Chapter 30, Medicaid Hospice Program 07/19/13

Chapter 30, Medicaid Hospice Program 07/19/13 30.4. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions which are specific to the subchapter. (1) Adverse action--as defined under 79.1601 of this title (relating to Definitions). (12) Attending physician--a physician who: (A) is a doctor of medicine or osteopathy; and (B) is identified by the individual, at the time the individual elects to receive hospice care, as having the most significant role in the determination and delivery of the individual's medical care. (23) Bereavement counseling--counseling services provided to the individual's family after the individual's death. (34) Cap period--the 12-month period ending October 31 used in the application of the cap on overall hospice reimbursement specified in 30.60 of this title (relating to Medicaid Hospice Payments and Limitations). (54) Curative care--care designed to restore a person to health. (65) Employee--An employee (defined by the Social Security Act, Section 210(j)) of the hospice or, if the hospice is a subdivision of an agency or organization, an employee of the agency or organization who is appropriately trained and assigned to the hospice unit. "Employee" also refers to a volunteer under the jurisdiction of the hospice. (76) Hospice--A public agency or private organization or subdivision of either of these that is primarily engaged in providing care to terminally ill individuals. (7) ICF/IID -- intermediate care facility for individuals with an intellectual disability or related conditions. (8) ICF/MR-RC ICF/IID. (98) Palliative care--care designed to relieve or reduce intensity of uncomfortable symptoms but not to produce a cure. (109) Physician--As defined in 42 Code of Federal Regulations 410.20. (110) Representative--An individual who has been authorized under state law to terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill individual who is mentally or physically incapacitated. (121) Social worker--a person who has at least a bachelor's degree from a school accredited or approved by the Council on Social Work Education. (132) Terminally ill--the individual has a medical prognosis that his or her life expectancy is six months or less if the illness runs its normal course. (13) Vendor hold--temporarily withholding a provider agency's payment. Formatted: Font: 16 pt Formatted: Font: 12 pt Formatted: Justified, Tab stops: Not at 0" + 2.25" + 2.5" + 2.75" + 3" + 3.25" + 3.5" + 3.75" + 4" + 4.25" + 4.5" + 4.75" + 5" + 5.25" + 5.5" 30.16. Election of Hospice Care. (a) Filing an election statement. An individual who meets the eligibility requirement of 30.10 of this title (relating to Eligibility Requirements) may file an election statement with a particular hospice. If the individual is physically or mentally incapacitated, the individual's representative may file the election statement. If the recipient is dually eligible for Medicaid and Medicare, the individual must elect the Medicaid and Medicare hospice benefit at the same time. (b) Content of election statement. The election statement must include the following: (1) identification of the particular hospice that will provide care to the individual; (2) the individual's or representative's acknowledgment that he has been given a full explanation of the palliative rather than curative nature of hospice care as it relates to the 1

individual's terminal illness; (3) acknowledgment that certain Medicaid services, as set forth in subsection (d) of this section, are waived by the election; (4) the effective date of the election, which may be the first day of hospice care or a later date, but must be no earlier than the effective date of the Medicaid contract the hospice has with DADS the election statement; and (5) the signature of the individual or representative. (c) Duration of election. An election to receive hospice care will continue through the initial election period and through the subsequent election periods without a break in care as long as the individual: (1) remains in the care of a hospice; and (2) does not revoke the election under the provisions of 30.18 of this title (relating to Revoking the Election of Hospice Care). (d) Waiver of other benefits. For the duration of an election of hospice care, an individual 21 years of age or older waives all rights to Medicaid payments for the following services: (1) hospice care provided by a hospice other than the hospice designated by the individual (unless provided under arrangements made by the designated hospice); and (2) any Medicaid services related to the treatment of the terminal condition for which hospice care was elected, or a related condition for which the hospice care was elected, or that are equivalent to hospice care except for services: (A) provided by the designated hospice; (B) provided by another hospice under arrangements made by the designated hospice; and (C) provided by the individual's attending physician if that physician is not an employee of the designated hospice or receiving compensation from the hospice for those services. (e) Re-election of hospice benefits. If an election has been revoked in accordance with 30.18 of this title (relating to Revoking the Election of Hospice Care), the individual (or the individual's representative, if the individual is mentally or physically incapacitated) may at any time file an election in accordance with this section. (f) Record maintenance. The hospice provider must retain copies of all election forms in the hospice records for the recipient and the recipient's nursing facility clinical record, or the intermediate care facility for persons with mental retardation or related conditions (ICF/IIDMR- RC), if applicable. Formatted: Justified, Tab stops: Not at 0" + 2.25" + 2.5" + 2.75" + 3" + 3.25" + 3.5" + 3.75" + 4" + 4.25" + 4.5" + 4.75" + 5" + 5.25" + 5.5" 30.30. General Contracting Requirements. (a) A hospice participating in the Medicaid Hospice Program must comply with the requirements in this chapter and with all applicable federal regulations and state rulesregulations that govern the Medicaid Hospice Program, including the federal regulations in 42 Code of Federal Regulations, Title 42, Part 418 (Hospice Care), Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies), and Chapter 49 of this title (relating to Contracting for Community Services). (b) To be approved by the Department of Aging and Disability Services (DADS) for participation in the Medicaid Hospice Program and be awarded a contract, a hospice must: (1) meet the provisions described in Chapter 49 of this title (relating to Contracting for Community Care Services), except for: (A) 49.13(b) and (f)(1) of this title (relating to General Contractual Requirements); (B) 49.14 of this title (relating to Provisional Contracts); (C) 49.15(d)(2)(B) of this title (relating to Contract Assignment); 2 Formatted: Not Highlight Formatted: Hyphenate

