Program Memorandum    The Waiver

Continuous Care Regulations

42 CFR § 418.62 Condition of participation—Informed consent.

            A hospice must demonstrate respect for an individual’s rights by ensuring that an informed consent form that specifies the type of care and services that may be provided as hospice care during the course of the illness has been obtained for every individual, either from the individual or representative as defined in § 418.3

The common interpretation is that the patient has the right to be included in determining the plan of care in accordance with published Patient Right’s information. Insofar as continuous care is concerned here, a patient must be aware of continuous care and its application in order to be fully informed.

42 CFR § 418.80  Condition of participation—Furnishing of core services.

            Except as permitted in § 418.83, a hospice must ensure that substantially all the core services described in this sub-part are routinely provided directly by hospice employees. A hospice may use contracted staff if necessary to supplement hospice employees in order to meet the needs of patients during periods of peak patient loads or under extraordinary circumstances. If contracting is used, the hospice must maintain professional, financial, and administrative responsibility for the services and must assure that the qualifications of staff and services provided meet the requirements specified in this sub-part.

This has been interpreted by state surveyors and confirmed with the Texas Department of Heath as applicable whenever a hospice has a need to provide continuous care and simply does not have available staff. We have also been informed that federal regulations do not intend to force a hospice to hire and maintain staff for work that may or may not be available. In other words, you do not have to field a staff based on unreliable workloads. You should try to cover continuous care in house, and we also advise that if possible you hire staff to tend to these patients. However, if you do or do not have your own staff, but there are not enough personnel available to provide a service, then you are in a “peak patient load” or “extraordinary circumstance”, and are directed to obtain sufficient staff through contracted services.

42 CFR § 418.204 Special coverage requirements.

            (a) Periods of crisis. Nursing care may be covered on a continuous basis for as much as 24 hours a day during periods of crisis as necessary to maintain an individual at home. Either homemaker or home health aide services or both may be covered on a 24-hour continuous basis during periods of crisis but care during these periods must be predominantly nursing care. A period of crisis is a period in which the individual requires continuous care to achieve palliation or management of acute medical symptoms

42 CFR § 418.302 (b) (2)

            (2) Continuous home care day. A continuous home care day is a day on which an individual who has elected to receive hospice care is at home and is not in an inpatient facility and receives hospice care consisting predominantly of nursing care on a continuous basis at home. Home health aide or homemaker services or both may be provided on a continuous basis. Continuous home care is only furnished during brief periods of crisis as described in § 418.20 (a) and only as necessary to maintain the terminally ill at home.

Section 1861(dd)(1) of the Social Security Act (the Act) explains that nursing services provided by or under the supervision of a Registered Nurse (RN) and home health aide and homemaker services may be provided on a 24 - hour continuous basis only during periods of crisis and only as necessary to maintain the terminally ill individual at home. Section 418.204(a) in the CFR defines a crisis as the period in which an individual requires continuous care for as much as 24 hours to achieve palliation or management of acute medical symptoms. Section 230.3(A) of the Medicare Hospice Manual states that the care provided requires a minimum of 8 hours of primarily nursing care within a 24-hour period commencing at midnight and terminating on the following midnight. The 8-hours of care does not need to be continuous within the 24-hour period, but a need for an aggregate of 8 hours of primarily nursing care is required. If a patient requires skilled interventions for palliation or symptom management, which can be accomplished in less than 8 aggregate hours within a 24 hour period or if the majority of care can be accomplished by a home health aide or homemaker, the care rendered would be covered as a routine home care day.

As discussed in the original Medicare hospice proposed and final rules published in the Federal Register in 1983, in order to be covered as a continuous home care day, 8 hours or more of predominately nursing care must be needed to achieve palliation or management of acute medical situations. The development of the CHC rate included the daily costs of therapy visits, drugs, supplies and equipment, and the average daily cost of the hospice interdisciplinary group (IDG). The computation of the required 8 hours for the CHC level of care applies only to direct patient care provided by a nurse, a homemaker, or a home health aide and, in general, assumes that one hourly payment would be made per hour. While we believe that in the majority of situations, one individual would provide continuous care during any given hour, there may be circumstances where the patient’s needs require direct interventions by more than one covered discipline resulting in an overlapping of hours between the nurse and home health aide. In these circumstances, the overlapping hours would be counted separately. The hospice would need to ensure that these direct patient care services are clearly documented and are reasonable and necessary. Computation of hours of care should also reflect the total hours of direct care provided to an individual that support the care that is needed and required. This means that all nursing aide hours should be included in the computation for CHC and when the aide hours exceed the nursing hours, CHC would be denied and routine payment will be made. The statutory definition of continuous home care is meant to include the full range of services needed to achieve palliation and management of acute medical situations. Deconstructing what is provided in order to meet payment rules is not allowed. In other words, hospices cannot discount any portion of the hours provided in order to qualify for a continuous home care day.

