CMS Provides Guidance for Hospices Serving Residents of Facilities

WASHINGTON, D.C. (June 15, 2020)—While there are undoubtedly new challenges that all providers have had to deal with during this public health emergency (PHE), some hospices have dealt with exceptional challenges in serving residents of facilities (nursing homes, assisted living facilities, independent living, etc.). The Centers for Medicare & Medicaid Services (CMS) has provided flexibilities related to telecommunications/telehealth options for hospices and the National Association for Home Care & Hospice (NAHC) continues to advocate for continued use of these technologies in hospice. If it were not for the flexibility afforded in using telecommunications hospices may not be able to serve residents of some facilities. 

CMS recently updated the Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs) for Non Long-Term Care Facilities and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IIDs) which includes some updates for hospices. Specifically, the update to question #25—Can an assisted living facility/independent living facility restrict hospice staff from caring for a hospice patient in their facility during this COVID-19 PHE?—has raised some additional questions for hospices. CMS updated the response to this question with the following:

If access is restricted, hospices should communicate with the facility administration, including the state or local health department when indicated, on the nature of the restriction and timing for gaining access to hospice patients. Communication should also occur with the hospice patient’s family or representative. This communication is essential for maintaining surveillance and preventing the spread of infection while also ensuring access of patients to essential services. If after reasonable attempts have been made and documented in the patient’s record and the hospice continues to be unable to access the patient in-person, the hospice would have to discharge the patient as “outside of the hospice’s service area” (Medicare Benefit Policy Manual, chapter 9, 20.2.3): available here. Additionally, a hospice must forward to the patient’s attending physician a copy of the hospice discharge summary and patient’s clinical record if requested

This response does not mention telecommunications as an option for hospices in these situations and leads the reader to believe that the hospice should discharge the patient if in-person visits cannot be made which contradicts previous guidance (linked above) that allows for telecommunications. NAHC reached out to CMS for clarification and was told that telecommunications are acceptable and the hospice does not have to discharge the patient if in-person visits cannot be made. 

However, if the hospice decides it cannot continue to serve the patient due to the access restrictions, the hospice should use the “outside of the hospice’s service area” discharge code, 54, in these instances. The hospice should make the decision to discharge on a case-by-case basis. NAHC advises that if the hospice is not able to appropriately and reasonably modify the patient’s plan of care to accommodate for any access restrictions in a way that allows the patient’s goals as stated on the plan of care to be met, the hospice really cannot carry out the plan of care and should consider discharging the patient from the Medicare Hospice Benefit (MHB). The discharge code to be used, Code 54, is not one that is used often per CMS, and it is CMS’ hope that they may be able to glean information about these situations from the claims where these codes are used. While the guidance from CMS is written for non-long term care facilities the guidance to use the “out of the hospice’s service area” discharge code can and should be applied in nursing homes and skilled nursing facilities. 

CMS has provided recommendations to nursing homes on reopening that include:

• The capacity for all nursing home staff (including volunteers and vendors who are in the facility on a weekly basis) to receive a single baseline COVID-19 test, with re-testing of all staff continuing every week (note: State and local leaders may adjust the requirement for weekly testing of staff based on data about the circulation of the virus in their community); 
• Written screening protocols for all staff (each shift), each resident (daily), and all persons entering the facility, such as vendors, volunteers, and visitors;
• Hospice personnel entering nursing homes are not nursing home staff but are vendors. Therefore, if the nursing home is following CMS recommendations or state or local official direction to test all vendors or those entering the facility on a weekly (or other basis) the hospice personnel would fall into this category and should be tested by the nursing home. Likewise, CMS expects that the hospice would notify the nursing home if any of the hospice personnel entering the facility has tested positive (outside of the nursing home testing) or has screened positive for any COVID19 symptoms.

It is the nursing home’s responsibility to test the hospice personnel. Some hospices are reporting that the nursing homes are insisting that the hospices test their staff going in the nursing home at the hospice’s expense/with tests procured by the hospice. NAHC has confirmed with CMS that there is no CMS guidance or expectation that the hospice provides or pays for these tests. Should a nursing home be surveyed by a State Survey Agency (SSA) and found to be noncompliant with the testing recommendations it is the nursing home that would carry the consequences, not the hospice. 

All this said, the nursing home does have the ability to decide who it will/will not allow into its facility and it may decide that if the hospice is not willing to test its staff with its own tests or tests the nursing home prescribes and requires the hospice to pay for, the nursing home can restrict the hospice’s access. NAHC continues to receive reports that some nursing homes have decided to cancel contracts with some or all hospices because of the pressures the PHE has brought on in dealing with hospices and other outside vendors. This is within the nursing home’s authority. NAHC will continue to communicate with CMS about these issues and the impact on nursing facility residents. 

Visit nahc.org for more information.