April 8, 2013 RE: CMS 3267 P. Dear Administrator Tavenner,

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1 April 8, 2013 Marilyn Tavenner, Administrator Centers for Medicare & Medicaid Services Department of Health and Human Services Attention: CMS 3267 P P.O. Box 8010 Baltimore, MD RE: CMS 3267 P Dear Administrator Tavenner, The National Hospice and Palliative Care Organization (NHPCO) is pleased to provide comments on the Medicare and Medicaid Programs; Part II Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction, particularly the issues related to the provision of hospice care services. NHPCO is the largest nonprofit membership organization in the country representing hospice and palliative care programs and professionals in the United States. We represent over 2,400 hospices in the United States, and our members care for the vast majority of the nation s hospice patients. The organization is committed to improving end-of-life care and expanding access to hospice care with the goal of creating an environment in which individuals and families facing serious illness, death, and grief will experience the best that humankind can offer. NHPCO has an active Rural Task Force, made up of hospice providers in rural areas of the country, which has reviewed this proposed rule, and these comments are informed by their feedback and experiences in working with Rural Health Clinics (RHCs) in their areas. We appreciate CMS s solicitation of comments on impediments to the provision of physician services to hospice patients who receive care from RHC practitioners. CMS s current policy has long been a concern of NHPCO and its members that serve rural area. We believe it impedes access to hospice care in communities served by RHC s, interferes with established beneficiary-practitioner relationships, and is inconsistent with Congressional intent and sound health policy. As noted in the proposed rule, the Medicare regulations and policy manuals applicable to hospices and RHCs do not mesh well. These regulations and policies have been interpreted in a way that essentially precludes an RHC physician or nurse practitioner (NP) from serving as the 1731 King Street Suite 100 Alexandria, VA (703)

2 attending physician for a beneficiary who is terminally ill and has elected the hospice benefit, because Medicare is not reimbursing either the practitioner or the RHC for these services, even if that practitioner has a long-standing relationship with the beneficiary and both parties wish to continue that relationship. As a result, RHC physicians and NPs are reluctant to refer their patients to hospice care and beneficiaries may be reluctant to elect the hospice benefit because they might no longer be able to receive care from their established physician or NP, or there may be no other physician or NP serving their rural community. We urge CMS to find a way to resolve this issue. The Problem This problem resulted from two sets of regulations and guidance one for hospices and one for rural health clinics that combined for an effect no one could have intended. The Hospice Rules When a Medicare beneficiary elects the hospice benefit, they waive their right to Medicare payment for services related to their terminal illness except for those provided or arranged by the hospice, and the hospice is paid a per diem rate for hospice services under Part A. However, medically necessary physician services provided by the physician or NP selected by the patient as their attending physician are not included in this per diem rate. If the attending physician is not employed by or under contract with the hospice, they continue to bill and be paid under Medicare Part B for these physician services. 1 The Benefit Policy Manual chapter on hospice services specifically states that a RHC or FQHC physician can be the patient s attending physician but may only bill for services as a physician under regular Part B rules. These services would not be considered RHC or FQHC services or claims (e.g., the physicians do not bill under the RHC provider numbers but they bill under their own provider number). 2 So this essentially precludes RHCs from billing under their usual reimbursement structure when RHC physicians or NPs serve as a hospice patient s attending physician. The RHC Rules When a Medicare beneficiary receives care in a RHC, Medicare compensates the clinic under a cost-based all-inclusive rate for each visit, and this rate generally includes the cost of physician services and NP services, as well as services and supplies incident to these services, and overhead costs. There are, however, provisions for Non RHC/FQHC Services to be provide in an RHC. These services are described as services that (1) are not included in the RHC or FQHC benefit, or 2) are not a Medicare benefit, and the listed non-rhc services 3 include hospice service. The problem is that CMS has interpreted the rules to preclude an RHC from billing for attending physician services provided to a hospice patient by a RHC practitioner, and they prohibit RHC physicians from separately billing Part B for services provided on the RHC premises during normal clinic hours. Accordingly, Medicare Benefit Policy Manual specifically states that: 1 These services are billed using a GV modifier to indicate that the physician is not employed by or under contract with the hospice. 2 Benefit Policy Manual, Chapter 9, Benefit Policy Manual, Chapter 13, 60.1.

3 A physician or NP who works for an RHC or FQHC may provide hospice attending physician services during a time when he/she is not working for the RHC or FQHC The physician or NP would bill for service under regular Part B rules using his/her own provider number if a Medicare beneficiary who has elected the hospice benefit receives care from an RHC or FQHC related to his/her terminal illness, the RHC or FQHC cannot be reimbursed for the visit, even if it is a medically necessary, face-toface visit with an RHC or FQCH provider, since that would result in duplicate payment for services. 4 This position is further reinforced by CMS s interpretation and guidance regarding commingling, which is described as the sharing of RHC space, staff, supplies, equipment or other resources with an on-site Medicare Part B fee-for-service practice operated by the same RHC physicians or practitioners. 5 CMS has stated that under this policy, RHC practitioners may not furnish RHC-covered professional services as a Part B provider in the RHC or in adjacent space during RHC hours of operation. This essentially precludes any individual or entity billing for attending physician services provided to hospice patients by an RHC practitioner, unless the practitioner is willing both to establish and bill under a separate Part B billing number, and to make arrangements to see their patients who have elected the hospice benefit after-hours and completely separate from their RHC employment, both of which are unreasonably burdensome to the practitioner and to their patients. Or they can see the patients during normal clinic hours but neither the RHC nor the practitioner can bill for the service, although the RHC is incurring the cost of the visit through salary and overhead expenses. Needless to say, this serves as a disincentive for RHC practitioners referring patients for hospice care, and for patients receiving care from RHCs to elect the hospice benefit if their established RHC practitioner is unable or unwilling to jump through the hoops required by CMS in order for them to serve as the patient s attending physician. The current situation is not consistent with Congressional intent or good health policy. Congress clearly intended for Medicare beneficiaries to retain the right to payment for attending physician services. As one committee report interpreting the new hospice benefit states, The intent is to allow the individual s attending physician to continue to participate in the provision of care to his or her patient. 6 There is no reason to think that this right is any less when the beneficiary's attending physician also is an RHC physician. Possible Solutions CMS has solicited comments on how to address these problems in ways that would prevent duplicate payments without adding undue cost reporting and compliance burdens on RHCs. We are not experts on RHC billing and cost reporting, but offer the following suggestions. 4 Medicare Benefit Policy Manual, Chapter 13, Medicare Benefit Policy Manual, Chapter 13, House Committee on Ways and Means, 97th Cong., Explanation of H.R. 6878: The Medicare, Unemployment Compensation, and Public Assistance Amendments of 1982 (Comm. Print. 1982).

