The first new regulations in 25 years for Medicare participation by hospices took effect on Dec. 2, 2008. The Medicare Hospice Conditions of Participation (COPs) enacted by the Centers for Medicare and Medicaid Services (CMS) were finalized in June 2008 and reflect comments received since 2005 when the regulations were initially proposed. The new regulations emphasize patient rights and quality of care and, for the first time, address the relationships between hospices and the nursing facilities to whose patients they provide services. In light of the new COPs, hospices should consider reviewing current operating procedures, policies and form contracts.
Among other things, the new COPs create a detailed list of patient rights. The list includes the right for a patient to participate in the development of his or her plan of care, the right to effective pain management, and the right to chose his or her attending physician. Under the new regulations, a hospice must provide patients with a notice of these rights in a language and a manner that they understand during their initial assessment visit. The COPs also provide that patients' complaints must be investigated and reported to the hospice administrator. If a violation is verified corrective action must be taken. If the violation is significant, it must be reported to the appropriate state or local body within five days of the incident.
In a move reflecting the healthcare industry's shift away from an after-the-fact corrective approach and toward a more quality-driven approach on the front end, the new COPs also require hospices to implement "an effective, ongoing, hospice-wide data-driven quality assessment and performance improvement (QAPI) program." The COPs do not specify any mechanisms for doing so, but rather allow hospices to implement the QAPI requirements in a manner that reflects the individual hospice's goals and needs.
In addition to patient rights and the QAPI requirements, relationships between hospices and nursing facilities are addressed in the new regulations. CMS believes that this relationship creates potential for fraud and abuse because a hospice's access to nursing facility patients is directly dependent on the nursing facility's operator. Additionally, nursing facility patients provide an opportunity for hospices to reduce costs through the inappropriate use of the facilities for services that the hospice is required to provide. CMS is concerned that this opportunity for cost reduction could lead to illegal inducements, either requested by nursing facilities or offered by hospices, to illegally influence hospice selection.
To help guard against this risk of fraud and abuse, the new hospice COPs provide specific guidelines for the relationship between hospices and nursing facilities, including a requirement that a written agreement must be in place between a nursing facility and hospice if the hospice provides services in the facility. The written agreement must include at least the following:
- A description of the manner in which the facility and the hospice will communicate with each other and document this communication to ensure that patients' needs are met 24 hours a day.
- A provision that requires the nursing facility to notify immediately the hospice if the patient has significant status changes, complications that signify a need for a change in care, a need to transfer the patient, or if the patient dies.
- A provision stating that the hospice is responsible for determining appropriate course of hospice care.
- An agreement that the facility must furnish 24-hour room and board care at the same level as before hospice care was elected.
- An agreement that the hospice must provide services at the same level as if the patient were at home.
- A delineation of the hospice's responsibilities, including providing medical direction and management of patient, nursing, counseling, and social work services, and the provision of medical supplies, durable medical equipment and drugs for palliation of pain and symptoms of terminal illness.
- A provision that the hospice may use the facility nursing personnel as permitted by state law to assist in the administration of therapies included in the plan of care only to the extent the hospice would routinely use the patient's family in implementing the plan of care.
- A provision stating that the hospice must report all alleged violations involving mistreatment, neglect, or verbal, mental, sexual, and physical abuse by anyone unrelated to the hospice to the facility administrator within 24 hours of becoming aware of the alleged violation.
- A delineation of the responsibilities of the hospice and the facility to provide bereavement services to the facility staff.
The full text of the Final Rule is available at this link.
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