New CMS FAQs Include Guidance on Hospice Staff Access

Regulation | June 12, 2020 | by Mollie Gurian

On June 10th, CMS released a Frequently Asked Questions (FAQ) for Non-Long Term Care Facilities and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IIDs). The purpose of the document is to clarify existing guidance and flexibilities for these non-LTC providers as well as to provide stakeholders with additional information based on questions CMS has received related to a variety of provider types. This article focuses on the general FAQs and those related to hospice providers.

General Questions

Throughout the FAQs, CMS emphasizes the flexibilities that Medicare providers and suppliers have been given during the public health emergency (PHE) and where providers can find information and guidance on these federal flexibilities while underscoring the importance of complying with state actions, regulations, and laws. These include telehealth, survey process changes, billing changes, and provider enrollment relief along with provider specific waivers. Details about these ongoing flexibilities are available at our coronavirus homepage and on CMS’ coronavirus page.

CMS does note that while non-waived CMS requirements must be met at all times, state orders might conflict with CMS guidance and providers are to follow their state or local order. Additionally, CMS notes that State and Federal surveyors should not cite Medicare and Medicaid providers for not providing certain supplies (e.g. personal protective equipment (PPE) and alcohol-based hand rubs) if they are having difficulty obtaining those supplies for reasons outside their control during the PHE. Providers must resume standard practices to meet Federal requirements regarding supplies once the PHE is over or “PPE becomes available.” CMS does not specify how providers should document this standard or how they will judge that PPE is “available” and we will follow up with CMS to ask.

Hospice Questions

The FAQ includes a number of questions focused on hospice. Some of the questions focus on previous resources from CMS and CDC, such as reminding hospices where to find guidance on screening patients who will be entering a hospice inpatient facility and where to find CMS’ guidance on hospice specific waivers and flexibilities during the PHE. The FAQs also point hospices to CDC guidelines on return to work for hospice healthcare professionals (HCPs) who have confirmed or suspected COVID-19 (i.e. have symptoms but have not been tested). This return to work guidance includes a symptom-based strategy and a test-based strategy for those workers with confirmed or suspected COVID-19. For those staff who have tested positive for COVID-19 but have not had symptoms, CDC allows for either a time-based strategy or a test-based strategy.

Hospice Access to Congregate Care Settings

The main issue that we want to highlight from this FAQ regards hospice access to patients in congregate care settings -- nursing homes, assisted living, and independent living -- which is an ongoing area of concern for hospice providers throughout the PHE. Hospices have expanded their use of telehealth but have still run into issues accessing patients, even for a telehealth visit. CMS issued guidance on the role of hospice staff in nursing homes in March and April and LeadingAge created a flowchart to help with decision-making.

CMS underscores in this FAQ that if hospice staff have appropriate PPE and do not meet the CDC criteria for restricted access, hospice staff should be let into nursing homes (unless there is a state or local ordinance that says otherwise). Hospice is mentioned multiple times through this FAQ as essential health care services. Specifically, CMS says “hospices serve an important role in providing essential (emphasis theirs) healthcare services in a variety of community-based settings, including assisted and independent living facilities and should be granted access as long as their staff meet the CDC guidelines for healthcare workers. If hospice staff are wearing appropriate PPE and do not meet criteria for restricted access based on CDC guidance, they should be allowed to enter and provide services to the patient (emphasis added).

CMS includes assisted living and independent living in their categorization of “community-based settings” for which hospice provides “essential health care services” seeming to underscore that assisted living and independent living should let hospice staff in if the hospice personnel take proper preventive measures. However, this guidance is not binding for assisted living or independent living – CMS notes that they do not have the authority to regulate assisted and independent living facilities. They encourage coordination with these settings to assure that core services related to direct clinical care can be provided in a safe and appropriate manner.

CMS provides guidance for hospices if access is restricted. They direct hospices to communicate with the facility administration, including State and local health departments when appropriate, on the nature of the restriction and timing for gaining access to hospice patients. Hospices should also communicate with the hospice patient’s representative or family. These lines of communication are essential for maintaining surveillance and preventing the spread of infection while also ensuring patient access to essential services.

CMS says that “if 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 the hospice’s service area.” The code indicating discharge due to a patient being outside the hospice’s service area is not frequently used so CMS will be able to use this information to track the frequency of these occurrences. LeadingAge followed up with CMS to ask about discharge in the event that telecommunications visits have occurred, but not in-person visits. CMS clarified that the hospices should only use discharge if the hospice has not been able to see the patient in-person or via the telecommunications waivers and has documented their reasonable attempts to make either type of visit.

We would also like to hear if hospices are still having trouble accessing patients who live in congregate care settings. Additionally, we would like to hear stories of partnerships between hospices and congregate care settings to try to balance concerns about more people entering a facility with the need for hospice care that we can share as best practices.

Please contact Mollie at mgurian@leadingage.org with questions or stories.