(D) 49.31(e) of this title (relating to Record Requirements); (E) 49.41(c)(1) and (12) of this title (relating to Billings and Claims Payment); (F) 49.42 of this title (relating to Method of Payment); (G) 49.43 of this title (relating to Expedited Payments System); (H) 49.61(a)(4) and (11) of this title (relating to Sanctions); and (I) 49.63(a), (c), and (d) of this title (relating to Recontracting); (2) be licensed in Texas as a home and community support services agency to provide hospice services; and (3) maintain Medicare certification to provide hospice services through the Centers for Medicare and Medicaid Services. (bc) A hospice participating in the Medicaid Hospice Program must not have restrictive policies or practices, including: (1) requiring an individual to execute a will with the hospice named as legatee or devisee; (2) assigning an individual's life insurance to the hospice; (3) transferring an individual's property to the hospice; (4) requiring an individual to pay a lump sum or make any other payment or concession to the hospice beyond the recognized Medicaid rate; (5) controlling or restricting an individual or legal representative in using the individual's personal needs allowance while in a nursing facility or an intermediate care facility for individuals with an intellectual disability persons with mental retardation or related conditions (ICF/IIDMR-RC); (6) restricting an individual from transferring or withdrawing from the Medicaid Hospice Program at will, except as provided by state law; (7) denying appropriate hospice care to an individual on the basis of the individual's race, religion, color, national origin, sex, age, disability, marital status, or source of payment; and (8) preventing or requiring the execution of written or unwritten directives to reject lifesustaining procedures by an adult individual. (cd) If a hospice provides services to a resident of a nursing facility or an ICF/IIDMR-RC, the hospice must have a written contract for the provision of services with the nursing facility or ICF/IIDMR-RC. (de) DADS does not pay for hospice services provided before the effective date: (1) the hospice has a Medicaid hospice contract with DADS; (2) of the election the individual makes a valid election of the Medicaid hospice benefit as described inprovided under 30.16 of this chapter (relating to Election of Hospice Care) subsection (f) of this section; and (3) the hospice has a contract with a nursing facility or an ICF/MR-RC if hospice services are provided in a nursing facility or an ICF/MR-RC. (f) For purposes of subsection (e)(2) of this section, a valid Medicaid hospice election must be dated on or after the requirements listed in subsection (e)(1) and (3) of this section have been met. (g) If a hospice assigns its contract, it must be assigned in accordance with 49.15 of this title and the hospice to which the contract has been assigned must submit an updated Texas Medicaid Hospice Program Recipient Election/Cancellation/Discharge Notice form for each individual receiving Medicaid hospice services from the hospice. (h) A hospice must allow legal representatives of DADS, the Texas Attorney General's Medicaid Fraud Control Unit, and the Texas Health and Human Services Commission to enter the premises at any time to make inspections or privately interview the individuals receiving Medicaid hospice services. Formatted: Normal, Tab stops: 0", Left + 0.25", Left + 0.5", Left + 0.75", Left + 1", Left + 1.25", Left + 1.5", Left + 1.75", Left + 2", Left + 2.25", Left + 2.5", Left + 2.75", Left + 3", Left + 3.25", Left + 3.5", Left + 3.75", Left + 4", Left + 4.25", Left + 4.5", Left + 4.75", Left + 5", Left + 5.25", Left + 5.5", Left Formatted: Font: Not Bold 30.32. Disclosure Requirements. 3

