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[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Notices]
[Pages 26731-26735]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10694]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

[CMS-1355-NR]
RIN 0938-AQ31

Medicare Program; Hospice Wage Index for Fiscal Year 2012

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Notice of CMS ruling.

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SUMMARY: This notice announces a CMS Ruling that was signed on April 
14, 2011 regarding CMS's determination to grant relief to any hospice 
provider that has a properly pending appeal (as defined in the Ruling) 
in any administrative appeals tribunal (that is, the Provider 
Reimbursement Review Board (PRRB), the Administrator of CMS, the 
Medicare fiscal intermediary hearing officer, or the CMS reviewing 
official) that seeks review of an overpayment determination for any 
hospice cap year (the period November 1 to October 31) ending on or 
before October 31, 2011 by challenging the validity of the beneficiary 
counting methodology set forth in 42 CFR 418.309(b)(1).

DATES: Effective Date: This notice of CMS ruling is effective April 14, 
2011.

FOR FURTHER INFORMATION CONTACT: Lori Anderson, (410) 786-6190; Randy 
Throndset, (410) 786-0131.

SUPPLEMENTARY INFORMATION: The CMS Administrator signed Ruling CMS-
1355-R on April 14, 2011. The text of the CMS Ruling is as follows:
    CMS Rulings are decisions of the Administrator that serve as 
precedential final opinions and orders and statements of policy and 
interpretation. They are published under the authority of the 
Administrator of the Centers for Medicare & Medicaid Services (CMS).
    CMS Rulings are binding on all CMS components, on all Department of 
Health & Human Services (HHS) components that adjudicate matters under 
the jurisdiction of CMS, and on the Social Security Administration 
(SSA) to the extent that components of the SSA adjudicate matters under 
the jurisdiction of CMS.
    This Ruling provides notice of CMS's determination to grant relief 
to any hospice provider that has a properly pending appeal (as 
discussed herein) in any administrative appeals tribunal (that is, the 
Provider Reimbursement Review Board (PRRB), the Administrator of CMS, 
the Medicare fiscal intermediary hearing officer, or the CMS reviewing 
official) that seeks review of an overpayment determination for any 
hospice cap year (the period November 1 to October 31) ending on or 
before October 31, 2011 by challenging the validity of the beneficiary 
counting methodology set forth in 42 CFR 418.309(b)(1). In this regard, 
such a provider's hospice cap determination (as defined under 42 U.S.C. 
1395f(i)(2)) for any cap year ending on or before October 31, 2011 and 
for which a timely appeal has been filed and is otherwise properly 
pending (as discussed herein) will be recalculated using a patient-by-
patient proportional methodology for counting the number of Medicare 
beneficiaries as opposed to the methodology currently set forth in 42 
CFR 418.309. This Ruling requires the appropriate Medicare contractor 
to identify each covered appeal and recalculate the aggregate cap. This 
Ruling also holds that, in light of the required recalculation, the 
pertinent administrative appeals tribunal will no longer have 
jurisdiction over the covered appeal and, therefore, directs the 
pertinent administrative appeals tribunal to remand each qualifying 
appeal to the appropriate Medicare contractor. Moreover, the Ruling 
explains how CMS and the contractor will recalculate the hospice 
provider's cap overpayment determination to account for beneficiaries 
who receive hospice services from the same hospice provider in multiple 
cap years using a methodology (the ``patient-by-patient proportional 
methodology'') that will allocate an individual beneficiary to multiple 
cap years based on the number of days the beneficiary receives service 
from the hospice in a given cap year relative to the total number of 
days in all cap years the beneficiary receives services from the 
hospice (or any hospice).

Medicare Program

Hospice

    Hospice Appeals for Review of an Overpayment Determination.

