changes Affecting the Hospice Aggregate Cap Calculation and the Designation of Hospice Attending Physicians

EFFECTIVE DATE: December 17, 2018 *Unless otherwise specified, the effective date is the date of service. IMPLEMENTATION DATE December 17, 2018

I. GENERAL INFORMATION

A. Background: Section 51006 of the Bipartisan Budget Act of 2018 (Pub. L. 115-123) amended section 1861(dd)(3)(B) of the Act such that, effective January 1, 2019, physician assistants (PAs) will be recognized as designated hospice attending physicians, in addition to physicians and nurse practitioners. Sections 1814(i)(2)(B)(i) and (ii) of the Act were amended by section 3(b) of the Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014 (Pub. L. 113?185), which describes the calculation methodology for the aggregate cap amount for hospices. Additionally, in the fiscal year (FY) 2016 Hospice Wage Index and Payment Rate Update final rule (80 FR 47141), CMS finalized policies related to the methodology used to calculate cap amounts for hospices as well as polices related to the timeframe and accounting procedures for cap amount for hospices.

B. Policy: Section 51006 of the Bipartisan Budget Act of 2018 (Pub. L. 115-123) requires that, effective January 1, 2019, physician assistants (PAs) be recognized as designated hospice attending physicians, in addition to physicians and nurse practitioners. The Medicare Benefit Policy Manual, Pub. 100-02, chapter 9 has been revised to reflect the inclusion of PAs as hospice attending physicians. Additionally, the Medicare Benefit Policy Manual, Pub. 100-02, chapter 9 has been updated to reiterate that designated hospice attending physicians who are nurse practitioners or physician assistants may not certify a hospice patient as terminally ill in accordance with section 1814(a)(7) of the Social Security Act, which requires that no one other than a medical doctor or doctor of osteopathy can certify or re-certify terminal illness for the Medicare hospice benefit.

Section 3(b) of the Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014 (Pub. L. 113?185) required that the hospice aggregate cap for accounting years ending after September 30, 2016 and before October 1, 2025, be updated by the hospice payment update percentage rather than using the consumer price index for urban consumers (CPI?U). This provision will sunset for cap years ending after September 30, 2025, at which time the annual update to the cap amount will revert back to the original methodology. These policies were finalized in the fiscal year (FY) 2016 Hospice Wage Index and Payment Rate Update final rule (80 FR 47141). The Medicare Benefit Policy Manual, Pub. 100-02, chapter 9 has been updated to reflect the revised hospice aggregate cap calculation methodology.

In the fiscal year (FY) 2016 Hospice Wage Index and Payment Rate Update final rule published on August 6, 2015 (80 FR 47141), we finalized the alignment of the cap accounting year for both the inpatient cap and the hospice aggregate cap with the fiscal year for FY 2017 and later. The Medicare Benefit Policy Manual, Pub. 100-02, chapter 9 has been revised to reflect the changes made to the hospice cap accounting year and to provide descriptive examples for cap calculations.

The timeframes in which beneficiaries and payments are counted for the purposes of determining each individual hospice's aggregate cap amount as well as the timeframes for determining whether a given hospice exceeded the cap for the transition year (2017 cap year) are outlined in the attached table "Hospice Aggregate Cap Timeframes for Counting Beneficiaries and Payments for the Alignment of the Cap Year with the Federal Fiscal Year." In addition, the timeframes for the 2018 cap year, which will remain consistent for all future cap years, are also included in the table.

Also included in this update to chapter 9 are clarifications regarding retroactive Medicare entitlement and NOE exceptions. Section 418.24(a)(4) of the Code of Federal Regulations describes exceptions to the consequences of failure to submit a timely NOE. This CR provides clarification that retroactive Medicare entitlement qualifies as one of the exceptions to a timely-filed NOE as this would be a circumstance that is beyond the hospice's control.

II. BUSINESS REQUIREMENTS TABLE "Shall" denotes a mandatory requirement, and "should" denotes an optional requirement.

Number 10517.1

Requirement

The contractors shall be aware of the revisions to Pub. 100-02, chapter 9 related to the policies discussed in this CR.

