42528 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 418 

[CMS–1754–F] 

RIN 0938–AU41 

Medicare Program; FY 2022 Hospice 

Wage Index and Payment Rate Update, 

Hospice Conditions of Participation 

Updates, Hospice and Home Health 

Quality Reporting Program 

Requirements 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule updates the 

hospice wage index, payment rates, and 

aggregate cap amount for Fiscal Year 

2022. This rule makes changes to the 

labor shares of the hospice payment 

rates and finalizes clarifying regulations 

text changes to the election statement 

addendum that was implemented on 

October 1, 2020. In addition, this rule 

makes permanent selected regulatory 

blanket waivers that were issued to 

Medicare-participating hospice agencies 

during the COVID–19 public health 

emergency (PHE) and updates the 

hospice conditions of participation. 

This rule updates the Hospice Quality 

Reporting Program and finalizes 

changes beginning with the January 

2022 public reporting for the Home 

Health Quality Reporting Program to 

address exceptions related to the 

COVID–19 PHE. 

DATES: These regulations are effective 

on October 1, 2021. 

FOR FURTHER INFORMATION CONTACT: For 

general questions about hospice 

payment policy, send your inquiry via 

email to hospicepolicy@cms.hhs.gov. 

For questions regarding the CAHPS®

Hospice Survey, contact Lori Teichman 

at (410) 786–6684, Lauren Fuentes at 

(410) 786–2290, and Debra DeanWhittaker at (410)786–9848. 

For questions regarding the hospice 

conditions of participation, contact 

Mary Rossi-Coajou at (410) 786–6051 

and CAPT James Cowher at (410) 786– 

1948. 

For questions regarding home health 

public reporting, contact Charles 

Padgett (410) 786–2811. 

For questions regarding the hospice 

quality reporting program, contact 

Cindy Massuda at (410) 786–0652. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose 

This rule updates the hospice wage 

index, payment rates, and cap amount 

for fiscal year (FY) 2022 as required 

under section 1814(i) of the Social 

Security Act (the Act). In addition, this 

rule rebases the labor shares of the 

hospice payment rates and finalizes 

clarifying regulations text changes to the 

election statement addendum 

requirements finalized in the FY 2020 

Hospice Wage Index and Payment Rate 

Update final rule (84 FR 38484). This 

rule also provides a summary of 

comments received regarding hospice 

utilization and spending patterns. This 

rule makes permanent selected 

regulatory blanket waivers for hospice 

agencies during the COVID–19 public 

health emergency (PHE) and provides 

revisions to the hospice conditions of 

participation (CoPs). This rule finalizes 

changes to the Hospice Quality 

Reporting Program (HQRP), summarizes 

the comments to the requests for 

information on advancing to digital 

quality measurement and the use of Fast 

Healthcare Interoperability Resources 

(FHIR) and the White House Executive 

Order related to health equity in the 

HQRP. Finally, this rule finalizes 

changes to the Home Health Quality 

Reporting Program (HH QRP) to address 

the January 2022 refresh in accordance 

with sections 1895(b)(3)(B)(v)(III) and 

1899B(f) of the Act. 

B. Summary of the Major Provisions 

Section III.A of this final rule includes 

a summary of comments from the 

public, including hospice providers as 

well as patients and advocates, 

regarding the presented analysis in the 

FY 2022 hospice proposed rule on 

hospice utilization, spending patterns 

and non-hospice spending during a 

hospice election. 

Section III.B of this final rule rebases 

and revises the labor shares for 

continuous home care (CHC), routine 

home care (RHC), inpatient respite care 

(IRC), and general inpatient care (GIP) 

using 2018 Medicare cost report (MCR) 

data for freestanding hospice facilities. 

Section III.C of this rule updates the 

hospice wage index and makes the 

application of the updated wage data 

budget neutral for all four levels of 

hospice care and discusses the FY 2022 

hospice payment update percentage of 

2.0 percent, updates to the hospice 

payment rates, as well as the updates to 

the hospice cap amount for FY 2022 by 

the hospice payment update percentage 

of 2.0 percent. 

Section III.D finalizes clarifying 

regulations text changes regarding the 

election statement addendum 

requirements that were finalized in the 

FY 2020 Hospice Wage Index and Rate 

Update final rule (84 FR 38484). 

Section III.E makes permanent 

selected regulatory blanket waivers that 

were issued to Medicare-participating 

hospice agencies during the COVID–19 

PHE. We are revising the hospice aide 

requirements to allow the use of the 

pseudo-patient for conducting hospice 

aide competency evaluations. We are 

also revising the hospice aide 

supervision requirements to address 

situations when deficient practice is 

noted and remediation is needed related 

to both deficient and related skills, in 

accordance with § 418.76(c). 

In section III.F of this rule, we finalize 

proposals to the HQRP including the 

addition of claims-based Hospice Care 

Index (HCI) measure, and Hospice Visits 

in the Last Days of Life (HVLDL) 

measure for public reporting; removal of 

the seven Hospice Item Set (HIS) 

measures because a more broadly 

applicable measure, the NQF #3235 HIS 

Comprehensive Assessment Measure for 

the particular topic is available and 

already publicly reported; and further 

development of the Hospice Outcome 

and Patient Evaluation (HOPE) 

assessment instrument. We also finalize 

the public reporting change for one 

refresh cycle to report less than the 

standard quarters of data due to the 

COVID–19 PHE exemptions; use 2 years 

(8 quarters) of data for the claims-based 

measures in order to report on small 

providers; and add the Consumer 

Assessment of Healthcare Providers and 

Systems (CAHPS®) Hospice Survey Star 

ratings. Additionally, we summarize the 

comments on the requests for 

information (RFI) on advancing to 

digital quality measurement and the use 

of FHIR and on addressing the White 

House Executive Order related to health 

equity in the HQRP. 

Finally, in section III.G of this rule, 

we are finalizing our proposal to the HH 

QRP so that, beginning with the January 

2022 through the July 2024 public 

reporting refresh cycle, we will report 

fewer quarters of data due to COVID–19 

PHE exceptions granted on March 27, 

2020. We included the HH QRP policy 

in this rulemaking in order to resume 

public reporting for the HH QRP with 

the January 2022 refresh of Care 

Compare. To accommodate the excepted 

HH QRP of 2020 Q1 and Q2, we resume 

public reporting using 3 out of 4 

quarters of data for the January 2022 

refresh. In order to finalize this proposal 

in time to release the required preview 

report related to the January 2022 

refresh, which we release 3 months 

prior to any given refresh (October 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42529 

1Hospices are also subject to additional Federal 

civil rights laws, including the Age Discrimination 

Act, Section 1557 of the Affordable Care Act, and 

conscience and religious freedom laws. 

2021), we needed the rule containing 

this proposal to finalize by October 

2021. 

C. Summary of Impacts 

The overall economic impact of this 

final rule is estimated to be $480 million 

in increased payments to hospices for 

FY 2022. 

II. Background 

A. Hospice Care 

Hospice care is a comprehensive, 

holistic approach to treatment that 

recognizes the impending death of a 

terminally ill individual and warrants a 

change in the focus from curative care 

to palliative care for relief of pain and 

for symptom management. Medicare 

regulations define ‘‘palliative care’’ as 

patient and family-centered care that 

optimizes quality of life by anticipating, 

preventing, and treating suffering. 

Palliative care throughout the 

continuum of illness involves 

addressing physical, intellectual, 

emotional, social, and spiritual needs 

and to facilitate patient autonomy, 

access to information, and choice (42 

CFR 418.3). Palliative care is at the core 

of hospice philosophy and care 

practices, and is a critical component of 

the Medicare hospice benefit. 

The goal of hospice care is to help 

terminally ill individuals continue life 

with minimal disruption to normal 

activities while remaining primarily in 

the home environment. A hospice uses 

an interdisciplinary approach to deliver 

medical, nursing, social, psychological, 

emotional, and spiritual services 

through a collaboration of professionals 

and other caregivers, with the goal of 

making the beneficiary as physically 

and emotionally comfortable as 

possible. Hospice is compassionate 

beneficiary and family/caregivercentered care for those who are 

terminally ill. 

As referenced in our regulations at 

§ 418.22(b)(1), to be eligible for 

Medicare hospice services, the patient’s 

attending physician (if any) and the 

hospice medical director must certify 

that the individual is ‘‘terminally ill,’’ as 

defined in section 1861(dd)(3)(A) of the 

Social Security Act (the Act) and our 

regulations at § 418.3; that is, the 

individual has a medical prognosis that 

his or her life expectancy is 6 months 

or less if the illness runs its normal 

course. The regulations at § 418.22(b)(2) 

require that clinical information and 

other documentation that support the 

medical prognosis accompany the 

certification and be filed in the medical 

record with it and those at § 418.22(b)(3) 

require that the certification and 

recertification forms include a brief 

narrative explanation of the clinical 

findings that support a life expectancy 

of 6 months or less. 

Under the Medicare hospice benefit, 

the election of hospice care is a patient 

choice and once a terminally ill patient 

elects to receive hospice care, a hospice 

interdisciplinary group is essential in 

the seamless provision of primarily 

home-based services. The hospice 

interdisciplinary group works with the 

beneficiary, family, and caregivers to 

develop a coordinated, comprehensive 

care plan; reduce unnecessary 

diagnostics or ineffective therapies; and 

maintain ongoing communication with 

individuals and their families about 

changes in their condition. The 

beneficiary’s care plan will shift over 

time to meet the changing needs of the 

individual, family, and caregiver(s) as 

the individual approaches the end of 

life. 

If, in the judgment of the hospice 

interdisciplinary team, which includes 

the hospice physician, the patient’s 

symptoms cannot be effectively 

managed at home, then the patient is 

eligible for general inpatient care (GIP), 

a more medically intense level of care. 

GIP must be provided in a Medicarecertified hospice freestanding facility, 

skilled nursing facility, or hospital. GIP 

is provided to ensure that any new or 

worsening symptoms are intensively 

addressed so that the beneficiary can 

return to his or her home and continue 

to receive routine home care. Limited, 

short-term, intermittent, inpatient 

respite care (IRC) is also available 

because of the absence or need for relief 

of the family or other caregivers. 

Additionally, an individual can receive 

continuous home care (CHC) during a 

period of crisis in which an individual 

requires continuous care to achieve 

palliation or management of acute 

medical symptoms so that the 

individual can remain at home. 

Continuous home care may be covered 

for as much as 24 hours a day, and these 

periods must be predominantly nursing 

care, in accordance with the regulations 

at § 418.204. A minimum of 8 hours of 

nursing care, or nursing and aide care, 

must be furnished on a particular day to 

qualify for the continuous home care 

rate (§ 418.302(e)(4)). 

Hospices must comply with 

applicable civil rights laws,1 including 

section 504 of the Rehabilitation Act of 

1973 and the Americans with 

Disabilities Act, under which covered 

entities must take appropriate steps to 

ensure effective communication with 

patients and patient care representatives 

with disabilities, including the 

provisions of auxiliary aids and services 

at no cost to the individual. 

Additionally, they must take reasonable 

steps to ensure meaningful access for 

individuals with limited English 

proficiency, consistent with Title VI of 

the Civil Rights Act of 1964. Further 

information about these requirements 

may be found at: http://www.hhs.gov/ 

ocr/civilrights. 

B. Services Covered by the Medicare 

Hospice Benefit 

Coverage under the Medicare hospice 

benefit requires that hospice services 

must be reasonable and necessary for 

the palliation and management of the 

terminal illness and related conditions. 

Section 1861(dd)(1) of the Act 

establishes the services that are to be 

rendered by a Medicare-certified 

hospice program. These covered 

services include: Nursing care; physical 

therapy; occupational therapy; speechlanguage pathology therapy; medical 

social services; home health aide 

services (called hospice aide services); 

physician services; homemaker services; 

medical supplies (including drugs and 

biologicals); medical appliances; 

counseling services (including dietary 

counseling); short-term inpatient care in 

a hospital, nursing facility, or hospice 

inpatient facility (including both respite 

care and procedures necessary for pain 

control and acute or chronic symptom 

management); continuous home care 

during periods of crisis, and only as 

necessary to maintain the terminally ill 

individual at home; and any other item 

or service which is specified in the plan 

of care and for which payment may 

otherwise be made under Medicare, in 

accordance with Title XVIII of the Act. 

Section 1814(a)(7)(B) of the Act 

requires that a written plan for 

providing hospice care to a beneficiary 

who is a hospice patient be established 

before care is provided by, or under 

arrangements made by, the hospice 

program; and that the written plan be 

periodically reviewed by the 

beneficiary’s attending physician (if 

any), the hospice medical director, and 

an interdisciplinary group (section 

1861(dd)(2)(B) of the Act). The services 

offered under the Medicare hospice 

benefit must be available to 

beneficiaries as needed, 24 hours a day, 

7 days a week (section 1861(dd)(2)(A)(i) 

of the Act). 

Upon the implementation of the 

hospice benefit, the Congress also 

expected hospices to continue to use 

volunteer services, though Medicare 


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42530 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

2Nelson, R., Should Medical Aid in Dying Be Part 

of Hospice Care? Medscape Nurses. February 26, 

2020. https://www.medscape.com/viewarticle/ 

925769#vp_1. 

does not pay for these volunteer services 

(section 1861(dd)(2)(E) of the Act). As 

stated in the Fiscal Year (FY) 1983 

Hospice Wage Index and Rate Update 

proposed rule (48 FR 38149), the 

hospice must have an interdisciplinary 

group composed of paid hospice 

employees as well as hospice 

volunteers, and that ‘‘the hospice 

benefit and the resulting Medicare 

reimbursement is not intended to 

diminish the voluntary spirit of 

hospices.’’ This expectation supports 

the hospice philosophy of community 

based, holistic, comprehensive, and 

compassionate end of life care. 

C. Medicare Payment for Hospice Care 

Sections 1812(d), 1813(a)(4), 

1814(a)(7), 1814(i), and 1861(dd) of the 

Act, and the regulations in 42 CFR part 

418, establish eligibility requirements, 

payment standards and procedures; 

define covered services; and delineate 

the conditions a hospice must meet to 

be approved for participation in the 

Medicare program. Part 418, subpart G, 

provides for a per diem payment based 

on one of four prospectively-determined 

rate categories of hospice care (routine 

home care (RHC), CHC, IRC, and GIP), 

based on each day a qualified Medicare 

beneficiary is under hospice care (once 

the individual has elected). This per 

diem payment is meant to cover all of 

the hospice services and items needed 

to manage the beneficiary’s care, as 

required by section 1861(dd)(1) of the 

Act. 

While payments made to hospices are 

to cover all items, services, and drugs 

for the palliation and management of 

the terminal illness and related 

conditions, Federal funds cannot be 

used for the prohibited activities, even 

in the context of a per diem payment. 

While recent news reports 2 have 

brought to light the potential role 

hospices could play in medical aid in 

dying (MAID) where such practices 

have been legalized in certain states, we 

wish to remind hospices that The 

Assisted Suicide Funding Restriction 

Act of 1997 (Pub. L. 105–12) prohibits 

the use of Federal funds to provide or 

pay for any health care item or service 

or health benefit coverage for the 

purpose of causing, or assisting to cause, 

the death of any individual including 

mercy killing, euthanasia, or assisted 

suicide. However, the prohibition does 

not pertain to the provision of an item 

or service for the purpose of alleviating 

pain or discomfort, even if such use may 

increase the risk of death, so long as the 

item or service is not furnished for the 

specific purpose of causing or 

accelerating death. 

1. Omnibus Budget Reconciliation Act 

of 1989 

Section 6005(a) of the Omnibus 

Budget Reconciliation Act of 1989 (Pub. 

L. 101–239) amended section 

1814(i)(1)(C) of the Act and provided 

changes in the methodology concerning 

updating the daily payment rates based 

on the hospital market basket 

percentage increase applied to the 

payment rates in effect during the 

previous Federal fiscal year. 

2. Balanced Budget Act of 1997 

Section 4441(a) of the Balanced 

Budget Act of 1997 (BBA) (Pub. L. 105– 

33) established that updates to the 

hospice payment rates beginning FY 

2002 and subsequent FYs be the 

hospital market basket percentage 

increase for the FY. Section 4442 of the 

BBA amended section 1814(i)(2) of the 

Act, effective for services furnished on 

or after October 1, 1997, to require that 

hospices submit claims for payment for 

hospice care furnished in an 

individual’s home only on the basis of 

the geographic location at which the 

service is furnished. Previously, local 

wage index values were applied based 

on the geographic location of the 

hospice provider, regardless of where 

the hospice care was furnished. Section 

4443 of the BBA amended sections 

1812(a)(4) and 1812(d)(1) of the Act to 

provide for hospice benefit periods of 

two 90-day periods, followed by an 

unlimited number of 60-day periods. 

3. FY 1998 Hospice Wage Index Final 

Rule 

The FY 1998 Hospice Wage Index 

final rule (62 FR 42860), implemented a 

new methodology for calculating the 

hospice wage index and instituted an 

annual Budget Neutrality Adjustment 

Factor (BNAF) so aggregate Medicare 

payments to hospices would remain 

budget neutral to payments calculated 

using the 1983 wage index. 

4. FY 2010 Hospice Wage Index Final 

Rule 

The FY 2010 Hospice Wage Index and 

Rate Update final rule (74 FR 39384) 

instituted an incremental 7-year phaseout of the BNAF beginning in FY 2010 

through FY 2016. The BNAF phase-out 

reduced the amount of the BNAF 

increase applied to the hospice wage 

index value, but was not a reduction in 

the hospice wage index value itself or in 

the hospice payment rates. 

5. The Affordable Care Act 

Starting with FY 2013 (and in 

subsequent FYs), the market basket 

percentage update under the hospice 

payment system referenced in sections 

1814(i)(1)(C)(ii)(VII) and 

1814(i)(1)(C)(iii) of the Act are subject to 

annual reductions related to changes in 

economy-wide productivity, as 

specified in section 1814(i)(1)(C)(iv) of 

the Act. 

In addition, sections 1814(i)(5)(A) 

through (C) of the Act, as added by 

section 3132(a) of the Patient Protection 

and Affordable Care Act (PPACA) (Pub. 

L. 111–148), required hospices to begin 

submitting quality data, based on 

measures specified by the Secretary of 

the Department of Health and Human 

Services (the Secretary), for FY 2014 

and subsequent FYs. Since FY 2014, 

hospices that fail to report quality data 

have their market basket percentage 

increase reduced by 2 percentage points. 

Note that with the passage of the 

Consolidated Appropriations Act, 2021 

(hereafter referred to as CAA 2021) (Pub. 

L. 116 260), the reduction changes to 4 

percentage points beginning in FY 2024. 

Section 1814(a)(7)(D)(i) of the Act, as 

added by section 3132(b)(2) of the 

PPACA, required, effective January 1, 

2011, that a hospice physician or nurse 

practitioner have a face-to-face 

encounter with the beneficiary to 

determine continued eligibility of the 

beneficiary’s hospice care prior to the 

180th day recertification and each 

subsequent recertification, and to attest 

that such visit took place. When 

implementing this provision, the 

Centers for Medicare & Medicaid 

Services (CMS) finalized in the FY 2011 

Hospice Wage Index final rule (75 FR 

70435) that the 180th day recertification 

and subsequent recertifications would 

correspond to the beneficiary’s third or 

subsequent benefit periods. Further, 

section 1814(i)(6) of the Act, as added 

by section 3132(a)(1)(B) of the PPACA, 

authorized the Secretary to collect 

additional data and information 

determined appropriate to revise 

payments for hospice care and other 

purposes. The types of data and 

information suggested in the PPACA 

could capture accurate resource 

utilization, which could be collected on 

claims, cost reports, and possibly other 

mechanisms, as the Secretary 

determined to be appropriate. The data 

collected could be used to revise the 

methodology for determining the 

payment rates for RHC and other 

services included in hospice care, no 

earlier than October 1, 2013, as 

described in section 1814(i)(6)(D) of the 

Act. In addition, CMS was required to 


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consult with hospice programs and the 

Medicare Payment Advisory 

Commission (MedPAC) regarding 

additional data collection and payment 

revision options. 

6. FY 2012 Hospice Wage Index Final 

Rule 

In the FY 2012 Hospice Wage Index 

final rule (76 FR 47308 through 47314) 

it was announced that beginning in 

2012, the hospice aggregate cap would 

be calculated using the patient-bypatient proportional methodology, 

within certain limits. Existing hospices 

had the option of having their cap 

calculated through the original 

streamlined methodology, also within 

certain limits. As of FY 2012, new 

hospices have their cap determinations 

calculated using the patient-by-patient 

proportional methodology. 

7. IMPACT Act of 2014 

The Improving Medicare Post-Acute 

Care Transformation Act of 2014 

(IMPACT Act) (Pub. L. 113–185) became 

law on October 6, 2014. Section 3(a) of 

the IMPACT Act mandated that all 

Medicare certified hospices be surveyed 

every 3 years beginning April 6, 2015 

and ending September 30, 2025. In 

addition, section 3(c) of the IMPACT 

Act requires medical review of hospice 

cases involving beneficiaries receiving 

more than 180 days of care in select 

hospices that show a preponderance of 

such patients; section 3(d) of the 

IMPACT Act contains a new provision 

mandating that the cap amount for 

accounting years that end after 

September 30, 2016, and before October 

1, 2025 be updated by the hospice 

payment percentage update rather than 

using the consumer price index for 

urban consumers (CPI–U) for medical 

care expenditures. 

8. FY 2015 Hospice Wage Index and 

Payment Rate Update Final Rule 

The FY 2015 Hospice Wage Index and 

Rate Update final rule (79 FR 50452) 

finalized a requirement that the Notice 

of Election (NOE) be filed within 5 

calendar days after the effective date of 

hospice election. If the NOE is filed 

beyond this 5-day period, hospice 

providers are liable for the services 

furnished during the days from the 

effective date of hospice election to the 

date of NOE filing (79 FR 50474). As 

with the NOE, the claims processing 

system must be notified of a 

beneficiary’s discharge from hospice or 

hospice benefit revocation within 5 

calendar days after the effective date of 

the discharge/revocation (unless the 

hospice has already filed a final claim) 

through the submission of a final claim 

or a Notice of Termination or 

Revocation (NOTR). 

The FY 2015 Hospice Wage Index and 

Rate Update final rule (79 FR 50479) 

also finalized a requirement that the 

election form include the beneficiary’s 

choice of attending physician and that 

the beneficiary provide the hospice with 

a signed document when he or she 

chooses to change attending physicians. 

In addition, the FY 2015 Hospice 

Wage Index and Rate Update final rule 

(79 FR 50496) provided background, 

described eligibility criteria, identified 

survey respondents, and otherwise 

implemented the Hospice Experience of 

Care Survey for informal caregivers. 

Hospice providers were required to 

begin using this survey for hospice 

patients as of 2015. 

Finally, the FY 2015 Hospice Wage 

Index and Rate Update final rule 

required providers to complete their 

aggregate cap determination not sooner 

than 3 months after the end of the cap 

year, and not later than 5 months after, 

and remit any overpayments. Those 

hospices that fail to submit their 

aggregate cap determinations on a 

timely basis will have their payments 

suspended until the determination is 

completed and received by the Medicare 

contractor (79 FR 50503). 

9. FY 2016 Hospice Wage Index and 

Payment Rate Update Final Rule 

In the FY 2016 Hospice Wage Index 

and Rate Update final rule (80 FR 

47142), CMS finalized two different 

payment rates for RHC: A higher per 

diem base payment rate for the first 60 

days of hospice care and a reduced per 

diem base payment rate for subsequent 

days of hospice care. CMS also finalized 

a service intensity add-on (SIA) 

payment payable for certain services 

during the last 7 days of the 

beneficiary’s life. A service intensity 

add-on payment will be made for the 

social worker visits and nursing visits 

provided by a registered nurse (RN), 

when provided during routine home 

care in the last 7 days of life. The SIA 

payment is in addition to the routine 

home care rate. The SIA payment is 

provided for visits of a minimum of 15 

minutes and a maximum of 4 hours per 

day (80 FR 47172). 

In addition to the hospice payment 

reform changes discussed, the FY 2016 

Hospice Wage Index and Rate Update 

final rule implemented changes 

mandated by the IMPACT Act, in which 

the cap amount for accounting years 

that end after September 30, 2016 and 

before October 1, 2025 would be 

updated by the hospice payment update 

percentage rather than using the CPI–U 

(80 FR 47186). In addition, we finalized 

a provision to align the cap accounting 

year for both the inpatient cap and the 

hospice aggregate cap with the FY for 

FY 2017 and thereafter. Finally, the FY 

2016 Hospice Wage Index and Rate 

Update final rule (80 FR 47144) clarified 

that hospices would have to report all 

diagnoses on the hospice claim as a part 

of the ongoing data collection efforts for 

possible future hospice payment 

refinements. 

10. FY 2017 Hospice Wage Index and 

Payment Rate Update Final Rule 

In the FY 2017 Hospice Wage Index 

and Rate Update final rule (81 FR 

52160), CMS finalized several new 

policies and requirements related to the 

Hospice Quality Reporting Program 

(HQRP). First, CMS codified the policy 

that if the National Quality Forum 

(NQF) made non-substantive changes to 

specifications for HQRP measures as 

part of the NQF’s re-endorsement 

process, CMS would continue to utilize 

the measure in its new endorsed status, 

without going through new notice-andcomment rulemaking. CMS would 

continue to use rulemaking to adopt 

substantive updates made by the NQF to 

the endorsed measures adopted for the 

HQRP; determinations about what 

constitutes a substantive versus nonsubstantive change would be made on a 

measure-by-measure basis. Second, we 

finalized two new quality measures for 

the HQRP for the FY 2019 payment 

determination and subsequent years: 

Hospice Visits when Death is Imminent 

Measure Pair and Hospice and Palliative 

Care Composite Process MeasureComprehensive Assessment at 

Admission (81 FR 52173). The data 

collection mechanism for both of these 

measures is the Hospice Item Set (HIS), 

and the measures were effective April 1, 

2017. Regarding the Consumer 

Assessment of Healthcare Providers and 

Systems (CAHPS®) Hospice Survey, 

CMS finalized a policy that hospices 

that receive their CMS Certification 

Number (CCN) after January 1, 2017 for 

the FY 2019 Annual Payment Update 

(APU) and January 1, 2018 for the FY 

2020 APU will be exempted from the 

Hospice CAHPS® requirements due to 

newness (81 FR 52182). The exemption 

is determined by CMS and is for 1 year 

only. 

11. FY 2020 Hospice Wage Index and 

Payment Rate Update Final Rule 

In the FY 2020 Hospice Wage Index 

and Rate Update final rule (84 FR 

38484), we finalized rebased payment 

rates for CHC and GIP and set those 

rates equal to their average estimated FY 

2019 costs per day. We also rebased IRC 

per diem rates equal to the estimated FY 


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42532 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

2019 average costs per day, with a 

reduction of 5 percent to the FY 2019 

average cost per day to account for 

coinsurance. We finalized the FY 2020 

proposal to reduce the RHC payment 

rates by 2.72 percent to offset the 

increases to CHC, IRC, and GIP payment 

rates to implement this policy in a 

budget-neutral manner in accordance 

with section 1814(i)(6) of the Act (84 FR 

38496). 

In addition, we finalized a policy to 

use the current year’s pre-floor, prereclassified hospital inpatient wage 

index as the wage adjustment to the 

labor portion of the hospice rates. 

Finally, in the FY 2020 Hospice Wage 

Index and Rate Update final rule (84 FR 

38505), we finalized modifications to 

the hospice election statement content 

requirements at § 418.24(b) by requiring 

hospices, upon request, to furnish an 

election statement addendum effective 

beginning in FY 2021. The addendum 

must list those items, services, and 

drugs the hospice has determined to be 

unrelated to the terminal illness and 

related conditions, increasing coverage 

transparency for beneficiaries under a 

hospice election. 

12. Consolidated Appropriations Act, 

2021 

Division CC, section 404 of 

Consolidated Appropriations Act, 2021 

(CAA 2021) amended section 

1814(i)(2)(B) of the Act and extended 

the provision that currently mandates 

the hospice cap be updated by the 

hospice payment update percentage 

(hospital market basket update reduced 

by the productivity adjustment) rather 

than the CPI–U for accounting years that 

end after September 30, 2016 and before 

October 1, 2030. Prior to enactment of 

this provision, the hospice cap update 

was set to revert to the original 

methodology of updating the annual cap 

amount by the CPI–U beginning on 

October 1, 2025. Division CC, section 

407 of CAA 2021 revises section 

1814(i)(5)(A)(i) to increase the payment 

reduction for hospices who fail to meet 

hospice quality measure reporting 

requirements from two percent to four 

percent beginning with FY 2024. 

III. Provisions of the Final Rule 

A. Hospice Utilization and Spending 

Patterns 

In the FY 2022 proposed rule (86 FR 

19700), CMS provided data analysis on 

hospice utilization trends from FY 2010 

through FY 2019. The analysis included 

data on the number of beneficiaries 

using the hospice benefit, live 

discharges, reported diagnoses on 

hospice claims, Medicare hospice 

spending, and Parts A, B and D nonhospice spending during a hospice 

election. The proposed rule also 

solicited comments from the public, 

hospice providers, patients and 

advocates regarding hospice utilization 

and spending patterns. We also solicited 

comments regarding skilled visits in the 

last week of life, particularly, what 

factors determine how and when visits 

are made as an individual approaches 

the end of life and how hospices make 

determinations as to what items, 

services and drugs are related versus 

unrelated to the terminal illness and 

related conditions. That is, how do 

hospices define what is unrelated to the 

terminal illness and related conditions 

when establishing a hospice plan of 

care. 

Likewise, we solicited comments on 

what other factors may influence 

whether or how certain services are 

furnished to hospice beneficiaries. 

Finally, we requested feedback from 

stakeholder as to whether the hospice 

election statement addendum has 

changed the way hospices make care 

decisions and how the addendum is 

used to prompt discussions with 

beneficiaries and non-hospice providers 

to ensure that the care needs of 

beneficiaries who have elected the 

hospice benefit are met. A summary of 

these comments and our response to 

those comments appear below: 

1. Hospice Utilization and Spending 

Patterns 

Several commenters thanked CMS for 

continuing to incorporate monitoring 

and data analysis into its proposed 

hospice payment rule. Many 

commenters stated that while the 

structure of the hospice benefit and 

approach to care at the end of life 

remain unchanged, changes in the 

characteristics of patients served 

(particularly the shift from 

predominantly cancer patients to those 

with end-stage neurological and other 

conditions) is largely responsible for 

driving changes in utilization trends 

and hospice practice over recent 

decades. Many commenters suggested 

that CMS provide more detailed 

analysis of physician billing as it relates 

to non-hospice spending and a few 

commenters suggested that CMS release 

additional data connected to CMS’ Part 

D spending analysis to better inform 

stakeholders and assist in helping to 

determine what factors may be 

contributing to these increased Part D 

expenditures during a hospice election. 

2. Skilled Visits in the Last Days of Life 

One commenter stated that the service 

intensity add-on (SIA) payment has 

been one of the greatest improvements 

in the hospice benefit in recent years. 

Many commenters recommended that 

CMS modify the SIA payments to 

include any visits which could be 

counted toward end-of-life care, not just 

skilled visits (for example, chaplain and 

spiritual care or hospice aide). 

3. Items, Services, and Drugs Related 

and Unrelated to the Terminal Illness 

and Related Conditions 

Several commenters stated that the 

determination of relatedness, as applied 

to coverage decisions connected to 

terminal prognosis, is a clinical decision 

specific to the unique clinical 

circumstances of each patient. Several 

commenters stated that they work in 

collaboration with their respective IDGs 

to determine the items, services, and 

drugs that are related versus unrelated 

once the comprehensive assessment is 

completed. 

4. Election Statement Addendum 

Several commenters stated that the 

addendum has not changed their 

practices for determining what is related 

or unrelated under the hospice benefit, 

but has enhanced the upfront 

communication with patients and 

representatives during the admission 

process. One commenter stated that 

their hospice revisited the way 

relatedness is defined, and realized that 

many diagnoses that were previously 

thought to be unrelated were related. 

Another commenter stated that very few 

patients and their representatives have 

requested the addendum and that the 

burden of implementation of the 

addendum outweighs the benefits. 

We appreciate the comments 

provided regarding the analysis 

presented in the proposed rule. We plan 

continue to monitor hospice trends and 

vulnerabilities within the hospice 

benefit. We will consider these 

comments and suggestions for ongoing 

monitoring analyses, program integrity 

efforts, and for potential future 

rulemaking. 

B. FY 2022 Labor Shares 

1. Background 

The labor share for CHC and RHC of 

68.71 percent was established with the 

FY 1984 Hospice benefit 

implementation based on the wage/ 

nonwage proportions specified in 

Medicare’s limit on home health agency 

costs (48 FR 38155 through 38156). The 

labor shares for IRC and GIP are 

currently 54.13 percent and 64.01 

percent, respectively. These proportions 

were based on skilled nursing facility 

wage and nonwage cost limits and 


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skilled nursing facility costs per day (48 

FR 38155 through 38156; 56 FR 26917). 

In the FY 2022 proposed rule (86 FR 

19717 through 19719), we proposed to 

rebase and revise the labor shares for 

CHC, RHC, IRC and GIP using Medicare 

cost report (MCR) data for freestanding 

hospices (collected via CMS Form 

1984–14, OMB NO. 0938–0758) for 

2018. We proposed to continue to 

establish separate labor shares for CHC, 

RHC, IRC, and GIP and base them on the 

calculated compensation cost weights 

for each level of care from the 2018 

MCR data. We describe our proposed 

methodology for deriving the 

compensation cost weights for each 

level of care using the MCR data below 

as well as a summary of the comments 

received and our responses. 

Twenty unique stakeholders 

submitted their comments on the 

proposal to rebase the hospice labor 

shares. In response to public comments, 

we are adopting the revised hospice 

labor shares calculated as we proposed 

with a slight modification to the 

methodology. 

Comment: A few commenters 

supported the proposal to rebase the 

labor share for the four levels of care 

based on the 2018 MCR data. One 

commenter supported the proposed 

methodology of using actual hospice 

cost report data calculated using all 

applicable costs as well as including 

only providers who performed each 

level of care normalizing for outliers. 

Another commenter stated it was 

appropriate that the hospice labor 

shares be based on data for hospice 

providers, rather than home health 

agencies and skilled nursing facilities. 

Several commenters stated that basing 

the hospice labor shares on recent MCR 

data for hospice providers will improve 

payment accuracy. 

One commenter strongly encouraged 

CMS not to revise the labor share using 

the 2018 MCR for freestanding hospices. 

One commenter opposed the proposed 

labor shares, stating that the data in the 

cost report do not provide adequate or 

appropriate measures of labor expenses. 

One commenter agreed with the 

increased labor share for CHC and for 

IRC, but did not agree with lowering the 

labor share for RHC and GIP. One 

commenter acknowledged the rationale 

for using hospice cost report data, but 

stated that this will reduce 

reimbursement for many of their 

members, particularly those who 

provide more GIP than average. 

Response: We believe that our 

proposal to revise the labor shares based 

on MCR data for hospice providers is a 

technical improvement to the current 

labor shares and appreciate the support 

from the commenters. 

We disagree with commenters that the 

hospice MCR data does not provide 

adequate or appropriate measure of 

labor expenses. The MCR data captures 

detailed labor and non-labor expenses 

for patient (including but not limited to 

nursing, physician, therapy and medical 

supply expenses) and non-patient 

expenses (such as administrative and 

general) by level of care. We would note 

that the freestanding hospice MCR data 

was used to rebase the hospice payment 

rates effective for FY 2020 (84 FR 38487 

to 38496). In addition, we remind 

providers that when submitting the 

MCR data they must certify the cost 

report that ‘‘to the best of [their] 

knowledge and belief, [the] report and 

statement are true, correct, complete 

and prepared from the books and 

records of the provider in accordance 

with applicable instructions, except as 

noted.’’ 

Comment: Several commenters 

expressed concern regarding the impact 

of COVID–19 on labor costs. 

Commenters stated that while they do 

not yet know the full extent of the 

impact on labor costs, they expect it to 

be significant. They stated that the PHE 

could considerably change the labor 

share in the next several years of cost 

report data, as the use of cost reports has 

a 2-year delay in data. These 

commenters stated that the impact of 

COVID–19 on the labor component of 

the rates cannot be captured in cost 

report data that is at least 2 years old. 

The commenters requested 

consideration of the impact of COVID– 

19 when setting labor shares for future 

years. 

Several other commenters stated that 

hospices face significant challenges in 

the labor market, particularly for nurses. 

They stated that more nurses are 

retiring, competition for available 

nurses is fierce, and many hospices are 

paying premium salaries and bonuses to 

recruit and retain qualified nursing staff. 

One commenter stated that the hospice 

per diem structure severely limits the 

amounts they can spend on staff. One 

commenter stated during the pandemic 

more time has been needed to train and 

retrain on infection control standards, as 

well as changes in communication due 

to practice changes. 