Documentation of care, modification of the plan of care and supervision of aides or homemakers would not qualify as direct care nor would it qualify as necessitating the services of more than one provider. In addition, we recognize that the services provided by other disciplines such as medical social workers or pastoral counselors are an integral part of the care provided to a hospice patient, however, these services are not included in the statutory definition of continuous care and are not counted towards total hours of continuous care. However, the services of social workers and pastoral counselors would be expected during these periods of crisis, if warranted as part of hospice care and are included in the provisions of routine hospice care. The following are used to illustrate circumstances that may qualify as CHC. This list is not all inclusive does it indicate that if a patient presents with similar situations, that it would constitute CHC.

Situation A: The patient has had a central venous catheter inserted to provide access for continuous Fentanyl drip for pain control and for the administration of antiemetic medication to control continuous nausea and vomiting. The nurse spends 2 hours teaching the family members how to administer IV medications. She returns in the evening for 1 hour. The home health aide provides 3 hours of care. The nurse spends 2 hours phoning physicians, ordering medications, documenting and revising the plan of care.

Determination: Despite 8 hours of service, this does not constitute CHC since 2 of the 8 hours were not activities related to direct patient care.

Situation B: The patient experiences new onset seizures. He continues to have episodes of vomiting. The nurse remains with the patient for 4 hours (10 AM – 2 PM) until the seizures cease. During that time she provides skilled care and family teaching. The patient’s wife states she is unable to provide any more care for her husband. A home health aide is assigned to the patient for monitoring for 24 hours, beginning at 2:00 PM, with a total of 8 hours of direct care in the first day. The nurse returns intermittently for a total of an additional 4 hours to administer medications, assess the patient and to relieve the aide for breaks. The social worker provides 3 hours of services to work with the patient’s wife in identifying alternative methods to care for the patient.

Determination: This qualifies as a continuous home care day. This constitutes a medical crisis, including collapse of family structure. The caregiver has been providing skilled care and the change in the patient’s condition requires the nurse’s interventions. Since there is no overlap in nursing care, 16 hours of care would be computed as CHC. The social worker hours would not be incorporated. If the caregiver had been providing custodial care and his medical crisis resolved within a short time frame, this situation would not have qualified as CHC.

Situation A: 77-year-old patient with lung cancer whose caregiver is 80 years old. The caregiver has been caring for this patient for 4 months and is now exhausted and scared. The care provided consists of assisting with bathing, assisting the patient to ambulate, preparing meals, housekeeping and administering oral medications. Since the patient is dyspneic at rest, she requires assistance in all ADLs, which equates to 9 hours of assistance within a 24- hour period.

Determination: This would not qualify, as CHC since there is little nursing care that requires a nurse. The patient would however be a candidate for an inpatient respite level of care.

Situation B: The patient’s condition deteriorates. The patient is now has circumoral cyanosis, respiratory rate of 44 and labored with intermittent episodes of apnea. The nurse performs a complete assessment and teaches the caregiver on methods to make the patient comfortable. The nurse returns twice within the 24 - hour period to assess the patient. She revises the plan of care after conferring with the patient’s attending physician and with the hospice physician. The homemaker and home health aide are sent to assist the caregiver. Within the 24-hour period, the direct care provided by the nurse equates to 3 hours, homemaker with 2 hours and home health aide of 6 hours.

Determination: Since only 3 of the 11 hours were skilled care requiring the services of a nurse, this would not constitute CHC. In this situation, the care required is not predominantly nursing but are comprised of services provided by a home health aide. In addition, it would not be correct to discount any portion of the home health aide’s hours or to provide these services gratis in order to qualify for the CHC benefit.

Situation C: The next day, the patient’s condition deteriorates further. She has increased periods of apnea and air hunger. In addition she is experiencing continuous vomiting and increasing pain. Her blood pressure is beginning to decrease and her respirations are increasing. The nurse remains at the patient’s bedside for 4 hours while attempting to control her pain and symptoms. The home health aide provides care during one hour of this period. The nurse leaves and the home health aide remains at the bedside for 3 hours. The social worker comes and talks with the caregiver and remains for 1 hour. The nurse returns while the aide leaves. The nurse remains with the patient for 2 hours until she dies. The social worker returns and stays with the caregiver for 1 hour until the mortuary arrives.