Responsibility

A/B D SharedMAC M System

E Maintainers

A B H F MV C H M I C MW HAS S S F C S

X

Other

III. PROVIDER EDUCATION TABLE

Number Requirement

Responsibility

10517.2

MLN Article: CMS will make available an MLN Matters provider education article that will be marketed through the MLN Connects weekly newsletter shortly after the CR is released. MACs shall follow IOM Pub. No. 100-09 chapter 6, section 50.2.4.1, instructions for distributing MLN Connects information to providers, posting the article or a direct link to the article on your website, and including the article or a direct link to the article in your bulletin or newsletter. You may supplement MLN Matters articles with localized information benefiting your provider community in billing and administering the Medicare program correctly. Subscribe to the "MLN Matters" listserv to get article release notifications, or review them in the MLN Connects weekly newsletter.

A/B MAC

A B H H H

X

DC ME E D

I M A C

IV. SUPPORTING INFORMATION

Section A: Recommendations and supporting information associated with listed requirements: "Should" denotes a recommendation.

X-Ref Requirement Number 10131

Recommendations or other supporting information: CR 10131 contains the related implementation and systems requirements.

Section B: All other recommendations and supporting information: N/A

V. CONTACTS

Pre-Implementation Contact(s): Hillary Loeffler, 410-786-0456 or hillary.loeffler@cms., Laura Ashbaugh, 410-786-1113 or laura.ashbaugh@cms..

Post-Implementation Contact(s): Contact your Contracting Officer's Representative (COR).

VI. FUNDING

Section A: For Medicare Administrative Contractors (MACs): The Medicare Administrative Contractor is hereby advised that this constitutes technical direction as defined in your contract. CMS does not construe this as a change to the MAC Statement of Work. The contractor is not obligated to incur costs in excess of the amounts allotted in your contract unless and until specifically authorized by the Contracting Officer. If the contractor considers anything provided, as described above, to be outside the current scope of work, the contractor shall withhold performance on the part(s) in question and immediately notify the Contracting Officer, in writing or by e-mail, and request formal directions regarding continued performance requirements.

ATTACHMENTS: 2

Medicare Benefit Policy Manual

Chapter 9 - Coverage of Hospice Services Under Hospital Insurance

Table of Contents (Rev.246, Issued: 09-14-18)

Transmittals for Chapter 9

40.1.3.2 - Nurse Practitioners as Attending Physicians 40.1.3.3 - Physician Assistants as Attending Physicians

90.2 - Aggregate Cap on Overall Reimbursement to Medicare-certified Hospices 90.2.1 - New Hospices 90.2.2 - Counting Beneficiaries for Calculation 90.2.3 - Changing Aggregate Cap Calculation Methods 90.2.4 - Other Issues 90.2.5 - Updates to the Cap Amount

10 - Requirements - General

(Rev. 246, Issued: 09-14-18, Effective: 12-17- 18, Implementation: 12-17-18)

Hospice care is a benefit under the hospital insurance program. To be eligible to elect hospice care under Medicare, an individual must be entitled to Part A of Medicare and be certified as being terminally ill. An individual is considered to be terminally ill if the medical prognosis is that the individual's life expectancy is 6 months or less if the illness runs its normal course. Only care provided by (or under arrangements made by) a Medicare certified hospice is covered under the Medicare hospice benefit.

The hospice admits a patient only on the recommendation of the medical director in consultation with, or with input from, the patient's attending physician (if any).

In reaching a decision to certify that the patient is terminally ill, the hospice medical director must consider at least the following information:

(1) Diagnosis of the terminal condition of the patient. (2) Other health conditions, whether related or unrelated to the terminal condition. (3) Current clinically relevant information supporting all diagnoses.

Section 1814(a)(7) of the Social Security Act (the Act) specifies that certification of terminal illness for hospice benefits shall be based on the clinical judgment of the hospice medical director or physician member of the interdisciplinary group (IDG) and the individual's attending physician, if he/she has one, regarding the normal course of the individual's illness. No one other than a medical doctor or doctor of osteopathy can certify or re-certify a terminal illness. Predicting of life expectancy is not always exact. The fact that a beneficiary lives longer than expected in itself is not cause to terminate benefits. "Attending physician" is further defined in section 20.1 and 40.1.3.1.