One commenter stated that it is 

difficult to attract nurses to their 

geographic area because of the increase 

in the median home price between 

January 2021 and May 2021. The 

commenter stated that they are forced to 

outsource many nursing functions at 

high cost, along with paying retention 

bonuses to current staff. The commenter 

stated that these labor market challenges 

will have an impact on the labor shares, 

which will not necessarily be reflected 

when the cost report data used is 2 years 

old. One commenter urged CMS to give 

special consideration to challenges 

faced by rural health care providers 

with specific attention given to the 

impact workforce shortages have in 

setting reimbursement rates related to 

the labor shares. 

Response: We acknowledge and 

appreciate the commenters’ concerns 

regarding labor costs and understand 

the challenges created by the PHE. We 

believe using updated labor shares 

based on 2018 data is a technical 

improvement over the current labor 

shares as they reflect recent cost data for 

freestanding hospice providers. The 

current labor shares were primarily 

based on data from the early 1980s. The 

proposed labor shares reflect the skilled 

care (including the number of visits) 

provided under the hospice per diem 

payment rates for each level of care. For 

example, the higher labor share for CHC 

compared to RHC reflects the higher 

number of visits per day provided with 

CHC relative to RHC. The current labor 

shares did not reflect this differential in 

utilization as the same labor share was 

used for both levels of care. 

We plan on reviewing the 2020 

hospice MCR data when complete 

information is available that will allow 

us to consider whether the hospice labor 

shares based on 2018 data are still 

appropriate. Any future revisions to the 

hospice labor shares will be proposed 

and subject to public comments in 

future rulemaking. 

Comment: Several commenters 

expressed concerns about the frequency 

of updating the labor shares in the 

future. A few of these commenters 

requested that CMS provide further 

clarification of the frequency of updates 

to the labor shares with hospice cost 

report data. One commenter stated that 

it is important that CMS address this 

frequency so that hospices and cost 

report preparers can ensure that the data 

submitted on the cost report can be used 

for the labor share calculations. 

Response: We acknowledge the 

commenters’ concern that the proposed 

rule did not explicitly state when we 

plan to propose any revisions to the 

hospice labor shares beyond FY 2022. 

The labor shares for other PPS 

systems (for example, IPPS, SNF, IRF, 

IPF, and LTCH) are typically rebased 

every four to five years. We tentatively 

plan to rebase the hospice labor shares 

on a similar schedule as the other 

payment systems under Medicare. 

However, in light of the COVID–19 PHE, 

we plan to monitor the upcoming MCR 


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data to see if a more frequent revision 

to the hospice labor shares is necessary 

in order to reflect the most recent cost 

structures of hospice providers. We note 

that any future revisions to the hospice 

labor shares will be proposed and 

subject to public comments in future 

rulemaking. 

Comment: A few commenters stated 

that while they understand the desire 

and rationale for using hospice data to 

revise the hospice labor shares (and to 

make other policy changes), they believe 

it is important to recognize that the data 

inputs utilized must be appropriate to 

the task. The commenters stated that the 

hospice cost report in its current form 

does not suit all data purposes for 

hospice policy changes, and does not 

fully support calculation of the hospice 

payment rate labor shares. 

One commenter noted that the 

hospice cost report for freestanding 

providers is being proposed to be used 

for the first time to determine the labor 

component of the rates for each level of 

care. While the commenter commended 

CMS for using hospice-specific data, 

they were also concerned about the 

accuracy of the data submitted by 

providers. 

One commenter stated concern that 

due to hospice MCRs not being audited, 

as well as some sections of the cost 

report offering multiple methods of 

reporting, there is a general lack of 

consistency in the way that the reports 

are completed by hospice providers that 

will necessarily distort the average labor 

figures. The commenter was also 

concerned that it’s not likely that most 

payroll applications used by hospice 

providers can correctly allocate costs by 

level of care, so due to different 

methods applied by hospice providers 

to estimate this, the labor costs will also 

be impacted. 

One commenter stated that there are 

no checks and balances on whether cost 

reporting data are accurate. They 

claimed that classifying costs across the 

four levels of care can contain 

inaccuracies, particularly when staff 

allocate time to various levels of care in 

the same working day. The commenter 

stated that there are no regulations that 

require cost reports to be completed by 

an outside or otherwise qualified 

accounting firm, and many hospices are 

doing their own costs reports without 

complete understanding of how to 

allocate specific costs and which box is 

appropriate for particular costs. They 

stated that the number of hospices that 

do not pass level 1 edits is also of 

concern. 

One commenter stated that they do 

not believe hospice cost reports are 

historically very accurate. They stated 

that in many healthcare systems 

someone from the accounting 

department completed the cost report 

form with very little input from the 

hospice program. The commenter stated 

that they never had an opportunity to 

review the cost report prior to 

submission to verify the information 

was accurate and that they believe this 

is a common occurrence across the 

country. Therefore, the commenter 

stated that they do not believe that cost 

reports capture labor costs very 

accurately. 

A few commenters stated that if data 

from the hospice cost report is to be 

used for calculating the labor 

component by level of care, revisions to 

the cost report should be proposed to 

address current inconsistent, but 

acceptable, reporting practices. Further, 

the commenters stated that these 

changes should be instituted to ensure 

greater accuracy of the data being used 

to establish labor shares for GIP and 

IRC. A few commenters stated that these 

changes should be implemented as 

quickly as possible, and once they are 

in place CMS should undertake a 

recalculation of the labor shares. 

Response: The freestanding hospice 

MCR form used for the proposed labor 

shares (CMS–1984–14; OMB NO. 0938– 

0758) was revised effective for cost 

reporting periods beginning on or after 

October 1, 2014 in response to section 

1814(i)(6) of the Act, as added by 

section 3132(a)(1)(B) of the PPACA, 

which authorized the Secretary to 

collect additional data and information 

determined appropriate to revise 

payments for hospice care and other 

purposes. The types of data and 

information suggested in the PPACA 

could capture accurate resource 

utilization, which could be collected on 

claims, cost reports, and possibly other 

mechanisms, as the Secretary 

determined to be appropriate. 

CMS form 1984–14 was proposed and 

subject to public comments. Hospice 

providers previously completed MCR 

form (CMS–1984–89, OMB NO. 0938– 

0758). The revised MCR enabled CMS to 

collect more detailed data regarding 

labor costs by level of care. The prior 

MCR did not collect total costs by level 

of care or detailed costs by level of care 

(such as labor and nonlabor). 

We disagree with the commenter that 

the cost report in its current form does 

not support the calculation of the 

hospice payment rate labor shares. 

Providers are required to report detailed 

patient costs (including but not limited 

to nursing, physician, therapy, and 

medical supplies) and non-patient costs 

for each level of care. These costs are 

further subdivided into labor and nonlabor costs. 

Our proposal to use the 2018 MCR 

data recognizes that providers have had 

4 years to familiarize themselves with 

the form and, thereby, improve the 

accuracy of the data. We note that based 

on comments received during the CMS– 

1984–14; OMB NO. 0938–0758 

clearance process, the implementation 

of the MCR form was delayed to October 

1, 2014. In addition, as stated 

previously, providers must certify the 

cost report that ‘‘to the best of [their] 

knowledge and believe, [the] report and 

statement are true, correct, complete 

and prepared from the books and 

records of the provider in accordance 

with applicable instructions, except as 

noted.’’ Nonetheless, we recognize that 

data can be misreported at times and, 

therefore, our proposal for revising the 

labor shares included applying several 

edits to remove possible outlier data— 

a common statistical practice. 

We continue to encourage hospice 

providers to report accurate and 

complete data on the cost reports. We 

will evaluate and consider any future 

changes to the hospice cost report that 

will allow for the collection of data that 

may improve the calculation of the 

hospice labor shares. In addition, we 

will monitor the compensation cost 

weights reported by hospices over time 

to determine if changes to the labor 

share are appropriate. Any future 

changes to the cost report or labor 

shares would be subject to public 

comments. 

While we acknowledge that hospice 

providers can use different 

methodologies for reporting data, we 

believe that our proposed methodology 

allows for these differences and still 

results in a reasonable and accurate 

measure of the cost structures of hospice 

facilities. 

The proposed labor shares are based 

on MCR data for freestanding hospice 

facilities. As stated in the proposed rule, 

we did explore the possibility of using 

facility-based hospice MCR data to 

calculate the compensation cost 

weights; however, very few providers 

passed the Level I edits (as described in 

more detail below) and so these reports 

were not usable. 

Comment: One commenter stated that 

the finances of freestanding hospices are 

significantly different than those of 

hospices based at hospitals, home 

health agencies and nursing homes; 

therefore, data from freestanding 

hospices should not be allowed to 

represent the industry as a whole. 

Response: As stated in the FY 2022 

Hospice Wage Index and Rate Update 

proposed rule (86 FR 19717), we did 


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explore the possibility of using facilitybased hospice MCR data to calculate the 

compensation cost weights; however, 

very few providers passed the Level I 

edits and so these reports were not 

usable. We also plan to continue to 

review the 2020 hospital-based hospice 

MCR data to see if the reporting of the 

detailed expense data by level of care 

has improved for possible incorporation 

into the labor share calculations. We 

would note that the freestanding 

hospice providers account for about 85 

percent of hospice providers and 

therefore, we believe our proposal to use 

only the freestanding hospice MCR data 

to revise the labor shares is reasonable 

and a technical improvement over the 

current labor shares. 

2. Methodology for Calculating 

Compensation Costs 

We proposed to derive a 

compensation cost weight for each level 

of care that consists of five major 

components: (1) Direct patient care 

salaries and contract labor costs, (2) 

direct patient care benefits costs, (3) 

other patient care salaries, (4) overhead 

salaries, and (5) overhead benefits costs. 

For each level of care, we proposed to 

use the same methodology to derive the 

components; however, for the (1) direct 

patient care salaries and (3) other 

patient care salaries, we proposed to use 

the MCR worksheet that is specific to 

that level of care (that is, Worksheet A– 

1 for CHC, Worksheet A–2 for RHC, 

Worksheet A–3 for IRC, and Worksheet 

A–4 for GIP). 

a. Direct Patient Care Salaries and 

Contract Labor Costs 

Direct patient care salaries and 

contract labor costs are costs associated 

with medical services provided by 

medical personnel including but not 

limited to physician services, nurse 

practitioners, RNs, and hospice aides. 

We proposed to define direct patient 

care salaries and contract labor costs to 

be equal to costs reported on Worksheet 

A–1 (for CHC) or Worksheet A–2 (for 

RHC) or Worksheet A–3 (for IRC) or 

Worksheet A–4 (for GIP), column 7, for 

lines 26 through 37. 

Comment: One specific concern of the 

commenters regarding the proposed 

methodology was on the data used from 

Worksheet A–1 and A–2 column 7, lines 

26 through 37 for total labor costs 

associated with each respective level of 

care. The commenters stated that certain 

costs are not consistently reported by 

hospices despite these costs being in 

compliance with cost reporting 

instructions. For example, the 

commenters provided that some 

hospices track mileage allowances 

enabling them to be reported on 

Worksheet A–1 and A–2 while other 

hospices allocate these mileage 

reimbursement costs via Worksheet B 

and B–1 using miles traveled. The 

commenters asked CMS whether any 

consideration was given to this 

inconsistent, but acceptable, reporting 

for mileage allowances. 

Response: We appreciate the 

commenter’s concern. The proposed 

methodology for calculating the labor 

shares cited by the commenter of using 

Worksheet A–1 and A–2 column 7, lines 

26 through 37 for total labor costs 

reflects only one component of the 

proposed calculation of the labor share. 

As discussed in the FY 2022 Hospice 

proposed rule (86 FR 19718) and above, 

we proposed to derive Direct patient 

care salaries and contract labor costs 

using (for CHC as an example) 

Worksheet A–1 column 7, lines 26 

through 37 on the cost report, which 

would capture any staff transportation 

costs reported in these cost centers on 

Worksheet A–1. 

Also included in the compensation 

costs for each level of care, as discussed 

in the FY 2022 Hospice proposed rule 

(86 FR 19718) and below, is a 

proportion overhead salaries and 

benefits. The overhead salaries includes 

those reported in the staff transportation 

cost center (reported in Worksheet A, 

column 1, line 12) and the overhead 

benefits for the staff transportation cost 

center (Worksheet B, column 3, line 12). 

Therefore, after consideration of 

public comments, we believe that our 

proposed methodology is capturing both 

the direct patient care costs reported on 

Worksheet A–1 and any overhead 

salaries and overhead benefits related to 

staff transportation costs that are 

allocated on Worksheet B. We believe 

that the non-salary non-benefit costs for 

staff transportation that are allocated on 

Worksheet B (for example, cost of 

owning or renting vehicles) should not 

be included in the labor share of the 

hospice payment rate that is adjusted by 

the wage index, as they are not 

compensation costs, nor do they vary 

with the local labor market. 

b. Direct Patient Care Benefits Costs 

We proposed that direct patient care 

benefits costs for CHC are equal to 

Worksheet B, column 3, line 50, for RHC 

are equal to Worksheet B, column 3, line 

51, for IRC are equal to Worksheet B, 

column 3, line 52, and for GIP are equal 

to Worksheet B, column 3, line 53. 

c. Other Patient Care Salaries 

Other patient care salaries are those 

salaries attributable to patient services 

including but not limited to patient 

transportation, labs, and imaging 

services. These salaries reflecting all 

levels of care are reported on Worksheet 

A, column 1, lines 38 through 46 and 

then are further disaggregated for CHC, 

RHC, IRC, and GIP on Worksheets 

A–1, A–2, A–3, and A–4, respectively, 

on column 1 (salaries), lines 38 through 

46. Our analysis, however, found that 

many providers were not reporting 

salaries on the detailed level of care 

worksheets (A–1, A–2, A–3, A–4, 

column 1), but rather reporting total 

costs (reflecting salary and nonsalary 

costs) for these services for each level of 

care on Worksheets A–1, A–2, A–3, A– 

4, column 7. Therefore, we proposed to 

estimate other patient care salaries 

attributable to CHC, RHC, IRC, and GIP 

by first calculating the ratio of total 

facility (reflecting all levels of care) 

other patient care salaries (Worksheet A, 

column 1, lines 38 through 46) to total 

facility other patient care total costs 

(Worksheet A, column 7, lines 38 

through 46). For CHC, we proposed to 

then multiply this ratio by other patient 

care total costs for CHC (Worksheet A– 

1 column 7, lines 38 through 46). For 

RHC, we proposed to multiply this ratio 

by total other patient care costs for RHC 

(Worksheet A–2, column 7, lines 38 

through 46). For IRC, we proposed to 

multiply this ratio by total other patient 

care costs for IRC (Worksheet A–3, 

column 7, lines 38 through 46). For GIP, 

we proposed to multiply this ratio by 

total other patient care costs for GIP 

(Worksheet A–4, column 7, lines 38 

through 46). This proposed 

methodology assumes that the 

proportion of salary costs to total costs 

for other patient care services is 

consistent for each of the four levels of 

care. 

Comment: One commenter stated that 

the proposed methodology for 

calculating compensation costs omits 

two of the required disciplines in a 

hospice patient’s interdisciplinary team. 

They stated that social workers and 

counselors provide direct patient care 

along with nurses and hospice aides in 

both routine home care and general 

inpatient care. The commenter claimed 

that the proposed methodology only 

captures salaries and benefits of 

physicians, nurse practitioners, RNs and 

hospice aides. The commenter stated 

that this disregards the essence of the 

hospice interdisciplinary team which 

cares for the patient and family as a unit 

of care. Social workers and counselors 

serve both the patient and their family. 

Their salaries and benefits must also be 

captured in the methodology. The 

commenter stated that it is unclear in 

the proposed rule whether they are 


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included in ‘‘Other Patient Care 

Salaries’’ since only mentioned are 

patient transportation, labs and imaging 

services. 

Response: As stated in the FY 2022 

hospice proposed rule (86 FR 19717 

through 19719) as well as above, we 

proposed that Direct patient care 

salaries and contract labor costs be 

equal to costs reported on Worksheet A– 

1 (for CHC) or Worksheet A–2 (for RHC) 

or Worksheet A–3 (for IRC) or 

Worksheet A–4 (for GIP), column 7, for 

lines 26 through 37 (86 FR 19718). 

These lines include Medical Social 

Services (line 33), Spiritual Counseling 

(line 34), Dietary Counseling (line 25), 

and Counseling Other (line 36). 

Therefore, we proposed to include 

direct patient care salaries and contract 

labor for social workers and counselors 

in the calculation of the labor shares. 

d. Overhead Salaries 

The MCR captures total overhead 

costs (including but not limited to 

administrative and general, plant 

operations and maintenance, and 

housekeeping) attributable to each of the 

four levels of care. To estimate overhead 

salaries for each level of care, we first 

proposed to calculate noncapital 

nonbenefit overhead costs for each level 

of care to be equal to Worksheet B, 

column 18, less the sum of Worksheet 

B, columns 0 through 3, for line 50 

(CHC), or line 51 (RHC) or line 52 (IRC) 

or line 53 (GIP). We then proposed to 

multiply these noncapital nonbenefit 

overhead costs for each level of care 

times the ratio of total facility overhead 

salaries (Worksheet A, column 1, lines 

4 through 16) to total facility noncapital 

nonbenefit overhead costs (which is 

equal to Worksheet B, column 18 (total 

costs), line 101 less the sum of 

Worksheet B, columns 0 (direct patient 

care costs), column 1 (fixed capital), 

column 2 (moveable capital) and 

column 3 (employee benefits), line 101). 

e. Overhead Benefits Costs 

To estimate overhead benefits costs 

for each level of care, we proposed a 

similar methodology to overhead 

salaries. For each level of care, we 

proposed to calculate noncapital 

overhead costs for each level of care to 

be equal to Worksheet B, column 18, 

less the sum of Worksheet B, columns 

0 through 2, for line 50 (CHC), or line 

51 (RHC) or line 52 (IRC) or line 53 

(GIP). We then proposed to multiply 

these noncapital overhead costs for each 

level of care times the ratio of total 

facility overhead benefits (Worksheet B, 

column 3, lines 4 through 16) to total 

facility noncapital overhead costs 

(Worksheet B, column 18, line 101 less 

the sum of Worksheet B, columns 0 

through 2, line 101). This proposed 

methodology assumes the ratio of total 

overhead benefit costs to total 

noncapital overhead costs is consistent 

among all four levels of care. 

Comment: Another specific concern 

raised by the commenters was that there 

are inconsistencies in reporting medical 

supply and pharmacy costs on line 10 

and line 14 of Worksheet A. They stated 

that some hospices use Worksheets 

A–1, A–2, A–3, and A–4 to report all or 

most of these costs whereas others use 

lines 10 and lines 14 and report costs as 

overhead costs. The commenters 

recommended that CMS look further 

into reporting all pharmacy and medical 

supply costs as direct patient care costs 

on future cost reports. The commenter 

stated that other acceptable cost 

reporting methods may be applicable; 

however, a Level 1 edit is not currently 

produced if costs are reported in one of 

the two acceptable locations. 

Response: As described in the FY 

2022 hospice proposed rule (86 FR 

19717 through 19719), our proposed 

calculation to derive the hospice labor 

shares uses the sum of five categories of 

compensation costs. The estimated 

compensation costs related to medical 

supply and pharmacy costs would be 

reflected in the Other Patient Care 

Salaries, Overhead Salaries, and 

Overhead Benefits categories. We 

proposed that total costs for CHC be 

equal to Worksheet B, column 18, line 

50, for RHC are equal to Worksheet B, 

column 18, line 51, for IRC would be 

equal to Worksheet B, column 18, line 

52, and for GIP are equal to Worksheet 

B, column 18, line 53. These total costs 

would reflect medical supply and 

pharmacy costs when reported on 

Worksheet A line 10 and 14 or when 

reported on Worksheet A–1, A–2, A–3, 

and A–4. Therefore, we believe our 

proposed methodology captures these 

costs appropriately. However, we will 

consider this comment when requesting 

any future revisions to the Level 1 edits 

applied to the hospice cost report. 

Comment: One commenter had 

concerns with the inconsistent reporting 

of certain types of overhead expenses 

among hospices. They stated in some 

instances, Medical Directors are 

employees and salaries would be 

reported; however, other hospices 

contract for this position. The 

commenter stated that the contracted 

payments for Medicare Directors are not 

included in the proposed calculation of 

overhead salaries. The commenter asked 

whether any consideration was made 

regarding this inconsistency or other 

common inconsistencies in the nature of 

the expenses. 

Response: We appreciate the 

commenter’s concern and conducted an 

additional review of our proposed 

methodology for appropriately 

capturing overhead costs in the labor 

shares. 

As noted by the commenter, salaries 

and benefit costs for employed Medical 

Directors would be reported in 

Worksheet A, column 1, line 15 

(salaries) and Worksheet B, column 3, 

line 15 (benefits), which are both 

included in our proposed methodology 

as these expenses are reported in 

overhead salaries and overhead benefits. 

As described in the proposed rule (86 

FR 19718) and above, we include a 

proportion overhead salaries and 

overhead benefits in the compensation 

cost weights for each level of care. 

However, after performing a detailed 

review of the calculation, we 

acknowledge that Medical Director 

contract labor costs would be reported 

in Worksheet A, column 2, line 15, 

which we do not include in the 

proposed compensation cost weight. In 

addition to Physician Administrative 

Services (line 15), we identified one 

additional overhead cost center where 

contract labor costs for patient care are 

reported and not reflected in the labor 

shares for each level of care: Nursing 

Administration (line 9). We believe 

these cost centers (Physician 

Administrative Services and Nursing 

Administration) are labor-intensive and 

vary with the local labor market and, 

thus, we believe contract labor costs for 

these services should be included in the 

labor shares for each level of care. 

Therefore, in response to public 

comment, we are revising our 

methodology for calculating overhead 

benefits attributable to each level of 

care. We are including in total facility 

overhead benefits those costs reported 

in Worksheet A, column 2, lines 9 and 

15. A proportion of overhead benefit 

costs are allocated to each level of care 

using our methodology as stated above 

and in the proposed rule (86 FR 19718). 

This revision to our labor share 

methodology results in upward 

revisions to the proposed labor shares 

for each of the levels of care (between 

0.6 percentage point and 1.1 percentage 

point). The labor shares showing the 

revised methodology are provided in 

Table 1. 

f. Total Compensation Costs and Total 

Costs 

To calculate the compensation costs 

for each provider, we proposed to then 

sum each of the costs estimated in steps 

(1) through (5) to derive total 

compensation costs for CHC, RHC, IRC, 

and GIP. We proposed that total costs 


lotter on DSK11XQN23PROD with RULES4
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42537 

3Medicare Department of Health and Human 

Services (DHHS) Provider Reimbursement 

Manual—Part 2, Provider Cost Reporting Forms and 

Instructions, Chapter 43, Form CMS–1984–14. April 

13, 2018. https://www.cms.gov/Regulations-andGuidance/Guidance/Transmittals/2018Downloads/ 

R3P243.pdf. 

for CHC are equal to Worksheet B, 

column 18, line 50, for RHC are equal 

to Worksheet B, column 18, line 51, for 

IRC are equal to Worksheet B, column 

18, line 52, and for GIP are equal to 

Worksheet B, column 18, line 53. 

3. Methodology for Deriving 

Compensation Cost Weights 

To derive the compensation cost 

weights for each level of care, we first 

proposed to begin with a sample of 

providers who met new Level I edit 

conditions that required freestanding 

hospices to fill out certain parts of their 

cost reports effective for freestanding 

hospice cost reports with a reporting 

period that ended on or after December 

31, 2017.3 Specifically, we required the 

following costs to be greater than zero: 

Fixed capital costs (Worksheet B, 

column 0, line 1), movable capital costs 

(Worksheet B, column 0, line 2), 

employee benefits (Worksheet B, 

column 0, line 3), administrative and 

general (Worksheet B, column 0, line 4), 

volunteer service coordination 

(Worksheet B, column 0, line 13), 

pharmacy and drugs charged to patients 

(sum of Worksheet B, column 0, line 14 

and Worksheet A, column 7, line 42.50), 

registered nurse costs (Worksheet A, 

column 7, line 28), medical social 

service costs (Worksheet A, column 7, 

line 33), hospice aide and homemaker 

services costs (Worksheet A, column 7, 

line 37), and durable medical 

equipment (Worksheet A, column 7, 

line 38). Applying these Level I edits to 

the 2018 freestanding hospice MCRs 

resulted in 3,345 providers that passed 

the edits (four were excluded). 

Then, for each level of care separately, 

we proposed to further trim the sample 

of MCRs. We outline our proposed 

trimming methodology using CHC as an 

example. Specifically, for CHC, we 

proposed that total CHC costs 

(Worksheet B, column 18, line 50) and 

CHC compensation costs to be greater 

than zero. We also proposed that CHC 

direct patient care salaries and contract 

labor costs per day is greater than 1. We 

also proposed to exclude those 

providers whose CHC compensation 

costs were greater than total CHC costs. 

For the IRC and GIP compensation 

cost weights, we proposed to only use 

those MCRs from providers that 

provided inpatient services in their 

facility. Therefore, we proposed to 

exclude providers that reported costs 

greater than zero on Worksheet A–3, 

column 7, line 25 (Inpatient Care— 

Contracted) for IRC and Worksheet A– 

4, column 7, line 25 (Inpatient Care— 

Contracted) for GIP. The facilities that 

remained after this trim reported 

detailed direct patient care costs and 

other patient care costs for which we 

could then derive direct patient care 

salaries and other patient care salaries 

per the methodology described earlier. 

Comment: One commenter stated that 

many of the hospice cost reports filed in 

2018 failed to report contracted GIP 

days and contracted IRC care days on 

Worksheet S–1. Instead, they included 

all these days on line 23 and 33 of 

Worksheet S–1 but failed to report 

contracted days on line 40 and 41 of 

Worksheet S–1. The commenter stated 

that the failure to report contracted days 

on lines 40 and 41 would avoid a Level 

1 edit if costs were not reported on 

Worksheets A–3 and A–4, line 25. The 

commenter stated that they understand 

that this reporting is inaccurate; 

however, there is no existing Level 1 

edit that would catch it. The commenter 

questioned how CMS is determining 

that the inpatient costs are related solely 

to a freestanding inpatient unit on 

Worksheet A–4. The commenter 

claimed that if it is solely because no 

costs are reported on line 25, this 

assumption is in error. The commenter 

also claimed that if it is based on no 

days being reported as contracted on 

Worksheet S–1, this assumption is also 

in error. The commenter was concerned 

that costs—and accordingly labor 

component costs—are based on a small 

population with high risk of error. 

One commenter stated that with only 

those cost reports from providers that 

have a hospice inpatient unit being used 

to determine the GIP and inpatient 

respite labor costs, they are concerned 

because one of their two affiliated 

hospices does have an inpatient unit, 

and yet they sometimes refer patients to 

contracted facilities for these levels of 

care as well. The commenter stated that 

it appears that the percentage of hospice 

cost reports used for determining GIP 

and respite total costs and laborcomponent costs is based on a small 

population of hospice providers with a 

significant risk of error; therefore, the 

commenter recommended that CMS 

rethink its approach for GIP and respite 

labor costs. 

One commenter stated that their 

hospice utilizes general inpatient 

contracts, as they do not have our own 

facility. Thus, inpatient services on line 

25 are not captured. 

Response: We appreciate the 

commenters’ concerns on the accuracy 

of the IRC and GIP cost data on the 

MCR. As stated in the FY 2022 Hospice 

proposed rule (86 FR 19718 through 

19719) and above, for purposes of 

calculating the IRC and GIP 

compensation cost weights, we 

excluded providers that reported costs 

greater than zero on Worksheet A–3, 

column 7, line 25 (Inpatient Care— 

Contracted) for IRC and Worksheet A– 

4, column 7, line 25 (Inpatient Care— 

Contracted) for GIP. Then, for each level 

of care separately, we further trimmed 

the sample of cost reports. Specifically, 

for IRC, we required total IRC costs 

(Worksheet B, column 18, line 52) and 

IRC compensation costs to be greater 

than zero. We also required that IRC 

direct patient care salaries and contract 

labor costs per day would be greater 

than 1. We also excluded those 

providers whose IRC compensation 

costs were greater than total IRC costs. 

We then simultaneously removed those 

providers whose total IRC costs per day 

fall in the top and bottom one percent 

of total IRC costs per day for all IRC 

providers as well remove those 

providers whose compensation cost 

weight falls in the top and bottom five 

percent of compensation cost weights 

for all IRC providers. 

We did not exclude providers based 

on the reporting of contracted inpatient 

days as reported on Worksheet S–1. In 

response to the public comment, we did 

test applying an additional edit that 

would exclude providers who reported 

contracted inpatient days on Worksheet 

S–1 as part of our basic trims. This 

excluded two providers and had no 

impact on the compensation cost 

weights for both IRC and GIP when 

rounded to a tenth of a percentage point. 

We encourage providers to report their 

cost report data accurately and timely. 

Comment: Another specific concern 

stated by the commenters was that the 

determination of the labor share for GIP 

and IRC is based on Worksheet A–3 and 

A–4; however, any hospices reporting 

costs on line 25 (contracted services) 

were not included in the sample used 

for setting the labor share. The 

commenters recognize that the inclusion 

of any costs on line 25 would distort the 

labor component for these inpatient 

services; however, the commenters’ 

experience indicates that most hospices 

with inpatient units also contract for 

some inpatient days with outside 

providers for a variety of reasons. The 

commenters stated that many of these 

hospices providers have some of the 

best accounting records in the industry 

and the proposed methodology for 

calculating the labor components 

eliminates the costs of these facilities 

from consideration. The commenters 

stated that the proposed rule indicates 


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that 20 percent of IRC and 28 percent of 

GIP providers were included in the 

calculation. The commenters requested 

that CMS provide the final number of 

hospices with inpatient units that were 

used in the calculation of the labor 

components for both levels of care, and 

the total universe of IRC and GIP 

providers. One commenter also stated 

that they were interested in how the 

percentage of hospices that operate 

inpatient facilities can be increased and 

all costs, including contracted costs, can 

be included. 

Response: The proposed hospice labor 

shares for the IRC level of care and GIC 

level of care (after trimming for outliers) 

is based on costs for 416 and 295 

providers, respectively. These providers 

reflected approximately 53,000 IRP days 

of which about 47,000 were Medicare 

and approximately 136,000 GIC days of 

which about 108,000 were Medicare. 

Although this a smaller sample of 

providers than used for the other 

proposed labor shares for RHC (2,919 

providers) and CHC (1,240 providers), 

we believe this is a technical 

improvement to the current labor shares 

that were primarily based on skilled 

nursing facility costs from the early 

1980s. Our proposed methodology 

utilizes freestanding hospice cost report 

data reflecting the skilled hospice care 

provided in 2018 and the associated 

direct and indirect costs required to 

provide these services in 2018. We 

encourage all providers to report the 

cost report data accurately and timely so 

we can include more providers’ cost 

report data in the labor share 

calculations. We will monitor the cost 

report data to determine whether the 

proposed updated labor shares are still 

appropriate. 

Comment: Another specific concern 

raised by commenters was that the cost 

reports should be amended to allow for 

a greater breakdown of costs for 

contracted vs. hospice-administered 

inpatient services. Specifically, one 

commenter stated that when the cost 

report was revised in 2014, some 

industry experts recommended that 

CMS develop two separate worksheets 

for IRC and GIC. The first worksheet 

would represent costs associated with 

freestanding units operated by the 

hospice and the second worksheet 

would be for costs associated with 

contracted services. The commenter 

stated CMS should see value in 

potentially adding these worksheets if, 

in fact, it intends to calculate labor 

components for these levels of care 

based on cost report data going forward. 

The commenter also recommended that 

CMS could add a question to the cost 

report asking whether the hospice 

operates a freestanding inpatient and/or 

inpatient respite care facility. A ‘‘no’’ 

answer would require reporting 

contracted days and contracted costs or 

produce a Level 1 edit. The commenter 

stated that this would better allow CMS 

to isolate the costs of those facilities that 

truly operate an inpatient unit. 

One commenter requested that CMS 

work with stakeholders and the hospice 

community to identify the best 

approaches, and separate worksheets, 

for GIP and inpatient respite costs, 

including both hospices that operate a 

freestanding facility and hospices that 

have contracted beds. 

Response: We appreciate the 

commenters request for future changes 

to the hospice cost report to allow us to 

better isolate costs of those facilities that 

operate an inpatient unit. As stated 

above, we believe that our current 

method for calculating the IRC and GIP 

compensation cost weights provides an 

accurate measure of the labor shares for 

these levels of care. We will consider 

this comment when working on any 

future modifications to the hospice cost 

report. We will also continue to monitor 

the hospice labor shares as more recent 

data become available. We note that any 

future revisions to the hospice labor 

shares will be proposed and subject to 

public comments in future rulemaking. 

Finally, as proposed, to derive the 

compensation cost weights for each 

level of care for each provider, we 

divide compensation costs for each level 

of care by total costs for each level of 

care. We then trim the data for each 

level of care separately to remove 

outliers. Following our example for 

CHC, we simultaneously remove those 

providers whose total CHC costs per day 

fall in the top and bottom one percent 

of total CHC costs per day for all CHC 

providers as well remove those 

providers whose compensation cost 

weight falls in the top and bottom five 

percent of compensation cost weights 

for all CHC providers. We then sum the 

CHC compensation costs and total CHC 

costs of the remaining providers, 

yielding a proposed compensation cost 

weight for CHC. 

Since we limited our sample for IRC 

and GIP compensation cost weights to 

those hospices providing inpatient 

services in their facility, we conducted 

sensitivity analysis to test for the 

representative of this sample by 

reweighting compensation cost weights 

using data from the universe of 

freestanding providers that reported 

either IRC or GIP total costs. For 

example, we calculated reweighted 

compensation cost weights by 

ownership-type (proprietary, 

government and nonprofit), by size 

(based on RHC days) and by region. Our 

reweighted compensation cost weights 

for IRC and GIP were similar (less than 

one percentage point in absolute terms) 

to our proposed compensation cost 

weights for IRC and GIP (as shown in 

Table 1) and, therefore, we believe our 

sample is representative of freestanding 

hospices providing inpatient hospice 

care. 

Comment: One commenter requested 

that clarification as to how CMS will 

adjust the labor share if certain types of 

hospices are found to provide more 

services and thus, likely have a larger 

labor share but contribute fewer cost 

reports. 

Response: As described in the FY 

2022 Hospice proposed rule (86 FR 

17919) and above, the proposed 

compensation cost weights are equal to 

the sum of the compensation costs 

divided by the sum of the total costs for 

those remaining providers after 

trimming for outliers. Therefore, 

hospice providers with larger costs 

(reflecting larger utilization) would have 

a larger weight in the proposed labor 

shares. We would note that Medicare 

days, in aggregate, account for over 80 

percent of total facility days. As stated 

previously, we will continue to monitor 

the labor shares over time and propose 

revisions to these shares to reflect a 

more recent cost structure and mix of 

providers. 

Comment: One commenter stated that 

given the inherent differences in the 

provision of the hospice benefit between 

different types of hospice providers, 

they would recommend that CMS 

monitor any significant disparities in 

the distribution of labor and non-labor 

inputs across the hospice industry by 

program characteristics. The commenter 

stated that they would become 

concerned, for instance, if data indicates 

that some providers offer significantly 

fewer hours of professional 

interdisciplinary team (IDT) care yet 

make up a disproportionate percentage 

of providers filing cost reports. This 

could lead to unintended negative 

consequences for those providers 

fulfilling the true spirit and intent of the 

benefit. Put simply, if cost reports and 

other data indicate a widening gap in 

labor inputs between for-profit and notfor-profit providers, then CMS should 

investigate this trend further. 

Response: We appreciate the 

commenter’s concern regarding labor 

hours provided by type of facility. As 

we are able to obtain more recent cost 

report data, we will monitor the labor 

shares by ownership-type over time. 

Comment: One commenter stated that 

if the labor shares are going to have a 

greater weight on CHC, hospices should 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42539 

be allowed to use it effectively. The 

commenter recommended that the 

current continuous care timeframe 

change from midnight to midnight to a 

new time frame of noon to noon and 

that visits from other providers such as 

chaplains and home health aides count 

toward the continuous care timeframe. 

Response: While this comment is 

outside the scope of this rule as we did 

not make any proposals relating to our 

CHC policy, we thank the commenter 

for their recommendations and will take 

them under consideration for future 

rulemaking. 

Final Decision: In summary, in 

response to public comments, we are 

adopting the revised hospice labor 

shares calculated as we proposed with 

a slight modification to the methodology 

to derive the overhead benefit 

calculations as described previously. 

Table 1 provides the finalized labor 

share for each level of care based on the 

compensation cost weights we derived 

using our revised methodology. As we 

proposed, the labor shares are rounded 

to three decimal places consistent with 

the labor shares used in other 

Prospective Payment Systems (PPS) 

(such as the inpatient prospective 

payment system (IPPS) and the Home 

Health Agency PPS). The revised labor 

shares will be implemented in a budget 

neutral manner through the use of labor 

share standardization factors. 

We also received six comments on the 

use of the labor share standardization 

factor including hospices, national 

industry associations. A summary of 

these comments and our responses to 

those comments appear below: 

Comment: A few commenters 

requested more information regarding 

the labor share standardization factor; 

specifically, its purpose, and any 

anticipated future use of the factor. 