A hospice must disclose information in accordance with 42 CFR Part 455, Subpart B. 30.34. Voluntary Termination of Hospice Contract. (a) If a hospice wishes to voluntarily terminate its contract with the Department of Aging and Disability Services (DADS), regardless of the reason, the hospice must notify DADS in writing at least 10 days before the contract is terminated. The written notification must be sent to the Department of Aging and Disability Services, Community Services, Attention: Contracts, P.O. Box 149030, Mail Code W-517, Austin, Texas 78714-9030. Notification sent by overnight mail must be sent to the Department of Aging and Disability Services, Community Services, Attention: Contracts, 701 West 51st Street, Mail Code W-517, Austin, Texas 78751. (ab) At least 10 days before a hospice terminates its contract with the Department of Aging and Disability Services (DADS)as provided in subsection (a) of this sectionthe hospice must: (1) for each individual receiving Medicaid hospice services, the hospice must submit a Texas Medicaid Hospice Program Recipient Election/Cancellation/Discharge Notice form to DADS' claims processor indicating the individual has changed his designated hospice or revoked his election of hospice care; and (2) for each individual receiving Medicaid hospice services who is changing his designated hospice, the hospice must ensure that a copy of the individual s active record is sent to the receiving hospice in order to ensure continuity of care and services to the individual. (bc) Submission of the Texas Medicaid Hospice Program Recipient Election/Cancellation/Discharge Notice form to DADS' claims processor is governed by 30.20 of this chapter (relating to Change of the Designated Hospice) and 30.18 of this chapter (relating to Revoking the Election of Hospice Care). 30.36. Submission of Written Information. A hospice must submit by mail, fax, or hand-delivery any written information required 7/19/20137/19/2013by this chapterthat DADS requires of the hospice by mail, fax, or handdelivery to DADS. DADS does not accept e-mail submissiondelivery of the information. 30.60. Medicaid Hospice Payments and Limitations. Formatted: Font: Bold (a) Medicaid hospice per diem rates. For each day that an individual is under the care of a hospice, the hospice will be reimbursed an amount applicable to the type and intensity of the services furnished to the individual for that day. For continuous home care, the amount of payment is determined based on the number of hours of continuous care furnished to the beneficiary on that day. (1) Routine home care. The hospice will be paid the routine home care rate for each day the recipient is at home, under the care of the hospice, and not receiving continuous home care. This rate is paid without regard to the volume or intensity of routine home care services provided on any given day. (2) Continuous home care. The hospice will be paid the continuous home care rate when continuous home care is provided. The continuous home care rate is divided by 24 hours in order to arrive at an hourly rate. A minimum of 8 hours must be provided. For every hour or part of an hour of continuous care furnished, the hourly rate will be reimbursed to the hospice up to 24 hours a day. A maximum of five consecutive days are allowed for reimbursement. Additional days may be allowed with approval from the Department of Aging and Disability Services (DADS). 4

(3) Inpatient respite care. The hospice will be paid at the inpatient respite care rate for each day on which the beneficiary is in an approved inpatient facility and is receiving respite care. Payment for respite care may be made for a maximum of 5 days at a time including the date of admission but not counting the date of discharge. Payment for the sixth and any subsequent days is to be made at the routine home care rate. (A) A hospice recipient who receives hospice respite care in a nursing facility and returns home after the respite does not have to be in a Medicaid bed in the nursing facility. (B) Respite care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section. (C) If the hospice recipient dies as an inpatient, DADS pays the inpatient rate for the day of death. (4) General Inpatient Care. Payment is made at the general inpatient rate when general inpatient care is provided. (A) The Inpatient Care rate is paid for the date of admission and all subsequent inpatient days except day of discharge. (B) For the day of discharge, DADS pays the routine home care rate. (C) If the hospice recipient dies as an inpatient, DADS pays the inpatient rate for the day of death. (D) Inpatient care days are subject to the limitation on total hospice inpatient care days, as outlined in subsection (h) of this section. (b) Medicaid payments for physician services. (1) The Medicaid Hospice Program makes payments to the Medicaid hospice provider for hospice physician services according to the customary and reasonable Texas Medicaid physician charges. (2) The Medicaid Hospice Program does not pay when hospice physician services are provided by physicians who are not on staff with the Medicaid hospice provider or for independent contractors, who are under contract with the hospice. (3) Payments for non-hospice physician services to Medicaid hospice recipients are made directly to physicians, physician assistants, or advanced practice nurses by Medicaid through DADS' claims processor. (4) The Medicaid hospice provider must include physician services in the hospice plan of care and clinical records and must inform physicians on how to bill for services to hospice recipients. (c) Medicaid hospice-nursing facility per diem rates. The Medicaid Hospice Program pays the Medicaid hospice provider a hospice-nursing facility rate that is no less than 95 percent of the Medicaid nursing facility rate for each hospice recipient in a nursing facility to take into account the room and board furnished by the facility. When the hospice-nursing facility rate is paid to the hospice provider, Medicaid vendor payment to the nursing facility is not paid. Room and board services include performance of personal care services, including assistance in the activities of daily living, in socializing activities, administration of medication, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies. (d) Medicaid hospice-intermediate care facilities for persons with mental retardation or related conditions (ICF/MR-RC) per diem rates. The Medicaid Hospice Program pays the Medicaid hospice provider a hospice-icf/mr-rc rate that is no less than 95 percent of the ICF/MR-RC rate for each hospice recipient in an ICF/MR-RC to take into account the room and board furnished by the facility. When the hospice-icf/mr-rc rate is paid to the hospice provider, Medicaid vendor payment to the ICF/MR-RC is not paid. Room and board services include performance of personal care services, including assistance in the activities of daily living, in socializing activities, administration of medication, maintaining the cleanliness of a 5

resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies. (e) Medicaid time limitations for DADS hospice payment. (1) To receive payment of the hospice nursing facility rate, the hospice and nursing facility providers must have completed and submitted a Minimum Data Set (MDS) assessment for the hospice recipient or applicant. (A) For a hospice recipient or applicant currently residing in the facility with a current MDS assessment, no action is required until the next required MDS assessment. (B) For a hospice recipient or applicant newly admitted to the facility, the hospice and the nursing facility must complete and submit an MDS assessment as required by 19.801 of this title (relating to Resident Assessment). (2) An MDS assessment received after the required date will have the stamp-in date as the effective date. (f) Medicaid payments on Medicare coinsurance for drugs and biologicals. For Medicare- Medicaid recipients only, the Medicaid Hospice Program pays the Medicaid hospice provider a five percent coinsurance on prescription drugs and biologicals, not to exceed $5 per prescription. (g) Medicaid payments for Medicare respite coinsurance. For Medicare-Medicaid recipients only, the Medicaid Hospice Program pays the hospice provider a five percent coinsurance for each day of respite care for up to five consecutive days of a hospice coinsurance period. (h) For purposes of this section, third party means an individual, entity, or program other than DADS or the program provider that is or may be liable to pay all or part of the expenditures for hospice services, including: (1) a commercial insurance company offering health or casualty insurance to individuals or groups (including both experience-rated insurance contracts and indemnity contracts); (2) a profit or nonprofit prepaid plan offering either medical services or full or partial payment for services; and (3) an organization administering health or casualty insurance plans for professional associations, unions, fraternal groups, employer-employee benefit plans, and any similar organization offering these payments or services, including self-insured and self-funded plans. (i) If DADS has established the probable existence of a third-party liability for hospice program services provided by a program provider at the time the claim is filed, DADS rejects the claim and returns it to the program provider for a determination of the amount of liability. When the amount of liability is determined, DADS pays the claim to the extent that payment allowed under the HHSC rate payment schedule exceeds the amount of the third party's payment. (j) If a claim is returned to a provider for a determination of third-party liability in accordance with subsection (i) of this section, the program provider must: (1) submit the claim to the identified third-party for a determination of the amount of liability; (2) keep all documentation of actions taken to determine the amount of third-party liability; and (3) certify to DADS the actions the program provider has taken to determine the liability of the third-party in accordance with instructions from DADS. (k) To receive payment for hospice program services, a program provider must: (1) prepare and submit a clean claim, as defined in 42 CFR 447.45(b), for such services in accordance with this subchapter and the information available from the state Medicaid claims administrator; and (2) submit such a claim within 12 months after the date of service of the date the individual's eligibility is established, whichever is later. (l) For the purposes of this section, "date of service" is defined as the last day of the month in which the service was provided. (km) If a program provider submits a claim to a third-party, the requirement to submit the claim to the state Medicaid claims administrator in accordance with subsection (k) of this section is not 6

