Home Health & Hospice Week

Crucial hospice guidance for surveyors hits the books.

Now hospices can point to the Medicare State Operations Manual to back up their staffing practices.

The Centers for Medicare & Medicaid Services issued a Jan. 20 transmittal manualizing the Medicare Modernization Act requirement that hospices be able to contract with other hospices for nursing, counseling and medical social services "in extraordinary, exigent or other non-routine circumstances."

Examples of such circumstances include "unanticipated periods of high patient loads, staffing shortages due to illness, or other short term temporary events or temporary travel of a patient outside the hospice's service area," CMS explains in the transmittal.

To qualify for the staffing waiver, which falls under the core services Condition of Participation, hospices must: maintain professional management of the contracted staff's services, maintain evidence of the extraordinary events necessitating the contracting, and make sure contracted staff furnish care that is "consistent with the hospice philosophy and the patient's plan of care," CMS instructs.

Pitfall: Hospices can't routinely contract for specific levels of care, such as continuous care, or for specific hours of care like nights and weekends, CMS warns.

Another staffing option: Separately, hospices can contract for highly specialized RN services, the transmittal adds. The services must be "provided non-routinely and so infrequently that the provision of such services directly would be impracticable and prohibitively expensive," the revised manual says.
 CMS first loosened the staffing requirements in a February 2004 survey and certification letter, following MMA's passage in December 2003 (see Eli's HCW, Vol. XIII, No. 8).

Surveyors Waved Off

The flexibility of the staffing option helps hospices, says attorney Mary Michal with Reinhart Boerner Van Deuren in Madison, WI. And the revision assists smaller providers with fewer high-tech resources. "Small hospices who don't do infusion therapy, for example, can contract with another hospice to help them," Michal notes.

This revision benefits hospices that have been conducting relevant subcontracting, judges attorney Deborah Randall with Arent Fox in Washington, DC. "This SOM gives them, and others which would like to do this subcontracting, protection," Randall says.

In fact, the transmittal specifically tells surveyors not to cite hospices for the subcontracting practices described in it, even though the hospice Conditions of Participation haven't caught up to the underlying law.

 It's likely to be a very long time before the revised hospice COPs regarding staffing are finalized, Randall notes. "Sometimes surveyors who go by the book look at the printed COP ... and say a hospice is out of compliance, even when the statute has called for a change," she cautions. The instruction should help hospices ward off this behavior.

"Hospice providers in some states were being cited for deficiencies because the surveyors didn't have the formal, 'official' language from CMS on the MMA changes," relates Janet Neigh with the Hospice Asso-ciation of America. "This made for a very frustrating situation for the hospices and CMS central office."

Tip: "Hospices should copy this SOM and have it in hand for when surveyors show up," Randall tells Eli. 

Note: The SOM transmittal is at www.cms.hhs.gov/transmittals/downloads/R17SOMA.pdf.