[[Page 26732]]

    Citations: 42 U.S.C. 1395f(i)(2) and 42 CFR parts 418 and 405

Background

    In 1982, Congress amended the Medicare statute to provide coverage 
for hospice care under Part A. See Tax Equity and Fiscal Responsibility 
Act of 1982 (TEFRA), Public Law 97-248, Sec.  122, 96 Stat. 356, 364 
(1982). The hospice benefit was designed to provide patients who are 
terminally ill (that is, life expectancy of six months or less) with 
comfort and pain relief, as well as emotional and spiritual support, 
generally in a home setting. Specifically, Medicare hospice services 
include nursing care, physical or occupational therapy, counseling, 
home health aide services, physicians' services, and short-term 
inpatient care, as well as drugs and medical supplies. 42 U.S.C. 
1395x(dd)(1); see also 48 FR 56,008, 56,008 (Dec. 16, 1983) (describing 
hospice benefit).
    The Medicare hospice benefit reflects a patient's choice to receive 
palliative care rather than curative care. The individual waives all 
rights to Medicare payments for treatment of the underlying terminal 
illness and related conditions by someone other than the individual's 
attending physician or the chosen hospice program. 42 U.S.C. 
1395d(d)(2)(A).
    Pursuant to 42 U.S.C. 1395f(i), Medicare pays hospice care 
providers on a per diem basis. See 42 CFR 418.302. The total payment to 
a hospice in an accounting year (November 1 to October 31, also known 
as the cap year) is limited, however, by a statutory cap. See 42 U.S.C. 
1395f(i)(2)(A). Payments made in excess of the statutory cap are 
considered overpayments and must be refunded by the hospice care 
provider. See 42 CFR 418.308.
    The statutory cap is calculated for each hospice care provider by 
multiplying the applicable ``cap amount,'' which is updated annually, 
by the ``number of Medicare beneficiaries in the hospice program in 
that year.'' 42 U.S.C. 1395f(i)(2)(A). The statute provides that the 
number of Medicare beneficiaries in a hospice program in an accounting 
year ``is equal to the number of individuals who have made an election 
[to receive hospice care] and have been provided hospice care by (or 
under arrangements made by) the hospice program under this part in the 
accounting year, such number reduced to reflect the proportion of 
hospice care that each such individual was provided in a previous or 
subsequent accounting year or under a plan of care established by 
another hospice program.'' 42 U.S.C. 1395f(i)(2)(C).
    In 1983, HHS adopted a rule that allocates hospice care on an 
aggregate basis by allocating each beneficiary entirely to the cap year 
in which he or she would be likely to receive the preponderance of his 
or her care. 48 FR 56,008, 56,022 (Dec. 16, 1983). The current 
regulation calculates the number of hospice beneficiaries as follows:
    Those Medicare beneficiaries who have not previously been included 
in the calculation of any hospice cap and who have filed an election to 
receive hospice care, in accordance with Sec.  418.24, from the hospice 
during the period beginning on September 28 (35 days before the 
beginning of the cap period) and ending on September 27 (35 days before 
the end of the cap period). 42 CFR 418.309(b)(1).
    Once a beneficiary is counted for a given hospice, the beneficiary 
is not counted toward the hospice's cap in subsequent years if he or 
she continues to receive services from the hospice. Thus, under this 
methodology, a patient who receives services in multiple years is 
counted as 1.0 beneficiary in a single year, rather than as some 
fraction less than 1.0 in multiple years (with the fractions summing to 
1.0).
    Since its promulgation in 1983, the vast majority of hospice 
providers have not objected to the current counting methodology set 
forth in 42 CFR 418.309(b)(1). Of the thousands of hospice providers in 
the Medicare program, typically only a small percentage each year 
exceed the statutory cap. Of those hospices that do exceed the cap and 
are issued notices of overpayment determinations (calculated pursuant 
to the methodology set forth in 42 CFR 418.309(b)(1)), only a small 
percentage since FY 2006 have filed administrative appeals objecting to 
the current counting methodology.
    In the April 24, 2009 ``Hospice Wage Index For FY 2010'' proposed 
rule (74 FR 18,912, 18,920-22) and in the July 22, 2010 ``Hospice Wage 
Index for FY 2011'' notice with comment period (75 FR 42,944, 42,950-
51) CMS solicited comments on various options for modernizing the 
hospice aggregate cap, including an option which would proportionally 
allocate each individual beneficiary across all the cap years in which 
the beneficiary received hospice care in any hospice. We received 24 
comments in 2009 and 26 comments in 2010 (some on behalf of groups) 
about the aggregate cap. A number of commenters, including 
associations, urged CMS to retain the existing cap calculation 
methodology set forth in 42 CFR 418.309(b)(1), as any changes to the 
current methodology would result in additional cost and burden to 
providers. The major hospice associations urged CMS to defer any major 
changes to the cap calculation methodology until the implementation of 
hospice payment reform, because of similar burden and cost concerns. 
Commenters also urged CMS to retain the current methodology as it 
results in a more streamlined and timely cap determination for 
providers as compared to other options considered, including any 
proportional methodology that allocates beneficiaries across more than 
one cap year. A significant advantage of the current 42 CFR 
418.309(b)(1) methodology is that, once made, cap determinations can 
remain final without need to revise to account for situations in which 
the percentage of time a beneficiary received services in a prior cap 
year declines as his or her overall hospice stay continues into 
subsequent cap years. In contrast, a proportional methodology which 
allocates a beneficiary across more than one cap year leaves ``final'' 
determinations somewhat open-ended. Many who commented on the 2009 and 
2010 final rules described above suggested that, because of these 
advantages, CMS adopt the current methodology as an option for 
providers even if CMS were to change its methodology to allow for cap 
determinations to be calculated on a patient-by-patient proportional 
basis. 75 FR at 42,950-51.