Response: The labor share 

standardization factor is applied to the 

FY 2022 hospice payment rates so that 

the aggregate payments do not increase 

or decrease due to changes in the labor 

share values. We proposed to 

implement the proposed hospice labor 

shares in a budget neutral manner 

which is consistent with our policy of 

implementing updates to the hospice 

wage index in a budget neutral manner 

as well as updates in other perspective 

payment systems such as the annual 

recalibration of the case-mix weights in 

home health and updates to the home 

health wage index. In order to calculate 

the labor share standardization factor, 

we simulate total payments using FY 

2020 hospice utilization claims data 

with the FY 2022 hospice wage index 

and the current labor shares and 

compare it to our simulation of total 

payments using the FY 2022 hospice 

wage index with the final revised labor 

shares. By dividing total payments for 

each level of care (RHC days 1 through 

60, RHC days 61+, CHC, IRC, and GIP) 

using the FY 2022 wage index, current 

labor shares and payment rates for each 

level of care by the total payments for 

each level of care using the final revised 

labor shares and FY 2022 wage index 

and payment. 

Final Decision: We are finalizing the 

proposal to implement the hospice labor 

shares in a budget neutral manner 

through the use of the labor share 

standardization factors, so that the 

aggregate payments do not increase or 

decrease due to changes in the labor 

share values. 

C. FY 2022 Hospice Wage Index and 

Rate Update 

1. FY 2022 Hospice Wage Index 

The hospice wage index is used to 

adjust payment rates for hospices under 

the Medicare program to reflect local 

differences in area wage levels, based on 

the location where services are 

furnished. The hospice wage index 

utilizes the wage adjustment factors 

used by the Secretary for purposes of 

section 1886(d)(3)(E) of the Act for 

hospital wage adjustments. Our 

regulations at § 418.306(c) require each 

labor market to be established using the 

most current hospital wage data 

available, including any changes made 

by the Office of Management and 

Budget (OMB) to the Metropolitan 

Statistical Areas (MSAs) definitions. 


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TABLE 1: Final, Proposed, and Current Labor shares by Level of Care 

Final FY 2022 Labor Proposed FY 2022 Current Labor 

shares Labor shares shares 

Continuous Home Care 75.2% 74.6% 68.71% 

Routine Home Care 66.0% 64.7% 68.71% 

Inpatient Respite Care 61.0% 60.1% 54.13% 

General Inpatient Care 63.5% 62.8% 64.01% 
42540 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

In general, OMB issues major 

revisions to statistical areas every 10 

years, based on the results of the 

decennial census. However, OMB 

occasionally issues minor updates and 

revisions to statistical areas in the years 

between the decennial censuses. On 

March 6, 2020, OMB issued Bulletin No. 

20–01, which provided updates to and 

superseded OMB Bulletin No. 18–04 

that was issued on September 14, 2018. 

The attachments to OMB Bulletin No. 

20–01 provided detailed information on 

the update to statistical areas since 

September 14, 2018, and were based on 

the application of the 2010 Standards 

for Delineating Metropolitan and 

Micropolitan Statistical Areas to Census 

Bureau population estimates for July 1, 

2017 and July 1, 2018. (For a copy of 

this bulletin, we refer readers to the 

following website: https://

www.whitehouse.gov/wp-content/ 

uploads/2020/03/Bulletin-20-01.pdf). In 

OMB Bulletin No. 20–01, OMB 

announced one new Micropolitan 

Statistical Area, one new component of 

an existing Combined Statistical Are 

and changes to New England City and 

Town Area (NECTA) delineations. In 

the FY 2021 Hospice Wage Index final 

rule (85 FR 47070) we stated that if 

appropriate, we would propose any 

updates from OMB Bulletin No. 20–01 

in future rulemaking. After reviewing 

OMB Bulletin No. 20–01, we have 

determined that the changes in Bulletin 

20–01 encompassed delineation changes 

that would not affect the Medicare wage 

index for FY 2022. Specifically, the 

updates consisted of changes to NECTA 

delineations and the redesignation of a 

single rural county into a newly created 

Micropolitan Statistical Area. The 

Medicare wage index does not utilize 

NECTA definitions, and, as most 

recently discussed in the FY 2021 

Hospice Wage Index final rule (85 FR 

47070), we include hospitals located in 

Micropolitan Statistical areas in each 

state’s rural wage index. Therefore, 

while we proposed to adopt the updates 

set forth in OMB Bulletin No. 20–01 

consistent with our longstanding policy 

of adopting OMB delineation updates, 

we note that specific wage index 

updates would not be necessary for FY 

2022 as a result of adopting these OMB 

updates. In other words, these OMB 

updates would not affect any geographic 

areas for purposes of the wage index 

calculation for FY 2022. 

In the FY 2020 Hospice Wage Index 

final rule (84 FR 38484), we finalized 

the proposal to use the current FY’s 

hospital wage index data to calculate 

the hospice wage index values. In the 

FY 2021 Hospice Wage Index final rule 

(85 FR 47070), we finalized the proposal 

to adopt the revised OMB delineations 

with a 5 percent cap on wage index 

decreases, where the estimated 

reduction in a geographic area’s wage 

index would be capped at 5 percent in 

FY 2021 and no cap would be applied 

to wage index decreases for the second 

year (FY 2022). For FY 2022, the final 

hospice wage index will be based on the 

FY 2022 hospital pre-floor, prereclassified wage index for hospital cost 

reporting periods beginning on or after 

October 1, 2017 and before October 1, 

2018 (FY 2018 cost report data). The 

final FY 2022 hospice wage index will 

not include a cap on wage index 

decreases and would not take into 

account any geographic reclassification 

of hospitals, including those in 

accordance with section 1886(d)(8)(B) or 

1886(d)(10) of the Act. The appropriate 

wage index value is applied to the labor 

portion of the hospice payment rate 

based on the geographic area in which 

the beneficiary resides when receiving 

RHC or CHC. The appropriate wage 

index value is applied to the labor 

portion of the payment rate based on the 

geographic location of the facility for 

beneficiaries receiving GIP or IRC. 

In the FY 2006 Hospice Wage Index 

final rule (70 FR 45135), we adopted the 

policy that, for urban labor markets 

without a hospital from which hospital 

wage index data could be derived, all of 

the Core-Based Statistical Areas 

(CBSAs) within the state would be used 

to calculate a statewide urban average 

pre-floor, pre-reclassified hospital wage 

index value to use as a reasonable proxy 

for these areas. For FY 2022, the only 

CBSA without a hospital from which 

hospital wage data can be derived is 

25980, Hinesville-Fort Stewart, Georgia. 

The FY 2022 final wage index value for 

Hinesville-Fort Stewart, Georgia is 

0.8635. 

There exist some geographic areas 

where there were no hospitals, and thus, 

no hospital wage data on which to base 

the calculation of the hospice wage 

index. In the FY 2008 Hospice Wage 

Index final rule (72 FR 50217 through 

50218), we implemented a methodology 

to update the hospice wage index for 

rural areas without hospital wage data. 

In cases where there was a rural area 

without rural hospital wage data, we use 

the average pre-floor, pre-reclassified 

hospital wage index data from all 

contiguous CBSAs, to represent a 

reasonable proxy for the rural area. The 

term ‘‘contiguous’’ means sharing a 

border (72 FR 50217). Currently, the 

only rural area without a hospital from 

which hospital wage data could be 

derived is Puerto Rico. However, for 

rural Puerto Rico, we would not apply 

this methodology due to the distinct 

economic circumstances that exist there 

(for example, due to the close proximity 

to one another of almost all of Puerto 

Rico’s various urban and non-urban 

areas, this methodology would produce 

a wage index for rural Puerto Rico that 

is higher than that in half of its urban 

areas); instead, we would continue to 

use the most recent wage index 

previously available for that area. For 

FY 2022, we proposed to continue to 

use the most recent pre-floor, prereclassified hospital wage index value 

available for Puerto Rico, which is 

0.4047, subsequently adjusted by the 

hospice floor. 

As described in the August 8, 1997 

Hospice Wage Index final rule (62 FR 

42860), the pre-floor and prereclassified hospital wage index is used 

as the raw wage index for the hospice 

benefit. These raw wage index values 

are subject to application of the hospice 

floor to compute the hospice wage index 

used to determine payments to 

hospices. As previously discussed, the 

adjusted pre-floor, pre-reclassified 

hospital wage index values below 0.8 

will be further adjusted by a 15 percent 

increase subject to a maximum wage 

index value of 0.8. For example, if 

County A has a pre-floor, prereclassified hospital wage index value of 

0.3994, we would multiply 0.3994 by 

1.15, which equals 0.4593. Since 0.4593 

is not greater than 0.8, then County A’s 

hospice wage index would be 0.4593. In 

another example, if County B has a prefloor, pre-reclassified hospital wage 

index value of 0.7440, we would 

multiply 0.7440 by 1.15, which equals 

0.8556. Because 0.8556 is greater than 

0.8, County B’s hospice wage index 

would be 0.8. 

The final hospice wage index 

applicable for FY 2022 (October 1, 2021 

through September 30, 2022) is 

available on our website at: https://

www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospice/HospiceWage-Index.html. 

We received seven comments on the 

proposed FY 2022 hospice wage index 

from various stakeholders including 

hospices, and national industry 

associations. A summary of these 

comments and our responses to those 

comments appear below: 

Comment: One commenter expressed 

concern that hospices in Montgomery 

County, Maryland are at a long-term 

competitive disadvantage due to what 

they refer to as a Medicare hospice 

Federal payment inequity involving 

CBSAs specifically when Metropolitan 

Divisions are present. The commenter 

stated that that hospices in Montgomery 

County should be reimbursed at the 


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4Report to Congress, Promoting Greater 

Efficiency in Medicare. MedPAC. June 2007. http:// 

www.medpac.gov/docs/default-source/reports/ 

Jun07_EntireReport.pdf. 

same level as hospices in the 

Washington, DC area because 

Montgomery County has a similar cost 

of living and cost of doing business 

compared to Washington, DC and shares 

the same labor market when competing 

for labor. This commenter 

recommended several solutions to 

resolve this issue, including applying 

the outmigration hospital adjustment 

which is a hospital wage adjustment 

based on commuting patterns referenced 

in section 505 of the Medicare 

Prescription Drug, Improvement and 

Modernization Act of 2003 to the 

hospice wage index; allowing hospices 

serving patients in MSAs that are large 

enough to be subdivided into 

metropolitan divisions to opt for the 

higher wage index valuation within the 

MSA’s respective CBSAs or providing a 

1-year limited increase in hospice wage 

index payments in the Montgomery 

County Metropolitan Divisions as a 

short-term fix to this problem. 

Response: We thank the commenter 

for these recommendations. However, 

we continue to believe that the OMB’s 

geographic area delineations represent a 

useful proxy for differentiating between 

labor markets and that the geographic 

area delineations are appropriate for use 

in determining Medicare hospice 

payments. Additionally, we do not 

believe that we have the authority to 

apply the outmigration hospital 

adjustment to the hospice wage index 

because it is specific to the commuting 

patterns of hospital employees. We also 

do not believe it would be appropriate 

to allow hospices to opt for or be 

assigned a higher CBSA designation 

based on subdivided metropolitan 

divisions. Finally, in the FY 2021 

Hospice Wage Index and Payment Rate 

Update final rule (85 FR 47079), we 

finalized a 1-year transition 5 percent 

cap on wage index decreases for fiscal 

year (FY) 2021 only. We believe that 

this transition was sufficient in order to 

mitigate the resulting short-term 

instability and negative impacts on 

certain providers after the 

implementation of the new OMB labor 

market delineations. We do not believe 

that a 1-year limited increase in hospice 

wage index payments for hospices 

specifically in the Montgomery County 

Metropolitan Divisions is appropriate at 

this time. 

Based on the OMB’s current 

delineations, Montgomery County 

belongs in a separate CBSA from the 

areas defined in the WashingtonArlington-Alexandria, DC-VA CBSA. 

Unlike inpatient prospective payment 

system (IPPS) hospitals, inpatient 

rehabilitation facilities (IRFs), and 

skilled nursing facilities (SNFs), where 

each provider uses a single CBSA, 

hospice agencies may be reimbursed 

based on more than one wage index. 

Payments are based upon the location of 

the beneficiary for routine and 

continuous home care or the location of 

the facility for respite and general 

inpatient care. Hospices in Montgomery 

County, Maryland may provide RHC 

and CHC to patients in the 

‘‘Washington-Arlington-Alexandria, 

DC-VA’’ CBSA and to patients in the 

‘‘Baltimore-Columbia-Towson, 

Maryland’’ CBSA. We have used CBSAs 

for determining hospice payments since 

FY 2006. Additionally, other provider 

types, such as IPPS hospitals, home 

health agencies (HHAs), SNFs, IRFs, and 

the dialysis facilities all use CBSAs to 

define their labor market areas. We 

believe that using the most current OMB 

delineations provides a more accurate 

representation of geographic variation in 

wage levels and do not believe it would 

be appropriate to allow hospices to be 

assigned a higher CBSA designation or 

to allow 1-year limited increase in 

hospice wage index payments for 

hospices only in the Montgomery 

County Metropolitan Divisions. 

Comment: One commenter 

recommended CMS institute a policy 

that no hospice be paid below the rural 

floor for their state, allow hospices and 

other post-acute providers to utilize a 

reclassification board similar to 

hospitals, and consider working with 

the Congress on policies to reform the 

wage index such as revisiting MedPAC’s 

2007 proposal which recommended that 

the Congress repeal the existing hospital 

wage index statute, including 

reclassifications and exceptions, and 

give the Secretary authority to establish 

new wage index systems. In chapter 6 

of the June 2007 Report to Congress, 

MedPAC recommended the new wage 

index should: Use wage data from all 

employers and industry-specific 

occupational weights, adjust for 

geographic differences in the ratio of 

benefits to wages, adjust at the county 

level and smooth large differences 

between counties, and be implemented 

so that large changes in wage index 

values are phased in over a transition 

period.4 Another commenter 

recommended that CMS develop and 

implement a wage index model that is 

consistent across all provider types so 

that all types of providers have a level 

playing field from which to compete for 

personnel. 

Response: We appreciate the 

commenters’ recommendations; 

however, these comments are outside 

the scope of the proposed rule. Any 

changes to the way we adjust hospice 

payments to account for geographic 

wage differences, beyond the wage 

index proposals discussed in the FY 

2022 Hospice Wage Index and Rate 

Update proposed rule, would have to go 

through notice and comment 

rulemaking. While CMS and other 

stakeholders have explored potential 

alternatives to the current CBSA-based 

labor market system, no consensus has 

been achieved regarding how best to 

implement a replacement system. 

Additionally, the regulations that 

govern hospice reimbursement do not 

provide a mechanism for allowing 

hospices to seek geographic 

reclassification or to utilize the rural 

floor provisions that exist for IPPS 

hospitals. The reclassification provision 

found in section 1886(d)(10) of the Act 

is specific to hospitals. Section 4410(a) 

of the Balanced Budget Act of 1997 

(Pub. L. 105–33) provides that the area 

wage index applicable to any hospital 

that is located in an urban area of a state 

may not be less than the area wage 

index applicable to hospitals located in 

rural areas in that state. This rural floor 

provision is also specific to hospitals. 

Because the reclassification provision 

and the hospital rural floor applies only 

to hospitals, and not to hospices, we 

continue to believe the use of the prefloor and pre-reclassified hospital wage 

index results in the most appropriate 

adjustment to the labor portion of the 

hospice payment rates. We remind 

stakeholders that the hospice wage 

index does include the hospice floor 

which is applicable to all CBSAs, both 

rural and urban. Pre-floor, prereclassified hospital wage index values 

below 0.8 are adjusted by a 15 percent 

increase subject to a maximum wage 

index value of 0.8. 

Comment: A few commenters stated 

that providers should be protected 

against substantial payment reductions 

due to dramatic reductions in wage 

index values from one year to the next. 

One commenter recommended that 

CMS maintain the 5 percent cap that 

was put in place for FY 2021 or lower 

the cap to 3 percent to protect hospice 

providers who are already operating 

with negative or razor thin operating 

margins. Another commenter expressed 

concern regarding the adoption of the 

New Brunswick-Lakewood, NJ CBSA 

and recommended CMS adopt a 

transition policy that holds the FY 2022 

and FY 2023 wage index for all affected 

facilities harmless from any reduction 

relative to their FY 2021 wage index. 


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5 IPPS Regulations and Notices. https://

www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/IPPS-Regulations-andNotices. 

Response: We appreciate the concerns 

sent in by the commenters regarding the 

impact of wages index changes from 

year to year as well as the concerns from 

providers who have been impacted by 

the implementation of the New 

Brunswick-Lakewood, NJ CBSA 

designation. While, we understand the 

commenters’ concern regarding the 

potential financial impact, we believe 

that the OMB delineations for 

Metropolitan and Micropolitan 

Statistical Areas are appropriate for use 

in accounting for wage area differences 

and that the values computed under the 

delineations result in more appropriate 

payments to providers by more 

accurately accounting for and reflecting 

the differences in area wage levels. In 

the FY 2021 Hospice Wage Index and 

Payment Rate Update final rule (85 FR 

47079), we finalized a 1-year transition 

for fiscal year (FY) 2021 only, to 

mitigate the resulting short-term 

instability and negative impacts on 

certain providers and to provide time 

for providers to adjust to their new labor 

market delineations. We believe that the 

1-year 5 percent cap transitional policy 

provided for FY 2021 was an adequate 

safeguard against any significant 

payment reductions, allowed for 

sufficient time to make operational 

changes for future fiscal years, and 

provided a reasonable balance between 

mitigating some short-term instability in 

hospice payments and improving the 

accuracy of the payment adjustment for 

differences in area wage levels. 

We note that certain changes to wage 

index policy may significantly affect 

Medicare payments. These changes may 

arise from revisions to the OMB 

delineations of statistical areas resulting 

from the decennial census data, periodic 

updates to the OMB delineations in the 

years between the decennial censuses, 

or other wage index policy changes. 

While we consider how best to address 

these potential scenarios in a consistent 

and thoughtful manner, we reiterate that 

our policy principles with regard to the 

wage index include generally using the 

most current data and information 

available and providing that data and 

information, as well as any approaches 

to addressing any significant effects on 

Medicare payments resulting from these 

potential scenarios, in notice and 

comment rulemaking. 

Final Decision: We are finalizing our 

proposal to use the FY 2022 pre-floor, 

pre-reclassified hospital wage index 

data as the basis for the FY 2022 hospice 

wage index. The wage index applicable 

for FY 2022 is available on our website 

at https://www.cms.gov/Medicare/ 

Medicare-Fee-for-Service-Payment/ 

Hospice/Hospice-Wage-Index. The 

hospice wage index for FY 2022 is 

effective October 1, 2021 through 

September 30, 2022. 

2. FY 2022 Hospice Payment Update 

Percentage 

Section 4441(a) of the BBA (Pub. L. 

105–33) amended section 

1814(i)(1)(C)(ii)(VI) of the Act to 

establish updates to hospice rates for 

FYs 1998 through 2002. Hospice rates 

were to be updated by a factor equal to 

the inpatient hospital market basket 

percentage increase set out under 

section 1886(b)(3)(B)(iii) of the Act, 

minus 1 percentage point. Payment rates 

for FYs since 2002 have been updated 

according to section 1814(i)(1)(C)(ii)(VII) 

of the Act, which states that the update 

to the payment rates for subsequent FYs 

must be the inpatient market basket 

percentage increase for that FY. CMS 

currently uses 2014-based IPPS 

operating and capital market baskets to 

update the market basket percentage. In 

the FY 2022 IPPS proposed rule 5 we 

proposed to rebase and revise the IPPS 

market baskets to reflect a 2018 base 

year. We refer stakeholders to the FY 

2022 IPPS proposed rule for further 

information (86 FR 25416 through 

25428). 

Section 3401(g) of the Affordable Care 

Act mandated that, starting with FY 

2013 (and in subsequent FYs), the 

hospice payment update percentage 

would be annually reduced by changes 

in economy-wide productivity as 

specified in section 1886(b)(3)(B)(xi)(II) 

of the Act. The statute defines the 

productivity adjustment to be equal to 

the 10-year moving average of changes 

in annual economy-wide private 

nonfarm business multifactor 

productivity (MFP). 

In the FY 2022 Hospice Wage Index 

and Payment Rate Update proposed rule 

(86 FR 19720), we proposed the market 

basket percentage increase of 2.5 

percent for FY 2022 using the most 

current estimate of the inpatient 

hospital market basket (based on IHS 

Global Inc.’s fourth-quarter 2020 

forecast with historical data through the 

third quarter 2020). Due to the 

requirements at sections 

1886(b)(3)(B)(xi)(II) and 1814(i)(1)(C)(v) 

of the Act, the proposed inpatient 

hospital market basket update for FY 

2022 of 2.5 percent was reduced by a 

productivity adjustment as mandated by 

Affordable Care Act (estimated in the 

proposed rule to be 0.2 percentage point 

for FY 2022). Therefore, the proposed 

hospice payment update percentage for 

FY 2022 was 2.3 percent. 

We also stated if more recent data 

became available after the publication of 

the proposed rule and before the 

publication of the final rule (for 

example, more recent estimates of the 

inpatient hospital market basket update 

and/or productivity adjustment), we 

would use such data to determine the 

hospice payment update percentage for 

FY 2022 in the final rule. For this final 

rule, based on IHS Global Inc.’s (IGI) 

second quarter 2021 forecast with 

historical data through the first quarter 

2021 of the inpatient hospital market 

basket update, the market basket 

percentage increase for FY 2022 is 2.7 

percent. The productivity adjustment 

for FY 2022, based on IGI’s second 

quarter 2021 forecast, is 0.7 percent. 

Therefore, the hospice payment update 

percentage for FY 2022, based on more 

recent data, is 2.0 percent. 

Currently, the labor portion of the 

hospice payment rates are as follows: 

For RHC, 68.71 percent; for CHC, 68.71 

percent; for GIP, 64.01 percent; and for 

IRC, 54.13 percent. As discussed in 

section III.B of this rule, we are 

finalizing to rebase and revise the labor 

shares for CHC, RHC, GIP and IRC using 

MCR data for freestanding hospices 

(CMS Form 1984–14, OMB Control 

Number 0938–0758) for 2018. We are 

finalizing the labor portion of the 

payment rates to be for CHC, 75.2 

percent; for RHC, 66.0 percent; for GIP, 

63.5 percent; and for IRC, 61.0 percent. 

The non-labor portion is equal to 100 

percent minus the labor portion for each 

level of care. Therefore, we are 

finalizing the non-labor portion of the 

payment rates to be as follows: For CHC, 

24.8 percent; RHC, 34 percent; for GIP, 

36.5 percent; and For IRC, 39.0 percent. 

Comment: We received seven 

comments in support of the proposed 

hospice update percentage of 2.3 

percent. However, in its comment, 

MedPAC ‘‘concluded that the aggregate 

level of payments could be reduced and 

would still be sufficient to cover 

hospice providers’ costs and preserve 

beneficiaries’ access to care.’’ Therefore, 

MedPAC recommended a zero percent 

update for FY 2022 for all hospice 

providers. 

Response: We appreciate the support 

from commenters as well as MedPAC’s 

concerns. However, section 

1814(i)(1)(C)(iii) of the Act requires the 

Secretary, for years subsequent to the 

first fiscal year in which payment 

revisions described in paragraph (6)(D) 

are implemented, to update the payment 

rates by the market basket percentage 

increase (as defined in section 

1886(b)(3)(B)(iii)) of the Act for the 


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fiscal year; section 1814(i)(1)(C)(iv)(I) of 

the Act requires that subsequent to such 

increase, the payment rates be reduced 

by the productivity adjustment 

described in section 1886(b)(3)(B)(xi)(II) 

of the Act. 

Final Decision: We are finalizing the 

hospice payment update percentage of 

2.0 percent for FY 2022. Based on IHS 

Global, Inc.’s more recent forecast of the 

inpatient hospital market basket update 

and the productivity adjustment, the 

hospice payment update percentage for 

FY 2022 will be 2.0 percent for hospices 

that submit the required quality data 

and 0.0 percent (FY 2022 hospice 

payment update of 2.0 percent minus 

2.0 percentage points) for hospices that 

do not submit the required data. 

3. FY 2022 Hospice Payment Rates 

There are four payment categories that 

are distinguished by the location and 

intensity of the hospice services 

provided. The base payments are 

adjusted for geographic differences in 

wages by multiplying the labor share, 

which varies by category, of each base 

rate by the applicable hospice wage 

index. A hospice is paid the RHC rate 

for each day the beneficiary is enrolled 

in hospice, unless the hospice provides 

CHC, IRC, or GIP. CHC is provided 

during a period of patient crisis to 

maintain the patient at home; IRC is 

short-term care to allow the usual 

caregiver to rest and be relieved from 

caregiving; and GIP is to treat symptoms 

that cannot be managed in another 

setting. 

As discussed in the FY 2016 Hospice 

Wage Index and Rate Update final rule 

(80 FR 47172), we implemented two 

different RHC payment rates, one RHC 

rate for the first 60 days and a second 

RHC rate for days 61 and beyond. In 

addition, in that final rule, we 

implemented a SIA payment for RHC 

when direct patient care is provided by 

an RN or social worker during the last 

7 days of the beneficiary’s life. The SIA 

payment is equal to the CHC hourly rate 

multiplied by the hours of nursing or 

social work provided (up to 4 hours 

total) that occurred on the day of 

service, if certain criteria are met. To 

maintain budget neutrality, as required 

under section 1814(i)(6)(D)(ii) of the 

Act, the new RHC rates were adjusted 

by a service intensity add-on budget 

neutrality factor (SBNF). The SBNF is 

used to reduce the overall RHC rate to 

ensure that SIA payments are budgetneutral. At the beginning of every fiscal 

year, SIA utilization is compared to the 

prior year in order calculate a budget 

neutrality adjustment. 

In the FY 2017 Hospice Wage Index 

and Rate Update final rule (81 FR 

52156), we initiated a policy of applying 

a wage index standardization factor to 

hospice payments to eliminate the 

aggregate effect of annual variations in 

hospital wage data. Typically, the wage 

index standardization factor is 

calculated using the most recent, 

complete hospice claims data available. 

However, due to the COVID–19 PHE, we 

looked at using the previous fiscal year’s 

hospice claims data (FY 2019) to 

determine if there were significant 

differences between utilizing 2019 and 

2020 claims data. The difference 

between using FY 2019 and FY 2020 

hospice claims data was minimal. 

Therefore, we will continue our practice 

of using the most recent, complete 

hospice claims data available; that is, 

we used FY 2020 claims data for the FY 

2022 payment rate updates. 

To calculate the wage index 

standardization factor, we simulate total 

payments using FY 2020 hospice 

utilization claims data with the FY 2021 

wage index (pre-floor, pre-reclassified 

hospital wage index with the hospice 

floor, and a 5 percent cap on wage index 

decreases) and FY 2021 payment rates 

(that include the current labor shares) 

and compare it to our simulation of total 

payments using the FY 2022 hospice 

wage index (with hospice floor, without 

the 5 percent cap on wage index 

decreases) and FY 2021 payment rates 

(that include the current labor shares). 

By dividing total payments for each 

level of care (RHC days 1 through 60, 

RHC days 61+, CHC, IRC, and GIP) 

using the FY 2021 wage index and 

payment rates for each level of care by 

the total payments using the FY 2022 

wage index and FY 2021 payment rates, 

we obtain a wage index standardization 

factor for each level of care. As stated 

above, in order to calculate the labor 

share standardization factor, we 

simulate total payments using FY 2020 

hospice utilization claims data with the 

FY 2022 hospice wage index and the 

current labor shares and compare it to 

our simulation of total payments using 

the FY 2022 hospice wage index with 

the final revised labor shares. By 

dividing total payments for each level of 

care (RHC days 1 through 60, RHC days 

61+, CHC, IRC, and GIP) using the 

current labor shares and FY 2022 wage 

index and payment rates for each level 

of care by the total payments for each 

level of care using the final revised labor 

shares and FY 2022 wage index and 

payment rates for each level of care, we 

obtain a labor share standardization 

factor for each level of care. The wage 

index and labor share standardization 

factors for each level of care are shown 

in the Tables 2 and 3. 

The FY 2022 RHC rates are shown in 

Table 2. The FY 2022 payment rates for 

CHC, IRC, and GIP are shown in Table 

3. 

BILLING CODE 4120–01–P 


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TABLE 2: FY 2022 Hospice RHC Payment Rates 

FY 2021 SIA Budget Wage index Labor share FY2022 FY2022 

Code Description payment neutrality standardization standardization hospice payment 

rates factor factor factor payment rates update 

Routine 

651 Home Care $199.25 1.0003 1.001 0.9995 1.02 $203.40 

(davs 1-60) 

Routine 

651 Home Care $157.49 1.0005 1.0009 0.9992 1.02 $160.74 

(days 61+) 
42544 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

Sections 1814(i)(5)(A) through (C) of 

the Act require that hospices submit 

quality data, based on measures to be 

specified by the Secretary. In the FY 

2012 Hospice Wage Index and Rate 

Update final rule (76 FR 47320 through 

47324), we implemented a HQRP as 

required by those sections. Hospices 

were required to begin collecting quality 

data in October 2012, and submit that 

quality data in 2013. Section 

1814(i)(5)(A)(i) of the Act requires that 

beginning with FY 2014 and each 

subsequent FY, the Secretary shall 

reduce the market basket update by 2 

percentage points for any hospice that 

does not comply with the quality data 

submission requirements with respect to 

that FY. The FY 2022 rates for hospices 

that do not submit the required quality 

data would be updated by the FY 2022 

hospice payment update percentage of 

2.0 percent minus 2 percentage points. 

These rates are shown in Tables 4 and 

5. 


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Code 

TABLE 3: FY 2022 Hospice CHC, IRC, and GIP Payment Rates 

FY 2021 Wage index Labor share FY2022 FY2022 hospice Code Description payment standardization standardization payment payment 

rates factor factor update rates 

Continuous 

Home Care $1,462.52 

652 Full Rate= $1,432.41 1.0004 1.0006 1.02 ($60.94 per 

24 hours of hour) 

care. 

655 Inpatient $461.09 1.0014 1.0059 1.02 $473.75 Respite Care 

General 

656 Inpatient $1,045.66 1.0019 0.9997 1.02 $1,068.28 

Care 

TABLE 4: FY 2022 Hospice RHC Payment Rates for Hospices That DO NOT Submit the 

Required Quality DataFY 2022 

hospice 

FY 2021 SIA Budget Wage index Labor share payment FY2022 

Description payment neutrality standardization standardization update payment minus 2 rates factor factor factor percentage rates 

points= 

+0.0% 

Routine 

651 Home Care $199.25 1.0003 1.001 0.9995 1.00 $199.41 

(days 1-60) 

Routine 

651 Home Care $157.49 1.0005 1.0009 0.9992 1.00 $157.58 

(days 61+) 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42545 

BILLING CODE 4120–01–C 

Final Decision: We are implementing 

the updates to hospice payment rates as 

discussed in the proposed rule. 

4. Hospice Cap Amount for FY 2022 

As discussed in the FY 2016 Hospice 

Wage Index and Rate Update final rule 

(80 FR 47183), we implemented changes 

mandated by the IMPACT Act of 2014 

(Pub. L. 113–185). Specifically, the 

IMPACT Act requires that, for 

accounting years that end after 

September 30, 2016 and before October 

1, 2025, the hospice cap be updated by 

the hospice payment update percentage 

rather than using the CPI–U. Division 

CC, section 404 of the CAA 2021 has 

extended the accounting years impacted 

by the adjustment made to the hospice 

cap calculation until 2030. Therefore, 

for accounting years that end after 

September 30, 2016 and before October 

1, 2030, the hospice cap amount is 

updated by the hospice payment update 

percentage rather than using the CPI–U. 

As a result of the changes mandated by 

Division CC, section 404 of the CAA 

2021, we proposed conforming 

regulation text changes at § 418.309 to 

reflect the new language added to 

section 1814(i)(2)(B) of the Act. 

The hospice cap amount for the FY 

2022 cap year will be $31,297.61, which 

is equal to the FY 2021 cap amount 

($30,683.93) updated by the FY 2022 

hospice payment update percentage of 

2.0 percent. 

Comment: Generally, commenters 

supported the update to the cap amount. 

We received a comment indicating some 

hospice agencies never hit the cap 

amount and recommend for CMS to 

utilize available claims and quality data 

to target hospices with questionable 

practices to avoid exceeding the cap 

amount. 

Response: We appreciate the concern 

and recommendation. We encourage 

those who have concerns about fraud, 

waste, or abuse to report these to CMS 

Center for Program Integrity. Resources 

can be found at https://www.cms.gov/ 

About-CMS/Components/CPI. 

Comment: MedPAC recommended the 

hospice cap amount be reduced by 20 

percent as a way to focus payment 

reductions on providers with 

particularly high margins. MedPAC also 

recommended wage adjusting the 

hospice cap amount to make it more 

equitable across providers. 

Response: We appreciate MedPAC’s 

comments; however, we are required by 

law to update the hospice cap amount 

from the preceding year by the hospice 

payment update percentage, in 

accordance with section 1814(i)(2)(B)(ii) 

of the Act. Therefore, we do not have 

the statutory authority to reduce the 

aggregate cap amount nor the statutory 

authority to wage-adjust the cap 

amount. 

Final Decision: We are finalizing the 

update to the hospice cap amount for 

FY 2022 in accordance with statutorilymandated requirements as well as the 

conforming regulation text changes at 

§ 418.309. 

D. Clarifying Regulation Text Changes 

for the Hospice Election Statement 

Addendum 

In the FY 2020 Hospice Wage Index 

and Payment Rate Update final rule (84 

FR 38484), we finalized modifications to 

the hospice election statement content 

requirements at § 418.24(b) to increase 

coverage transparency for patients 

under a hospice election. These changes 

included a new condition for payment 

requiring a hospice, upon request, to 

provide the beneficiary (or 

representative) an election statement 

addendum (hereafter called ‘‘the 

addendum’’) outlining the items, 

services, and drugs that the hospice has 

determined are unrelated to the terminal 

illness and related conditions. We stated 

in the final rule that the addendum is 

intended to complement the Hospice 

Conditions of Participation (CoPs) at 

§ 418.52(c)(7) and (8), which require 

hospices to verbally inform 

beneficiaries, at the time of hospice 

election, of the services covered under 

the Medicare hospice benefit, as well as 

the limitations of such services (84 FR 

38509). The requirements at 

§§ 418.24(b) and 418.52(a) ensure that 

beneficiaries are aware of any items, 

services, or drugs they would have to 

seek outside of the benefit, as well as 

their potential out-of-pocket costs for 

hospice care, such as co-payments and/ 

or coinsurance. 

Section 418.24(c) sets forth the 

elements that must be included on the 

addendum: 

1. The addendum must be titled 

‘‘Patient Notification of Hospice NonCovered Items, Services, and Drugs’’; 

2. Name of the hospice; 

3. Beneficiary’s name and hospice 

medical record identifier; 

4. Identification of the beneficiary’s 

terminal illness and related conditions; 

5. A list of the beneficiary’s current 

diagnoses/conditions present on 


lotter on DSK11XQN23PROD with RULES4ER04AU21.142</GPH>

TABLE 5: FY 2022 Hospice CHC, IRC, and GIP Payment Rates for Hospices That DO 

NOT Submit the Required Quality DataFY2022 

hospice 

FY 2021 Wage index Labor share payment FY2022 Code Description payment standardization standardization update minus payment rates rates factor factor 2 percentage 

points= 

+0.0% 

Continuous Home $1433.84 ($59.74 652 Care Full Rate = $1,432.41 1.0004 1.0006 1.00 

24 hours of care. per hour) 

655 Inpatient Respite $461.09 1.0014 1.0059 1.00 $464.46 Care 

656 General Inpatient $1,045.66 1.0019 0.9997 1.00 $1,047.33 Care 
42546 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

6Hospice web page. https://www.cms.gov/ 

Medicare/Medicare-Fee-for-Service-Payment/ 

Hospice/index. 

hospice admission (or upon plan of care 

update, as applicable) and the 

associated items, services, and drugs, 

not covered by the hospice because they 

have been determined by the hospice to 

be unrelated to the terminal illness and 

related conditions; 

6. A written clinical explanation, in 

language the beneficiary and his or her 

representative can understand, as to 

why the identified conditions, items, 

services, and drugs are considered 

unrelated to the terminal illness and 

related conditions and not needed for 

pain or symptom management. This 

clinical explanation must be 

accompanied by a general statement that 

the decision as to what conditions, 

items, services, or drugs are unrelated is 

made for each individual patient, and 

that the beneficiary should share this 

clinical explanation with other health 

care providers from which he or she 

seeks services unrelated to his or her 

terminal illness and related conditions; 

7. References to any relevant clinical 

practice, policy, or coverage guidelines; 

8. Information on the following: 

a. Purpose of the addendum 

b. patient’s right to immediate 

advocacy 

9. Name and signature of the 

Medicare hospice beneficiary (or 

representative) and date signed, along 

with a statement that signing this 

addendum (or its updates) is only 

acknowledgement of receipt of the 

addendum (or its updates) and not 

necessarily the beneficiary’s agreement 

with the hospice’s determinations. 