Determination: The nurse provided 6 hrs of direct skilled nursing care; the aide provided 4 hours of direct care resulting in a total of 10 hours of registered nurse and home health aide care. Since at least 6 of the 10 hours were direct nursing care, and since nursing care was the predominant service provided during the 10 hours, the care meets the criteria for CHC. In addition, since the nurse and the aide provided direct care for the patient simultaneously, it would be appropriate to bill for each resulting in total of 10 billable hours. The patient received 12 hours of care. The 2 hours for the social worker are not counted towards the CHC hours.

Medicare’s requirements for coverage of CHC are that at least 8 hours of primarily nursing care are needed in order to manage an acute medical crisis as necessary to maintain the individual at home. When a hospice determines that a beneficiary meets the requirements for CHC, we would expect to see appropriate documentation to support the requirement that the services provided were reasonable and necessary and were in compliance with an established plan of care in order to meet a particular crisis situation. This would include the appropriate documentation of the situation and the need for continuous care services consistent with the plan of care.

The Waiver

DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & Medicaid Services

7500 Security Boulevard, Baltimore, MD 21244-1850

Ref: S&C-02-44

DATE:                                September 12, 2002

FROM:                              Director Survey and Certification Group

Center for Medicaid and State Operations

SUBJECT:                 Impact of Nursing Shortage on Hospice Care

TO:                             Associate Regional Administrators, DMSO

State Survey Agency Directors

The purpose of this memorandum is to address the impact of the current nursing shortage on access to hospice care. Many hospices and their associations have notified us that the shortage of nurses is having a significant impact on access to hospice services and that hospices have had to deny services to eligible patients because they do not have adequate staff to provide nursing services. They have asked the Centers for Medicare & Medicaid Services (CMS) to designate the current nursing shortage as an "extraordinary circumstance," as referenced in the regulations at 42 CFR 418.80, in order to allow hospices affected by the shortage to utilize contracted nursing staff.

With the exception of physician services, a hospice must ensure that substantially all the core services are routinely provided directly by hospice employees. Nursing is a core hospice service. The regulations allow a hospice to use contracted staff, if necessary, to supplement hospice employees in order to meet the needs of patients during periods of peak patient loads or under extraordinary circumstances. If contracting is used, the hospice must maintain professional, financial, and administrative responsibility for the services.

We are aware that nursing shortages have been documented across the country. We also believe that not all hospices will experience this shortage at the same time. We are instituting a temporary measure to allow individual hospices to contract for nurses until September 30, 2004, if the hospice can demonstrate that the nursing shortage is creating an extraordinary circumstance that prevents it from hiring an adequate number of nurses directly. This temporary measure, which allows hospices to contract for nursing services, does not extend to counseling services and medical social services, which are the other core hospice services.

Qualifying for an "Extraordinary Circumstance" Exemption

During this time (i.e., October 1, 2002 - September 30, 2004), in order to qualify for an "extraordinary circumstance" exemption, a hospice must notify the state agency responsible for licensing and certification that it intends to elect an exception under the "extraordinary circumstance" authority. This may be accomplished by providing written notification to the state survey agency when it believes that the nursing shortage has become an “extraordinary circumstance" in its ability to hire nurses directly, and it must estimate the number of nurses that it believes it will currently need to employ under contract. Notification may be made during the period from October 1, 2002, through September 30, 2004, and should address the following:

(a) An estimate of the number of patients that it has not been able to admit during the past three months due to the nursing shortage and provide the current and desired patient nurse ratio for the agency;

(b) Evidence that the hospice has made a good faith effort to hire and retain nurses, including:

• Copies of advertisements in local newspapers that demonstrate recruitment efforts;
• Copies of reports of telephone contacts with potential hires, professional schools and organizations, recruiting services, etc.;
• Job descriptions for nurse employees;
• Evidence that salary and benefits are competitive for the area;
• Evidence of any other recruiting activities ( e.g., recruiting efforts at health fairs, educational institutions, health care facilities, and contacts with nurses at other providers in the area); and
• Ongoing self-analyses of the hospice's trends in hiring and retaining qualified staff

(c) The Hospice must also demonstrate that it has a training program in place to assure that contracted staff is trained in the hospice philosophy and the provision of palliative care prior to patient contact.

(d) The hospice must assure that contracted staff is providing care that is consistent with the hospice philosophy and the patient's plan of care.

(e) Contracted nurses are used to supplement the hospice nurses employed directly. Contracted nurses should not be used solely to provide the continuous nursing level of care or on call service.

(f) The hospice is expected to continue its recruitment during the period that it is contracting for nurses.