1. Current Litigation

    The current method of counting beneficiaries set forth in Sec.  
418.309(b)(1) has been the subject of litigation. A small percentage of 
hospice providers have filed PRRB appeals challenging this methodology, 
seeking to have hospice overpayment determinations using this 
methodology invalidated. Many of these appeals have reached federal 
district court. To date, all federal district courts and the two courts 
of appeals that have directly ruled on the question have issued 
decisions concluding that this methodology is inconsistent with the 
plain language of the Medicare statute and have set aside these 
overpayment determinations. Some district courts have also enjoined CMS 
from using the methodology to calculate the plaintiff-hospice's cap 
determinations in future cap years. See, e.g., Los Angeles Haven 
Hospice, Inc. v. Leavitt, 2009 WL 5868513 (C.D. Cal. 2009), affirmed in 
part, ------ F.3d ------, 2011 WL 873303 (9th Cir. Mar. 15, 2011); Lion 
Health Servs., Inc. v. Sebelius, 689 F. Supp. 2d 849 (N.D. Tex. 2010), 
affirmed in part, ------ F.3d. ------, 2011 WL 834018 (5th Cir. Mar. 
11, 2011); Hospice of New Mexico, LLC, v. Sebelius, No. CIV 09-145 
(D.N.M. Mar.

[[Page 26733]]

5, 2010), appeal pending, No. 10-2136 (10th Cir.); IHG Healthcare, Inc. 
v. Sebelius, 717 F. Supp. 2d 696 (S.D. Tex. 2010), appeal pending, No. 
10-20531 (5th Cir.); Russell-Murray Hospice, Inc. v. Sebelius, 724 
F.Supp.2d 43 (D.D.C. 2010), appeal pending, No. 10-5311 (D.C. Cir.); 
Affinity Healthcare Servs., Inc. v. Sebelius, 2010 WL 4258989 (D.D.C. 
2010), appeal pending, No. 11-5037 (D.C. Cir.).
    CMS continues to believe that the methodology set forth in Sec.  
418.309(b)(1) is consistent with the Medicare statute, and in 
coordination with the Department of Justice it has filed appeals from 
adverse federal district court decisions. Nonetheless, CMS has 
determined that it is in the best interest of the agency and the 
Medicare program to take action to prevent future litigation and 
alleviate the litigation burden on providers, the agency, and the 
courts that already exists. To achieve these ends, CMS is issuing, 
contemporaneously with this Ruling, a proposed rule that sets forth the 
proposed hospice wage index for fiscal year (FY) 2012. In the FY 2012 
hospice wage index proposed rule, CMS is proposing to revise the 
current methodology set forth at Sec.  418.309(b)(1) to provide for 
application of a patient-by-patient proportional methodology (which is 
consistent with the proportional methodology described below in Section 
2) for cap years 2012 and beyond, or, at the provider's election, 
application of the current methodology set forth in Sec.  
418.309(b)(1). CMS is also proposing to allow certain hospice providers 
that, as of the effective date of the proposed Rule, have not received 
the Medicare contractor's final cap determination for one or more cap 
years ending on or before October 31, 2011 to elect to have that 
determination calculated pursuant to a patient-by-patient proportional 
methodology.