The hospice is required to furnish the 

addendum in writing in an accessible 

format, so the beneficiary (or 

representative) can understand the 

information provided, make treatment 

decisions based on that information, 

and share such information with nonhospice providers rendering un-related 

items and services to the beneficiary. 

Therefore, the format of the addendum 

must be usable for the beneficiary and/ 

or representative. Although we stated in 

the FY 2020 Hospice Wage Index and 

Payment Rate Update that hospices may 

develop their own election statement 

addendum (84 FR 38507), we posted a 

modified model election statement and 

addendum on the Hospice web page,6

along with the publication of the FY 

2021 Hospice Wage Index and Payment 

Rate Update final rule (85 FR 47070). 

The intent was to provide an illustrative 

example so hospices can modify and 

develop their own forms to meet the 

content requirements. In the FY 2021 

Hospice Wage Index and Payment Rate 

Update final rule, we stated that most 

often we would expect the addendum 

would be in a hard copy format the 

beneficiary or representative can keep 

for his or her own records, similar to 

how hospices are required by the 

hospice CoPs at § 418.52(a)(1) to provide 

the individual a copy of the notice of 

patient rights and responsibilities (85 

FR 47091). The hospice CoPs at 

§ 418.104(a)(2) state that the patient’s 

record must include ‘‘signed copies of 

the notice of patient rights in 

accordance with § 418.52.’’ Likewise, 

since the addendum is part of the 

election statement as set forth in 

§ 418.24(b)(6), then it is required to be 

part of the patient’s record (if requested 

by the beneficiary or representative). 

The signed addendum is only 

acknowledgement of the beneficiary’s 

(or representative’s) receipt of the 

addendum (or its updates) and the 

payment requirement is considered met 

if there is a signed addendum (and any 

signed updates) in the requesting 

beneficiary’s medical record with the 

hospice. We believe that a signed 

addendum indicates the hospice 

discussed the addendum and its 

contents with the beneficiary (or 

representative). Additionally, in the 

event that a beneficiary (or 

representative) does not request the 

addendum, we expect hospices to 

document, in some fashion, that an 

addendum has been discussed with the 

patient (or representative) at the time of 

election, similar to how other patient 

and family discussions are documented 

in the hospice’s clinical record. It is 

necessary for the hospice to document 

that the addendum was discussed and 

whether or not it was requested, in 

order to prevent potential claims denials 

related to any absence of an addendum 

(or addendum updates) in the medical 

record. 

Though we did not propose any 

changes to the election statement 

addendum content requirements at 

§ 418.24(c), or the October 1, 2020 

effective date, in the FY 2021 Hospice 

Wage Index and Payment Rate Update 

proposed rule, we solicited comments 

on the usefulness of the modified model 

election statement and addendum 

posted on the Hospice Center web page 

(85 FR 20949). In the FY 2021 Hospice 

Wage Index and Payment Rate Update 

final rule (85 FR 47093), we responded 

to comments received, and stated that, 

as finalized in the FY 2020 Hospice 

Wage Index and Payment Rate Update 

final rule, the hospice election 

statement addendum will remain a 

condition for payment that is met when 

there is a signed addendum (and its 

updates) in the beneficiary’s hospice 

medical record. 

Since its implementation on October 

1, 2020, CMS has received additional 

inquiries from stakeholders asking for 

clarification on certain aspects of the 

addendum. We appreciate and 

understand the importance of provider 

input and involvement in ensuring that 

this document is effective in increasing 

coverage transparency for beneficiaries. 

Therefore, in the FY 2022 proposed rule 

(86 FR 19724) we provided clarification 

on, and proposed modifications to, 

certain signature and timing 

requirements and proposed 

corresponding clarifying regulations text 

changes. 

Currently the regulations at 

§ 418.24(c) require that if a beneficiary 

or his or her representative requests the 

addendum at the time of the initial 

hospice election (that is, at the time of 

admission to hospice), the hospice must 

provide this information, in writing, to 

the individual (or representative) within 

5 days from the date of the election. In 

the FY 2022 hospice proposed rule, we 

noted that hospices have reported that 

beneficiaries or representatives 

sometimes do not request the addendum 

at the time of election, but rather within 

the 5 days after the effective date of the 

election (86 FR 19724). In these 

situations, the regulations require the 

hospice to provide the addendum 

within 3 days, as the beneficiary 

requested the addendum during the 

course of care. However, in accordance 

with § 418.54(b), the hospice IDG, in 

consultation with the individual’s 

attending physician (if any), must 

complete the hospice comprehensive 

assessment no later than 5 calendar days 

after the election of hospice care. We 

stated that in some instances, this may 

mean that the hospice must furnish the 

addendum prior to completion of the 

comprehensive assessment. The 

comprehensive assessment includes all 

areas of hospice care related to the 

palliation and management of a 

beneficiary’s terminal illness. This 

assessment is necessary because it 

provides an overview of the items, 

services and drugs that the patient is 

already utilizing as well as helps 

determine what the hospice may need to 

add in order to treat the patient 

throughout the dying process. If the 

addendum is completed prior to the 

comprehensive assessment, the hospice 

may not have a complete patient profile, 

which could potentially result in the 

hospice incorrectly anticipating the 

extent of covered and non-covered 

services and lead to an inaccurate 

election statement addendum. Hospice 


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providers are only able to discern what 

items, services, and drugs they will not 

cover once they have a beneficiary’s 

comprehensive assessment. We 

proposed allowing the hospice to 

furnish the addendum within 5 days 

from the date of a beneficiary or 

representative request, if the request is 

within 5 days from the date of a hospice 

election. For example, if the patient 

elects hospice on December 1st and 

requests the addendum on December 

3rd, the hospice would have until 

December 8th to furnish the addendum. 

Additionally, we acknowledged that 

hospices have noted that there is not a 

timeframe in regulations regarding the 

patient signature on the addendum. 

Section 418.24(c)(9) requires the 

beneficiary’s signature (or his/her 

representative’s signature) as well as the 

date the document was signed. We 

noted in the FY 2021 Hospice Wage 

Index & Payment Rate Update final rule 

that because the beneficiary signature is 

an acknowledgement of receipt of the 

addendum, this means the beneficiary 

would sign the addendum when the 

hospice provides it, in writing, to the 

beneficiary or representative (85 FR 

47092). Obtaining the required 

signatures on the election statement has 

been a longstanding regulatory 

requirement. Therefore, we stated that 

we expect that hospices already have 

processes and procedures in place to 

ensure that required signatures are 

obtained, either from the beneficiary, or 

from the representative in the event the 

beneficiary is unable to sign, and we 

anticipate that hospices would use the 

same procedures for obtaining 

signatures on the addendum. We did 

note that we understand that some 

beneficiaries or representatives may 

request an emailed addendum or 

request more time to review the 

addendum before signing, in which case 

the date that the hospice furnished the 

addendum to the beneficiary (or 

representative) may differ from the date 

that the beneficiary or representative 

signs the addendum. This means the 

hospice may furnish the addendum 

within the required timeframe; however, 

the signature date may be beyond the 

required timeframe. Therefore, we 

proposed to clarify in regulation that the 

‘‘date furnished’’ must be within the 

required timeframe (that is, 3 or 5 days 

of the beneficiary or representative 

request, depending on when such 

request was made), rather than the 

signature date. At § 418.24(c)(10), we 

proposed that the hospice would 

include the ‘‘date furnished’’ in the 

patient’s medical record and on the 

addendum itself. 

In the FY 2021 Hospice Wage Index 

and Payment Rate Update final rule, we 

addressed a concern regarding a 

potential situation wherein the 

beneficiary or representative refuses to 

sign the addendum (85 FR 47088). We 

reiterated that the signature on the 

addendum is only acknowledgement of 

receipt and not a tacit indication of 

agreement with its contents, and that we 

expect the hospice to inform the 

beneficiary of the purpose of the 

addendum and rationale for the 

signature. However, we recognized that 

there might be rare instances in which 

the beneficiary (or representative) 

refuses to sign the addendum, and noted 

that we would consider whether this 

issue would require future rulemaking. 

In the proposed rule, we stated that we 

have subsequently received this 

question from stakeholders post 

implementation, and therefore, clarified 

that if a patient or representative refuses 

to sign the addendum, the hospice must 

document clearly in the medical record 

(and on the addendum itself) the reason 

the addendum is not signed in order to 

mitigate a claims denial for this 

condition for payment. We stated that in 

such a case, although the beneficiary 

has refused to sign the addendum, the 

‘‘date furnished’’ must still be within 

the required timeframe (that is, within 

3 or 5 days of the beneficiary or 

representative request, depending on 

when such request was made), and 

noted in the chart and on the addendum 

itself (86 FR 19725). 

We also noted that stakeholders again 

requested that CMS clarify whether a 

non-hospice provider is required to sign 

the addendum in the event that the nonhospice provider requests the 

addendum rather than the beneficiary or 

representative. We reiterated that if only 

a non-hospice provider or Medicare 

contractor requests the addendum (and 

not the beneficiary or representative) we 

would not expect a signed copy in the 

patient’s medical record. We stated that 

hospices can develop processes 

(including how to document such 

requests from non-hospice providers 

and Medicare contractors) to address 

circumstances in which the non-hospice 

provider or Medicare contractor 

requests the addendum, and the 

beneficiary or representative does not 

(86 FR 19725). As such, we proposed to 

clarify in regulation that if a nonhospice provider requests the 

addendum, rather than the beneficiary 

or representative, the non-hospice 

provider is not required to sign the 

addendum. 

We also discussed that there may be 

instances in which the beneficiary or 

representative requests the addendum 

and the beneficiary dies, revokes, or is 

discharged prior to signing the 

addendum (86 FR 19725). While we 

stated in the FY 2020 Hospice Wage 

Index and Payment Rate Update final 

rule, that if the beneficiary requests the 

election statement addendum at the 

time of hospice election but dies within 

5 days, the hospice would not be 

required to furnish the addendum as the 

requirement would be deemed as being 

met in this circumstance (84 FR 38521), 

this policy was not codified in 

regulation. Therefore, we proposed 

conforming regulations text changes at 

§ 418.24(c) to reflect this policy. 

Furthermore, we proposed to clarify at 

§ 418.24(d)(4) that if the patient dies, 

revokes election, or is discharged within 

the required timeframe (3 or 5 days after 

a request, depending upon when such 

request was made), but the hospice has 

not yet furnished the addendum, the 

hospice is not required to furnish the 

addendum. Similarly, we proposed to 

clarify at § 418.24(d)(5) that in the event 

that a beneficiary requests the 

addendum and the hospice furnishes 

the addendum within 3 or 5 days 

(depending upon when the request for 

the addendum was made), but the 

beneficiary dies, revokes, or is 

discharged prior to signing the 

addendum, a signature from the 

individual (or representative) is no 

longer required. We stated that we 

would continue to expect that the 

hospice would note the ‘‘date 

furnished’’ in the patient’s medical 

record and on the addendum, if the 

hospice has already completed the 

addendum, as well as an explanation in 

the patient’s medical record noting that 

the patient died, revoked, or was 

discharged prior to signing the 

addendum (86 FR 19725). 

Finally, we proposed conforming 

regulations text changes at § 418.24(c) in 

alignment with subregulatory guidance 

indicating that hospices have ‘‘3 days,’’ 

rather than ‘‘72 hours’’ to meet the 

requirement when a patient requests the 

addendum during the course of a 

hospice election. We proposed that 

hospices must furnish the addendum no 

later than 3 calendar days after a 

beneficiary’s (or representative’s) 

request during the course of a hospice 

election. This means that hospice 

providers must furnish the addendum to 

the beneficiary or representative on or 

before the third day after the date of the 

request. For example, if a beneficiary (or 

representative) requests the addendum 

on February 22nd, then the hospice will 

have until February 25th to furnish the 

addendum, regardless of what time the 

addendum was requested on February 


lotter on DSK11XQN23PROD with RULES4
42548 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

22nd. The intent of this clarification is 

to better align with the requirement for 

furnishing an election statement 

addendum when the addendum is 

requested within 5 days of the date of 

election, which also uses ‘‘days’’ rather 

than ‘‘hours’’. 

Thirty-one unique stakeholders 

submitted their comments on the 

proposed clarifications to the election 

statement addendum. A few 

commenters requested additional 

clarification on certain topics and 

offered recommendations for the 

election statement addendum. These 

comments along with our responses are 

summarized below. 

Comment: The majority of 

commenters supported the clarifications 

and proposed regulation text changes 

regarding the election statement 

addendum. Commenters thanked CMS 

for these regulatory changes, stating that 

these clarifications will facilitate 

administration of the addendum and 

reduce hospice burden. 

Response: We thank commenters for 

their feedback. 

Comment: Some commenters 

recommended that the timeframe to 

furnish the addendum to the beneficiary 

(or representative) when requested after 

the first 5 days of a hospice election be 

changed from 3 days to 5 days. Other 

commenters recommended that CMS 

change the requirement from 3 calendar 

days to 3 business days. One commenter 

requested clarification that the day of 

request is considered day zero. Another 

commenter mentioned that providing 

the addendum within 3 days is 

burdensome to beneficiaries (or 

representatives), because they felt 

pressured to meet with hospice staff to 

provide their signature for the requested 

addendum. 

Response: We did not propose to 

change the timeline for furnishing the 

addendum when a beneficiary requests 

the addendum during the course of a 

hospice election (that is, after the first 

five days of a hospice election date), and 

we continue to believe that 3 days is an 

adequate amount of time for the hospice 

to furnish the addendum. As we stated 

in the FY 2020 hospice final rule, 

because the hospice has already 

completed the comprehensive 

assessment and has begun providing 

care, we believe that this represents a 

sufficient timeframe for reviewing the 

patient record and completing the 

addendum if this information is 

requested during the course of hospice 

care (84 FR 38511). 

Additionally, as the plan of care 

should identify the conditions or 

symptoms that the hospice determines 

to be ‘‘unrelated,’’ this information 

should be readily accessible to the 

hospice in order to allow for the timely 

completion of the addendum. Hospices 

should update the addendum to include 

such conditions, items, services, and 

drugs they determine to be unrelated 

throughout the course of a hospice 

election. Hospices are able to create 

their own process when it comes to 

updating and providing the requested 

addendum to the beneficiary (or 

representative). Furthermore, we believe 

3 calendar days, rather than 3 business 

days continues to be appropriate, as 

hospice care is provided around the 

clock rather than only during business 

days and hours. 

In the proposed rule, we provided an 

example acknowledging the day of the 

request as day zero. We stated that when 

the request is within 5 days from the 

date of a hospice election, and the 

patient elects hospice on December 1st 

and requests the addendum on 

December 3rd, the hospice would have 

until December 8th to furnish the 

addendum (86 FR 19724), making 

December 1st as day zero in this 

example. Moreover, because we 

proposed to change the timeframe 

requirements to correspond with the 

‘‘date furnished’’ rather than the 

‘‘signature date,’’ we disagree that this 

timeframe would be burdensome to 

beneficiaries. We noted in the FY 2021 

Hospice Wage Index & Payment Rate 

Update final rule that because the 

beneficiary signature is an 

acknowledgement of receipt of the 

addendum, this means the beneficiary 

would sign the addendum when the 

hospice provides it, in writing, to the 

beneficiary or representative (85 FR 

47092). Obtaining the required 

signatures on the election statement has 

been a longstanding regulatory 

requirement (84 FR 38484); however, we 

did acknowledge in the proposed rule 

that there may be time constraints and/ 

or circumstances that would prevent a 

beneficiary from signing and returning 

the addendum to the hospice by a 

specified deadline. We proposed to 

require that the ‘‘date furnished’’ be 

within the required timeframe, rather 

than the signature date, to mitigate any 

undue strain on the beneficiary or 

representative in returning the 

addendum to the hospice by a specified 

date. 

Comment: Some commenters 

expressed concern that the request from 

a non-hospice provider for the election 

statement addendum does not require a 

signature. Commenters stated that 

hospices would have no proof that the 

addendum was provided to the nonhospice provider without the provider’s 

signature. 

Response: If a non-hospice provider 

requests the addendum, the hospice 

must furnish the addendum, however, 

the non-hospice provider is not required 

to sign the addendum. We remind 

commenters that the intent of the 

addendum is to ensure that hospice 

beneficiaries and their representatives 

are fully informed of any items or 

services for which they must assume 

financial responsibility. Consequently, 

if only a non-hospice provider or 

Medicare contractor request the 

addendum (and not the beneficiary or 

representative) CMS would not expect a 

signed copy in the patient’s medical 

record. Hospices can develop processes 

(including how to document such 

requests from non-hospice providers 

and Medicare contractors) to address 

circumstances in which the non-hospice 

provider or Medicare contractor 

requests the addendum, and the 

beneficiary or representative does not, 

as a means of demonstrating that the 

addendum was furnished to a nonhospice provider and/or Medicare 

contractor upon request. 

Comment: A commenter asked CMS 

to define whether or not a mailed copy 

of the form would be acceptable. The 

commenter stated that they believe their 

patients and their representatives would 

welcome this option; however, it is 

unclear whether mailing the form is 

acceptable for CMS. 

Response: There is nothing 

precluding hospices from furnishing an 

addendum through mail. We expect that 

hospices would take steps in working 

with patients and their representatives 

to better understand which methods 

(that is, in person, mail, etc.) of delivery 

would work best in furnishing the 

addendum. Some beneficiaries or 

representatives may have time 

constraints that prevent them from 

signing and returning the addendum by 

a certain deadline, in which case, the 

date that the hospice furnishes the 

addendum to the beneficiary may differ 

from the date that the beneficiary (or 

representative) signs the addendum. 

Hospices would need to make sure the 

‘‘date furnished’ on the addendum is 

within the required timeframe (3 or 5 

days, depending upon when the request 

was made). Furthermore, we expect that 

hospices will have processes in place 

when they are obtaining a signed 

addendum from a beneficiary or 

representative. 

Comment: Many commenters 

requested making the proposed 

clarifications to the hospice election 

statement addendum retroactive to the 

implementation date of October 1, 2020. 

One commenter requested delaying the 

effective date of the proposed 


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7Hospice web page: https://www.cms.gov/ 

Medicare/Medicare-Fee-for-Service-Payment/ 

Hospice/index. 

clarification for the hospice election 

statement addendum to provide time for 

software updates in addition to 

reporting and system alerts. 

Response: We do not believe that 

making these clarifications retroactive 

or delaying the effective date is 

necessary. To date we have not received 

reports of claims denials resulting from 

the implementation of the election 

statement addendum and the current 

regulations at § 418.24. Furthermore, 

many of these clarifying regulations text 

changes have been previously addressed 

in sub-regulatory guidance. As such, the 

implementation of these clarifications 

on October 1, 2021 would not cause a 

burden for software updates. 

Comment: Many commenters 

encouraged CMS to update the model 

hospice election statement addendum 

on the CMS hospice center web page to 

illustrate these clarifications. 

Response: We will post an updated 

model election statement addendum on 

the Hospice web page,7 along with the 

publication of this FY 2022 Hospice 

Wage Index and Payment Rate Update 

final rule. This is an illustrative 

example for hospices to modify and 

develop their own forms that meet the 

content requirements at § 418.24. 

Comment: Some commenters stated 

that it is redundant to require the 

hospice to note on the addendum and 

in the medical record the reason that a 

beneficiary did not provide their 

signature. 

Response: We recognize the 

commenters’ concerns and agree that it 

is appropriate for the hospice to 

document only on the addendum itself 

the reason that an addendum is unsigned. This could include not only a 

beneficiary refusing to sign, but also 

death, discharge, or revocation prior to 

the hospice obtaining the signature. 

However, while a hospice can choose to 

document the reason for an unsigned 

addendum in the medical record, as 

well as on the addendum, it is not 

required. 

Comment: Many commenters offered 

suggestions regarding additional aspects 

of the election statement addendum for 

which we did not propose clarifying 

changes. Some commenters 

recommended that CMS align the late 

penalty for the addendum with the 

penalty for late submission of the NOE. 

Other commenters stated that denying 

the whole hospice claim when the 

addendum is furnished late is excessive. 

A commenter stated that as currently 

structured, the penalty is a negative 

incentive to furnish the addendum in a 

timely manner if a hospice misses the 

initial required timeframe. Some 

commenters mentioned there was 

confusion regarding billing when an 

addendum is furnished late. Other 

commenters recommended using a code 

to indicate billed but not covered 

hospice days when the addendum is 

furnished late. A few commenters stated 

they believe the addendum and the 

ABN have the potential to decrease 

transparency and increase confusion for 

hospice patients, whereas, other 

commenters recommended expanding 

the usage of the addendum, which 

included combining the ABN and 

addendum, and to include drugs or 

services which the hospice has 

determined to be medically 

unreasonable or no longer necessary. 

One commenter recommended that 

CMS explore ways to educate hospice 

providers about how they can inform 

their beneficiaries (or representative) 

when items, services, or drugs are 

considered related, but non-covered due 

to reasons such as not reasonable or 

necessary for the palliation and 

management of the terminal illness and 

related conditions. Moreover, a 

commenter recommended developing 

an exceptions process for when hospice 

providers are unable to provide an 

addendum because of ‘exceptional 

circumstances’ that are beyond the 

control of the hospice. Lastly, one 

commenter suggested that since an 

electronically sent addendum could be 

tracked, a signature should not be 

required. 

Response: While these comments are 

out of scope of the proposed rule, we 

appreciate and welcome all feedback 

related to the late penalty; ABN and 

expansion of the addendum; signatures; 

exceptional circumstances; and 

educating hospice providers. While we 

did not propose any of these 

recommendations we could consider 

them for future rulemaking. We 

understand the possibility of conflating 

the differences between the ABN and 

the hospice election statement 

addendum. The ABN transfers potential 

financial liability to the Medicare 

beneficiary in certain instances, whereas 

the addendum (upon request) informs 

terminally ill beneficiaries (or their 

representative) only of items, services, 

or drugs the hospice will not be 

providing because the hospice has 

determined them to be unrelated to the 

terminal illness and related conditions. 

We refer readers to FY 2020 Hospice 

Wage Index and Payment Rate Update 

final rule (84 FR 38512) to learn more 

about the usage of the ABN. The hospice 

CoPs at § 418.56(b) require hospices to 

educate each patient and their primary 

caregivers(s) on services identified on 

the plan of care and document the 

patient’s (or representative’s) level of 

understanding involvement and 

agreement with the plan of care. We 

expect that hospices would use the 

same methods when educating patients 

(or representatives) about the addendum 

and non-covered items, services and 

drugs, which the hospice has 

determined are not reasonable or 

necessary for the palliation and 

management of the terminal illness and 

related conditions. 

The hospice CoPs at § 418.52(a)(1) 

require that in advance of receiving 

care, patients are informed about their 

rights, and hospices must provide the 

patient (or representative) with verbal 

and written notice of the patient’s rights 

and responsibilities in a language and 

manner the patient understands. 

Likewise, the hospice CoPs at 

§ 418.52(a)(3) requires that hospices 

obtain the patient’s or representative’s 

signature confirming that he or she has 

received a copy of the notice of rights 

and responsibilities. So, it is not 

unreasonable to require that the 

electronically sent addendum also be 

signed to ensure that the patient is 

aware of the important information 

about hospice non-covered items, 

services, and drugs. We do not have a 

policy for ‘exceptional circumstances’ 

(that is floods, hurricanes, etc.) but we 

will consider addressing this policy in 

future rulemaking. 

Final Decision: We are finalizing the 

clarifications and addendum regulation 

text changes at § 418.24(c) as proposed, 

with the exception of requiring the 

reason that the addendum is not signed 

to be documented in the patient’s 

medical record. This explanation must 

be clearly noted on the addendum itself, 

but is not required to be documented in 

both places. Based on comments, we are 

amending the regulation text at § 418.24 

to state that if the beneficiary dies, 

revokes election, is discharged prior to 

signing the addendum, or refuses to sign 

the addendum, the addendum would 

not be required to be signed in order for 

the hospice to receive payment. The 

hospice must note (on the addendum 

itself) the reason the addendum was not 

signed and the addendum would 

become part of the patient’s medical 

record. These changes will be effective 

on October 1, 2021. 


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E. Hospice Waivers Made Permanent 

Conditions of Participation 

1. Background 

In order to support provider and 

supplier communities due to the 

COVID–19 PHE, CMS has issued an 

unprecedented number of regulatory 

waivers under our statutory authority 

set forth at section 1135 of the Act. 

Under section 1135 of the Act, the 

Secretary may temporarily waive or 

modify certain Medicare, Medicaid, and 

Children’s Health Insurance Program 

(CHIP) requirements to ensure that 

sufficient health care items and services 

are available to meet the needs of 

individuals enrolled in the programs in 

the emergency area and time periods, 

and that providers who furnish such 

services in good faith, but who are 

unable to comply with one or more 

requirements as described under section 

1135(b) of the Act, can be reimbursed 

and exempted from sanctions for 

violations of waived provisions (absent 

any determination of fraud or abuse). 

The intent of these waivers was to 

expand healthcare system capacity 

while continuing to maintain public and 

patient safety, and to hold harmless 

providers and suppliers unable to 

comply with existing regulations after a 

good faith effort. 

While some of these waivers simply 

delay certain administrative deadlines, 

others directly affect the provision of 

patient care. The utilization and 

application of these waivers pushed us 

to consider whether permanent changes 

would be beneficial to patients, 

providers, and professionals. We 

identified selected waivers as 

appropriate candidates for formal 

regulatory changes. Those changes and 

their respective histories and 

background information are discussed 

in the rule. We are also finalizing 

regulatory changes that are not directly 

related to PHE waivers that will clarify 

or align some policies that have been 

raised as concerns by stakeholders. 

We are finalizing the following 

revisions to the hospice CoPs. 

2. Hospice Aide Training and 

Evaluation—Using Pseudo-Patients 

Hospice aides deliver a significant 

portion of direct care. Aides are usually 

trained by an employer, such as a 

hospice, HHA or nursing home and may 

already be certified as an aide prior to 

being hired. The competency of new 

aides must be evaluated by the hospice 

to ensure appropriate care can be 

provided by the aide. Aide competency 

evaluations should be conducted in a 

way that identifies and meets training 

needs of the aide as well as the patient’s 

needs. These evaluations are a critical 

part of providing safe, quality care. 

The current hospice aide competency 

standard regulations at § 418.76(c)(1) 

requires the aide to be evaluated by 

observing an aide’s performance of the 

task with a patient. We are finalizing 

similar changes to hospice aide 

competency standards to those already 

made with respect to HHAs (see 

§ 484.80(c)) in our hospice regulations at 

§ 418.76(c)(1)). Additionally, we are 

finalizing definitions for both ‘‘pseudopatient’’ and ‘‘simulation’’ at § 418.3. 

Therefore, we are finalizing changes to 

permit skill competencies to be assessed 

by observing an aide performing the 

skill with either a patient or a pseudopatient as part of a simulation. The final 

definitions are as follows: 

• ‘‘Pseudo-patient’’ means a person 

trained to participate in a role-play 

situation, or a computer-based 

mannequin device. A pseudo-patient 

must be capable of responding to and 

interacting with the hospice aide 

trainee, and must demonstrate the 

general characteristics of the primary 

patient population served by the 

hospice in key areas such as age, frailty, 

functional status, cognitive status and 

care goals. 

• ‘‘Simulation’’ means a training and 

assessment technique that mimics the 

reality of the homecare environment, 

including environmental distractions 

and constraints that evoke or replicate 

substantial aspects of the real world in 

a fully interactive fashion, in order to 

teach and assess proficiency in 

performing skills, and to promote 

decision making and critical thinking. 

These changes will allow hospices to 

utilize pseudo-patients, such as a person 

trained to participate in a role-play 

situation or a computer-based 

mannequin device, instead of actual 

patients, in the competency testing of 

hospice aides for those tasks that must 

be observed being performed on a 

patient. This could increase the speed of 

performing competency testing and 

would allow new aides to begin serving 

patients more quickly while still 

protecting patient health and safety. 

3. Hospice Aide Training and 

Evaluation—Targeting Correction of 

Deficiencies 

We are also amending the 

requirement at § 418.76(h)(1)(iii) to 

specify that if an area of concern is 

verified by the hospice during the onsite visit, then the hospice must 

conduct, and the hospice aide must 

complete, a competency evaluation of 

the deficient skill and all related skill(s) 

in accordance with § 418.76(c). This 

change will permit the hospice to focus 

on the hospice aides’ specific deficient 

and related skill(s) instead of 

completing another full competency 

evaluation. We believe when a deficient 

area(s) in the aide’s care is assessed by 

the RN, there may be additional related 

competencies that may also lead to 

additional deficient practice areas and 

thus would require that those skills be 

included in the targeted competency 

evaluation. 

We received a total of 32 comments 

pertaining to the proposed revision to 

the CoPs. Commenters included 

individuals, hospice agencies, state 

hospice associations, national provider 

organizations, and patient advocacy 

groups. The response to those comments 

follows: 

Comment: Commenters were 

overwhelmingly supportive of the 

provisions to permit the use of pseudopatients and simulation when 

conducting hospice aide competency 

training and for retraining of deficient 

skills. Several commenters indicated 

that the changes will facilitate a more 

time-efficient process in the evaluation 

of aide skills. Another commenter stated 

the changes improve the efficiency of 

onboarding new staff in a safe and 

effective manner. 

Response: We appreciate these 

comments and agree that the utilization 

of pseudo-patients and simulation will 

facilitate more timely completion of 

training requirements for newly hired 

hospice aides as well as allowing 

hospices to target specific competency 

training for hospice aides noted to have 

deficient skill(s) on the supervisory 

visit. We believe that this will benefit 

the hospice and the patient by allowing 

new aide trainees and aides requiring 

remedial training and competency 

testing to begin serving patients more 

quickly while protecting patient health 

and safety. 

Comment: Several commenters stated 

that the use of pseudo-patients and 

simulation techniques are common in 

healthcare and a standard of practice in 

many formal nursing assistant programs. 

These commenters also state that 

hospices can adequately assess an aide’s 

skills through these means during 

competency training. Another 

commenter indicated that the use of 

pseudo-patients and simulation will 

support patient privacy. 

Response: We appreciate the 

commenters highlighting the use of 

pseudo-patients and simulation 

techniques in other healthcare setting 

and agree that the use of these 

techniques is standard of practice in 

many formal nursing assistant programs. 

We believe patient privacy is a 

fundamental right for those persons 


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receiving hospice care. We agree that 

permitting competency testing of 

hospice aides utilizing a pseudo-patient 

will support patient privacy while also 

assuring a competently trained hospice 

aide workforce that provide high quality 

patient care. 

Comment: While the majority of 

commenters supported the proposed 

changes; one commenter did not 

support the use of the pseudo-patient or 

targeted competency testing. The 

commenter suggested that more research 

and data are required on the use of 

pseudo-patients and changes to 

competency requirements prior to 

making a policy decision. The 

commenter also stated that data and 

research should support that using a 

non-patient in training is safe when 

aides subsequently provide care. 

Additionally, the commenter raised 

concerns regarding instances when 

multiple areas of deficient practice are 

noted and if a full competency would be 

done these instances. 

Response: We appreciate the 

commenter’s concern and the request 

for additional research in this area. We 

believe, and other commenters noted, 

that the use of pseudo-patients and 

simulation is an accepted standard of 

practice for training in healthcare, 

including nurse aide training programs. 

These same requirements were 

implemented for home health aide 

supervision in 2019 (see 84 FR 51732 

and the associated regulations at 

§ 484.80(c)(1)), without any reported 

adverse impacts noted to-date in CMS 

survey data or complaints being 

reported to CMS. Both the use of the 

pseudo-patient and targeted aide 

training align requirements between 

these two providers, home health and 

hospice, affording the opportunity for 

efficiency in implementation for many 

agencies that are Medicare certified to 

provide both services. 

When deficient aide skills are noted 

during a supervisory visit, the RN 

determines the deficient skills and all 

related skills that may be impacted. The 

supervising RN then determines the 

scope of the competency testing 

required, which may include a full 

competency testing of all skills if 

warranted, such as when multiple areas 

of deficient practice are noted. 

Comment: One commenter 

recommended CMS broaden its view of 

nurses to include licensed practical 

nurses (LPNs) for conducting aide 

supervisory visits. The commenter 

indicated that this change would 

provide greater staffing flexibility for 

hospices given workforce shortages 

among essential workers. 

Response: We appreciate the 

recommendation to permit greater 

flexibility for hospices in regards to 

staffing of essential workers. However, 

we have previously addressed this 

matter in prior rulemaking (see 

Medicare and Medicaid Programs: 

Hospice Conditions of Participation; 

final rule; 73 FR 32131 issued June 5, 

2008) and believe the rationale for 

requiring a RN for conducting 

supervisory visits continues to be 

warranted. Registered nurses, through 

their education, training, and role in 

provision of hospice care, are best 

positioned to assess the adequacy of the 

aide services in relationship to the 

needs of the patient and family to a 

greater degree than LPNs, or licensed 

vocational nurses (LVNs). Ideally, the 

supervising RN is both responsible for 

supervision of the aide services as well 

as being primarily responsible for the 

patient’s nursing care. This allows the 

RN to develop a complete picture of the 

patient and family and of the aide’s 

services. 

Comment: Many commenters stated 

that focusing the competency training 

on specific deficient skills provided 

greater efficiency for hospices. One 

commenter indicated that 

comprehensive competency testing can 

take up to a full 8-hour day and a 

targeted approach will save time related 

to this requirement. Another commenter 

stated that completing a full 

competency test takes the focus away 

from the identified deficiency and is not 

effective. A third commenter stated that 

topic-specific evaluations will 

significantly reduce time and allow 

hospices to concentrate on the specific 

deficient skills with additional practice 

and training. 

Response: We appreciate the support 

for this comment and agree that a 

targeted approach is both more efficient 

and will permit greater focus on 

remediating the deficient skills. 

Comment: Many commenters 

requested clarification related to the use 

of technology under the Medicare 

hospice benefit during the PHE. These 

commenters requested that CMS further 

clarify that technology-based visits are 

permissible outside of a PHE under the 

same circumstances and conditions as 

under a PHE, provided applicable 

HIPAA requirements are met, and 

requested that CMS establish modifiers 

that can be used on claims to designate 

such visits. 

Response: While comments on this 

topic are out of scope for this 

rulemaking, we do believe the subject is 

important to address, given the number 

of comments on this topic. On April 6, 

2020, we published an interim final rule 

‘‘Medicare and Medicaid Programs; 

Policy and Regulatory Revisions in 

Response to the COVID–19 Public 

Health Emergency’’ (85 FR 19230). This 

rule provided individuals and entities 

that provide services to Medicare 

beneficiaries needed flexibilities to 

respond effectively to the serious public 

health threats posed by the spread of 

COVID–19. The rule implemented 

temporary changes to the hospice 

payment requirements to provide broad 

flexibilities to furnish services using 

telecommunications technology in order 

to avoid exposure risks to health care 

providers, patients, and the community 

during the PHE. These changes will 

expire at the end of the COVID–19 PHE. 

The use of telehealth for conducting the 

required hospice face-to-face (F2F) 

encounter is statutorily limited to the 

PHE for COVID–19 in accordance with 

section 1814(a)(1)(7)(D)(i) of the Act, as 

amended by section 3706 of the 

Coronavirus Aid, Relief, and Economic 

Security Act (Pub. L. 116–136). 

The CoPs are not relevant to payment 

questions regarding the use of 

technology, such as telehealth, in the 

provision of hospice services. The 

standard of practice for hospice is that 

care and services are provided on an inperson basis based on needs identified 

in the comprehensive assessment and 

services ordered by the IDG and 

outlined in the plan of care. While 

nothing in the COPs prevent hospices 

from augmenting in-person visits with 

technological means, such as telehealth, 

these are not intended to change the 

standard of practice or replace in-person 

visits. Additionally, for the duration of 

the PHE, we expect that it would be up 

to the clinical judgment of hospice as to 

whether such technology can meet the 

patient’s/caregiver’s/family’s needs and 

the use of technology should be 

included on the plan of care for the 

patient and family. 

We will continue to evaluate the 

impact of the COVID–19 PHE. At this 

point, we are still assessing the impact 

of all waivers and flexibilities on 

beneficiaries and the delivery of 

healthcare services under the PHE. 

While the impact of some waiver and 

flexibilities may be more apparent at 

this time, such as the waivers related to 

hospice aide supervision, flexibilities 

associated with other aspects of care are 

more complex requiring additional time 

for a complete understanding of their 

impact. We will continue to evaluate the 

flexibilities to determine if additional 

changes are warranted in the future. 

Final Rule Action: We are finalizing 

as proposed at § 418.76(c)(1) our policy 

that hospices may conduct competency 

testing by observing an aide’s 


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performance of the task with a patient 

or pseudo-patient. Additionally, we are 

finalizing as proposed at § 418.3 the 

definitions of ‘‘pseudo-patient’’ and 

‘‘simulation’’. 

We are also finalizing as proposed the 

requirement at § 418.76(h)(1)(iii) to 

specify that if an area of concern is 

verified by the hospice during the onsite visit, then the hospice must 

conduct, and the hospice aide must 

complete, a competency evaluation of 

the deficient skill and all related skill(s) 

in accordance with § 418.76(c). 