affected. In addition, the program provider must allow 110 days to elapse after the date the claim was submitted to the third-party before submitting the claim to the state Medicaid claims administrator. (ln) Medicaid payment limitations for inpatient care. During the 12-month period beginning November 1 of each calendar year and ending October 31 of the following calendar year (the cap year), the aggregate number of inpatient hospice care days must not exceed twenty percent of the aggregate total number of all hospice care days for the same cap year. This limitation is applied once each year, at the end of the cap year for each Medicaid hospice provider. If it is determined that the inpatient rate should not be paid, any days for which the hospice receives payment at a home care rate are not counted as inpatient days. The limitation is calculated as follows: (1) The maximum allowable number of inpatient days is calculated by multiplying the total number of days of Medicaid hospice care by 0.2. (2) If the total number of days of inpatient care furnished to Medicaid hospice patients is less than or equal to the maximum, no adjustment is necessary. (3) If the total number of days of inpatient care exceeds the maximum allowable number, the limitation is determined by: (A) calculating a ratio of the maximum allowable days to the number of actual days of inpatient care and multiplying this ratio by the total reimbursement for inpatient care (general inpatient and inpatient respite reimbursement) that was made; (B) multiplying excess inpatient care days by the routine home care rate; (C) adding together the amounts calculated in subparagraphs (A) and (B) of this paragraph; and (D) comparing the amount in subparagraph (C) of this paragraph with interim payments made to the hospice inpatient care during the "cap period." (4) If the inpatient care maximum has been exceeded, DADS recoups excess payments from subsequent Medicaid hospice provider claims. 30.62. Medicaid Hospice Claims Requirements. (a) Requirement for payment. (1) To receive Medicaid hospice payments, a hospice must have a Medicaid hospice contract with the Department of Aging and Disability Services (DADS). (2) To receive payment for providing Medicaid hospice services, a hospice must submit a complete and accurate claim for those services to DADS' claims processor. The claim must be received by DADS' claims processor within 12 months after the date of service. For purposes of this section, the date of service is the last day of the month in which the service was provided. If an individual s Medicaid eligibility for benefits is established after the provision of services, the 12-month period for submission of claims starts on the date the individual s Medicaid eligibility was established. (ab) Submittal and forms completion requirements. To receive Medicaid hospice payments, the hospice must submit the following documents to DADS' claims processor: (1) Texas Medicaid Hospice Program Recipient Election/Cancellation/Discharge Notice form, which must not have an election date that is earlier than the effective date of the hospice s Medicaid contract; (2) Medicaid/Medicare Hospice Program Physician Certification of Terminal Illness form; (3) Minimum Data Set (MDS) assessment, if applicable; and (4) level of need (LON) form, if available. (bc) Denials. DADS denies the following claims submitted by a hospice: 7 Formatted: Tab stops: 0.25", Left + 0.5", Left + 0.75", Left + 1", Left + 1.25", Left + 1.5", Left + 1.75", Left + 2", Left + 2.25", Left + 2.5", Left + 2.75", Left + 3", Left + 3.25", Left + 3.5", Left + 3.75", Left + 4", Left + 4.25", Left + 4.5", Left + 4.75", Left + 5", Left + 5.25", Left + 5.5", Left

(1) claims for hospice services provided before the effective date of the Medicaid hospice contract; (2) claims for room and board provided before the effective date of the Medicaid hospice contract; (3) claims for hospice services provided before the election date on the Texas Medicaid Hospice Program Election/Cancellation/Discharge Notice form and the Medicaid/Medicare Physician Certification of Terminal Illness form; (14) claims for services provided after the individual has revoked his election of the Medicaid Hospice Program; (5) claims for individuals who have been denied Medicaid eligibility and who were not eligible for Medicaid services when hospice services were provided; (26) claims for individuals who are dually eligible for Medicaid and Medicare and were covered by the Medicare hospice benefit when services were provided; and (37) claims for hospice services provided by a hospice after its Medicaid hospice contract has been terminated. Formatted: Hyphenate 30.70. Procedural Requirements. The Texas Department of Human Services (DHS) will conduct contract management visits annually. The hospice provider must submit all information requested to DHS, as outlined in their contract. 30.80. Enforcement Generally. Formatted: Font: Bold The Texas Department of Human Services (DHS), as the operating agency for the Medicaid hospice program, may impose certain sanctions on the Medicaid hospice provider. 30.82. Sanctions. (a) The Department of Aging and Disability Services may take sanctions against a hospice for failure to comply with the terms of the contract, program rules, or both, as described in 49.61 of this title (relating to Sanctions). (b) To appeal a sanction, a hospice must request a hearing from the Texas Health and Human Services Commission according to the provisions outlined in 1 TAC, Chapter 357, Subchapter I. 8

30.84. Referral to the Attorney General. Formatted: Font: Bold Suspected or alleged Medicaid fraud will be referred to the Attorney General's office and the Health and Human Services Commission, Office of Investigations. 9