2. Proportional Methodology

    In order to provide relief to hospices that have properly pending 
appeals in which they challenge the validity of the existing 
methodology at 42 CFR 418.309(b)(1), CMS will apply a patient-by-
patient proportional methodology pursuant to the implementation 
procedures set forth in Section 3 below. For purposes of this Ruling 
only, a ``properly pending'' appeal is one in which a provider has met 
all timeliness requirements set forth in section 1878 of the Social 
Security Act, Medicare regulations and other agency publications, 
guidelines, rulings, orders or rules.
    Under the proportional methodology, each Medicare beneficiary who 
received hospice care in a cap year will be allocated to that hospice 
provider's cap year on the basis of a fraction. The numerator of the 
fraction will be the number of patient days for that beneficiary in 
that hospice for that cap year (which will be determined after the end 
of the cap year and is therefore generally a fixed number) and the 
denominator will be the total number of all patient days for that 
beneficiary in all cap years in which the beneficiary received hospice 
services (using the best available data at the time of the 
calculation). The individual beneficiary counts for a given cap year 
will then be summed to compute the hospice's total aggregate 
beneficiary count (number of Medicare beneficiaries) for that cap year. 
A new payment cap will be calculated and a notice of overpayment 
determination will be issued for that cap year to the hospice provider.
    It may be the case that, at the time of the recalculation using 
this patient-by-patient proportional methodology, a hospice beneficiary 
is still continuing to receive hospice services and his or her overall 
hospice stay has not ended. Because of the need to give a hospice 
provider prompt notice of its final payment determination and to 
promptly collect any newly calculated overpayment, the Medicare 
contractor will not wait until all patients have ended their hospice 
stays (that is, they have expired or otherwise left hospice care) 
before recalculating the final payment determination for a given year. 
For each beneficiary, the Medicare contractor will use the best data 
available at the time regarding the total number of hospice patient 
days in all years to perform the recalculation. The impact of this 
methodology will be that the fractional allocations for some patients 
might be overstated (never understated) in the sense that the 
denominator might not include patient days for services received after 
the date of the calculation. The cap for any cap year which includes 
that beneficiary would therefore be overstated as well (again, never 
understated).
    Hospice cap determinations issued pursuant to this Ruling are 
subject to reopening, under CMS's normal reopening regulations, to 
recalculate beneficiary fractional allocations when more recent data 
regarding those beneficiaries are available. A particular beneficiary's 
fractional allocation for that cap year might decrease--and the payment 
cap decrease correspondingly--because the denominator of the fraction 
for the beneficiary may include data regarding additional days of care 
received in later cap years which were not available at the date of the 
preceding calculation. It also should be noted that, in some cases, a 
hospice beneficiary may receive hospice services in three or four cap 
years (or more). Under the patient-by-patient proportional methodology, 
some proportion of a hospice beneficiary's patient days will be counted 
toward the hospice cap in each and every cap year he or she receives 
hospice services.