Monitoring the Need for Exemption

The state survey agency will maintain copies of each exception notification and validate the hospice's stated need for an exemption during complaint and standard surveys. Of particular importance will be the extent to which the hospice nurses have been trained in the hospice philosophy and are able to effectively provide care to the patient that is consistent with the plan of care established by the attending physician, the medical director or physician designee and interdisciplinary group.

CMS will reevaluate the employment market for nurses during the summer of 2004 to see if this policy should be extended.

If you have any questions regarding this memorandum, please contact Mavis Connolly of my staff at 410- 786-6707.

Effective Date: This policy is effective October 1, 2002.

Training: This policy should be shared with all survey and certification staff, their managers and the State/RO training coordinator.

/s/

Steven A. Pelovitz

Rights for Hospice Care Patients:

According to NAHC's affiliate, the Hospice Association of America, hospice patients have the right to:

Rights for Hospice Care Patients:
According to NAHC's affiliate, the Hospice Association of America, hospice patients have the right to:

• receive care of the highest quality.

• have relationships with hospice organizations that are based on ethical standards of conduct, honesty, dignity, and respect.

• in general, be admitted by a hospice organization only if it is assured that all necessary services will be provided to promote the physical, psychological, social, and spiritual well-being of the dying patient. However, an organization with less than optimal resources may admit the patient if a more appropriate hospice organization is not available, but only after fully informing the client of its limitations and the lack of suitable alternative arrangements.

• be notified in writing of their rights and obligations before their hospice care begins. Consistent with state laws, the patient's family or guardian may exercise the patient's rights when the patient is unable to do so. Hospice organizations have an obligation to protect and promote the rights of their patients.

• be notified in writing of the care the hospice organization will furnish, the types of caregivers who will furnish the care, and the frequency of the services that are proposed to be furnished.

• be advised of any change in the plan of care before the change is made.

• participate in the planning of the care and in planning changes in the care, and to be advised that they have the right to do so.

• refuse services and to be advised of the consequences of refusing care.

• request a change in caregiver without fear of reprisal or discrimination.

• confidentiality with regard to information about their health, social, and financial circumstances, and about what takes place in the home.

• expect the hospice organization to release information only as consistent with its internal policy, required by law, or authorized by the client.

• be informed of the extent to which payment may be expected from Medicare, Medicaid, or any other payer known to the hospice organization.

• be informed of any charges that will not be covered by Medicare, and the charges for which he or she may be liable, and to receive this information orally and in writing within 15 working days of the date the hospice organization becomes aware of any changes in charges.

• have access, on request, to all bills for service the patient has received regardless of whether they are paid out-of-pocket or by another party.

• be informed of the hospice's ownership status and its affiliation with any entities to whom the patient is referred.

• be informed of the procedure they can follow to lodge complaints with the hospice organization about the care that is, or fails to be, furnished, and regarding a lack of respect for property.

• know about the disposition of such complaints.

• voice grievances without fear of discrimination or reprisal for having done so.

• be told what to do in the case of an emergency.

Rights for Home Health Care Patients:
In addition, federal law requires that all individuals receiving home care services be informed of their rights as patients. According to the National Association for Home Care (NAHC), home health care patients have the right to:

• be fully informed of all their rights and responsibilities by the home care agency.

• choose care providers.

• receive appropriate and professional care in accordance with physician orders.

• receive a timely response from the agency to his or her request for service.

• be admitted for service only if the agency has the ability to provide safe, professional care at the level of intensity needed.

• receive reasonable continuity of care.

• receive information necessary to give informed consent prior to the start of any treatment or procedure.

• be advised of any change in the plan of care, before the change is made.

• refuse treatment within the confines of the law and to be informed of the consequences of their actions.

• be informed of their rights under state law to formulate advanced directives.

• have health care providers comply with advance directives in accordance with state law requirements.

• be informed within a reasonable period of time of anticipated termination of service or plans for transfer to another agency.

• be fully informed of agency policies and charges for services, including eligibility for third-party reimbursements.

• be referred elsewhere, if denied service solely on their inability to pay.

• voice grievances and suggest changes in service or staff without fear of restraint or discrimination.

• a fair hearing for any individual to whom any service has been denied, reduced, or terminated, or who is otherwise aggrieved by agency action. The fair hearing procedure shall be set forth by each agency as appropriate to the unique patient situation (i.e., funding source, level of care, diagnosis).

• be informed of what to do in the event of an emergency.

• be advised of the telephone number and hours of operation of the state's home health hotline, which receives questions and complaints about Medicare-certified and state-licensed home care agencies.