An individual (or his authorized representative) must elect hospice care to receive it. The first election is for a 90-day period. An individual may elect to receive Medicare coverage for two 90-day periods, and an unlimited number of 60-day periods. If the individual (or authorized representative) elects to receive hospice care, he or she must file an election statement with a particular hospice. Hospices obtain election statements from the individual and file a Notice of Election with the Medicare contractor, which transmits them to the Common Working File (CWF) in electronic format. Once the initial election is processed, CWF maintains the beneficiary in hospice status until a final claim indicates a discharge (alive or due to death) or until an election termination is received.

For the duration of the election of hospice care, an individual must waive all rights to Medicare payments for the following services:

? Hospice care provided by a hospice other than the hospice designated by the individual (unless provided under arrangements made by the designated hospice); and

? Any Medicare services that are related to the treatment of the terminal condition for which hospice care was elected or a related condition, or services that are equivalent to hospice care, except for services provided by:

1. The designated hospice (either directly or under arrangement);

2. Another hospice under arrangements made by the designated hospice; or

3. The individual's attending physician, who may be a nurse practitioner (NP) or a physician assistant (PA), if that physician, NP, or PA is not an employee of the designated hospice or receiving compensation from the hospice for those services.

Medicare services for a condition completely unrelated to the terminal condition for which hospice was elected remain available to the patient if he or she is eligible for such care.

20.1 - Timing and Content of Certification

(Rev. 246, Issued: 09-14-18, Effective: 12-17- 18, Implementation: 12-17-18)

For the first 90-day period of hospice coverage, the hospice must obtain, no later than 2 calendar days after hospice care is initiated, (that is, by the end of the third day), oral or written certification of the terminal illness by the medical director of the hospice or the physician member of the hospice IDG, and the individual's attending physician if the individual has an attending physician.

No one other than a medical doctor or doctor of osteopathy can certify or re-certify an individual as terminally ill, meaning that the individual has a medical prognosis that his or her life expectancy is 6 months or less if the illness runs its normal course. Nurse practitioners and physician assistants cannot certify or re-certify an individual as terminally ill. In the event that a beneficiary's attending physician is a nurse practitioner or a physician assistant, the hospice medical director or the physician member of the hospice IDG certifies the individual as terminally ill.

The attending physician is a doctor of medicine or osteopathy who is legally authorized to practice medicine or surgery by the state in which he or she performs that function, a nurse practitioner, or physician assistant, and is identified by the individual, at the time he or she elects to receive hospice care, as having the most significant role in the determination and delivery of the individual's medical care. A nurse practitioner is defined as a registered nurse who performs such services as legally authorized to perform (in the state in which the services are performed) in accordance with State law (or State regulatory mechanism provided by State law) and who meets training, education, and experience requirements described in 42 CFR 410.75. A PA is defined as a professional who has graduated from an accredited physician assistant educational program who performs such services as he or she is legally authorized to perform (in the State in which the services are performed) in accordance with State law (or State regulatory mechanism provided by State law) and who meets the training, education, and experience requirements as the Secretary may prescribe. The PA qualifications for eligibility for furnishing services under the Medicare program can be found in the regulations at 42 CFR 410.74 (c).

Note that a rural health clinic or federally qualified healthcare clinic (FQHC) physician can be the patient's attending physician but may only bill for services as a physician under regular Part B rules. These services would not be considered rural health clinic or FQHC services or claims (e.g., the physicians do not bill under the rural health clinic provider number but they bill under their own provider number).

Initial certifications may be completed up to 15 days before hospice care is elected. Payment normally begins with the effective date of election, which is the same as the admission date. If the physician forgets to date the certification, a notarized statement or some other acceptable documentation can be obtained to verify when the certification was obtained.

For the subsequent periods, recertifications may be completed up to 15 days before the next benefit period begins. For subsequent periods, the hospice must obtain, no later than 2 calendar days after the first day of each period, a written certification statement from the medical director of the hospice or the physician member of the hospice's IDG. If the hospice cannot obtain written certification within 2 calendar days, it must obtain oral certification within 2 calendar days. When making an oral certification, the certifying physician(s) should state that the patient is terminally ill, with a prognosis of 6 months or less. Because oral certifications are an interim step sometimes needed while all the necessary documentation for the written certification is gathered, it is not necessary for the physician to sign the oral certification. Hospice staff must make an appropriate entry in the patient's medical record as soon as they receive an oral certification.

The hospice must obtain written certification of terminal illness for each benefit period, even if a single election continues in effect.

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