F. Updates to the Hospice Quality 

Reporting Program 

1. Background and Statutory Authority 

The Hospice Quality Reporting 

Program (HQRP) specifies reporting 

requirements for both the Hospice Item 

Set (HIS) and Consumer Assessment of 

Healthcare Providers and Systems 

(CAHPS®) Hospice Survey. Section 

1814(i)(5) of the Act requires the 

Secretary to establish and maintain a 

quality reporting program for hospices. 

Section 1814(i)(5)(A)(i) of the Act was 

amended by section 407(b) of Division 

CC, Title IV of the CAA 2021 (Pub. L. 

116–260) to change the payment 

reduction for failing to meet hospice 

quality reporting requirements from 2 to 

4 percentage points. This policy will 

apply beginning with FY 2024 annual 

payment update (APU). Specifically, the 

Act requires that, beginning with FY 

2014 through FY 2023, the Secretary 

shall reduce the market basket update 

by 2 percentage points and beginning 

with the FY 2024 APU and for each 

subsequent year, the Secretary shall 

reduce the market basket update by 4 

percentage points for any hospice that 

does not comply with the quality data 

submission requirements for that FY. 

We noted this revised statutory 

requirement in our proposed rule (86 FR 

19726) and are codifying the revision at 

§ 418.306(b)(2). 

In addition, section 407(a)(2) of the 

CAA 2021 removes the prohibition on 

public disclosure of hospice surveys 

performed be a national accreditation 

agency in section 1865(b) of the Act, 

thus allowing the Secretary to disclose 

such accreditation surveys. In addition, 

section 407(a)(1) of the CAA 2021 adds 

new requirements in a newly added 

section 1822(a)(2) to require each state 

and local survey agency, and each 

national accreditation body with an 

approved hospice accreditation 

program, to submit information 

regarding any survey or certification 

made with respect to a hospice program. 

Such information shall include any 

inspection report made by such survey 

agency or body with respect to such 

survey or certification, any enforcement 

actions taken as a result of such survey 

or certification, and any other 

information determined appropriate by 

the Secretary. This information will be 

published publicly on our website, such 

as Care Compare, in a manner that is 

easily accessible, readily 

understandable, and searchable no later 

than October 1, 2022. In addition, 

national accreditation bodies with 

approved hospice accreditation 

programs are required to use the same 

survey form used by state and local 

survey agencies, which is currently the 

Form CMS–2567, on or after October 1, 

2021. 

Depending on the amount of the 

annual update for a particular year, a 

reduction of 2 percentage points 

through FY 2023 or 4 percentage points 

beginning in FY 2024 could result in the 

annual market basket update being less 

than zero percent for a FY and may 

result in payment rates that are less than 

payment rates for the preceding FY. Any 

reduction based on failure to comply 

with the reporting requirements, as 

required by section 1814(i)(5)(B) of the 

Act, would apply only for the specified 

year. Any such reduction would not be 

cumulative nor be taken into account in 

computing the payment amount for 

subsequent FYs. We are revising the 

regulations text at § 418.306(b)(2) under 

a ‘‘good cause’’ waiver of proposed 

rulemaking as this change was noted in 

the proposed rule and is a statutory 

requirement of the CAA of 2021. Under 

the Administrative Procedure Act (APA) 

(5 U.S.C. 553), the agency is not 

required to conduct notice and 

comment rulemaking for a change that 

is statutory. Section V. of this final rule 

further details this waiver of proposed 

rulemaking. Thus, 42 CFR 418.306(b)(2) 

has been revised to follow the CAA of 

2021 updates for the survey agencies. 

Section 1814(i)(5)(C) of the Act 

requires that each hospice submit data 

to the Secretary on quality measures 

specified by the Secretary. The data 

must be submitted in a form, manner, 

and at a time specified by the Secretary. 

Any measures selected by the Secretary 

must have been endorsed by the 

consensus-based entity which holds a 

performance measurement contract with 

the Secretary under section 1890(a) of 

the Act. This contract is currently held 

by the National Quality Forum (NQF). 

However, section 1814(i)(5)(D)(ii) of the 

Act provides that in the case of a 

specified area or medical topic 

determined appropriate by the Secretary 

for which a feasible and practical 

measure has not been endorsed by the 

consensus-based entity, the Secretary 

may specify measures that are not 

endorsed, as long as due consideration 

is given to measures that have been 

endorsed or adopted by a consensusbased organization identified by the 

Secretary. Section 1814(i)(5)(D)(iii) of 

the Act requires that the Secretary 

publish selected measures applicable 

with respect to FY 2014 no later than 

October 1, 2012. 

In the FY 2014 Hospice Wage Index 

and Payment Rate Update final rule (78 

FR 48234), and in compliance with 

section 1814(i)(5)(C) of the Act, we 

finalized the specific collection of data 

items that support the seven NQFendorsed hospice measures described in 

Table 6. In addition, we finalized the 

Hospice Visits When Death is Imminent 

measure pair (HVWDII, Measure 1 and 

Measure 2) in the FY 2017 Hospice 

Wage Index and Payment Rate Update 

final rule, effective April 1, 2017. We 

refer the public to the FY 2017 Hospice 

Wage Index and Payment Rate Update 

final rule (81 FR 52144) for a detailed 

discussion. 

The CAHPS Hospice Survey is a 

component of the CMS HQRP, which is 

used to collect data on the experiences 

of hospice patients and their family 

caregivers listed in their hospice 

records. Readers who want more 

information about the development of 

the survey, originally called the Hospice 

Experience of Care Survey, may refer to 

79 FR 50452 and 78 FR 48261. National 

implementation of the CAHPS Hospice 

Survey commenced January 1, 2015, as 

stated in the FY 2015 Hospice Wage 

Index and Payment Rate Update final 

rule (79 FR 50452). 

The CAHPS Hospice Survey measures 

received NQF endorsement on October 

26, 2016 and was re-endorsed November 

20, 2020 (NQF #2651). NQF endorsed 

six composite measures and two overall 

measures from the CAHPS Hospice 

Survey. Along with nine HIS-based 

quality measures, the CAHPS Hospice 

Survey measures are publicly reported 

on a designated CMS website that is 

currently Care Compare. Beginning no 

earlier than May 2022, the Hospice 

Visits in Last Days of Life measure and 

the Hospice Care Index will also be 

publicly reported on the CMS website. 

Table 6 lists all quality measures 

planned for FY 2022 for HQRP. 


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The Hospice and Palliative Care 

Composite Process Measure—HISComprehensive Assessment at 

Admission measure (hereafter referred 

to as ‘‘the HIS Comprehensive 

Assessment Measure’’) underwent an 

off-cycle review by the NQF Palliative 

and End-of-Life Standing Committee 

and successfully received NQF 

endorsement in July 2017 (NQF 3235). 

The HIS Comprehensive Assessment 

Measure captures whether multiple key 

care processes were delivered upon 

patients’ admissions to hospice in one 

measure as described in the Table 6. 

NQF 3235 does not require NQF’s 

endorsements of the previous 

components to remain valid. Thus, if 

the components included in NQF 3235 

do not individually maintain 

endorsement, the endorsement status of 

NQF 3235, as a single measure, will not 

change. 

In the FY 2016 Hospice Wage Index 

and Rate Update final rule (80 FR 

47142), we finalized the policy for 

retention of HQRP measures adopted for 

previous payment determinations and 

seven factors for measure removal. In 

that same final rule, we discussed that 

we will issue public notice, through 

rulemaking, of measures under 

consideration for removal, suspension, 

or replacement. However, if there is 

reason to believe continued collection of 

a measure raises potential safety 

concerns, we will take immediate action 

to remove the measure from the HQRP 

and will not wait for the annual 


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TABLE 6: Quality Measures planned for FY 2022 for the Hospice Quality Reporting 

p ro2ram 

Hospice Item Set 

NQF# Short name 

3235 Hospice and Palliative Care Composite Process Measure-HIS-Comprehensive 

Assessment Measure at Admission includes: 

1. Patients Treated with an Opioid who are Given a Bowel Regimen (NQF #1617) 

2. Pain Screening (NQF#1634) 

3. Pain Assessment (NQF #1637) 

4. Dyspnea Treatment (NQF #1638) 

5. Dyspnea Screening (NQF# 1639) 

6. Treatment Preferences (NQF #1641) 

7. BeliefsNalues Addressed (if desired by the patient) (NQF# 1647) 

Claims-based Measures 

Not aoolicable Hospice Visits in Last Days of Life (HVLDL) 

Not applicable Hospice Care Index (HCI) 

1. Continuous Home Care (CHC) or General Inpatient (GIP) Provided 

2. Gaps in Skilled Nursing Visits 

3. Early Live Discharges 

4. Late Live Discharges 

5. Burdensome Transitions (Type 1) - Live Discharges from Hospice Followed by 

Hospitalization and Subsequent Hospice Readmission 

6. Burdensome Transitions (Type 2) - Live Discharges from Hospice Followed by 

Hospitalization with the Patient Dying in the Hospital 

7. Per-beneficiary Medicare Spending 

8. Skilled Nursing Care Minutes per Routine Home Care (RHC) Day 

9. Skilled Nursing Minutes on Weekends 

10. Visits Near Death 

CAHPS Hospice Survey 

2651 CARPS Hospice Survey - single measure 

• Communication with Family 

• Getting timely help 

• Treating patient with respect 

• Emotional and spiritual support 

• Help for pain and symptoms 

• Training family to care for the patient 

• Rating of this hospice 

• Willing to recommend this hosoice 
42554 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

rulemaking cycle. Such measures will 

be promptly removed and we will 

immediately notify hospices and the 

public of our decision through the usual 

HQRP communication channels, 

including but not limited to listening 

sessions, email notification, Open Door 

Forums, HQRP Forums, and Web 

postings. In such instances, the removal 

of a measure will be formally 

announced in the next annual 

rulemaking cycle. 

In the FY 2019 Hospice Wage Index 

and Rate Update final rule (83 FR 

38622), we also adopted an eighth factor 

for removal of a measure. This factor 

aims to promote improved health 

outcomes for beneficiaries while 

minimizing the overall costs associated 

with the program. These costs are 

multifaceted and include the burden 

associated with complying with the 

program. The finalized reasons for 

removing quality measures are: 

1. Measure performance among 

hospices is so high and unvarying that 

meaningful distinctions in 

improvements in performance can no 

longer be made; 

2. Performance or improvement on a 

measure does not result in better patient 

outcomes; 

3. A measure does not align with 

current clinical guidelines or practice; 

4. A more broadly applicable measure 

(across settings, populations, or 

conditions) for the particular topic is 

available; 

5. A measure that is more proximal in 

time to desired patient outcomes for the 

particular topic is available; 

6. A measure that is more strongly 

associated with desired patient 

outcomes for the particular topic is 

available; 

7. Collection or public reporting of a 

measure leads to negative unintended 

consequences; or 

8. The costs associated with a 

measure outweighs the benefit of its 

continued use in the program. 

On August 31, 2020, we added 

correcting language to the FY 2016 

Hospice Wage Index and Payment Rate 

Update and Hospice Quality Reporting 

Requirements; Correcting Amendment 

(85 FR 53679) hereafter referred to as 

the FY 2021 HQRP Correcting 

Amendment. In this final rule, we made 

correcting amendments to 42 CFR 

418.312 to correct technical errors 

identified in the FY 2016 Hospice Wage 

Index and Payment Rate Update final 

rule. Specifically, the FY 2021 HQRP 

Correcting Amendment (85 FR 53679) 

adds paragraph (i) to § 418.312 to reflect 

our exemptions and extensions 

requirements, which were referenced in 

the preamble but inadvertently omitted 

from the regulations text. Thus, these 

exemptions or extensions can occur 

when a hospice encounters certain 

extraordinary circumstances. 

As stated in the FY 2019 Hospice 

Wage Index and Rate Update final rule 

(83 FR 38622), we launched the 

Meaningful Measures initiative (which 

identifies high priority areas for quality 

measurement and improvement) to 

improve outcomes for patients, their 

families, and providers while also 

reducing burden on clinicians and 

providers. More information about the 

Meaningful Measures initiative can be 

found at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/Quality

InitiativesGenInfo/MMF/General-infoSub-Page.html. 

In the FY 2020 Hospice Wage Index 

and Payment Rate Update final rule (84 

FR 38484), we discussed our interest in 

developing quality measures using 

claims data, to expand data sources for 

quality measure development. While we 

acknowledged in that rule the 

limitations with using claims data as a 

source for measure development, there 

are several advantages to using claims 

data as part of a robust HQRP as 

discussed previously in the FY 2020 

rule. We also discussed developing the 

Hospice Outcomes & Patient Evaluation 

(HOPE), a new patient assessment 

instrument that is planned to replace 

the HIS. See an update on HOPE 

development in section III.F.6, ‘‘Update 

regarding the Hospice Outcomes & 

Patient Evaluation (HOPE) 

development’’. 

We also discussed our interest in 

outcome quality measure development. 

Unlike process measures, outcome 

measures capture the results of care as 

experienced by patients, which can 

include aspects of a patient’s health 

status and their experiences in the 

health system. The portfolio of quality 

measures in the HQRP will include 

outcome measures that reflect the 

results of care. 

We received comments from various 

stakeholders on the proposals and 

updates including a consumer advocacy 

group, health care providers, hospice 

provider organizations, hospice trade 

groups, including those focused on rural 

providers, consultants, EHR vendors, 

and MedPAC. 

Comment: We received a comment 

that we are making many updates in this 

rule and the resources for them are 

significant, especially during the 

COVID–19 Public Health Emergency 

(PHE). They ask us to consider a more 

gradual transition to new quality 

initiatives, staggered and prioritized. 

Response: We are mindful of the 

burden related to our updates. We 

purposely made no updates or proposals 

in the FY 2021 final rule during the 

COVID–19 PHE. For FY 2022, two of the 

four measures we proposed to add were 

claims-based measures which do not 

increase burden to providers. We also 

proposed to remove multiple measures 

thus leading to a net decrease of total 

measures. Under our proposal, the 

HQRP will go from 10 measures down 

to 4 measures with two of these 

measures being claims-based measures, 

and the two already publicly reported 

measures of the CAHPS Hospice Survey 

and NQF #3235, the HISComprehensive Assessment Measure. 

The public reporting has been 

thoughtfully considered as discussed in 

this rule so that providers can access 

their data earlier and prepare for public 

reporting in FY 2022, no sooner than 

May 2022. We also consider this work 

in coordination with planned future 

HOPE implementation and ensuring 

that the HQRP now covers the entire 

hospice stay with these 4 measures 

rather than just admission and 

discharge. 

2. Removal of the Seven ‘‘Hospice Item 

Set Process Measures’’ From HQRP 

Beginning FY 2022 

In the FY 2014 Hospice Wage Index 

and Payment Rate Update final rule (78 

FR 48234), and in compliance with 

section 1814(i)(5)(C) of the Act, we 

finalized the specific collection of 

standardized data items, known as the 

HIS, that support the following NQFendorsed measures: 

• NQF #1617 Patients Treated with an 

Opioid who are Given a Bowel 

Regimen 

• NQF #1634 Pain Screening 

• NQF #1637 Pain Assessment 

• NQF #1638 Dyspnea Treatment 

• NQF #1639 Dyspnea Screening 

• NQF #1641 Treatment Preferences 

• NQF #1647 Beliefs/Values Addressed 

(if desired by the patient) 

These measures were adopted to 

increase public awareness of key 

components of hospice care, such as 

pain and symptom management and 

non-clinical care needs. Consistent with 

our policy for measure retention and 

removal, finalized in the FY 2016 

Hospice Wage Index and Rate Update 

final rule (80 FR 47142), we reviewed 

these measures against the factors for 

removal. Our analysis found that they 

meet factor 4: ‘‘a more broadly 

applicable measure (across settings, 

populations, or conditions) for the 

particular topic is available.’’ We 

determined that the HIS Comprehensive 


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8The National Consensus Project Guidelines 

expand on the eight domains of palliative care in 

the 3rd edition and include clinical and 

organizational strategies, screening and assessment 

elements, practice examples, tools and resources. 

The guidelines were developed by the National 

Consensus Project for Quality Palliative Care, 

comprising 16 national organizations with 

extensive expertise in and experience with 

palliative care and hospice, and were published by 

the National Coalition for Hospice and Palliative 

Care. Journal of Hospice & Palliative Nursing: 

December 2018—Volume 20—Issue 6—p 507. 

9MedPAC. (2020). Chapter 12: Hospice Services. 

http://medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf. 

Assessment Measure, discussed in 

detail in the FY 2017 Hospice Wage 

Index and Payment Rate Update final 

rule (81 FR 52144), is a more broadly 

applicable measure and continues to 

provide, in a single measure, 

meaningful differences between 

hospices regarding overall quality in 

addressing the physical, psychosocial, 

and spiritual factors of hospice care 

upon admission. 

The HIS Comprehensive Assessment 

Measure’s ‘‘all or none’’ criterion 

requires hospices to perform all seven 

care processes in order to receive credit. 

In this way, it is different from an 

average-based composite measure and 

sets a higher bar for performance. This 

single measure differentiates hospices 

and holds them accountable for 

completing all seven process measures 

to ensure core services of the hospice 

comprehensive assessment are 

completed for all hospice patients. 

Therefore, the HIS Comprehensive 

Assessment Measure continues to 

encourage hospices to improve and 

maintain high performance in all seven 

processes simultaneously, rather than 

rely on its component measures to 

demonstrate quality hospice care in a 

way that may be hard to interpret for 

consumers. The individual measures 

show performance for only one process 

and do not demonstrate whether the 

hospice provides high-quality care 

overall, as an organization. For example, 

a hospice may perform extremely well 

assessing treatment preferences, but 

poorly on addressing pain. High-quality 

hospice care not only manages pain and 

symptoms of the terminal illness, but 

assesses non-clinical needs of the 

patient and family caregivers, which is 

a hallmark of patient-centered care. 

Since the HIS Comprehensive 

Assessment Measure captures all seven 

processes collectively, we believe that 

public display of the individual 

component measures is not necessary. 

The interdisciplinary, holistic scope 

of the HIS Comprehensive Assessment 

Measure aligns with the public’s 

expectations for hospice care. In 

addition, the measure supports 

alignment across our programs and with 

other public and private initiatives. The 

seven individual components address 

care processes around hospice 

admission that are clinically 

recommended or required in the 

hospice CoPs. The Medicare Hospice 

CoPs require that hospice 

comprehensive assessments identify 

patients’ physical, psychosocial, 

emotional, and spiritual needs and 

address them to promote the hospice 

patient’s comfort throughout the end-oflife process. Furthermore, the personcentered, family, and caregiver 

perspective align with the domains 

identified by the CoPs and the National 

Consensus Project 8 as patients and their 

family caregivers also place value on 

physical symptom management and 

spiritual/psychosocial care as important 

factors at the end-of-life. The HIS 

Comprehensive Assessment Measure is 

a composite measure that serves to 

ensure all hospice patients receive a 

comprehensive assessment for both 

physical and psychosocial needs at 

admission. 

In addition, MedPAC’s Report to 

Congress: Medicare Payment Policy 9 in 

recent years noted that the HIS 

Comprehensive Assessment Measure 

differentiates the hospice’s overall 

ability to address care processes better 

than the seven individual HIS process 

measures. In this way, it provides 

consumers viewing data on Care 

Compare with a streamlined way to 

assess the extent to which a hospice 

follows care processes. In this final rule, 

we are not making any revisions to the 

HIS Comprehensive Assessment 

Measure because the single measure 

continues to show sufficient variability 

and therefore provides value to patients, 

their families, and providers. 

Because the HIS Comprehensive 

Assessment Measure is a more broadly 

applicable measure, we are finalizing 

our proposal to remove the seven 

individual HIS process measures from 

the HQRP, no longer publicly reporting 

them as individual measures on Care 

Compare beginning with FY 2022. In 

addition, we proposed and finalize in 

this rule to remove the ‘‘7 measures that 

make up the HIS Comprehensive 

Assessment Measure’’ section of Care 

Compare, which displays the seven HIS 

measures. We proposed and are 

finalizing these changes to remove the 

seven HIS process measures as 

individual measures from HQRP no 

earlier than May 2022. 

Although we would remove the seven 

individual HIS process measures, it 

does not change the requirement to 

submit the HIS admission assessment. 

Since the HIS Comprehensive 

Assessment Measure is a composite of 

the seven HIS process measures, the 

burden and requirement to report the 

HIS data remain unchanged in the time, 

manner, and form finalized in the FY 

2017 Hospice Wage Index and Rate 

Update final rule (81 FR 52144). 

Hospices which do not report HIS data 

used for the HIS Comprehensive 

Assessment Measure will not meet the 

requirements for compliance with the 

HQRP. 

We solicited public comment on the 

proposal to remove the seven HIS 

process quality measures as individual 

measures from the HQRP no earlier than 

May 2022, and to continue including 

the seven HIS process measures in the 

confidential quality measure (QM) 

Reports which are available to hospices. 

The seven HIS process measures are 

also available by visiting the data 

catalogue at https://data.cms.gov/ 

provider-data/topics/hospice-care. We 

sought public comment on the technical 

correction to the regulation at 

§ 418.312(b) effective October 1, 2021. 

We received several comments on the 

proposal to remove the seven ‘‘Hospice 

Item Set process measures’’ from the 

HQRP beginning FY 2022. A summary 

of the comments and our responses to 

those comments appears below: 

Comment: The majority of 

commenters supported the removal of 

the seven HIS process measures. Several 

commenters opposed removing the 

seven HIS process measures, at least 

prior to implementation of HOPE. These 

commenters believed that the existing 

process measures provide more valuable 

and transparent information about 

hospice performance than the HIS 

Comprehensive Assessment composite 

measure. Finally, some commenters 

recommended both removing the seven 

individual HIS process measures and 

retiring the HIS Comprehensive 

Assessment measure. These commenters 

suggested that retiring the composite 

measure would reduce provider burden. 

Response: We appreciate the support 

for this proposal. In response to the 

concerns raised by those opposing the 

removal of seven HIS process measures, 

we would like to emphasize that all but 

one of the seven HIS measures are 

topped out individually and one HIS 

measure is almost topped out and shows 

insignificant variability between 

hospices. The 7 HIS measures credited 

hospices when any of these measures 

were performed regardless of the 

individual patient. In contrast, the HIS 

Comprehensive Assessment Measure 

measures whether a hospice assesses 

each patient on the 7 HIS measures. 

This distinction is important since it 

explains why the individual HIS 


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10MedPAC. (2020). Chapter 11: Hospice Services. 

http://www.medpac.gov/docs/default-source/ 

reports/mar21_medpac_report_to_the_congress_

sec.pdf?sfvrsn=0. 

11 2019: Vulnerabilities in Hospice Care (Office of 

the Inspector General). 12Report to Congress: Medicare Payment Policy 

(March 2019) MEDPAC. 13 2019: Vulnerabilities in Hospice Care (Office of 

the Inspector General). 

measures can be topped out but when 

measured together as a group, or 

composite, that is required on each 

patient in order to get credit for the 

measure, the HIS Comprehensive 

Assessment Measure shows variability 

and meets public reporting standards. 

This distinction explains why most 

hospices receive the maximum possible 

score on each of the 7 HIS measures, but 

not on the HIS Comprehensive 

Assessment Measure. As such, the 

individual measures have a limited 

ability to differentiate hospices. In 

contrast, the HIS Comprehensive 

Assessment Measure shows that 

hospices need to improve on providing 

a comprehensive set of assessments on 

each patient at admission and supports 

why it continues to be a useful HQRP 

measure. 

While we consider it a success that 

hospices are assessing the care 

processes included in the 7 HIS 

measures, hospices have improved since 

2014 to the point that these 7 individual 

HIS measures no longer differentiate 

quality of care between hospices and 

need to be retired as individual quality 

measures and thereby removed from the 

HQRP. Now that we reached that 

milestone, we need to recognize that 

there is a need to focus on assessing the 

7 HIS measures to each patient at 

admission, which is what the HIS 

Comprehensive Assessment Measure 

addresses. It more closely aligns with 

the intent of the Hospice CoPs at Title 

42 Part 418.54 that require a 

comprehensive assessment on each 

patient. This is why the HIS 

Comprehensive Assessment Measure 

provides valuable and transparent 

information about hospice performance. 

Patients electing to receive hospice 

services should expect quality care and 

a comprehensive assessment of their 

needs at admission, which the HIS 

Comprehensive Assessment Measure 

reflects. While the transition from the 

HIS to HOPE will eventually enable the 

HQRP to be more robust, we should not 

wait to seek improvement on this 

composite measure as an indicator of 

quality. This supports why we must 

remove the 7 HIS measures now in favor 

of the one more meaningful measure. 

Finally, we support minimizing 

provider burden while maintaining 

quality measures that provide valuable 

information to providers and consumers 

about hospice quality. The variability 

shown in the HIS Comprehensive 

Assessment measure continues to 

provide useful information that allows 

patients and families to differentiate 

hospices and help select the best 

providers for their care. 

Comment: MedPAC recommended 

that CMS consider removing the HIS 

Comprehensive Assessment Measure 

because the scores suggest the 

composite measure is limited in 

distinguishing provider quality. The 

comment suggested that the HIS 

Comprehensive Assessment measure 

would be likely to top out due to high 

scoring trends among hospices. 

Response: We appreciate MedPAC 

raising this concern. We recognize that 

the HIS Comprehensive Assessment 

Measure reflects high scores and is 

improving over time, which may cause 

the measure to also become topped out 

in the future.10 However, we believe 

that the single measure currently 

continues to show sufficient variability 

to differentiate hospices and therefore 

provides value to patients, their 

families, and providers. Further, the HIS 

Comprehensive Assessment Measure 

reflects the Hospice CoPs for 

comprehensive assessments performed 

at admission, which is a critical time to 

determine the plan of care. Its removal 

would not only leave HQRP without 

this important admission quality of care 

measure but also result in HQRP having 

only two claims-based measures, HCI 

and HVLDL, and the CAHPS Hospice 

Survey. It is these four quality measures, 

the HIS Comprehensive Assessment 

Measure, HCI, HVLDL, and CAHPS 

Hospice Survey that make up the FY 

2022 HQRP requirements. These four 

measures cover hospice care throughout 

the hospice stay. The HIS 

Comprehensive Assessment Measure 

covers care at admission. HCI covers 

care throughout the hospice stay. 

HVLDL covers care during discharge 

and the CAHPS Hospice Survey covers 

the caregiver experience of hospice care. 

They complement each other and 

further support the need for each 

measure in the HQRP. We will continue 

to monitor the HIS Comprehensive 

Assessment Measure performance and 

consider if removal or refinements 

would be appropriate in the future. 

Final Decision: In this final rule, we 

are not making any revisions to the HIS 

Comprehensive Assessment Measure. 

We are finalizing our proposal to 

remove the seven individual HIS 

process measures from the HQRP, no 

longer publicly reporting them as 

individual measures on Care Compare 

beginning with FY 2022. In addition, we 

will remove the ‘‘7 measures that make 

up the HIS Comprehensive Assessment 

Measure’’ section of Care Compare, 

which displays the seven HIS measures. 

These will be effective no earlier than 

May 2022. Hospice providers, must 

report HIS data used for the HIS 

Comprehensive Assessment Measure, in 

order to meet the requirements for 

compliance with the HQRP. 

3. Addition of a ‘‘Claims-Based Index 

Measure’’, the Hospice Care Index 

We proposed the addition of a new 

hospice quality measure, called the 

Hospice Care Index (HCI), to HQRP. The 

HCI will provide more information to 

better reflect several processes of care 

during a hospice stay, and better 

empower patients and family caregivers 

to make informed health care decisions. 

The HCI is a single measure comprising 

ten indicators calculated from Medicare 

claims data. The index design of the HCI 

simultaneously monitors all ten 

indicators. Collectively these indicators 

represent different aspects of hospice 

service and thereby characterize 

hospices comprehensively, rather than 

on just a single care dimension. 

Therefore, the HCI composite yields a 

more reliable provider ranking. 

The HCI indicators, through the 

composite, will add new information to 

HQRP that was either directly 

recommended for CMS to publicly 

report by Federal stakeholders 11 12 or 

identified as areas for improvement 

during information gathering activities. 

Furthermore, each indicator represents 

either a domain of hospice care 

recommended by leading hospice and 

quality experts 13 for CMS to publicly 

report, or a requirement included in the 

hospice CoPs. The indicators required to 

calculate the single composite are 

discussed in the ‘‘Specifications for the 

HCI Indicators Selected’’ section. These 

specifications list all the information 

required to calculate each indicator, 

including the numerator and 

denominator definitions, different 

thresholds for receiving credit toward 

the overall HCI score, and explanations 

for those thresholds. Indicators reflect 

practices or outcomes hospices should 

pursue, thereby awarding points based 

on the criterion. The HCI scoring 

example in Table 8 illustrates how 

points are awarded based on meeting 

the criterion of the indicator. For 

example, Gaps in Skilled Nursing Visits 

have a criterion of ‘‘lower than the 90th 

percentile,’’ and supports the hospice 

CoPs that require an assessment of the 

patient and caregiver needs as well as 


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implementation of the plans of care. 

Other indicators, such as nurse visits 

(RN and LPN) on weekends or near 

death, have a criterion of ‘‘higher than 

the 10th percentile,’’ identifying hospice 

care delivery during the most vulnerable 

periods during a hospice stay. 

Each indicator equally affects the 

single HCI score, reflecting the equal 

importance of each aspect of care 

delivered from admission to discharge. 

A hospice is awarded a point for 

meeting each criterion for each of the 10 

indicators. The sum of the points earned 

from meeting the criterion of each 

indictor results in the hospice’s HCI 

score, with 10 as the highest possible 

score. The ten indicators, aggregated 

into a single HCI score, convey a broad 

overview of the quality of the provision 

of hospice care services and validates 

well with CAHPS Willingness to 

Recommend and Rating of this Hospice. 

Skilled nursing visit data for indicators 

2, 8, and 9 (described below) uses 

revenue center code 055X, which 

includes both RN and LPN visits for 

consistency with other indications for 

HCI. 

The HCI will help to identify whether 

hospices have aggregate performance 

trends that indicate higher or lower 

quality of care relative to other hospices. 

Together with other measures already 

publicly reported in the HQRP, HCI 

scores will help patients and family 

caregivers choose between hospice 

providers based on the factors that 

matter most to them. Additionally, 

creating a comprehensive quality 

measure capturing a variety of related 

care processes and outcomes in a single 

metric will provide consumers and 

providers an efficient way to assess the 

overall quality of hospice care, which 

can be used to meaningfully and easily 

compare hospice providers to make a 

better-informed health care decision. 

The HCI will complement the existing 

HIS Comprehensive Measure and does 

not replace any existing reported 

measures. Both the HCI and the HIS 

Comprehensive Measure are composite 

measures in that they act as single 

measures that capture multiple areas of 

hospice care. Because the indicators 

comprising the HCI differ in data source 

from the HIS Comprehensive Measure, 

the HCI and the HIS Comprehensive 

Measure can together provide a 

meaningful and efficient way to inform 

patients and family caregivers while 

supporting their selection of hospice 

care providers. As a claims-based 

measure, the HCI measure will not 

impose any requirements for collection 

of new information. To learn more about 

the background of the HCI, please watch 

this video: https://youtu.be/ 

by68E9E2cZc. 

a. Measure Importance 

The FY 2019 Hospice Wage Index and 

Payment Rate Update final rule (83 FR 

38622) introduced the Meaningful 

Measure Initiative to hospice providers 

to identify high priority areas for quality 

measurement and improvement. The 

Meaningful Measure Initiative areas are 

intended to increase measure alignment 

across programs and other public and 

private initiatives. Additionally, the 

initiative points to high priority areas 

where there may be informational gaps 

in available quality measures. The 

initiative helps guide our efforts to 

develop and implement quality 

measures to fill those gaps and develop 

those concepts towards quality 

measures that meet the standards for 

public reporting. The goal of HQRP 

quality measure development is to 

identify measures from a variety of data 

sources that provide a window into 

hospice care services throughout the 

dying process, fit well with the hospice 

business model, and meet the objectives 

of the Meaningful Measures initiative. 

To that end, the HCI will add value 

to the HQRP by filling informational 

gaps in aspects of hospice service not 

addressed by the current measure set. 

Consistent with the Meaningful Measure 

Initiative, we conducted a number of 

information gathering activities to 

identify informational gaps. Our 

information gathering activities 

included soliciting feedback from 

hospice stakeholders such as providers 

and family caregivers; seeking input 

from hospice and quality experts 

through a Technical Expert Panel (TEP); 

interviews with hospice quality experts; 

considering public comments received 

in response to previous solicitations on 

claims-based hospice quality initiatives; 

and a review of quality measurement 

recommendations offered by the HHS 

Office of Inspector General (OIG), 

MedPAC, and the peer-reviewed 

literature. 

We found that hospices currently 

underutilize HQRP measures to inform 

their quality improvement, mainly 

because of gaps in relevant quality 

information within the HQRP measure 

set. In particular, the existing HQRP 

measure set, calculated using data 

collected from the HIS and the CAHPS 

Hospice survey, does not assess quality 

of hospice care during a hospice 

election (between admission and 

discharge). Moreover, the current 

measure set does not directly address 

the full range of hospice services or 

outcomes. Therefore, we have identified 

a need for a new quality measure to 

address this gap and reflect care 

delivery processes during the hospice 

stay using available data without 

increasing data collection burden. 

Claims data are the best available data 

source for measuring care during the 

hospice stay and present an opportunity 

to bridge the quality measurement gap 

that currently exists between the HIS 

and CAHPS Hospice Survey. Medicare 

claims are administrative records of 

health care services provided and 

payments which Medicare (and 

beneficiaries as applicable) made for 

those services. Claims are a rich and 

comprehensive source of many care 

processes and aspects of health care 

utilization. As such, they are a valuable 

source of information that can be used 

to measure the quality of care provided 

to beneficiaries for several reasons: 

• Claims data are readily available 

and eliminates provider burden for 

implementation, as opposed to data 

collection through patient assessments 

or surveys, which require additional 

effort from clinicians, patients, and 

family caregivers before they can be 

submitted and used by CMS. 

• Claims data are collected based on 

the actual care delivered, providing a 

more direct reflection of care delivery 

decisions and actions than patient 

assessments or surveys. 

• Claims data are considered a 

reliable source of standardized data 

about the services provided, because 

providers must comply with Medicare 

payment and claims processing policy. 

CMS already publicly reports several 

pieces of information derived from 

hospice claims data in the HQRP on 

Care Compare, including (i) the levels of 

care provided by the hospice, (ii) the 

primary diagnoses of patients served by 

the hospice, (iii) the location of hospice 

service provided, and (iv) the hospice’s 

average daily census. 

In the FY2018 Hospice Wage Index & 

Payment Rate proposed rule (82 FR 

20750), we solicited public comment on 

two high-priority claims-based measure 

concepts being considered at the time, 

one which looked at transitions from 

hospice and another which examined 

access to higher levels of hospice care. 

In response to this solicitation, CMS 

received public comments highlighting 

the potential limitations of a single 

concept claims-based measure. In 

particular, a single-concept claimsbased measure may not adequately 

account for all relevant circumstances 

that might influence a hospice’s 

performance. While external 

circumstances could justify a hospice’s 

poor performance on a single claimsbased indicator, it would be unlikely for 

external circumstances to impact 


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14We count discharges as any claim with a 

discharge status code other than ‘‘30’’ (which is 

defined as ‘‘Still Patient’’). 

15Another exclusion was made prior to reporting 

the numbers in Table B.1. We exclude all claims for 

a beneficiary if a beneficiary ever had two 

overlapping hospice days on separate claims. For 

FY 2019 this removes 5,212,319 hospice days that 

come from 218,420 claims and 33,009 beneficiaries. 

16See Special coverage requirements, Title 42, 

Chapter IV, Subchapter B, Part 418, § 418.204. 

https://www.ecfr.gov/cgi-bin/textidx?rgn=div5;node=42%3A3.0.1.1.5#se42.3.418_

1204. 

17See Payment procedures for hospice care, Title 

42, Chapter IV, Subchapter B, Part 418, § 418.302. 

https://www.ecfr.gov/cgi-bin/textidx?rgn=div5;node=42%3A3.0.1.1.5#se42.3.418_

1302. 

18Office of Inspector General. (2013). Medicare 

Hospice: Use of General lnpatient Care. https://

oig.hhs.gov/oei/reports/oei-02-10-00490.pdf. 

multiple claims-based indicators 

considered simultaneously. Therefore, 

the result of a multi-indicator claimsbased index, such as HCI, is more likely 

to differentiate hospices than a single 

claims-based indicator. Taking this 

public feedback into consideration, we 

designed the HCI and developed 

specifications based on simulated 

reporting periods. 

b. Specifications for the HCI Indicators 

Selected 

Specifications for the ten indicators 

required to calculate the single HCI 

score are described in this section. 

These component indicators reflect 

various elements and outcomes of care 

provided between admission and 

discharge. The HCI uses information 

from all ten indicators to collectively 

represent a hospice’s ability to address 

patients’ needs, best practices hospices 

should observe, and/or care outcomes 

that matter to consumers. Each indicator 

is a key component of the HCI measure 

that we proposed, and all ten are 

necessary to derive the HCI score. We 

use analytics, based on a variety of data 

files, to specify the indicators and 

measure. These data files include: 

• Medicare fee-for-service (FFS) 

hospice claims with through dates on 

and between October 1, 2016 and 

September 30, 2019 to determine 

information such as hospice days by 

level of care, provision of visits, live 

discharges, hospice payments, and dates 

of hospice election. 