Implementation of This Ruling

3. Implementation by CMS and the Medicare Contractors

    In order to resolve in an orderly manner timely pending 
administrative appeals in which hospice providers seek review of 
overpayment determinations by challenging the validity of the 
methodology set forth in 42 CFR 418.309(b)(1) and for which relief is 
afforded in this Ruling, the appropriate Medicare contractor shall 
identify each properly pending administrative appeal in which a hospice 
challenges an overpayment demand calculated pursuant to 42 CFR 
418.309(b)(1), notify the appropriate administrative tribunal that the 
appeal is covered by this ruling, and recalculate the aggregate cap 
using the patient-by-patient proportional methodology described in 
Section 2 of this Ruling. As explained above, each recalculation will 
be performed using the best data available as to the overall number of 
hospice patient days for each beneficiary (the denominator of the 
fractional allocation) at the time the calculation is performed. The 
Medicare contractor will include the hospice cap overpayment 
determination in a new determination of program reimbursement letter 
which shall serve as a notice of program reimbursement (NPR) under 42 
CFR 405.1803(a)(3). The revised overpayment determination contained 
therein will be subject to administrative and judicial review in 
accordance with the applicable jurisdictional and procedural 
requirements of section 1878 of the Act, the Medicare regulations, and 
other agency rules and guidelines.
    Many hospice providers prefer the current methodology and have not 
objected to it. For all hospice providers that have never filed an 
administrative appeal challenging a cap overpayment determination 
alleging the invalidity of 42 CFR 418.309(b)(1), Medicare contractors 
will continue to issue hospice cap determinations based upon the 
methodology currently set forth in 42 CFR 418.309(b)(1) for any cap 
year ending on or before October 31, 2011, unless CMS adopts a rule 
providing

[[Page 26734]]

otherwise in the hospice wage index final rule for FY 2012. This Ruling 
applies to cap years prior to the cap year ending October 31, 2012. The 
methodology for calculating cap determinations for cap years ending 
October 31, 2012 and later will be addressed in the hospice wage index 
final rule for FY 2012.

4. Implementation by the Administrative Appeals Tribunals

a. Implementation Procedure
    In light of this Ruling, the administrative appeals tribunals no 
longer have jurisdiction over properly pending administrative appeals 
challenging overpayment determinations calculated pursuant to 42 CFR 
418.309(b)(1). On receiving notification from a Medicare contractor 
that an appeal is covered by this Ruling, administrative appeals 
tribunals shall remand covered appeals to the Medicare contractor. If 
an administrative appeals tribunal determines that an appeal is covered 
by this ruling prior to receiving notification from a Medicare 
contractor, the tribunal may, on its own motion, remand the appeal to 
the appropriate Medicare contractor for a recalculation of the 
aggregate cap as described in Section 2 of this Ruling.
    However, if the administrative tribunal finds that a given claim is 
outside the scope of the Ruling (because such claim does not challenge 
the existing hospice cap methodology) or an appeal is not properly 
pending, as described in the first paragraph of Section 2, then the 
appeals tribunal will issue a written order, briefly explaining why the 
tribunal found that such claim is not subject to the Ruling. The 
appeals tribunal will then process the provider's original appeal of 
the same claim in accordance with the tribunal's usual, generally 
applicable appeal procedures.
b. ``Mixed'' Appeals Where Some Claims Are, But Other Claims Are Not, 
Subject to the Ruling
    We note that it is possible that a given administrative appeal 
might include some claims that qualify for relief under this Ruling, 
along with other claims that are not subject to the Ruling. If the 
administrative tribunal finds that only some, but not all, of the 
specific claims raised in a given appeal qualify for relief under this 
Ruling, then the appeals tribunal should remand to the contractor, for 
recalculation of the hospice cap, only the particular claims for which 
the Ruling was deemed applicable by the appeals tribunal. The other 
claims in such appeal which the appeals tribunal found did not qualify 
for relief under the Ruling should be processed in accordance with the 
tribunal's usual, generally applicable appeal procedures.
    Similarly, if the Medicare contractor finds that some, but not all, 
of the particular claims at issue in an appeal are subject to the 
Ruling, then the contractor should recalculate the hospice's cap 
overpayment determination, in accordance with the applicable provisions 
of the Ruling. As for the remaining claims in such appeal which the 
contractor found were not subject to the Ruling, the provider may 
resume without prejudice its original appeal of such claims before the 
administrative tribunal that previously remanded the claims to the 
contractor under the alternative implementation procedure. If the 
provider elects to resume its original appeal of such claims, then 
those claims should be processed in accordance with the tribunal's 
usual, generally applicable appeal procedures.
c. Requests for Review of a Finding That a Claim Is Not Subject to the 
Ruling
    We recognize that, if a specific claim were found outside the scope 
of, or not in compliance with all applicable timeliness requirements 
for, relief under this Ruling, then the provider might consider seeking 
administrative and judicial review of such a finding. For example, if a 
Medicare contractor were to find that a specific appeal seeking review 
of an overpayment determination was filed outside the time limits set 
forth in section 1878 of the Social Security Act and thus was outside 
the scope of the Ruling, then the provider might elect to resume its 
original PRRB appeal of the same claim, and ask the PRRB to review the 
contractor's finding that the Ruling was not applicable to the claim. 
Similarly, if the PRRB were to find that the Ruling did not apply to a 
provider's appeal because the provider did not meet one of the PRRB's 
procedural requirements (such as the requirement of the timely filing 
of appropriate position papers) or the PRRB were to find that the 
appeal did not challenge the validity of 42 CFR 418.309(b)(1), then the 
provider might seek review by the Administrator of CMS of the PRRB's 
finding that its appeal did not qualify for relief under this Ruling.
    This Ruling does not address whether the Medicare statute and 
regulations would support, under any circumstances, administrative and 
judicial review of a provider's challenge to a finding that a 
particular claim is not subject to the Ruling. Nonetheless, we believe 
that it is appropriate to address the timing of any administrative and 
judicial review of a provider's challenge to a finding that a specific 
claim is outside the scope of the Ruling or does not satisfy all 
applicable requirements for relief under the Ruling. [[[ Accordingly, 
it is hereby held that the administrative appeals tribunals may not 
review or decide a provider's interlocutory appeal of a finding, 
whether made by an appeals tribunal or by a Medicare contractor, that a 
specific claim is outside the scope of the Ruling or that such claim 
does not satisfy all applicable timeliness requirements for relief 
under the Ruling. Instead of reviewing or deciding any such 
interlocutory appeal, the pertinent administrative appeals tribunal 
should address, through its usual, generally applicable appeal 
procedures, the provider's challenge to a finding that a specific claim 
is not subject to the Ruling. Moreover, the administrative appeals 
tribunal should not review or decide the ``merits'' of a provider's 
challenge to a finding that a particular claim is outside the scope of 
the Ruling or that such claim is not a properly pending appeal, unless 
and until the appeals tribunal were to conclude specifically that the 
Medicare statute and regulations support subject matter jurisdiction 
over the provider's challenge to a finding that the Ruling does not 
apply to a particular claim. Also, if the administrative appeals 
tribunal were to decide whether the same appeals tribunal or a 
different administrative tribunal had jurisdiction over a provider's 
challenge to a finding that a specific claim is not subject to the 
Ruling, the tribunal should issue a written decision that includes an 
explanation of the specific legal and factual bases for the tribunal's 
jurisdictional ruling.