4 Allow RHC Practitioners, or the RHC as their Employer, to Bill Part B Attending Physician Services Provided to Hospice Patients in the RHC During Normal RHC Hours - Although the RHC regulations are currently interpreted as prohibiting RHC physicians from billing Part B for attending physician services on RHC premises during normal clinic hours, this is not the only possible interpretation. Specifically, since hospice services already are classified as "non-rhc services", CMS could allow them to be billed to Part B just as other non-rhc services are billed in their usual fashion. If CMS is concerned that the small portion of RHC physician and NP time that would be devoted to hospice attending physician services would result in duplicate billing because the salaries of the physicians and NP are included on the cost report, CMS could require that the RHC cost report be adjusted to exclude the cost of these attending physician visits for hospice patients. We note, however, that non-rhc services already includes practitioner services furnished to inpatients or outpatients at hospitals, ambulatory surgical centers or rehab facilities. While those services would not be provided on the premises of RHCs, we are not aware of the costs associated with those RHC practitioners services being carved out of the RHC cost report. However, this option would require the RHC or practitioner to be enrolled as a Part B supplier. Allow the RHC to Bill for Attending Physician Services Provided to Hospice Patients as an RHC Visit While CMS states in the proposed rule that RHCs are not statutorily authorized to be hospice providers, and can only treat hospice beneficiaries for medical conditions not related to their terminal illness, the services of independent attending physicians (who also can be NPs) are not really hospice services and are not billed or paid under the hospice benefit. Rather, as noted above, medically necessary physician services are not included in the services that beneficiaries waive when they elect hospice, and continue to be separately billable. This is noted in the Claims Processing Manual, which states that the professional services of an independent attending physician, who may be a nurse practitioner are not considered Medicare Part A services. 7 Attending physician visits are similar to most other physician visits billed under CPT evaluation and management codes, which are routinely provided and billed by RHC practitioners. While this option might result in a different the payment amount for an attending physician service provided by an RHC and the same service provided by an independent non-rhc physician, there would be no duplicate payment. The RHC would be paid as it normally is for an RHC visit, and the attending physician service would be paid separately from the hospice benefit as usual. Additional Comment Regarding Critical Access Hospitals While it was not included in the list of regulations on which CMS specifically solicited comments in the proposed rule, we would like to note another issue related to Critical Access Hospitals (CAHs) that is unnecessary and excessively burdensome, and adversely affects beneficiary access to the full range of hospice services. Medicare certified hospices are required to provide all levels of hospice care, two of which must be provided in an inpatient setting, general inpatient care (GIP) and inpatient respite. National data on GIP level of care utilization shows that only two percent of the total days of hospice care are provided at the general inpatient level of care. Inpatient respite care is provided for less than one percent of days of care nationwide, although availability for both levels of care 7 Medicare Claims Processing Manual, Chapter 11,

5 must be available in order for a hospice to meet Medicare requirements. Of particular interest for hospices in rural areas is GIP, specifically for patients whose pain cannot be controlled, or their symptoms managed in their home environment. Hospices can provide this level of care in a hospice inpatient facility or they can contract with a Medicare certified hospital or skilled nursing facility. 8 In rural and medically underserved areas, the closest or most convenient facility may be a CAH, but our members report that CAHs often will not enter into a contract with a hospice to provide the general inpatient level of care because they believe it will adversely affect the CAH s reimbursement rate. 9 This is because CAH reimbursement is calculated on a cost basis, and the reimbursement level for hospice general inpatient care is significantly less that the CAH s cost-based reimbursement for a day of inpatient acute care. If the CAH contracts with the hospice, the lower rate paid by the hospice must be included on the CAH s cost report and it acts to lower the CAH s overall reimbursement rate. Since hospice general inpatient care is not equivalent to acute inpatient care typically provided in hospitals, and because it is provided infrequently, we believe hospice payments to CAHs for this level of care should be classified as non-medicare swing bed days. This would carve them out of the CAH inpatient cost bucket. If this were done, CAHs would not be financially penalized for contracting with a hospice, and hospice patients would have better access to the full range of hospice services to which they are entitled. We urge CMS to address this issue. NHPCO stands ready to continue the dialogue about these issues and look forward to some resolution that will allow Medicare beneficiaries who need hospice care to access it in rural areas. Sincerely, J. Donald Schumacher, PsyD President and CEO C.F.R Our members report that in some areas, if they are unable to enter into a contract with their local CAH, the nearest hospital with which they can contract is over 100 miles away, creating a significant burden for the patient and family, as well as the hospice. And while hospices also can contract to provide inpatient care in skilled nursing facilities, they do not always have the nurse staffing levels required for hospice inpatient care, and their occupancy typically is high in rural areas so they often don t have beds available.