• Medicare fee-for-service inpatient 

claims with through dates on and 

between January 1, 2016 and December 

31, 2019 to determine dates of 

hospitalization. 

• Medicare beneficiary summary file 

to determine dates of death. 

• Provider of Services (POS) File to 

examine trends in the scores of the HCI 

and its indicators, including by decade 

by which the hospice was certified for 

Medicare, ownership status, facility 

type, census regions, and urban/rural 

status. 

• CAHPS Hospice Survey to examine 

alignment between the survey outcomes 

and the HCI. 

We acquired all claims data from the 

Chronic Conditions Warehouse (CCW) 

Virtual Research Data Center (VRDC). 

We obtained the hospice claims and the 

Medicare beneficiary summary file in 

May 2020, and the inpatient data in 

August 2020. We obtained the POS file 

data via: https://www.cms.gov/ 

Research-Statistics-Data-and-Systems/ 

Downloadable-Public-Use-Files/ 

Provider-of-Services. We obtained the 

Hospice-aggregate CAHPS Hospice 

Survey outcome data via: https://

data.cms.gov/provider-data. We 

performed analyses using Stata/MP 

Version 16.1. 

Table 7 indicates the number of 

hospice days, hospice claims, 

beneficiaries enrolled in hospices and 

hospices with at least one claim 

represented in each year of our analysis. 

Analysis for each year was based on the 

FY calendar. For example, FY 2019 

covers claims with dates of services on 

or between October 1, 2018 and 

September 30, 2019. For these analyses, 

we exclude claims from hospices with 

19 or fewer discharges 14 within a FY. 

The table reports the sample size before 

and after exclusion.15

The rest of this section presents the 

component indicators and their 

specifications. Although we describe 

each component indicator separately, 

the HCI is a composite that can only be 

calculated using all 10 indicators 

combined. We believe that, composed of 

this set of ten indicators, the HCI will 

strengthen the HQRP by 

comprehensively, reflecting hospices’ 

performance across all ten indicators. 

(1). Indicator One: Continuous Home 

Care (CHC) or General Inpatient (GIP) 

Provided 

Medicare Hospice Conditions of 

Participation (CoPs) require hospices to 

be able to provide both CHC and GIP 

levels of care, if needed to manage more 

intense symptoms.16 17 However, a 2013 

OIG report 18 found that 953 hospice 

programs did not provide any GIP level 

of care services, and it was unclear if 

dying patients at such hospices were 

receiving appropriate pain control or 

symptoms management (a similar 

concern exists for hospice services at 

the CHC level). To consider the 

provision of adequate services needed to 

manage patients’ symptoms, the HCI 

measure includes an indicator for 

whether hospice programs provided any 

CHC or GIP service days. This indicator 

identifies hospices that provided at least 


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TABLE 7: Sample Size for Analyses by Federal Fiscal Year (FY) 

Excluding claims from hospices Before Exclusion After Before After 

with <20 dischar es Exclusion Exclusion Exclusion 

Number of hospice days 106,406,018 105,750,624 113,762,656 113,085,444 re resented 

Number of claims 4,775,310 4,747,725 5,048,355 5,019,848 

Number of beneficiaries 1,522,290 1,515,186 1,569,350 1,562,003 re resented 

Number of hos resented 4,623 4,004 4,796 4,155 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42559 

19Office of Inspector General. (2019). Hospice 

Deficiencies Pose Risks to Medicare Beneficiaries. 

https://oig.hhs.gov/oei/reports/oei-02-17- 

00020.pdf?utm_source=summary-page&utm_

medium=web&utm_campaign=OEI-02-17-00020- 

PDF. 

20Hospices bill each day of CHC on a separate 

line item on the hospice claim. 

21Teno J.M., Bowman, J., Plotzke, M., Gozalo, 

P.L., Christian, T., Miller, S.C., Williams, C., & Mor, 

V. (2015). Characteristics of hospice programs with 

problematic live discharges. Journal of Pain and 

Symptom Management, 50, 548–552. doi: 10.1016/ 

j.jpainsymman.2015.05.001. 

22MedPAC. (2020). Chapter 12: Hospice Services. 

http://medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf. 

23MedPAC. (2020). Chapter 12: Hospice Services. 

http://medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf. 

one day of hospice care under the CHC 

or the GIP levels of care during the 

period examined. The provision of CHC 

and GIP is identified on hospice claims 

by the presence of revenue center codes 

0652 (CHC) and 0656 (GIP). 

The specifications for Indicator One, 

CHC or GIP services provided, are as 

follows: 

• Numerator: The total number of 

CHC or GIP services days provided by 

the hospice within a reporting period. 

• Denominator: The total number of 

hospice service days provided by the 

hospice at any level of care within a 

reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if they provided at least one CHC or GIP 

service day within a reporting period. 

(2). Indicator Two: Gaps in Skilled 

Nursing Visits 

The OIG has found instances of 

infrequent visits by nurses to hospice 

patients.19 To assess patients’ receipt of 

nurse visits as outlined in the plan of 

care, one HCI indicator examines 

hospices that have a high rate of 

patients who are not seen at least once 

a week by nursing staff. This indicator 

includes both RN and LPN visits to 

recognize the frequency of skilled 

nursing visits and to maintain 

consistency in HCI when using revenue 

center code 055X. 

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of how often hospice stays of at 

least 30 days contain at least one gap of 

eight or more days without a nursing 

visit. Days of hospice service are 

identified based on the presence of 

revenue center codes 0651 (routine 

home care (RHC)), 0652 (CHC), 0655 

(inpatient respite care (IRC)), and 0656 

(GIP) on hospice claims. We identify the 

dates billed for RHC, IRC, and GIP by 

examining the corresponding revenue 

center date (which identifies the first 

day in the sequence of days by level of 

care) and the revenue center units 

(which identify the number of days 

(including the first day) in the sequence 

of days by level of care). We identify the 

dates billed for CHC by examining the 

revenue center date.20 We define a 

hospice stay by a sequence of 

consecutive days for a particular 

beneficiary that are billed under the 

hospice benefit. A gap of at least 1 day 

without hospice ends the sequence. For 

this indicator, we identified hospice 

stays that included 30 or more 

consecutive days of hospice. Once we 

identified those hospice stays, we 

examined the timing of the provision of 

nursing visits within those stays. We 

identified nursing visits if we observed 

any of the following criteria: 

• The presence of revenue center 

code 055x (Skilled Nursing) on the 

hospice claim. The date of the visit is 

recorded in the corresponding revenue 

center date. 

• The presence of revenue code 0652 

(CHC) on the hospice claim. Days billed 

as CHC require more than half the hours 

provided be nursing hours. 

• The presence of revenue code 0656 

(GIP) on the hospice claim. We assume 

that days billed as GIP will include 

nursing visits. We make that assumption 

instead of looking at the visits directly 

because Medicare does not require 

hospices to record all visits on the claim 

for the GIP level of care. 

If within a hospice stay, we find eight 

or more consecutive days where no 

nursing visits are provided, no CHC is 

provided, and no GIP is provided, then 

we identify the hospice stay as having 

a gap in nursing visits greater than 7 

days. This indicator helps the HCI to 

capture patients’ receipt of skilled 

nursing visits and direct patient care, 

which is an important aspect of hospice 

care. For each hospice, we divide the 

number of stays with at least one gap of 

eight or more days without a nursing 

visit (for stays of 30 or more days) by the 

number of stays of 30 or more days. We 

only consider the days within the 

period being examined. 

The specifications for Indicator Two, 

Gaps in Skilled Nursing Visits, are as 

follows: 

• Numerator: The number of elections 

with the hospice where the patient 

experienced at least one gap between 

nursing visits exceeding 7 days, 

excluding hospice elections where the 

patient elected hospice for less than 30 

days within a reporting period. 

• Denominator: The total number of 

elections with the hospice, excluding 

hospice elections where the patient 

elected hospice for less than 30 days 

within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for gaps 

in skilled nursing visits greater than 7 

days falls below the 90th percentile 

ranking among hospices nationally. 

(3). Indicator Three: Early Live 

Discharges 

Prior work has identified various 

concerning patterns of live discharge 

from hospice. High rates of live 

discharge suggest concerns in hospices’ 

care processes, their advance care 

planning to prevent hospitalizations, or 

their discharge processes.21 As MedPAC 

noted,22 ‘‘Hospice providers are 

expected to have some rate of live 

discharges because some patients 

change their mind about using the 

hospice benefit and dis-enroll from 

hospice or their condition improves and 

they no longer meet the hospice 

eligibility criteria. However, providers 

with substantially higher percent of live 

discharge than their peers could signal 

a potential concern with quality of care 

or program integrity. An unusually high 

rate of live discharges could indicate 

that a hospice provider is not meeting 

the needs of patients and families or is 

admitting patients who do not meet the 

eligibility criteria.’’ 

Our live discharge indicators 

included in the HCI, like MedPAC’s, 

comprise discharges for all reasons. 

They include instances where the 

patient was no longer found terminally 

ill and revocations due to the patient’s 

choice. MedPAC explains their rationale 

for including all discharge as follows: 23

‘‘Some stakeholders argue that live 

discharges initiated by the beneficiary— 

such as when the beneficiary revokes 

his or her hospice enrollment—should 

not be included in a live-discharge 

measure because, some stakeholders 

assert, these discharges reflect 

beneficiary preferences and are not in 

the hospice’s control. Because 

beneficiaries may choose to revoke 

hospice for a variety of reasons, which 

in some cases are related to the hospice 

provider’s business practices or quality 

of care, we include revocations in our 

analysis.’’ 

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of the percentage of live 

discharges that occur within 7 days of 

hospice admission during the fiscal year 

examined. Live discharges occur when 

the patient discharge status code on a 

hospice claim does not equal a code 

from the following list: ‘‘30’’, ‘‘40’’, 

‘‘41’’, ‘‘42’’, ‘‘50’’, ‘‘51’’. We measure 

whether a live discharge occurs during 

the first 7 days of hospice by looking at 

a patient’s lifetime length of stay in 


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24That is, we are measuring the first seven days 

of hospice over a patient’s lifetime and potentially 

across multiple hospice elections and fiscal years. 

25MedPAC. (2020). Chapter 12: Hospice Services. 

http://medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf. 

26For example, see: Teno J.M., Bowman, J., 

Plotzke, M., Gozalo, P.L., Christian, T., Miller, S.C., 

Williams, C., & Mor, V. (2015). Characteristics of 

hospice programs with problematic live discharges. 

Journal of Pain and Symptom Management, 50, 

548–552. doi: 10.1016/j.jpainsymman.2015.05.001. 

27For example, if the hospice discharge occurred 

on a Sunday, the hospitalization had to occur on 

Sunday, Monday, or Tuesday to be counted. 

28For example, see: Teno J.M., Bowman, J., 

Plotzke, M., Gozalo, P.L., Christian, T., Miller, S.C., 

Williams, C., & Mor, V. (2015). Characteristics of 

hospice programs with problematic live discharges. 

Journal of Pain and Symptom Management, 50, 

548–552. doi: 10.1016/j.jpainsymman.2015.05.001. 

hospice.24 For each hospice, we divide 

the number of live discharges in the first 

7 days of hospice by the number of live 

discharges. Live discharges are assigned 

to a particular reporting period based on 

the date of the live discharge (which 

corresponds to the through date on the 

claim indicating the live discharge). 

The specifications for Indicator Three, 

Early Live Discharges, are as follows: 

• Numerator: The total number of live 

discharges from the hospice occurring 

within the first 7 days of hospice within 

a reporting period. 

• Denominator: The total number of 

all live discharge from the hospice 

within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual percentage of live 

discharges on or before the seventh day 

of hospice falls below the 90th 

percentile ranking among hospices 

nationally. 

(4). Indicator Four: Late Live Discharges 

The rate of live discharge that 

occurred 180 days or more after hospice 

enrollment identifies another 

potentially concerning pattern of live 

discharge from hospice. Both indicator 

three and indicator four of the HCI 

recognize concerning patterns of live 

discharge impacting patient experience 

and quality of care. MedPAC, in 

descriptive analyses of hospices 

exceeding the Medicare annual payment 

cap, noted that ‘‘if some hospices have 

rates of discharging patients alive that 

are substantially higher than most other 

hospices it raises concerns that some 

hospices may be pursuing business 

models that seek out patients likely to 

have long stays who may not meet the 

hospice eligibility criteria’’.25 Because 

of quality implications for hospices who 

pursue such business models, the live 

discharge after long hospice enrollments 

was included in the index. 

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of the percentage of live 

discharges that occur on or after the 

180th day of hospice. Live discharges 

occur when the patient discharge status 

code does not equal a value from the 

following list: ‘‘30’’, ‘‘40’’, ‘‘41’’, ‘‘42’’, 

‘‘50’’, ‘‘51’’. We measure whether a live 

discharge occurs on or after the 180th 

day of hospice by looking at a patient’s 

lifetime length of stay in hospice. For 

each hospice, we divide the number of 

live discharges that occur on or after the 

180th day of hospice by the number of 

live discharges. Live discharges are 

assigned to a particular reporting period 

based on the date of the live discharge 

(which corresponds to the through date 

on the claim). 

The specifications for Indicator Four, 

Late Live Discharges, are as follows: 

• Numerator: The total number of live 

discharges from the hospice occurring 

on or after 180 days of enrollment in 

hospice within a reporting period. 

• Denominator: The total number of 

all live discharge from the hospice 

within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for live 

discharges on or after the 180th day of 

hospice falls below the 90th percentile 

ranking among hospices nationally. 

(5). Indicator Five: Burdensome 

Transitions (Type 1)—Live Discharges 

From Hospice Followed by 

Hospitalization and Subsequent Hospice 

Readmission 

The Type 1 burdensome transitions 

reflects hospice live discharge with a 

hospital admission within 2 days of 

hospice discharge, and then hospice 

readmission within 2 days of hospital 

discharge. This pattern of transitions 

may lead to fragmented care and may be 

associated with concerning care 

processes. For example, Type 1 

burdensome transitions may arise from 

a deficiency in advance care planning to 

prevent hospitalizations or a discharge 

process that does not appropriately 

identify a hospice patient whose 

conditions are stabilized prior to 

discharge.26

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of the percentage of live 

discharges that are followed by a 

hospitalization (within 2 days of 

hospice discharge) and then followed by 

a hospice readmission (within 2 days of 

hospitalization) during the FY 

examined. Live discharges occur when 

the patient discharge status code does 

not equal a value from the following list: 

‘‘30’’, ‘‘40’’, ‘‘41’’, ‘‘42’’, ‘‘50’’, ‘‘51’’. 

Hospitalizations are found by looking at 

all fee-for-service Medicare inpatient 

claims. Overlapping inpatient claims 

were combined to determine the full 

length of a hospitalization (looking at 

the earliest from date and latest through 

date from a series of overlapping 

inpatient claims for a beneficiary). In 

order to be counted, the ‘‘from’’ date of 

the hospitalization had to occur no more 

than 2 days after the date of hospice live 

discharge.27 From there, we found all 

beneficiaries that ended their 

hospitalization and were readmitted 

back to hospice no more than 2 days 

after the last date of the hospitalization. 

To calculate the percentage, for each 

hospice we divided the number of live 

discharges that are followed by a 

hospitalization (within 2 days of 

hospice discharge) and then followed by 

a hospice readmission (within 2 days of 

hospitalization) in a given reporting 

period by the number of live discharges 

in that same period. 

The specifications for Indicator Five, 

Burdensome Transitions Type 1, are as 

follows: 

• Numerator: The total number of live 

discharges from the hospice followed by 

hospital admission within 2 days, then 

hospice readmission within 2 days of 

hospital discharge within a reporting 

period. 

• Denominator: The total number of 

all live discharge from the hospice 

within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for 

Type 1 burdensome transitions falls 

below the 90th percentile ranking 

among hospices nationally. 

(6). Indicator Six: Burdensome 

Transitions (Type 2)—Live Discharges 

From Hospice Followed by 

Hospitalization With the Patient Dying 

in the Hospital 

Death in a hospital following live 

discharge in another concerning pattern 

in hospice use. Thus, we believe that 

indicators five and indicator six of the 

HCI are necessary to differentiate 

concerning behaviors affecting patient 

care. This indicator reflects hospice live 

discharge followed by hospitalization 

within 2 days with the patient dying in 

the hospital, referred to as Type 2 

burdensome transitions. This pattern of 

transitions may be associated with a 

discharge process that does not 

appropriately assess the stability of a 

hospice patient’s conditions prior to live 

discharge.28

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of the percentage of live 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42561 

29National Quality Forum. (2013). #2158 

Payment-Standardized Medicare Spending Per 

Beneficiary (MSPB). https://www.qualityforum.org/ 

Projects/c-d/Cost_and_Resource_Project/2158.aspx. 

30MedPAC. (2020). Chapter 12: Hospice Services. 

http://medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf. 

31Office of Inspector General. (2016). Hospices 

Inappropriately Billed Medicare Over $250 Million 

for General Inpatient Care. https://oig.hhs.gov/oei/ 

reports/oei-02-10-00491.pdf. 

32See Condition of participation: 

Interdisciplinary group, care planning, and 

coordination of services, Title 42, Chapter IV, 

Subchapter B, Part 418, § 418.56 (https://

www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=

42%3A3.0.1.1.5#se42.3.418_156) and Condition of 

participation: Hospice aide and homemaker 

services, Title 42, Chapter IV, Subchapter B, Part 

418, § 418.76 (https://www.ecfr.gov/cgi-bin/textidx?rgn=div5;node=42%3A3.0.1.1.5#se42.3.418_

176). 

33See § 418.100 (https://www.ecfr.gov/cgi-bin/ 

text-idx?rgn=div5;node=42%3A3.0.1.1.5#

se42.3.418_1100). 

discharges that are followed by a 

hospitalization (within two days of 

hospice discharge) and then the patient 

dies in the hospital. Live discharges 

occur when the patient discharge status 

code does not equal a value from the 

following list: ‘‘30’’, ‘‘40’’, ‘‘41’’, ‘‘42’’, 

‘‘50’’, ‘‘51’’. Hospitalizations are found 

by looking at all inpatient claims. 

Overlapping inpatient claims were 

combined to determine a full length of 

a hospitalization (looking at the earliest 

from date and latest through date from 

a series of overlapping inpatient claims). 

To be counted, the ‘‘from’’ date of the 

hospitalization had to occur no more 

than 2 days after the date of hospice live 

discharge. From there, we identified all 

beneficiaries whose date of death is 

listed as occurring during the dates of 

the hospitalization. To calculate the 

percentage, for each hospice we divided 

the number of live discharges that are 

followed by a hospitalization (within 2 

days of hospice discharge) and then the 

patient dies in the hospital in a given 

FY by the number of live discharges in 

that same reporting period. 

The specifications for Indicator Six, 

Burdensome Transitions Type 2, are as 

follows: 

• Numerator: The total number of live 

discharges from the hospice followed by 

a hospitalization within 2 days of live 

discharge with death in the hospital 

within a reporting year. 

• Denominator: The total number of 

all live discharge from the hospice 

within a reporting year. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for 

Type 2 burdensome transitions falls 

below the 90th percentile ranking 

among hospices nationally. 

(7). Indicator Seven: Per-Beneficiary 

Medicare Spending 

Estimates of per-beneficiary spending 

are endorsed by NQF (#2158) 29 and 

publicly reported by CMS for other care 

settings. Because the Medicare hospice 

benefit pays a per diem rate, an 

important determinant of perbeneficiary spending is the length of 

election. MedPAC reported that nearly 

half of Medicare hospice expenditures 

are for patients that have had at least 

180 or more days on hospice, and 

expressed a concern that some programs 

do not appropriately discharge patients 

whose medical condition makes them 

no longer eligible for hospice services, 

or, that hospices selectively enroll 

patients with non-cancer diagnoses and 

longer predicted lengths of stay in 

hospice.30 The other determinant of perbeneficiary spending is the level of care 

at which services are billed. In a 2016 

report, the OIG has expressed concern at 

the potentially inappropriate billing of 

GIP care.31 For these reasons the HCI 

includes one indicator for perbeneficiary spending; lower rates of per 

beneficiary spending may identify 

hospices that provide efficient care at a 

lower cost to Medicare. 

This indicator identifies whether a 

hospice is below the 90th percentile in 

terms of the average Medicare hospice 

payments per beneficiary. Hospice 

payments per beneficiary are 

determined by summing together all 

payments on hospice claims for a 

particular reporting year for a particular 

hospice. The number of beneficiaries a 

hospice serves in a particular year is 

determined by counting the number of 

unique beneficiaries on all hospice 

claims in the same period for a 

particular hospice. Medicare spending 

per beneficiary is then calculated by 

dividing the total payments by the total 

number of unique beneficiaries. 

The specifications for Indicator 

Seven, Per-Beneficiary Medicare 

Spending, are as follows: 

• Numerator: Total Medicare hospice 

payments received by a hospice within 

a reporting period. 

• Denominator: Total number of 

beneficiaries electing hospice with the 

hospice within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their average Medicare spending per 

beneficiary falls below the 90th 

percentile ranking among hospices 

nationally. 

(8). Indicator Eight: Skilled Nursing 

Care Minutes per Routine Home Care 

(RHC) Day 

Medicare Hospice CoPs require a 

member of the interdisciplinary team to 

ensure ongoing assessment of patient 

and caregiver needs.32 Nursing services 

require initial and ongoing assessment 

of patient family needs to ensure the 

successful preparation, implementation, 

and refinements for the plan of care. 

This also includes patient and caregiver 

education and training as appropriate to 

their responsibilities for the care and 

services identified in the plan of care. 

This indicator includes both RN and 

LPN visits to recognize the frequency of 

skilled nursing visits and to maintain 

consistency in HCI when using revenue 

center code 055X. 

This indicator identifies whether a 

hospice is above the 10th percentile in 

terms of the average number of skilled 

nursing minutes provided on RHC days 

during the reporting period examined. 

We identify RHC days by the presence 

of revenue code 0651 on the hospice 

claim. We identify the dates of RHC 

service by the corresponding revenue 

center date (which identifies the first 

day of RHC) and the revenue center 

units (which identifies the number of 

days of RHC (including the first day of 

RHC)). We identify skilled nursing visits 

by the presence of revenue code 055x 

(Skilled Nursing) on the claim. We 

count skilled nursing visits where the 

corresponding revenue center date 

overlaps with one of the days of RHC 

previously identified. We then count the 

minutes of skilled nursing visits by 

taking the corresponding revenue center 

units (that is, one unit is 15 minutes) 

and multiplying by 15. For each 

hospice, we sum together all skilled 

nursing minutes provided on RHC days 

and divide by the sum of RHC days. 

The specifications for Indicator Eight, 

Skilled Nurse Care Minutes per RHC 

Day, are as follows: 

• Numerator: Total skilled nursing 

minutes provided by a hospice on all 

RHC service days within a reporting 

period. 

• Denominator: The total number of 

RHC days provided by a hospice within 

a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for 

Skilled Nursing Minutes per RHC day 

falls above the 10th percentile ranking 

among hospices nationally. 

(9). Indicator Nine: Skilled Nursing 

Minutes on Weekends 

Our regulations at § 418.100(c)(2) 

require that ‘‘[n]ursing services, 

physician services, and drugs and 

biologicals . . . be made routinely 

available on a 24-hour basis seven days 

a week’’.33 Fewer observed hospice 


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42562 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

34de la Cruz, M., et al. (2015). Delirium, agitation, 

and symptom distress within the final seven days 

of life among cancer patients receiving hospice care. 

Palliative & Supportive Care, 13(2): 211–216. doi: 

10.1017/S1478951513001144. 

35 Dellon, E.P., et al. (2010). Family caregiver 

perspectives on symptoms and treatments for 

patients dying from complications of cystic fibrosis. 

Journal of Pain & Symptom Management, 40(6): 

829–837. doi: 10.1016/j.jpainsymman.2010.03.024. 

36 Kehl, K.A., et al. (2013). A systematic review 

of the prevalence of signs of impending death and 

symptoms in the last 2 weeks of life. American 

Journal of Hospice & Palliative Care, 30(6): 601–616. 

doi: 10.1177/1049909112468222. 

37Hui D et al. (2014). Clinical Signs of Impending 

Death in Cancer Patients. The Oncologist. 

19(6):681–687. doi:10.1634/theoncologist.2013– 

0457. 

services on weekends (relative to that 

provided on weekdays) is not itself an 

indication of a lack of access. In fact, on 

weekends, patients’ caregivers are more 

likely to be around and could prefer 

privacy from hospice staff. However, 

patterns of variation across providers 

could signal less service provider 

availability and access for patients on 

weekends. Thus, the HCI includes this 

indicator to further differentiate 

whether care is available to patients on 

weekends. To assess hospice service 

availability, this indicator includes 

minutes of care provided by skilled 

nurses on weekend RHC days. This 

indicator includes both RN and LPN 

visits to recognize the frequency of 

skilled nursing visits and to maintain 

consistency in HCI when using revenue 

center code 055X. 

This indicator identifies whether a 

hospice is at or above the 10th 

percentile in terms of the percentage of 

skilled nursing minutes performed on 

weekends compared to all days during 

the reporting period examined. We 

identify RHC days by the presence of 

revenue code 0651 on the hospice 

claim. We identify the dates of RHC 

service by the corresponding revenue 

center date (which identifies the first 

day of RHC) and the revenue center 

units (which identifies the number of 

days of RHC (including the first day of 

RHC)). We identify skilled nursing visits 

by the presence of revenue code 055x 

(Skilled Nursing) on the claim. We 

count skilled nursing visits where the 

corresponding revenue center date 

overlaps with one of the days of RHC 

previously identified. We then count the 

minutes of skilled nursing visits by 

taking the corresponding revenue center 

units and multiplying by 15. For each 

hospice, we sum together all skilled 

nursing minutes provided on RHC days 

that occur on a Saturday or Sunday and 

divide by the sum of all skilled nursing 

minutes provided on all RHC days. 

The specifications for Indicator Nine, 

Skilled Nursing Minutes on Weekends, 

are as follows: 

• Numerator: Total sum of minutes 

provided by the hospice during skilled 

nursing visits during RHC services days 

occurring on Saturdays or Sunday 

within a reporting period. 

• Denominator: Total skilled nursing 

minutes provided by the hospice during 

RHC service days within a reporting 

period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for 

percentage of skilled nursing minutes 

provided during the weekend is above 

the 10th percentile ranking among 

hospices nationally. 

(10). Indicator Ten: Visits Near Death 

The end of life is typically the period 

in the terminal illness trajectory with 

the highest symptom burden. 

Particularly during the last few days 

before death, patients (and caregivers) 

experience many physical and 

emotional symptoms, necessitating 

close care and attention from the 

hospice team and drawing increasingly 

on hospice team resources.34 35 36

Physical symptoms of actively dying 

can often be identified within three days 

of death in some patients.37

This indicator identifies whether a 

hospice is at or above the 10th 

percentile in terms of the percentage of 

beneficiaries with a RN, LPN, and/or 

medical social services visit in the last 

3 days of life. For this indicator, we first 

determine if a beneficiary was in 

hospice for at least 1 day during their 

last 3 days of life by comparing days of 

hospice enrollment from hospice claims 

to their date of death. We identify 

skilled nursing visits and medical social 

service visits by the presence of revenue 

code 055x (Skilled Nursing) and 056x 

(Medical Social Services) on the claim. 

We identify the dates of those visits by 

the revenue center date for those 

revenue codes. Additionally, we assume 

that days billed as GIP (revenue code 

0656) will include skilled nursing visits. 

We make that assumption instead of 

looking at the visits directly because 

Medicare does not require hospices to 

record all visits on the claim for the GIP 

level of care. For each hospice, we 

divide the number of beneficiaries with 

skilled nursing or medical social service 

visits on a hospice claim during the last 

3 days of life by the number of 

beneficiaries with at least 1 day of 

hospice during the last 3 days of life. In 

the proposed rule, the denominator 

description is discussed accurately, as 

the number of beneficiaries with at least 

one day of hospice during the last three 

days of life within a reporting period. 

However, the specification summary 

inaccurately reflected the number of 

decedent beneficiaries served by the 

hospice within a reporting period. In 

this final rule, we correct this error and 

replace the description of the 

denominator accurately as the number 

of beneficiaries with at least 1 day of 

hospice during the last 3 days of life 

within a reporting period. 

The specifications for Indicator Ten, 

Visits Near Death, are as follows: 

• Numerator: The number of 

decedent beneficiaries receiving a visit 

by a skilled nurse or social worker for 

the hospice in the last 3 days of the 

beneficiary’s life within a reporting 

period. 

• Denominator: The number of 

beneficiaries with at least 1 day of 

hospice during the last 3 days of life 

within a reporting period. 

• Index Earned Point Criterion: 

Hospices earn a point towards the HCI 

if their individual hospice score for 

percentage of decedents receiving a visit 

by a skilled nurse or social worker in 

the last 3 days of life falls above the 

10th percentile ranking among hospices 

nationally. 

(11). Hospice Care Index Scoring 

Example 

As discussed during the NQF’s 

January 2021 MAP meeting, the HCI 

summarizes information from ten 

indicators with each indicator 

representing key components of the 

hospice care received, recognizing care 

delivery and processes. Hospices 

receive a single HCI score, which 

reflects the information from all ten 

indicators. Specifically, a hospice’s HCI 

score is based on its collective 

performance for the ten performance 

indicators detailed earlier, all of which 

must be included to calculate the score 

and meaningfully distinguish between 

hospices’ relative performance. The 

HCI’s component indicators are 

assigned a criterion determined by 

statistical analysis of an individual 

hospice’s indicator score relative to 

national hospice performance. Table 8 

illustrates how a hypothetical hospice’s 

score is determined across all ten 

indicators, and how the ten indicators’ 

scores determine the overall HCI score. 

BILLING CODE 4120–01–P 


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lotter on DSK11XQN23PROD with RULES4ER04AU21.145</GPH>

Burdensome 

transitions, Type 

1 

TABLE 8: Hospice Care Index Indicator Scoring Example 

4 27 14.8% 8.7% 77 

Below 90 

Percentile 

Rank 

Yes 

Hospice Care 

Index Total Score 

+l 

8 
42564 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

c. Measure Reportability, Variability, 

and Validity 

As part of developing the HCI, we 

conducted reportability, variability, and 

validity testing using claims data from 

FY 2019. Reportability analyses found a 

high proportion of hospices (over 85 

percent) that would yield reportable 

measure scores over 1 year (for more on 

reportability analysis, see section (2) 

Update on Use of Q4 2019 Data and 

Data Freeze for Refreshes in 2021.). 

Variability analyses confirmed that HCI 

demonstrates sufficient ability to 

differentiate hospices. Hospices’ scores 

on the HCI can range from zero to ten. 

During measure testing, we observed 

that hospices achieved scores between 

three and ten. In testing, 37.1 percent of 

hospices scored ten out of ten, 30.4 

percent scored nine out of ten, 17.9 

percent scored eight out of ten, 9.6 

percent scored seven out of ten, and 5.0 

percent scored six or lower, as shown in 

Figure 1. 

BILLING CODE 4120–01–C 

Validity analyses showed that 

hospices’ HCI scores align with family 

caregivers’ perceptions of hospice 

quality, as measured by CAHPS Hospice 

survey responses (NQF endorsed quality 

measure #2651). Hospices with higher 

HCI scores generally achieve better 

caregiver ratings as measured by CAHPS 

Hospice scores, and hospices with lower 

HCI scores generally achieve poorer 

CAHPS Hospice scores. As measured by 

Pearson’s correlation coefficients, the 

correlation between the CAHPS hospice 

overall rating and the HCI is +0.0675, 

and the correlation between the CAHPS 

hospice recommendation outcome and 

the HCI score is +0.0916. As such, HCI 

scores are consistent with CAHPS 

Hospice caregiver ratings, supporting 

the index as a valid measurement of 

hospice care. 

We also conducted a stability analysis 

by comparing index scores calculated 

for the same hospice using claims from 

Federal FY 2017 and 2019. The analysis 

found that 82.8 percent of providers’ 

scores changed by, at most, one point 

over the 2 years. These results serve as 

evidence of the measure’s reliability by 

indicating that a hospice’s HCI scores 

would not normally fluctuate a great 

deal from one year to the next. 

d. Stakeholder Support 

A TEP convened by our measure 

development contractor, in April 2020, 

provided input on this measure. 

Additionally, during the summer of 

2020, CMS convened five listening 

sessions with national hospice provider 

organizations to discuss the HCI concept 

with the goals of engaging stakeholders 

and receiving feedback early in the 

measure’s development. In October 

2020, our contractor convened a 

workgroup of family caregivers whose 

family members have received hospice 

care to provide input on this measure 

concept from the family and caregiver 

perspective. Finally, the NQF Measures 

Application Partnership (MAP) met on 

January 11, 2021 and provided input to 

CMS. The MAP conditionally supported 

the HCI for rulemaking contingent on 

NQF endorsement. The ‘‘2020–2021 

MAP 2020 Final Recommendations’’ 

can be found at: http://

www.qualityforum.org/WorkArea/ 

linkit.aspx?LinkIdentifier=

id&ItemID=94893. 

Stakeholders were generally 

supportive of a quality measure based 

on multiple indicators using claims data 

for public reporting. Several hospice 

providers expressed support for the 

measure’s ability to demonstrate greater 

variation in hospice performance than 

the component indicators taken 

individually. Hospice caregivers also 

welcomed the addition of new quality 

measures to the HQRP to better 

differentiate between hospices. In 

particular, family caregivers stated that 

there might be a need for several HCI 

indicators, such as nursing availability 

on weekends and average Medicare perbeneficiary spending, to be included on 

Care Compare as additional information. 

Some stakeholders raised concerns 

that claims data may not adequately 

express the quality of care provided, 

and may be better suited as an indicator 

for program integrity or compliance 

issues. Hospice providers suggested that 

claims may lack sufficient information 

to adequately reflect individual patient 


lotter on DSK11XQN23PROD with RULES4ER04AU21.146</GPH>

Figure 1: Distribution of Hospice Care Index Scores, Federal Fiscal Year 2019 

..c 

.-!= 

37.11% 

3: 

1/) ~ 

~ 0 

1,800 

1,600 

1,400 

1,200 

1,000 

30.40% -

·- u a. V) 

1/) "'O 

0 Q) 

::I:+-' 

<+- ro 

0 :::s I,,. u Q) ro 

..ou 

E 

:::s 

z 

800 

600 

400 

200 0 

17.91% 

-- 9.60% 

1= --

3.56% 

1.13% -- .00% 0.00% 0.00% 0.05% 0.24% I 

' ' ' ' ' - ' ' ' 

0 1 2 3 4 5 6 7 8 

Hospice Care Index Score 

Source: 100% Medicare hospice claims, Federal Fiscal Year 2019. 

-- - __ ,

-

-- -

-- -

-- -

-- -

' ' 

9 10 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42565 

38 Department of Health and Human Services, 

Office of Inspector General. (2013). Medicare 

hospice: Use of general inpatient care. Accessible 

via: https://oig.hhs.gov/oei/reports/oei-02-10- 

00490.asp. 

39 Department of Health and Human Services, 

Office of Inspector General. (2016). Medicare 

hospice: Hospices Inappropriately Billed Medicare 

Over $250 Million for General Inpatient Care. 

Accessible via: https://oig.hhs.gov/oei/reports/oei02-10-00491.asp. 

40 Department of Health and Human Services, 

Office of Inspector General. (2019). Registered 

Nurses Did Not Always Visit Medicare Beneficiaries 

Homes at Least Once Every 14 Days to Assess the 

Quality of Care and Services Provided by Hospice 

Aides. Accessible via: https://oig.hhs.gov/oas/ 

reports/region9/91803022.pdf. 

41Medicare Payment Advisory Commission. 

March 2009 Report to the Congress: Medicare 

Payment Policy, ‘‘Chapter 6: Reforming Medicare’s 

hospice benefit.’’ February 27, 2009. Accessible via: 

http://www.medpac.gov/docs/default-source/ 

reports/Mar09_Ch06.pdf?sfvrsn=0. 

42Medicare Payment Advisory Commission. 

March 2011 Report to the Congress: Medicare 

Payment Policy, ‘‘Chapter 11: Hospice.’’ March 15, 

2011. Accessible via: http://www.medpac.gov/docs/ 

default-source/reports/Mar11_Ch11.pdf?sfvrsn=0. 

43Medicare Payment Advisory Commission. 

March 2020 Report to the Congress: Medicare 

Payment Policy Text, ‘‘Chapter 12: Hospice 

Services.’’ March 13, 2020. Accessible via: http://

www.medpac.gov/docs/default-source/reports/ 

mar20_medpac_ch12_sec.pdf?sfvrsn=0. 

needs or the full array of hospice 

practices. In particular, claims do not 

fully capture patients’ clinical 

conditions, patient and caregiver 

preferences, or hospice activities such 

as telehealth, chaplain visits, and 

specialized services such as massage or 

music therapy. After much 

consideration of the input received, we 

believe the benefits of adopting the HCI 

outweigh its limitations. The HCI is not 

intended to account for all potentially 

valuable aspects of hospice care, nor is 

it expected to entirely close the 

information gaps presently found in the 

HQRP. Rather, the HCI will serve as a 

useful measure to add value to the 

HQRP by providing more information to 

patients and family caregivers and better 

empowering them to make informed 

health care decisions. We view the HCI 

as an opportunity to add value to the 

HQRP, augmenting the current measure 

set with an index of indicators compiled 

from currently available claims data. 