5. Appeals and Reopenings of Hospice Cap Recalculations Made Pursuant 
to This Ruling and Based Upon the Application of the Patient-by-Patient 
Proportional Methodology

    Just as hospice cap determinations based on application of the 
existing methodology in 42 CFR 418.309 are subject to administrative 
appeal in accordance with 42 CFR 418.311 (which refers to 42 CFR part 
405, subpart R), under this Ruling hospice cap determinations that are 
recalculated based on application of the patient-by-patient 
proportional methodology are determinations subject to administrative 
appeal (in accordance with 42 CFR 418.311) and ultimately judicial 
review, after the contractor has issued a cap determination and if all 
applicable requirements for administrative and

[[Page 26735]]

judicial review are met. Pursuant to 42 CFR 418.311 (which incorporates 
42 CFR part 405, subpart R), the provider may appeal an intermediary's 
cap determination in accordance with the requirements contained in 
either 42 CFR 405.1811 or 42 CFR 405.1835, whichever is applicable. In 
accordance with the applicable regulations, any such appeal must be 
filed to the appropriate authority no later than 180 days from the date 
of the contractor's determination. If a provider properly pursues and 
exhausts the administrative appeals process and receives a final agency 
decision, the final agency decision is subject to judicial review in 
accordance with 42 CFR part 405, subpart R and 42 U.S.C. 1395oo.
    In addition, all hospice cap determinations based on application of 
a patient-by-patient proportional methodology are subject to reopening 
(for up to 3 years in accordance with the requirements of 42 CFR 
405.1885). Thus, a hospice cap payment determination made pursuant to 
this Ruling may be reopened at a later time (e.g., to revise the 
proportional allocations to account for additional days of care after 
the year in question, which would increase the denominators of some 
proportions and thus decrease some fractional allocations). We 
recognize that this might increase uncertainty, but this concern must 
be balanced against other considerations such as payment accuracy and 
timeliness of payment determinations. Nothing in this Ruling, however, 
shall be construed as requiring reopening and recalculation of cap 
determinations for an earlier year when there is a recalculation for 
any given year.