This will provide new and useful 

information to patients and family 

caregivers without further burden to 

them, or to providers. 

Stakeholders also suggested several 

valuable exploratory analyses, 

improvements for the indicators 

presented, and ideas for eventual public 

display for CMS to consider. We further 

refined the HCI based on this feedback, 

focusing on those indicators with the 

strongest consistency with CAHPS 

Hospice scores and/or which quality 

experts have identified as salient issues 

for measurement and observation. We 

also revised and refined how the HCI 

will be publicly displayed on Care 

Compare in response to family caregiver 

input. 

e. Form, Manner and Timing of Data 

Collection and Submission 

The data source for this HCI measure 

will be Medicare claims data that are 

already collected and submitted to CMS. 

We proposed and finalizing in the rule 

to begin reporting this measure using 

existing data items no earlier than May 

2022. For more details, see section (3). 

Publicly Report the Hospice Care Index 

and Hospice Visits in the Last Days of 

Life Claims-based Measures. 

In addition, to help hospices 

understand the HCI and their hospice’s 

performance, we will revise the 

confidential QM report to include 

claims-based measure scores, including 

agency and national rates through the 

Certification and Survey Provider 

Enhanced Reports (CASPER) or its 

replacement system. The QM report will 

also include results of the individual 

indicators used to calculate the single 

HCI score, and provide details on the 

indicators and HCI overall score to 

support hospices in interpreting the 

information. The HCI indicators will be 

available by visiting the Provider Data 

Catalog at https://data.cms.gov/ 

provider-data/topics/hospice-care. 

We solicited public comment on the 

proposal to add the composite HCI 

measure to the HQRP starting in FY 

2022. We also solicited comments on 

the proposal to add the HCI to the 

program for public reporting beginning 

no earlier than May 2022. We received 

many comments on these proposals. A 

summary of the comments we received 

regarding HCI and our responses to 

those comments appear below: 

Comment: Several commenters 

expressed the importance of HCI for 

beneficiary and families that will give 

them information about care processes 

and add value to the available 

information about hospices that 

identifies aberrant practice when 

comparing hospices. 

Response: We appreciate the support 

by comments recognizing the value HCI 

brings to consumers by providing more 

information not previously available 

about hospices. The HCI will add value 

to the HQRP by filling measurement 

gaps using existing data sources. 

Comment: Many commenters 

appreciate the need for CMS to address 

program integrity or identify hospices 

with aberrant practices, and encouraged 

CMS to develop different measures that 

better reflect the holistic, 

interdisciplinary nature of hospice. 

Other comments also suggested that 

data already provided in PEPPER 

reports should not be included in HCI 

or that CMS should share the indicators 

in the PEPPER reports rather than 

implement the HCI quality measure to 

provide hospices the opportunity to 

implement continuous quality 

improvement activities. 

Response: We recognize commenters’ 

concern that HQRP measures reflect 

quality of care rather than program 

integrity issues. We believe HCI does 

reflect hospice quality because the HCI 

indicators were identified as quality 

issues by the Office of Inspector 

General,38,39,40 the Medicare Payment 

Advisory Commission,41 42 43 by peer 

reviewed articles, and our technical 

expert panel (TEP). Further, HCI like the 

other HQRP quality measures validates 

well with the CAHPS Hospice Survey 

‘‘willingness to recommend’’, which 

signifies a quality measure useful for 

public reporting. 

We also appreciate the suggestions to 

include HCI indicators in PEPPER 

reports rather than implement HCI. 

However, unlike PEPPER reports that 

are issued to hospices to support their 

compliance efforts related to potential 

improper payments, as part of the 

HQRP, the HCI will become information 

on Care Compare that beneficiaries, 

caregivers, or other stakeholders may 

consider as they make choices about 

end-of-life care. 

Comment: Several comments 

suggested that CMS differentiate 

circumstances in which a patient 

refused a service measured by the HCI 

from circumstances in which the 

hospice did not offer the service to the 

patient. Other comments highlighted the 

possible impact of claims-based 

measures on rural and small providers 

because they may not capture care in 

rural communities or possibly identified 

as an outlier due to low volume. 

Response: CMS acknowledges that 

patients have the right to refuse hospice 

services, and that some refusals are 

expected and appropriate. CMS expects 

hospices to honor patient wishes on a 

case-by-case basis. Thus, we do not 

anticipate service refusals to be 

concentrated among particular hospices, 

and as such do not expect refused visits 

to have an outsized effect on any 

hospice’s performance on this measure. 

Several existing measures, such as the 

HIS-based HVWDII measure and its 

replacement HVLDL, also do not 

differentiate refused visits. 

We also appreciate the comments 

expressing concern about the impact 

these measures may have on small and/ 


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42566 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

or rural hospices. We recognize that 

there are many regional variations in 

care delivery trends. We will monitor 

HCI score trends to identify whether any 

regional or size-based variations suggest 

a need for measure revision. However, 

population-based measures such as 

indicators on the HCI allow for hospice 

variation for an indicator while offering 

opportunities to earn points on other 

indicators. The points are earned 

without weighting to recognize the 

tradeoffs for each indicator’s 

specifications. 

Comment: Several comments 

recommended that CMS not implement 

HCI because the indicators seem to 

emphasize medical services, focused 

heavily on services provided by RNs/ 

LPNs, or do not account for the full 

interdisciplinary group (for example, 

claims do not account for spiritual care). 

Some commenters questioned whether 

services provided by LPNs would be 

accounted for in the HCI indicators and 

many commenters requested that CMS 

clarify whether code 055X would be 

further differentiated between RN visits 

versus LPN visits for the indicators. 

Response: We recognize that claims 

data do not include all the disciplines 

involved in the delivery of hospice care, 

such as the frequency and length of 

chaplain visits. While changing the data 

included in claims is outside the scope 

of this proposed measure, we believe 

that using the claims data that currently 

exists still provides new and useful 

information not currently available to 

patients, families, and caregivers with 

the existing HQRP measures. As we 

showed with the HVLDL claims-based 

measure, RN services correlate well 

with CAHPS data and therefore are 

important services to reflect hospice 

quality of care. The HCI serves as a 

useful step in addressing HQRP data 

gaps and providing useful information 

to consumers, even if it does not 

account for all potentially valuable data 

currently missing from HQRP. CMS will 

monitor data availability as well as 

measure performance, and may respecify the measure if needed. If 

additional data points become available, 

CMS will consider modifying the 

measure in light of the new data. CMS’ 

sub-regulatory Quality Measure Users’ 

Manual on the CMS HQRP Current 

Measures web page will include 

specifications for each indicator and 

scoring for HVLDL, and the HIS 

Comprehensive Assessment measure 

(NQF #3235). 

We appreciate the comments and 

request for clarification on whether 

LPNs are included in visits. Both RN 

and LPN visits are included on the 

hospice claim under revenue code 055X 

and as such, the HCI does include LPN 

visits for the indicator for all indicators 

that use revenue code 055X for 

consistency. This does not constitute a 

change to the requirements of the CoPs. 

Comment: Several commenters stated 

that the HCI should focus on whether 

hospices are prepared to provide key 

services, rather than whether claims for 

those services were billed during a 

given reporting period. One way to 

approach this would be to use state 

survey data to identify hospices that are 

deficient and do not have contracts to 

provide GIP. This information would 

provide additional context to the claims 

data of whether a hospice provided CHC 

or GIP. 

Response: We appreciate commenters’ 

interest in having the HCI reflect how 

prepared hospices are to provide key 

services to patients. We believe that by 

measuring whether hospices actually 

provided CHC and GIP, the HCI will 

recognize the extent to which hospices 

both kept patients at home and 

recognized the need for inpatient care 

when necessary. In this way, these 

billing categories reflect actions taken to 

meet patients’ needs during the 

reporting period. While we recognize 

the additional context that state survey 

data would provide, we believe the 

claims data used to calculate the HCI 

will provide valuable information to 

consumers on their own. 

Comment: We received several 

comments out of scope of the proposal 

suggesting CMS allow for use of the 

spiritual care HCPCS code approved for 

Veteran Administration use. Some 

commenters requested that CMS expand 

billing codes for telehealth visits and 

recognize telehealth services within the 

HCI. Other commenters expressed 

concern that the HCI indicators do not 

take patient preferences into account, 

and that the HCI might incentivize 

hospices to standardize the types and 

amount of services provided rather than 

considering personal patient 

circumstances. 

Response: We appreciate commenters’ 

concerns that hospice providers 

continue to recognize and address the 

unique circumstances of hospice 

patients. At this time, the HCPCS code 

for spiritual care is not used on the 

hospice claim form (no revenue center 

exists to correspond to such code), and 

as such, cannot be applied to the HCI. 

Additionally, we did not propose to 

expand billing codes for telehealth 

services or patient preferences, and as 

such cannot include such services in the 

HCI. However, if additional Medicare 

hospice claims data points become 

available, we may consider modifying 

the measure in light of the new data. We 

are concerned hospices believe HCI may 

incentivize hospices to standardize the 

types or amount of services provided to 

patients and not individualize 

beneficiary care on a case-by-case basis 

at the end of life. CMS will continue to 

monitor for any aberrant behavior in 

regard to HCI and the care provided by 

hospices. 

Comment: Several commenters would 

like more time and information to 

replicate the analysis for HCI. The 

commenters suggest a delay in publicly 

reporting or no earlier than May 2022, 

which would to allow time for internal 

analysis. 

Response: We appreciate commenters’ 

concerns that hospice providers do not 

believe they could replicate the 

indicators without more information. 

However, in the preamble of the FY 

2022 Hospice proposed rule (86 FR 

19700) and in this final rule is a 

description for each indicator including 

the rationale, numerator, denominator, 

exclusion criterion, and data sources. 

We believe the information provided in 

the proposed and final rule allows for 

commenters to replicate, with their own 

claims data, the indicators, thresholds, 

and points earned. The sub-regulatory 

Quality Measure Users’ Manual will be 

posted on the HQRP Current Measures 

web page to provide measure 

specifications. We believe this 

information provides the detail needed, 

as with prior versions of the Quality 

Measure Users’ Manual, to model and 

analyze HCI and its indicators. As 

discussed later in this section of the 

preamble, hospices will have access to 

preview reports in advance of publicly 

reporting HCI. 

Comment: Many commenters offered 

suggestions to modify specific HCI 

indicators and expressed concerns about 

specific indicators rather than the HCI 

as a whole. Several commenters 

suggested that CMS adjust the 

thresholds for specific services, such as 

gaps in skilled nursing visits, and phase 

in the thresholds over time. Some 

commenters questioned how well the 

HCI differentiates between high-quality, 

average, and low-quality hospices. They 

encouraged CMS to conduct further 

analyses before finalizing the measure. 

Response: We appreciate commenters’ 

suggestions for modifications to the 

indicators, additional analyses to 

conduct, and requests to monitor the 

indicators. We also appreciate the 

concern that we avoid duplicating 

measures in the development of new 

measures based on assessment data, 

claims, or other available data sources. 

We conducted multiple analyses during 

the development of HCI to validate 

these indicators and determine 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42567 

44National Quality Forum. (2020). MAP 2020 

Considerations for Implementing Measures Final 

Report—PAC LTC. http://www.qualityforum.org/ 

Publications/2020/02/MAP_2020_Considerations_

for_Implementing_Measures_Final_Report_-_PAC_

LTC.aspx. 

thresholds before selecting them for 

inclusion in the final HCI measure. We 

also shared the measure concept 

publicly and solicited stakeholder 

feedback, which we considered before 

finalizing the measure specifications. 

Our analyses showed that the HCI as 

currently defined does differentiate 

between hospices, as the range of HCI 

scores across hospices was found to be 

sufficiently large to highlight very high 

performing hospices, as well as identify 

the need for improvement in others. 

Additionally, the distribution of HCI 

scores aligns with caregivers’ 

perceptions of hospice quality. As such, 

we have determined that the ten HCI 

indicators, taken together as currently 

defined, reflect a holistic view of 

hospice performance trends during a 

patient’s stay. 

Comment: Several commenters 

expressed concerns that the HCI will 

overlap with, or be duplicative of, 

HOPE-based measures. 

Response: We appreciate commenters’ 

concerns regarding the administrative 

burden in quality reporting. Because the 

HCI relies on claims data that are 

already collected by CMS, reporting 

claims-based measures places no 

additional burden for hospice providers 

or other stakeholders. In addition, the 

HCI and HOPE will complement each 

other, providing related but distinct 

information to providers and consumers 

to compare hospices. 

Comment: Some commenters 

expressed concern that the HCI will 

become ‘‘topped out,’’ with 85 percent 

of hospices scoring a 7 or better, 

limiting the measure’s ability to 

differentiate between hospices. 

Response: We appreciate commenters’ 

concerns that HQRP measures will not 

be able to adequately differentiate 

hospices if they become ‘‘topped out.’’ 

We also understand why commenters 

might expect process measures to be 

prone to ‘‘topping out.’’ CMS has taken 

this into consideration in designing the 

HCI measure. The design of the HCI 

ensures that the measure is very 

unlikely to become topped out. Each 

HCI indicator is scored based on 

comparative performance, with hospices 

receiving a point based on their 

performance relative to a national 

percentile threshold. Using percentile 

rankings derived from national 

performance, it is very unlikely for all 

hospices to receive the same score. Our 

analyses suggest that the scoring criteria 

ensure distributions of HCI scores that 

allow for differentiation between 

hospices in any given year. However, 

CMS will continue to monitor the HCI 

after implementation to ensure the 

measure reflects hospice quality, 

differentiates between hospices, and 

does not become topped out. 

Final Decision: We are finalizing the 

proposal to add composite HCI 

measures to the HQRP as of FY 2022 

and will monitor the measure. As 

discussed later in this section of the 

preamble, we will publicly report no 

earlier than May 2022. 

4. Update on the Hospice Visits in the 

Last Days of Life (HVLDL) and Hospice 

Item Set V3.00 

On August 13, 2020, we sought public 

comment in an information collection 

request to remove Section O ‘‘Service 

Utilization’’ (hereafter referred to as 

Section O) of the HIS discharge 

assessment. Removal of Section O is the 

sole change from HIS V2.01 and in 

effect eliminate the HVWDII quality 

measure pair. In Paperwork Reduction 

Act package (PRA), CMS–10390 (OMB 

control number: 0938–1153), we 

provided the HVLDL specifications and 

also proposed to replace the HVWDII 

measure pair with the HVLDL. This 

means that we will no longer report 

HVWDII with patient stays and will 

start publicly reporting HVLDL no 

earlier than May 2022. The Office of 

Management and Budget (OMB) 

approved the collection of information 

to remove Section O of the HIS expiring 

on February 29, 2024, (OMB Control 

Number: 0938–1153, CMS–10390). We 

direct the public to review the PRA at 

https://www.cms.gov/regulations-andguidancelegislationpaperworkreduction

actof1995pra-listing/cms-10390 and 

HVWDII report at https://www.cms.gov/ 

files/document/hqrphospice-visitswhen-death-imminent-testing-respecification-reportoctober-2020.pdf. As 

a claims-based measure, the HVLDL 

measure would not impose any new 

requirements for the collection of 

information. 

The HVLDL measure, as a 

replacement, will continue to fill an 

important area in hospice care 

previously filled by the HVWDII 

measure pair. We discussed the analysis 

with a TEP convened by our measure 

development contractor in November 

2019 and with the MAP, hosted by the 

NQF in December 2019 44 for inclusion 

in the HQRP. During these meetings, the 

discussions reflecting on the analysis 

generally supported the replacement of 

HVWDII with a claims-based HVLDL 

measure. The November 2019 TEP 

report can be found in the downloads 

section at Hospice QRP Provider 

Engagement Opportunities and final 

recommendations and presentation of 

the HVLDL measure before NQF’s MAP 

can be found at Quality Forum—PostAcute Care, https://

www.qualityforum.org/Publications/ 

2020/02/MAP_2020_Considerations_

for_Implementing_Measures_Final_

Report_-_PAC_LTC.aspx. 

OMB approved the proposal to 

replace the HVWDII measure with the 

HVLDL measure and remove Section O 

from the discharge assessment on 

February 16, 2021. The HIS V3.00 

became effective on February 16, 2021 

and expires on February 29, 2024; OMB 

control number 0938–1153. 

We received several comments 

regarding the updates to the Hospice 

Visits in the Last Days of Life (HVLDL) 

and Hospice Item Set V3.00. A summary 

of the comments we received and our 

responses those comments are below: 

Comment: Several comments support 

the re-specified HVLDL claims-based 

measure and the resulting reduction of 

burden, but expressed concern that the 

measure is limited to RN and medical 

social worker. Commenters stated that 

the measure should recognize the full 

spectrum of disciplines involved in 

hospice care. Some commenters 

requested that LPNs count for the 

measure, in addition to RNs. Other 

commenters stated that chaplain or 

spiritual services may be as important to 

patients as nursing services. 

Response: As discussed in the CMS– 

10390 Supporting Statement published 

October, 23, 2020 and HIS V3.00 

approved by OMB on February 16, 2021, 

we pursed a re-specification of the 

HVWDII measure concept using 

Medicare claims data because claims 

data also capture RN and medical social 

worker visits by hospice. While CMS 

agrees that all patient visits are 

meaningful, based on our analyses, we 

found that RN and medical social 

worker visits correlate well with the 

CAHPS quality measures for ‘‘would 

recommend’’ the hospice. HVLDL 

indicates the hospice provider’s 

proportion of patients who have 

received visits from an RN or medical 

social worker (in-person) on at least two 

out of the final three days of the 

patient’s life. While all patient visits are 

meaningful, only patients with visits on 

two different days during the last three 

days of life will count towards the 

numerator for this measure. These visits 

can be made by either the RN, the 

medical social worker, or both. We were 

interested in re-specifying the visit 

measure to better align with the SIA 

because, as we discussed in previous 

rules, patient needs typically surge as 


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the end of life approaches and more 

intensive services are warranted. The 

provision of care would proportionately 

escalate to meet the increased clinical, 

emotional, and other needs of the 

patient and family. 

Comment: Some commenters stated 

that the measure specifications would 

not adequately capture hospices’ care 

activities. Some commenters suggested 

that the measure should allow for two 

visits occurring on the same day to meet 

the measure qualifications, as visits on 

the same day could address different 

patient needs, representing meaningful 

care on the part of the hospice. Other 

commenters requested that this measure 

recognize visits offered during CHC or 

GIP care. Some commenters stated that 

the measure should recognize telehealth 

visits in the last days of life, as 

circumstances such as the recent 

COVID–19 PHE may make in-person 

visits impossible or undesirable for 

patients or families. 

Response: We agree that hospice care 

is interdisciplinary care delivered by 

clinical and non-clinical staff 

supporting the patient’s plan of care. We 

also support hospices providing 

necessary visits in the last days of life 

such that two visits occurring on the 

same day may be necessary. However, 

as discussed in the CMS–10390 

Supporting Statement published 

October 23, 2020 and HIS V3.00 

approved by OMB on February 16, 2021, 

our analysis comparing HVWDII and 

HVLDL with CAHPS ‘‘would 

recommend’’ scores demonstrates that 

HVLDL results in higher validity and 

variability testing results compared to 

HVWDII. We found a stronger 

correlation coefficient with CAHPS 

‘‘would recommend’’ scores for HVLDL 

than for HVWDII. This means that when 

visits by RNs or medical social workers 

occurred in at least two of the last three 

days of life, family and caregivers agree 

or positively correlate that they would 

recommend the hospice, more often 

when compared to HVWDII, on average. 

The literature strongly supported the 

focus on RNs and medical social 

workers in the revised measure. 

Actively dying is a critical and unique 

time when in-person, skilled care is 

typically needed. HVLDL is defined for 

in-person visits. As with all quality 

measures, we are encouraging quality of 

care and as such hospices are expected 

to use in-person visits when visits are 

needed during these critical last days of 

life. We agree there are benefits to 

telehealth visits that supplement, not 

replace, in-person visits. If claims data 

are revised to include other disciplines, 

we may consider whether to include 

them in this measure. This measure 

does not recognize visits during CHC 

and GIP because these higher levels of 

care inherently require skilled visits per 

the COPs in accordance with § 418.110 

and § 418.302. 

Comment: Several comments 

requested that CMS clarify how ‘‘the last 

three days of life’’ would be calculated. 

Commenters expressed concern that 

definitions were unclear. 

Response: The exclusion criteria used 

for HVWDII and now HVLDL criteria 

remain the same. The calculation of the 

last three days remain unchanged from 

the last three days documented in 

Section O of the HIS V2.00 that was 

used to calculate the HVWDII. 

Information defining the last three days 

has been included in the HIS Manuals 

since 2017. These specifications will 

now be contained in the revised HQRP 

QM User’s Manual V4.00 located on the 

CMS HQRP Current measures web page. 

This information was also posted in the 

document ‘‘Common Questions HQRP 

Claims-Based Measures_Feb.2021’’ 

located in the Downloads section of the 

Hospice Item Set web page at: https:// 

www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/ 

Hospice-Item-Set-HIS. 

Specifically these three days are 

‘‘indicated by the day of death, the day 

prior to death, and two days prior to 

death.’’ The day of death is the same as 

the date provided in A0270, Discharge 

Date. (or the day of death); One day 

prior to death is calculated as A0270 

minus 1, and two days prior to death is 

calculated as A0270 minus 2. Full 

HVLDL specifications are also publicly 

available on the HQRP website at: 

https://www.cms.gov/files/document/ 

hospice-visits-last-days-life-hvldlmeasure-specifications.pdf. 

5. Proposal To Revise § 418.312(b) 

Submission of Hospice Quality 

Reporting Program Data 

To address the inclusion of 

administrative data, such as Medicare 

claims used for hospice claims-based 

measures like the HVLDL and HCI in 

the HQRP and correct technical errors 

identified in the FY 2016 and 2019 

Hospice Wage Index and Payment Rate 

Update final rules, we proposed and 

finalize in this rule the regulation at 

§ 418.312(b) by adding paragraphs (b)(1) 

through (3). Paragraph (b)(1) will 

include the existing language on the 

standardized set of admission and 

discharge items. Paragraph (b)(2) would 

require collection of Administrative 

Data, such as Medicare claims data, 

used for hospice quality measures to 

capture services throughout the hospice 

stay. And these data automatically meet 

the HQRP requirements for 

§ 418.306(b)(2). 

Paragraph (b)(3) is a technical 

correction to address errors identified in 

the FY 2016 and FY 2019 Hospice Wage 

Index and Payment Rate Update final 

rules, (80 FR 47186 and 83 FR 38636). 

In the FY 2016 Hospice final rule (80 FR 

47186) adopted seven factors for 

measure removal, and in the FY 2019 

Hospice final rule (83 FR 38636) 

adopted the eighth factor for measure 

removal. In those final rules, we 

referenced the measure removal factors 

in the preamble but inadvertently 

omitted them from the regulations text. 

Thus, these measure removal factors 

identify how measures are removed 

from the HQRP. Section 418.312(b)(3) 

would include the eight measure 

removal factors as follows: 

CMS may remove a quality measure 

from the Hospice QRP based on one or 

more of the following factors: 

(1) Measure performance among 

hospices is so high and unvarying that 

meaningful distinctions in 

improvements in performance can no 

longer be made. 

(2) Performance or improvement on a 

measure does not result in better patient 

outcomes. 

(3) A measure does not align with 

current clinical guidelines or practice. 

(4) The availability of a more broadly 

applicable (across settings, populations, 

or conditions) measure for the particular 

topic. 

(5) The availability of a measure that 

is more proximal in time to desired 

patient outcomes for the particular 

topic. 

(6) The availability of a measure that 

is more strongly associated with desired 

patient outcomes for the particular 

topic. 

(7) Collection or public reporting of a 

measure leads to negative unintended 

consequences other than patient harm. 

(8) The costs associated with a 

measure outweigh the benefit of its 

continued use in the program. 

We did not receive comments on this 

proposal. We are finalizing in this rule 

the regulation at § 418.312(b) to add 

paragraphs (b)(1) through (3) to include 

administrative data as part of the HQRP, 

and correct technical errors identified in 

the FY 2016 and 2019 Hospice Wage 

Index and Payment Rate Update final 

rules. 

6. Update Regarding the Hospice 

Outcomes & Patient Evaluation (HOPE) 

Development 

As finalized in the FY 2020 Hospice 

Wage Index and Payment Rate Update 

and Hospice Quality Reporting 

Requirements final rule (84 FR 38484), 


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we are developing a hospice patient 

assessment instrument identified as 

HOPE. This tool is intended to help 

hospices better understand care needs 

throughout the patient’s dying process 

and contribute to the patient’s plan of 

care. It will assess patients in real-time, 

based on interactions with the patient. 

HOPE will support quality improvement 

activities and calculate outcome and 

other types of quality measures in a way 

that mitigates burden on hospice 

providers and patients. Our two primary 

objectives for HOPE are to provide 

quality data for the HQRP requirements 

through standardized data collection, 

and to provide additional clinical data 

that could inform future payment 

refinements. 

We anticipate that HOPE will replace 

the HIS. While the HIS is a standardized 

mechanism for abstracting medical 

record data, it is not a patient 

assessment tool because HIS data are 

not collected during a patient 

assessment. HIS data collection 

‘‘consists of selecting responses to HIS 

items in conjunction with patient 

assessment activities or via abstraction 

from the patient’s clinical record.’’ (HIS 

Manual v.2.01). In contrast, HOPE is a 

patient assessment instrument, designed 

to capture patient and family care needs 

in real-time during patient interactions 

throughout the patient’s hospice stay, 

with the flexibility to accommodate 

patients with varying clinical needs. 

HOPE will enable CMS and hospices to 

understand the care needs of people 

through the dying process, supporting 

provider care planning and quality 

improvement efforts, and ensuring the 

safety and comfort of individuals 

enrolled in hospice nationwide. HOPE 

will include key items from the HIS and 

demographics like gender and race. This 

approach to include key aspects of 

demographics supports hospice 

feedback provided in the FYs 2017 and 

2018 Hospice Wage Index and Payment 

Rate Update final rule (81 FR 52171 and 

82 FR 36669) and CMS’ goals for a 

hospice assessment instrument, as 

stated in the FY 2018 Hospice Wage 

Index and Payment Rate Update final 

rule. The HOPE assessment instrument 

would facilitate communication among 

providers and measure the care of 

patient populations across settings. 

While the standardized patient 

assessment data elements for certain 

post-acute care providers required 

under the IMPACT Act of 2014 is not 

applicable to hospices, it makes 

reasonable sense to include some of 

those standardized elements that 

appropriately and feasibly apply to 

hospice. Some patients may move 

through the healthcare system to 

hospice so capturing and tracking key 

demographic and social risk factor items 

that apply to hospice may help CMS 

achieve our goals for continuity of care, 

overall patient care and well-being, 

interoperability, and health equity that 

are also discussed in this rule. 

The draft of HOPE has undergone 

cognitive and pilot testing, and will 

undergo field testing to establish 

reliability, validity, and feasibility of the 

assessment instrument. We anticipate 

proposing HOPE in future rulemaking 

after testing is complete. 

We will continue development of 

HOPE in accordance with the Blueprint 

for the CMS Measures Management 

System. Development of HOPE is 

grounded in extensive information 

gathering activities to identify and 

refine hospice assessment domains and 

candidate assessment items. We 

appreciate the industry’s and national 

associations’ engagement in providing 

input through information sharing 

activities, including listening sessions, 

expert interviews, key stakeholder 

interviews, and focus groups to support 

HOPE development. As CMS proceeds 

with field testing HOPE, we will 

continue to engage with stakeholders 

through sub-regulatory channels. In 

particular, we will continue to host 

HQRP Forums to allow hospices and 

other interested parties to engage with 

us on the latest updates and ask 

questions on the development of HOPE 

and related quality measures. We also 

have a dedicated email account, 

HospiceAssessment@cms.hhs.gov, for 

comments about HOPE. We will use 

field test results to create a final version 

of HOPE to propose in future 

rulemaking for national 

implementation. We will continue to 

engage all stakeholders throughout this 

process. We appreciate the support for 

HOPE and reiterate our commitment to 

providing updates and engaging 

stakeholders through sub-regulatory 

means. Future updates and engagement 

opportunities regarding HOPE can be 

found at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospiceQuality-Reporting/HOPE.html. 

We received many comments about 

the HOPE update. A summary of these 

comments and our responses appear 

below: 

Comments: Several commenters 

encouraged CMS to thoughtfully 

consider the implementation timeline 

for HOPE and the collection 

demographic and social risk factor data. 

The comments pointed out that the 

process for providers to adapt to the 

new tool requires at least 6 months or 

more. They noted the implementation of 

a new assessment instrument would be 

burdensome on both providers and EMR 

vendors. 

Several commenters noted the 

potential for overlap in quality measures 

from HOPE and HCI or future measures. 

They encouraged CMS to eliminate any 

duplicative measures from HCI and 

HOPE, and to consider using HOPE data 

as the source for publicly reported 

information once it is implemented. 

Response: We thank commenters for 

raising points for CMS to consider in 

advance of HOPE implementation. We 

appreciate commenters’ concern for 

provider and vendor burden in 

implementing a new tool and encourage 

all key stakeholders to continue to stay 

informed and engaged through the 

HQRP Forums, Quarterly Updates, and 

listserv notifications. 

7. Update on Quality Measure 

Development for Future Years 

In the FY 2017 Hospice Wage Index 

and Payment Rate Update final rule (81 

FR 52160), we finalized new policies 

and requirements related to the HQRP, 

including how we would provide 

updates related to the development of 

new quality measures. Information on 

the current HQRP quality measures can 

be found at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospiceQuality-Reporting/Current-Measures. In 

this proposed rule, we are continuing to 

provide updates for both HOPE-based 

and claims-based quality measure 

development. 

To support new measure 

development, our contractor convened 

TEP meetings in 2020 to provide 

feedback on several measure concepts. 

In 2020, the TEP explored potential 

quality measure constructs that could be 

derived from HOPE and their 

specifications. Specifically, for HOPEbased measure development, the TEP 

focused on pain and other symptom 

outcome measure concepts that could be 

calculated from HOPE. Input from 

initial TEP workgroups held in spring 

2020 informed follow-up informationgathering activities related to pain in 

general and neuropathic pain in 

particular. The 2020 Information 

Gathering Summary report is available 

at https://www.cms.gov/files/document/ 

12042020-information-gatheringoy1508.pdf. During fall 2020, the TEP 

reviewed measure concepts focusing on 

pain and symptom outcomes that could 

be calculated from HOPE items. 

The TEP supported further 

exploration and development of these 

measures. As described in the 2020 TEP 

Summary Report, the TEP generally 


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supports the following measure 

concepts that are calculated using HOPE 

items: Timely Reduction of Pain Impact, 

Reduction in Pain Severity, and Timely 

Reduction of Symptoms. The candidate 

measure Timely Reduction of Pain 

Impact reports the percentage of 

patients who experienced a reduction in 

the impact of moderate or severe pain. 

HOPE items assessing Symptom Impact, 

and Patient Desired Tolerance Level for 

Symptoms or Patient Preferences for 

Symptom Management were used to 

calculate this measure. The candidate 

measure Reduction in Pain Severity 

reports the percentage of patients who 

had a reduction in reported pain 

severity. The primary HOPE items used 

to calculate this measure include Pain 

Screening, Pain Active Problem, and 

Patient Desired Tolerance Level for 

Symptoms or Patient Preferences for 

Symptom Management. The last 

candidate measure discussed by the TEP 

was Timely Reduction of Symptoms 

which measures the percentage of 

patients who experience a reduction in 

the impact of symptoms other than pain. 

HOPE items assessing Symptom Impact, 

and Patient Desired Tolerance Level for 

Symptoms or Patient Preferences for 

Symptom Management were used to 

calculate this measure. HOPE items for 

all three measure are collected at 

multiple time points across a patient’s 

stay, including at Admission, Symptom 

Reassessment, Level of Care Change, 

and Recertification. Overall, the TEP 

supported each candidate measure and 

agreed that they were viable for 

distinguishing hospice quality. We 

continue to develop all three candidate 

quality measures. 

We are interested in exploring patient 

preferences for symptom management, 

addressing patient spiritual and 

psychosocial needs, and medication 

management in outcomes of care in 

development of quality measures. We 

sought public comment on methods, 

instruments, or brief summaries on 

hospice quality initiatives related to 

goal attainment, patient preferences, 

spiritual needs, psychosocial needs, and 

medication management. 

Information about the TEP feedback 

on these quality measures concepts and 

future measure concepts can be 

obtained via: https://www.cms.gov/files/ 

document/2020-hqrp-tep-summaryreport.pdf. Related to the outcome 

measures and in order to have HOPE 

pain and symptom measures in the 

program as soon as possible, we plan to 

develop process measures, including on 

pain and symptom management. These 

process measures may support or 

complement the outcome measures. We 

solicit comments on current HOPEbased quality measure development and 

recommendations for future process and 

outcome measure constructs. 

In the FY 2020 Hospice Wage Index 

and Payment Rate Update final rule (84 

FR 38484) and as discussed later in this 

section of the preamble, we are 

interested in claims-based quality 

measures in order to leverage the 

multiple data sources currently 

available to support quality measure 

development. Specifically, we intend to 

develop additional claims-based 

measures that may enable beneficiaries 

and their family caregivers to make 

more informed choices about hospice 

care and to hold hospices more 

accountable for the care they provide. 

As discussed in this section, the HVLDL 

and HCI claims-based measures support 

the Meaningful Measures initiative and 

address gaps in HQRP. Additional 

claim-based measure concepts we are 

considering for development include 

hospice services on weekends, 

transitions after hospice live discharge, 

Medicare expenditures per beneficiary 

(including the share of non-hospice 

spending during hospice election, and 

the share for hospice care prior to the 

last year of life), and post-mortem visits 

as measures of hospice quality. We 

intend to submit additional claimsbased measures for future consideration 

and solicit public comment. 

We solicited public comment on the 

aforementioned HOPE- and claimsbased quality measures to distinguish 

between high- and low-quality hospices, 

support healthcare providers in quality 

improvement efforts, and provide 

support to hospice consumers in 

helping to select a hospice provider. We 

also solicited public comment on how 

the candidate measures may achieve 

those goals. 

We are also considering developing 

hybrid quality measures that would be 

calculated using claims, assessment 

(HOPE), or other data sources. Hybrid 

quality measures allow for a more 

comprehensive set of information about 

care processes and outcomes than 

cannot be calculated using claims data 

alone. Assessment data can be used to 

support risk-adjustment. We sought 

public comment on quality measure 

concepts and considerations for 

developing hybrid measures based on a 

combination of data sources. 

We received many comments on 

future quality measure development 

aspects. A summary of these comment 

and our responses to those comments 

appear below: 

Comment: We received several 

comments suggesting concepts for 

future quality measures in the HQRP 

such as measures related to postmortem 

service, plan of care goal achievement, 

spiritual care, psychosocial care, veteran 

services, volunteer activities, visit 

activity at the time of admission, change 

of level of care, change of physical 

location, safety culture, and workforce 

engagement, and patient and family care 

needs. Comments urge CMS to monitor 

duplication of measures when HOPEbased and other future measures are 

under development. Many commenters 

emphasized the need to engage 

providers to share information and for 

CMS to seek feedback when developing 

quality measures. 

We received many comments 

expressing the need for HCPCS codes 

for all hospice disciplines, including 

spiritual care professionals. These 

comments also suggested including 

these disciplines in future claims-based 

measures to recognize the multidisciplinary nature of hospice care. 

Many commenters noted their 

concern about the distinction between 

performance measures and quality of 

care measures. Commenters emphasized 

that performance measures should be 

used to measure program integrity, but 

should not be publicly reported. Several 

commenters encouraged CMS to use 

quality claims-based data and other data 

sources for hybrid measure, consider the 

implications of claims-based measures 

to measure quality, use of survey data if 

feasible, explore outcome measures 

related to pain and other symptom 

management, and explore goal 

achievement. Several comments suggest 

CMS explore statewide or regional 

approaches to measure quality rather 

than using national analysis and 

perform rigorous data validation by 

hospice providers for claims-based 

measures. 

Response: We thank all the 

commenters for their thoughtful 

suggestions and feedback related to 

future of quality measure development 

for the HQRP. We appreciate 

suggestions for new quality measures, as 

well as comments about the public 

reporting of quality measures. CMS will 

take these comments under advisement 

for future consideration of quality 

measures and the Meaningful Measures 

System Blueprint. We encourage all key 

stakeholders to continue to stay 

informed and engaged through the 

HQRP Forums, Open Door Forums, 

Quarterly Updates, and listserv 

notifications. 


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45https://www.cms.gov/files/document/guidancememo-exceptions-and-extensions-quality-reportingand-value-based-purchasing-programs.pdf. 