Ruling

    First, it is CMS' Ruling that the agency and the Medicare 
contractors will resolve and grant relief in each properly pending 
appeal in which a hospice provider seeks review of a final 
determination of overpayment for a cap year ending on or before October 
31, 2011 by challenging the validity of the methodology set forth in 42 
CFR 418.309(b)(1). CMS will grant relief in each appeal by directing 
its Medicare contractors to recalculate the final overpayment 
determination in accordance with the patient-by-patient proportional 
methodology described in Section 2 of this Ruling.
    Second, it is also CMS' Ruling that the pertinent administrative 
appeals tribunal (that is, the PRRB, the Administrator of CMS, the 
fiscal intermediary hearing officer, or the CMS reviewing official) and 
the appropriate Medicare contractor will process, in accordance with 
the instructions set forth in Sections 3 and 4 of this Ruling, each 
appeal (including any interlocutory appeals) and each putative claim 
(in such appeal) seeking review of a hospice cap overpayment 
determination for a cap year ending on or before October 31, 2011 on 
the basis that the methodology set forth in 42 CFR 418.309(b)(1) is 
invalid.
    Third, it is CMS' further Ruling that the agency and the 
appropriate Medicare contractor will process, in accordance with the 
instructions set forth in Section 5 of this Ruling, each properly 
pending appeal seeking review of a hospice cap overpayment 
determination for a cap year ending on or before October 31, 2011 on 
the basis that the methodology set forth in 42 CFR 418.309(b)(1) is 
invalid and that is remanded by the administrative appeals tribunal and 
is found to qualify for relief under this Ruling.
    Fourth, it is CMS' further Ruling that, pursuant to 42 CFR 
405.1801(a), 405.1885(c)(1), (2), this Ruling is not an appropriate 
basis for the reopening of final determinations of the Secretary or a 
Medicare contractor or of any decision by a reviewing entity, except to 
the extent that this Ruling provides for reopening in accordance with 
existing regulations and policy; accordingly, it is hereby held that 
this Ruling does not provide an independent basis for the 
administrative appeals tribunals, the fiscal intermediaries, and other 
Medicare contractors to reopen any final hospice cap determination in a 
manner inconsistent with existing regulations and policy.
    Fifth, it is also CMS' Ruling that, pursuant to 42 CFR 401.108, 
this Ruling is a final precedent opinion and order and a binding 
statement of policy that does not give rise to any putative retroactive 
rulemaking issues; in any event, it is hereby held that, if this Ruling 
were deemed to implicate potential retroactive rulemaking issues, then, 
in accordance with 42 U.S.C. 1395hh(e)(1)(A), retroactive application 
of this Ruling is necessary to ensure continuing compliance with 42 
U.S.C. 1395f(i)(2) and to serve the public interest.
    Sixth, it is also CMS' Ruling that, pursuant to 42 CFR 401.108, 
this Ruling is a final precedent opinion and order and a binding 
statement of policy. This Ruling is not a substantive or legislative 
rule requiring notice and comment; to the extent that this Ruling is 
deemed to be a substantive or legislative rule, it is CMS's Ruling that 
good cause exists to dispense with rulemaking procedures pursuant to 42 
U.S.C. 1395hh(b)(2)(C) and 5 U.S.C. 553(b)(B) to ensure continued 
compliance with 42 U.S.C. 1395f(i)(2).

(Catalog of Federal Domestic Assistance Program No. 93.773 
Medicare--Hospital Insurance Program; and No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: April 14, 2011.
Donald M. Berwick,
Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2011-10694 Filed 4-28-11; 4:15 pm]
BILLING CODE 4120-01-P
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