8. CAHPS Hospice Survey Participation 

Requirements for the FY 2023 APU and 

Subsequent Years 

a. Background and Description of the 

CAHPS Hospice Survey 

The CAHPS Hospice Survey is a 

component of the CMS HQRP which is 

used to collect data on the experiences 

of hospice patients and the primary 

caregivers listed in their hospice 

records. Readers who want more 

information about the development of 

the survey, originally called the Hospice 

Experience of Care Survey, may refer to 

79 FR 50452 and 78 FR 48261. National 

implementation of the CAHPS Hospice 

Survey commenced January 1, 2015 as 

stated in the FY 2015 Hospice Wage 

Index and Payment Rate Update final 

rule (79 FR 50452). 

b. Overview of the ‘‘CAHPS Hospice 

Survey Measures’’ 

The CAHPS Hospice Survey measures 

was re-endorsed by NQF on November 

20, 2020. The re-endorsement can be 

found on the NQF website at: https://

www.qualityforum.org/Measures_

Reports_Tools.aspx. Use the QPS tool 

and search for NQF number 2651. The 

survey received its initial NQF 

endorsement on October 26, 2016 (NQF 

#2651). We adopted 8 survey based 

measures for the CY 2018 data 

collection period and for subsequent 

years. These eight measures are publicly 

reported on a designated CMS website, 

Care Compare, https://

www.medicare.gov/care-compare/. 

c. Data Sources 

We previously finalized the 

participation requirements for the 

CAHPS Hospice Survey, (84 FR 38484). 

We propose no changes to these 

requirements going forward. 

d. Public Reporting of CAHPS Hospice 

Survey Results 

We began public reporting of the 

results of the CAHPS Hospice Survey on 

Hospice Compare as of February 2018. 

Prior to the COVID–19 PHE, we reported 

the most recent 8 quarters of data on the 

basis of a rolling average, with the most 

recent quarter of data being added and 

the oldest quarter of data removed from 

the averages for each data refresh. Given 

the exemptions provided due to 

COVID–19 PHE in the March 27, 2020 

Guidance Memorandum,45 public 

reporting will continue to be the most 

recent 8 quarters of data, excluding the 

exempted quarters; Quarter 1 and 

Quarter 2 of CY 2020. More information 

about this is detailed in the section 

entitled: Proposal for Public Reporting 

CAHPS-based measures with Fewer 

than Standard Numbers of Quarters Due 

to the COVID–19 PHE Exemptions 

e. Volume-Based Exemption for CAHPS 

Hospice Survey Data Collection and 

Reporting Requirements 

We previously finalized a volumebased exemption for CAHPS Hospice 

Survey Data Collection and Reporting 

requirements for FY 2021 and every 

year thereafter (84 FR 38526). 

We propose no changes to this 

exemption. The exemption request form 

is available on the official CAHPS 

Hospice Survey website: http://

www.hospiceCAHPSsurvey.org. 

Hospices that intend to claim the size 

exemption are required to submit to 

CMS their completed exemption request 

form by December 31, of the data 

collection year. 

Hospices that served a total of fewer 

than 50 survey-eligible decedent/ 

caregiver pairs in the year prior to the 

data collection year are eligible to apply 

for the size exemption. Hospices may 

apply for a size exemption by 

submitting the size exemption request 

form. The size exemption is only valid 

for the year on the size exemption 

request form. If the hospice remains 

eligible for the size exemption, the 

hospice must complete the size 

exemption request form for every 

applicable FY APU period, as shown in 

table 9. 

BILLING CODE 4120–01–P 

f. Newness Exemption for CAHPS 

Hospice Survey Data Collection and 

Public Reporting Requirements 

We previously finalized a one-time 

newness exemption for hospices that 

meet the criteria as stated in the FY 

2017 Hospice Wage Index and Payment 

Rate Update final rule (81 FR 52181). In 

the FY 2019 Hospice Wage Index and 

Payment Rate Update final rule (83 FR 

38642), we continued the newness 

exemption for FY 2023, and all 

subsequent years. We encourage 

hospices to keep the letter they receive 

providing them with their CMS 

Certification Number (CCN). The letter 

can be used to show when you received 

your number. 

g. Survey Participation Requirements 

We previously finalized survey 

participation requirements for FY 2022 

through FY 2025 as stated in the FY 

2018 and FY 2019 Hospice Wage Index 

and Payment Rate Update final rules (82 

FR 36670 and 83 FR 38642 through 

38643). We also continued those 

requirements in all subsequent years (84 

FR 38526). Table 10 restates the data 

submission dates for FY 2023 through 

FY 2025. 


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TABLE 9: Size Exemption Key Dates FY 2022 Through FY 2026 

Fiscal year Data collection year Reference year Size exemption 

form submission 

deadline 

FY2022 CY 2020 CY 2019 December 31, 2020 

FY 2023 CY 2021 CY2020 December 31, 2021 

FY2024 CY 2022 CY 2021 December 31, 2022 

FY 2025 CY 2023 CY2022 December 31, 2023 

FY 2026 CY 2024 CY2023 December 31, 2024 
42572 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

BILLING CODE 4120–01–C 

For further information about the 

CAHPS Hospice Survey, we encourage 

hospices and other entities to visit: 

https://www.hospiceCAHPSsurvey.org. 

For direct questions, contact the CAHPS 

Hospice Survey Team at 

hospiceCAHPSsurvey@HCQIS.org or 

call 1-(844) 472–4621. 

h. Proposal to Add CAHPS Hospice 

Survey Star Ratings to Public Reporting 

CMS currently publishes CAHPS star 

ratings for several of its public reporting 

programs including Home Health 

CAHPS and Hospital CAHPS. The 

intention in doing so is to provide a 

simple, easy to understand, method for 

summarizing CAHPS scores. Star ratings 

benefit the public in that they can be 

easier for some to understand than 

absolute measure scores, and they make 

comparisons between hospices more 

straightforward. The public’s familiarity 

with a 1 through 5 star rating system, 

given its use by other programs, is also 

a benefit to using this system. 

In the proposed rule, we proposed to 

introduce Star Ratings for public 

reporting of CAHPS Hospice Survey 

results on the Care Compare or 

successor websites no sooner than FY 

2022. We proposed that the calculation 

and display of the CAHPS Hospice 

Survey Star Ratings be similar to that of 

other CAHPS Star Ratings programs 

such as Hospital CAHPS and Home 

Health CAHPS. The stars would range 

from one star (worst) to five stars (best). 

We proposed that the stars be calculated 

based on ‘‘top-box’’ scores for each of 

the eight CAHPS Hospice Survey 

measures. Specifically, individual-level 

responses to survey items would be 

scored such that the most favorable 

response is scored as 100 and all other 

responses are scored as 0. A hospicelevel score for a given survey item 

would then be calculated as the average 

of the individual-level responses, with 

adjustment for differences in case mix 

and mode of survey administration. For 

a measure composed of multiple items, 

the hospice-level measure score would 

be the average of the hospice-level 

scores for each item within the measure. 

Similar to other CAHPS programs, we 

proposed that the cut-points used to 

determine the stars be constructed using 

statistical clustering procedures that 

minimize the score differences within a 

star category and maximize the 

differences across star categories. 

We proposed to use a two-stage 

approach to calculate these cut-points. 

In the first stage, we would determine 

initial cut-points by calculating the 

clustering algorithm among hospices 

with 30 or more completed surveys over 

2 quarters (that is, 6 months); restricting 

these calculations to hospices that meet 

a minimum sample size promotes 

stability of cut-points. Depending on 

whether hospices that meet this 

minimum sample size have different 

score patterns than smaller hospices, the 

initial cut-points may be too high or too 

low. To ensure that cut-points reflect 

the full distribution of measure 

performance, in the second stage, we 

proposed to compare mean measure 

scores for the bigger hospices used in 

the first stage to all other hospices, and 

update cut-points by adjusting the 

initial cut-points to reflect the 

normalized difference between bigger 

and smaller hospices. This two-stage 

approach allows for calculation of stable 

cut-points that reflect the full range of 

hospice performance. We proposed that 

hospice star ratings for each measure be 

assigned based on where the hospicelevel measure score falls within these 

cut-points. 

We further proposed to calculate a 

summary or overall CAHPS Hospice 

Survey Star Rating by averaging the Star 

Ratings across the 8 measures, with a 

weight of 1⁄2 for Rating of the Hospice, 

a weight of 1⁄2 for Willingness to 

Recommend the Hospice, and a weight 

of 1 for each of the other measures, and 

then rounding to a whole number. We 

proposed that only the overall Star 

Rating be publicly reported and that 

hospices must have a minimum of 75 

completed surveys in order to be 

assigned a Star Rating. Finally, we 

proposed to publish the details of the 

Star Ratings methodology on the CAHPS 

Hospice Survey website, 

www.hospicecahpssurvey.org. CMS 

requires no additional resources to 

create and display CAHPS star ratings. 

We solicited comments on these 

proposals for CAHPS Star Ratings and 

the public reporting of star ratings no 

sooner than FY 2022. 


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TABLE 10: CAHPS Hospice Survey Data Submission Dates for the APU in FY 

2023, FY 2024, and FY 2025 

FY2023 APU 

Sample months 

(month of death)* 

CY January-March 2021 (Quarter 1) 

CY April-June 2021 (Quarter 2) 

CY July-September 2021 (Quarter 3) 

CY October-December 2021 (Quarter 4) 

FY2024APU 

CY January-March 2022 (Quarter 1) 

CY April-June 2022 (Quarter 2) 

CY July-September 2022 (Quarter 3) 

CY October-December 2022 (Quarter 4) 

FY2025 APU 

CARPS Quarterly Data Submission Deadlines** 

AUQUSt 11, 2021 

November 10, 2021 

February 9, 2022 

May 11, 2022 

August 10, 2022 

November 9, 2022 

February 8, 2023 

May 10, 2023 

CY January-March 2023 (Quarter 1) August 9, 2023 

CY April-June 2023 (Quarter 2) November 8, 2023 

CY July-September 2023 (Quarter 3) February 14, 2024 

CY October-December 2023 (Quarter 4) May 8, 2024 

* Data collection for each sample month initiates 2 months following the month of patient death (for 

example, in April for deaths occurring in January). 

** Data submission deadlines are the second Wednesday of the submission months, which are the 

months August, November, February, and May. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42573 

Comment: Many commenters 

expressed concern about the timeframe 

for implementing CAHPS Hospice 

Survey star ratings. They suggested that 

the display of star ratings be delayed 

because CMS needs to provide 

additional opportunities for providers to 

learn about and comment on the details 

of the methodology. In addition, some 

commenters wanted CMS to consider 

creating a single star rating based on 

both CAHPS and other measures, such 

as the HOPE tool. 

Response: As stated in the proposed 

rule, we will display CAHPS Hospice 

Survey star ratings no sooner than FY 

2022. Prior to finalizing a timeline, CMS 

will provide multiple opportunities to 

share information and receive 

comments from stakeholders. This 

could include a special open door forum 

or other venues for interaction. CMS 

proposed a CAHPS-only star rating 

since other portions of Care Compare 

also display a CAHPS-only star rating 

(for example, Hospital CAHPS and 

Home Health CAHPS). We will take the 

recommendation of a single star rating 

into consideration for the future. 

Comment: A few commenters 

requested specifically for an explanation 

for using top-box scoring of individual 

level responses for the star ratings. They 

note that other star ratings use a 0–100 

linear-scaled score. 

Response: CMS analyzed existing data 

to inform the development of star 

ratings in the hospice setting. We 

examined star ratings using linear 

means and, separately, top-box scores. 

For CAHPS Hospice Survey data, using 

top-box scores resulted in wider star 

rating categories that make the star 

ratings less sensitive to small changes in 

scores. For this reason, we proposed to 

calculate CAHPS Hospice star ratings 

using top-box scores. 

Comment: Several commenters raised 

a concern regarding whether relatively 

high levels and tight distribution of 

performance on CAHPS Hospice Survey 

measures will result in hospices with 

high scores receiving 3 or fewer stars. 

Some commenters were concerned 

about the comparative nature of CAHPS 

star ratings and a few called for an 

alternative methodology that would rate 

hospices against a benchmark. 

Response: Our analyses of existing 

CAHPS Hospice Survey data 

demonstrate that hospices with high 

scores would overwhelmingly receive 4 

and 5 stars. Clustering methodology 

assigns cut points by minimizing 

differences within star categories and 

maximizing differences across star 

categories. This methodology does not 

force a set number of hospices into each 

star category. Using a benchmark rather 

than the clustering approach represents 

a major shift from our current practice. 

The current methodology has been 

successful for other provider types. We 

do not believe it is necessary to 

drastically change our methodology for 

the CAHPS Hospice Survey. 

Comment: Some commenters raised 

questions about using 75 completed 

surveys as the threshold for public 

reporting of stars. They were concerned 

that this number is nearly double the 

number of survey responses required 

from home health agencies (40 

completes) and more than double the 

number of responses a hospice must 

currently have for CAHPS® Hospice 

Survey measures to be reported (30 

completes). They requested a 

justification for using this number. One 

commenter stated that given the survey 

response rate, a hospice would have 

more than 200 completed surveys in 

order for star ratings to be displayed. 

This was a concern for many 

commenters because it would mean that 

star ratings would be available only for 

large hospices. Some commenters 

suggested that CMS formulate a 

methodology that would include 

smaller hospices in star ratings. 

Additionally, several commenters noted 

that the proposed rule does not state 

how many hospices will meet the 75 

completes threshold. 

Response: CMS seeks to balance the 

goal of reporting star ratings for as many 

hospices as possible with the need to 

ensure that the star ratings can be stably 

estimated and distinguish between 

hospices’ performance. If a hospice does 

not have enough survey completes to 

reliably measure performance, the star 

ratings would be picking up more noise 

than true performance. Our analyses 

have determined that the optimal 

balance between these two goals is at 75 

completed surveys per hospice. We 

expect that approximately 70 percent of 

hospices with publicly reported CAHPS 

Hospice Survey measure scores meet the 

threshold of 75 completed surveys. 

Comment: Several commenters 

expressed concerns that the public will 

not interpret the star ratings correctly. 

They also called for more explanatory 

information on the Care Compare 

website. 

Response: The star rating approach 

proposed for CAHPS Hospice Survey 

measures is similar to what has been 

used for Medicare Advantage and Part D 

plan measures and Hospital CAHPS 

measures successfully for many years. 

These other settings utilize a clustering 

algorithm such that providers within a 

cluster are more alike than providers 

across clusters. The proposed CAHPS 

Hospice Survey stars will adopt a 

similar overall approach, although using 

top-box scores rather than linear means, 

based on our analyses of existing data. 

Consumers have generally welcomed 

star ratings. We will make explanatory 

information available to consumers, 

while recognizing that keeping the 

interface as streamlined as possible 

improves the usability of the site for 

consumers. 

Comment: Several commenters stated 

concerns that the public might 

misinterpret the lack of star ratings for 

smaller hospices as being evidence of 

poor quality care. They called for 

customer research on how the public 

would interpret the absence of star 

ratings as well as research on the extent 

to which the public understands how 

star ratings are calculated. 

Response: Star Ratings are easy for 

consumers to understand and interpret 

and are used in a variety of settings. We 

will explore alternatives for presenting 

additional information about star ratings 

on the Care Compare website so that 

consumers may be informed about why 

smaller hospices may not have stars. 

Comment: A few commenters 

requested more details about if and how 

we will include patient-mix adjustment. 

Response: Star ratings are based on 

CAHPS Hospice Survey measure scores, 

which are adjusted for case mix and 

mode of survey administration. Detailed 

information regarding adjustment of 

measure scores is available at https://

hospicecahpssurvey.org/en/scoring-andanalysis/. 

Comment: Several commenters raised 

issues about the eight quarters of data 

included in public reporting. They 

believe that this is too long and that it 

makes it difficult for hospices to use 

publicly-reported data for quality 

improvement. 

Response: CMS seeks to balance the 

goal of publicly reporting measure 

scores for as many hospices as possible 

with the need to ensure that measure 

scores can be stably estimated and 

distinguish between hospices’ 

performance. Rolling up eight quarters 

of data instead of four ensures that 

measure scores are available for many 

more hospices, which improves the 

usefulness of the Compare web tools for 

hospice consumers. The eight quarter 

approach does not result in a delay of 

when data become available (since the 

most recent quarters of data are 

included in the rolled-up score), but it 

does ensure more accurate 

measurement. The decision to use eight 

quarters of rolling data for hospices 

reflects the size of hospices, which 

differ in size and other dimensions from 

other types of entities, such as hospitals 

and Medicare Advantage contracts, for 


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42574 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

which CMS publicly reports scores and 

star ratings. We note that hospices 

should be able to receive timely reports 

and data directly from their survey 

vendors. We encourage hospices who 

want to use CAHPS data for quality 

improvement to talk to their vendors 

about the reports and data that may be 

available shortly after data collection. 

Comment: A commenter stated that 

the preview report timeframe is too 

short and that hospices should receive 

preview data at least 1 year prior to its 

publication in order to analyze 

performance and implement quality 

improvement. 

Response: As stated previously, we 

recommend that hospices use data from 

their vendors for quality improvement, 

rather than wait for publicly-reported 

data. If we were to provide preview data 

a year in advance, the publicly reported 

data would be too old to be a 

meaningful reflection of the hospice’s 

performance. We believe additional 

delays in public reporting of data is not 

in the interest of the public using Care 

Compare. 

Comment: Many commenters 

expressed concern about publicly 

reporting data that was collected and/or 

delivered during the COVID–19 PHE. 

They commented that these data could 

be skewed by the public health 

emergency. 

Response: We will not include data 

from Q1 and Q2 2020 in Star Rating 

calculations, as hospices were exempted 

from submitting these quarters of data to 

CMS due to the COVID–19 PHE. 

Comment: Several commenters stated 

that the CAHPS Hospice Survey is 

unlike other CAHPS surveys in that the 

respondents are family members or 

friends of the deceased—not the 

patients themselves. They believe this is 

a key difference between the hospice 

survey and other CAHPS surveys and 

called for more information on the Care 

Compare site to make sure consumers 

are not misled. 

Response: Although Care Compare 

already notes that for Hospice CAHPS 

the user is comparing ‘‘. . . hospices 

based on results from a national survey 

that asks a family member or friend of 

a hospice patient about their hospice 

care experience,’’ we will consider 

whether there are additional ways to 

highlight this. 

Comment: Some commenters objected 

to the comparative nature of the CAHPS 

Hospice Survey star ratings, preferring 

instead, a rating based upon an external 

criteria rather than one that compares 

hospices to each other. As a few 

commenters noted, ‘‘Each hospice is 

afforded the opportunity to achieve 

excellent ratings on the CAHPS Hospice 

Survey. Similarly, this same right 

should be afforded hospices under the 

Star Rating system through a clear 

portrayal Star Rating of performance to 

consumers and the public that reflects 

how most respondents scored the 

hospice, not how the hospice fares 

compared to all other hospices.’’ One 

commenter also suggested that star 

ratings calculations be made available to 

hospices before they are publicly 

reported. 

Response: Similar to other CMS 

CAHPS star ratings, we propose that the 

cut-points used to determine CAHPS 

Hospice Survey stars be constructed 

using statistical clustering procedures 

that minimize the score differences 

within a star category and maximize the 

differences across star categories. This 

ensures that star assignments clearly 

differentiate performance across groups 

of hospices. Such comparative star 

ratings, as proposed by CMS, help 

consumers identify high and low 

performing hospices. With respect to 

making calculations available before 

they are publicly reported, we do plan 

to provide star ratings calculations in 

preview reports prior to their display. 

Comment: Several commenters noted 

that CMS is currently conducting a pilot 

test of a revised CAHPS Hospice Survey 

questionnaire and wondered whether 

the release of a new questionnaire 

would coincide with the introduction of 

star ratings. They also questioned 

whether CMS expected that use of a 

revised questionnaire would increase 

the number of hospices that achieve 75 

completed questionnaires and would, 

therefore, be included in star ratings. 

Response: We are currently 

conducting an experiment to test a new 

version of the survey, including the web 

mode of administration which may have 

an impact on response rates and the 

number of survey completes. Results of 

this experiment will help to inform 

changes to the survey in the future. We 

anticipate that star ratings will be 

released prior to a new version of the 

survey. Star ratings will continue to be 

calculated and released as we phase in 

the new survey version. 

Comment: Many commenters 

questioned the weighting of the 

components of the star ratings, 

particularly the decision to weigh the 

two global questions (Overall Rating and 

Willingness to Recommend) at 50 

percent of the weight for each composite 

measure. 

Response: The Willingness to 

Recommend and Overall Rating 

measures are highly correlated with one 

another, as both provide global 

assessments of hospice care. Given this, 

weighting each of the two measures at 

100 percent would over-emphasize 

global assessments of care relative to the 

other aspects of care assessed by CAHPS 

Hospice Survey measures. CMS 

maintains its proposal to weight 

Willingness to Recommend and Overall 

Rating at 50 percent each for the 

purpose of calculating an overall 

CAHPS Hospice Survey star rating. This 

approach parallels the one used by CMS 

for calculating star ratings for hospitals. 

Comment: A few commenters 

questioned whether it is CMS’s intent 

for the CAHPS® to be the sole star rating 

vehicle for hospice care or whether 

there would be another star rating for 

HOPE measures when it is 

implemented? 

Response: The FY 2022 proposal 

contemplated a CAHPS-only measure in 

the short-term. At this time, it is 

premature to determine whether the 

HOPE tool should be used to create star 

ratings, either separately from CAHPS or 

in combination with CAHPS. The HOPE 

tool is now under development. We will 

consider other star ratings as applicable. 

Comment: One commenter 

recommended that CMS award star 

ratings in FY 2022, but suppress public 

reporting in Care Compare until the 

August 2023 refresh when all the data 

will be after the COVID-exempted 

quarters. 

Response: As mentioned previously, 

we plan to display stars no sooner than 

FY 2022. We will take into 

consideration the option of starting the 

stars display when all data will be after 

the COVID-exempted quarters. 

Comment: One commenter strongly 

suggested that there should be a ‘‘not 

applicable’’ response option available 

for each question in the questionnaire. 

Indeed, they noted that ‘‘Questions such 

as ‘‘How often did your family member 

get the help he or she needed for trouble 

breathing’’ or ‘‘How often did your 

family member get the help he or she 

needed for constipation’’ are difficult for 

family members to answer if their loved 

one did not experience issues with 

those symptoms.’’ 

Response: On the questionnaire, the 

respondent is asked if their family 

member experienced the symptom. If 

they did not experience the symptom, 

the instructions say to skip to another 

question. Under these circumstances a 

‘‘not applicable’’ is not needed. 

Comment: A few commenters stated 

that the survey is too long. One 

commenter suggested that we should 

identify the key 1 or 2 questions in each 

survey domain and use them instead. 

Response: We are currently 

conducting an experiment to test a 

shorter version of the CAHPS Hospice 

Survey. Results of this experiment will 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42575 

help to inform changes to the survey in 

the future. 

Final Decision: After consideration of 

the public comments, we are finalizing 

our proposal to display Hospice CAHPS 

Star ratings no sooner than FY 2022. We 

plan to provide opportunities for 

interaction with stakeholders to discuss 

our plans and methodology and to 

receive feedback prior to the start of star 

ratings display. We will also explore the 

feasibility of conducting a dry run of the 

star ratings with reporting to hospices 

via preview reports, which would occur 

prior to the start of the public display 

of the ratings. 

9. Form, Manner, and Timing of Quality 

Data Submission 

a. Statutory Penalty for Failure To 

Report 

Section 1814(i)(5)(C) of the Act 

requires that each hospice submit data 

to the Secretary on quality measures 

specified by the Secretary. Such data 

must be submitted in a form and 

manner, and at a time specified by the 

Secretary. Section 1814(i)(5)(A)(i) of the 

Act was amended by the CAA 2021 and 

the payment reduction for failing to 

meet hospice quality reporting 

requirements is increased from 2 

percent to 4 percent beginning with FY 

2024. The Act requires that, beginning 

with FY 2014 through FY 2023, the 

Secretary shall reduce the market basket 

update by 2 percentage points and then 

beginning in FY 2024 and for each 

subsequent year, the Secretary shall 

reduce the market basket update by 4 

percentage points for any hospice that 

does not comply with the quality data 

submission requirements for that FY. 

We received a few comments on this 

policy. A summary of these comment 

and our responses to those comments 

appear below: 

Comment: We received several 

comments objecting to the increase in 

the percentage penalty for failure to 

provide quality reporting data. 

Response: We thank the commenters 

for their views, but as noted, this 

provision is required by section 407(b) 

of the CAA and does not permit any 

discretion on the part of the Secretary to 

implement it. 

Comment: Several commenters 

requested that CMS communicate 

widely and display prominently notices 

and information about the increase in 

the penalty for failure to comply with 

HQRP requirements. They suggested 

using multiple avenues of 

communication including the HQRP 

website and MLN Connects. 

Response: We agree that 

communicating widely is critically 

important, to ensure as many hospices 

as possible are aware not only of the 

increase in penalty, but also clearly 

understand the HQRP reporting 

requirements and the APU process. We 

will consider using multiple avenues for 

communication, including this rule, the 

Medicare Claims Manual, the HQRP 

website, such as the HQRP 

Requirements and Best Practices web 

page at: https://www.cms.gov/Medicare/ 

Quality-Initiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/ 

HQRP-Requirements-and-Best-Practices 

and the Training and Education Library 

page at: https://www.cms.gov/Medicare/ 

Quality-Initiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/ 

Hospice-Quality-Reporting-TrainingTraining-and-Education-Library. We 

will also consider opportunities to 

communicate through webinars, Open 

Door Forums, and other resources as 

relevant. 

Comment: A few commenters did not 

agree with the CAA 2021 provision that 

removes the prohibition on public 

disclosure of hospice surveys performed 

by a national accreditation agency in 

section 1865(b) of the Act, thus allowing 

the Secretary to disclose such 

accreditation surveys. Many 

commenters also noted the special 

focused program that requires each state 

and local survey agency, and each 

national accreditation body with an 

approved hospice accreditation 

program, to submit information 

respecting any survey or certification 

made with respect to a hospice program. 

Response: The proposed regulatory 

policies to implement the hospice 

survey and enforcement provisions in 

section 407 of CAA, 2021 were included 

in CY 2022 Home Health Prospective 

Payment System proposed rule with the 

comment period found here: https://

www.govinfo.gov/content/pkg/FR-2021- 

07-07/pdf/2021-13763.pdf. We 

encourage commenters to provide us 

input and comments on these 

provisions in response to that rule. The 

link to the Federal Register can be 

found here: CMS–1747–P CY 2022 

Home Health Prospective Payment 

System Rate Update. Note: The 

comment period closes on August 27, 

2021. 

b. Compliance 

HQRP Compliance requires 

understanding three timeframes for both 

HIS and CAHPS. (1) The relevant 

Reporting Year, payment FY and the 

Reference Year. The ‘‘Reporting Year’’ 

(HIS)/‘‘Data Collection Year’’ (CAHPS). 

This timeframe is based on the CY. It is 

the same CY for both HIS and CAHPS. 

If the CAHPS Data Collection year is CY 

2022, then the HIS reporting year is also 

CY 2022. (2) The APU is subsequently 

applied to FY payments based on 

compliance in the corresponding 

Reporting Year/Data Collection Year. (3) 

For the CAHPS Hospice Survey, the 

Reference Year is the CY prior to the 

Data Collection Year. The Reference 

Year applies to hospices submitting a 

size exemption from the CAHPS survey 

(there is no similar exemption for HIS). 

For example, for the CY 2022 data 

collection year, the Reference Year, is 

CY 2021. This means providers seeking 

a size exemption for CAHPS in CY 2022 

would base it on their hospice size in 

CY 2021. Submission requirements are 

codified in § 418.312. 

For every CY, all Medicare-certified 

hospices are required to submit HIS and 

CAHPS data according to the 

requirements in § 418.312. Table 11 

summarizes the three timeframes. It 

illustrates how the CY interacts with the 

FY payments, covering the CY 2020 

through CY 2023 data collection periods 

and the corresponding APU application 

from FY 2022 through FY 2025. 

BILLING CODE 4120–01–P 


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42576 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

As illustrated in Table 11, CY 2020 

data submissions compliance impacts 

the FY 2022 APU. CY 2021 data 

submissions compliance impacts the FY 

2023 APU. CY 2022 data submissions 

compliance impacts FY 2024 APU. This 

CY data submission impacting FY APU 

pattern follows for subsequent years. 

c. Submission Data and Requirements 

As finalized in the FY 2016 Hospice 

Wage Index and Payment Rate Update 

final rule (80 FR 47192), hospices’ 

compliance with HIS requirements 

beginning with the FY 2020 APU 

determination (that is, based on HISAdmission and Discharge records 

submitted in CY 2018) are based on a 

timeliness threshold of 90 percent. This 

means CMS requires that hospices 

submit 90 percent of all required HIS 

records within 30-days of the event (that 

is, patient’s admission or discharge). 

The 90-percent threshold is hereafter 

referred to as the timeliness compliance 

threshold. Ninety percent of all required 

HIS records must be submitted and 

accepted within the 30-day submission 

deadline to avoid the statutorilymandated payment penalty. 

To comply with CMS’ quality 

reporting requirements for CAHPS, 

hospices are required to collect data 

monthly using the CAHPS Hospice 

Survey. Hospices comply by utilizing a 

CMS-approved third-party vendor. 

Approved Hospice CAHPS vendors 

must successfully submit data on the 

hospice’s behalf to the CAHPS Hospice 

Survey Data Center. A list of the 

approved vendors can be found on the 

CAHPS Hospice Survey website: 

www.hospicecahpssurvey.org. Table 12. 

HQRP Compliance Checklist illustrates 

the APU and timeliness threshold 

requirements. 

BILLING CODE 4120–01–C 

Most hospices that fail to meet HQRP 

requirements do so because they miss 

the 90 percent threshold. We offer many 

training and education opportunities 

through our website, which are 

available 24/7, 365 days per year, to 

enable hospice staff to learn at the pace 

and time of their choice. We want 

hospices to be successful with meeting 

the HQRP requirements. We encourage 

hospices to use this website at: https:// 

www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/ 

Hospice-Quality-Reporting-TrainingTraining-and-Education-Library. 

For more information about HQRP 

Requirements, please visit the 

frequently-updated HQRP website and 

especially the Best Practice, Education 

and Training Library, and Help Desk 

web pages at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospiceVerDate Sep<11>2014 20:53 Aug 03, 2021 Jkt 253001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR4.SGM 04AUR4

lotter on DSK11XQN23PROD with RULES4ER04AU21.149</GPH> ER04AU21.150</GPH>

TABLE 11: HQRP Reporting Requirements and Corresponding Annual Payment 

Updates 

Reporting Year for HIS and Data 

Collection Year for CARPS data 

Calendar ear 

CY2020 

CY2021 

CY2022 

CY2023 

Reference Year for CARPS 

. Exemption (CARPS 

019 

* Beginning in FY 2024 and all subsequent years, the payment penalty is 4 percent. Prior to FY 2024, the 

payment penalty is 2 percent. 

TABLE 12: HQRP Compliance Checklist 

Annual Payment HIS CAHPS 

Update 

Submit at least 90 percent of all HIS records Ongoing monthly 

FY 2022 within 30 days of the event date (patient's participation in the Hospice 

admission or discharge) for patient CARPS survey 1/1/2020 -

admissions/ discharges occurring 1/1/20 - 12/31/2020 

12/31/20. 

Submit at least 90 percent of all HIS records Ongoing monthly 

FY 2023 within 30 days of the event date (patient's participation in the Hospice 

admission or discharge) for patient CARPS survey 1/1/2021 -

admissions/discharges occurring 1/1/21 - 12/31/2021 

12/31/21. 

Submit at least 90 percent of all HIS records Ongoing monthly 

within 30 days of the event date (patient's participation in the Hospice 

FY 2024 admission or discharge) for patient CARPS survey 1/1/2022 -

admissions/discharges occurring 1/1/22 - 12/31/2022 

12/31/22. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42577 

46Azar, A. M. (2020 March 15). Waiver or 

Modification of Requirements Under Section 1135 

of the Social Security Act. Public Health 

Emergency. https://www.phe.gov/emergency/news/ 

healthactions/section1135/Pages/covid19- 

13March20.aspx. 

47https://www.phe.gov/emergency/news/ 

healthactions/section1135/Pages/covid19- 

13March20.aspx. 

48https://www.cms.gov/files/document/guidancememo-exceptions-and-extensions-quality-reportingand-value-based-purchasing-programs.pdf. 

49 (2020, March 27). Exceptions and Extensions 

for Quality Reporting Requirements for Acute Care 

Hospitals, PPS-Exempt Cancer Hospitals, Inpatient 

Psychiatric Facilities, Skilled Nursing Facilities, 

Home Health Agencies, Hospices, Inpatient 

Rehabilitation Facilities, Long-Term Care Hospitals, 

Ambulatory Surgical Centers, Renal Dialysis 

Facilities, and MIPS Eligible Clinicians Affected by 

COVID–19. Centers for Medicare & Medicaid 

Services. .https://www.cms.gov/files/document/ 

guidance-memo-exceptions-and-extensions-qualityreporting-and-value-based-purchasingprograms.pdf. 

Quality-Reporting. We also encourage 

members of the public to go to the 

HQRP web page and sign-up for the 

Hospice Quality ListServ to stay 

informed about HQRP. 

d. Update on Transition to iQIES 

In the FY 2020 Hospice Wage Index 

and Payment Rate Update final rule (84 

FR 38484), we finalized the proposal to 

migrate our systems for submitting and 

processing assessment data. Hospices 

are currently required to submit HIS 

data to CMS using the Quality 

Improvement and Evaluation System 

(QIES) Assessment and the Submission 

Processing (ASAP) system. The FY 2020 

Hospice Wage Index and Payment Rate 

Update final rule (84 FR 38484) 

finalized the proposal to migrate to a 

new internet Quality Improvement and 

Evaluation System (iQIES) that will 

enable us to make real-time upgrades. 

We are designating that system as the 

data submission system for the Hospice 

QRP. We will notify the public about 

any system migration updates using 

subregulatory mechanisms such as web 

page postings, listserv messaging, and 

webinars. 

We received several on the transition 

to iQIES. A summary of these comment 

and our responses to those comment 

appear below: 

Comment: Several commenters 

requested 6-month minimum notice 

prior to the transition of hospice to the 

iQIES system. Some of these 

commenters further requested that CMS 

provide announcements about the 

upcoming implementation of hospice in 

iQIES through all CMS and MAC 

communication platforms to ensure 

wide penetration of the message, and 

ensure a smooth transition given lessons 

from the transition of other settings to 

iQIES. 

Response: We appreciate that 

providers will benefit from advanced 

notice regarding the transition of 

hospice to the iQIES systems. We plan 

to communicate with the provider 

community via sub-regulatory means 

about the upcoming transition as the 

timing becomes clear, and will provide 

sufficient time and appropriate 

information for a smooth transition. 

10. Public Display of ‘‘Quality 

Measures’’ and Other Hospice Data for 

the HQRP 

a. Background 

Under section 1814(i)(5)(E) of the Act, 

the Secretary is required to establish 

procedures for making any quality data 

submitted by hospices available to the 

public. These procedures shall ensure 

that individual hospices have the 

opportunity to review their data prior to 

these data being made public on our 

designated public website. To meet the 

Act’s requirement for making quality 

measure data public, we launched 

Hospice Compare in August 2017. This 

website allows consumers, providers, 

and other stakeholders to search for all 

Medicare-certified hospice providers 

and view their information and quality 

measure scores. In September 2020, 

CMS transitioned Hospice Compare to 

the Care Compare website. Hospice 

Compare was discontinued in December 

2020. Care Compare supports all 

Medicare settings and fulfills the Act’s 

requirements for the HQRP. For more 

information about Care Compare, please 

see the Update on the Hospice Quality 

Reporting Requirements for FY 2022 in 

section D. 

Since 2017, we have increased and 

improved available information about 

the care hospices provide for 

consumers. To indicate the quality of 

care hospices provide, we first posted 

the seven HIS Measures (NQF #1641, 

NQF #1647, NQF #1634, NQF #1637, 

NQF #1639, NQF #1638, and NQF 

#1617) in 2017, and then added the 

CAHPS Hospice Survey measure (NQF 

#2651) and the HIS Comprehensive 

Assessment at Admission (NQF #3235) 

in 2018. In 2019, we added the Hospice 

Visits When Death is Imminent 

(Measure 1) to the website. 

As discussed previously, we are 

finalizing our proposal to remove the 

seven HIS Measures from public 

reporting on Care Compare no earlier 

than May 2022. The Hospice Item Set 

V3.00 PRA Submission replaced the 

HVWDII measure with a more robust 

version: The claims-based measure 

HVLDL. We will publicly report the 

HVLDL no earlier than May 2022. We 

are also finalizing our proposal to 

publicly report the HCI, another claimsbased measure no earlier than May 

2022. In addition to the publiclyreported quality measure data, in 2019 

we added to public reporting, 

information about the hospices’ 

characteristics, taking raw data available 

from the Medicare Public Use File and 

other publicly-available government 

data sources and making them more 

consumer friendly and accessible for 

people seeking hospice care for 

themselves or family members, (83 FR 

38649). This publicly reported 

information currently includes 

diagnoses, location of care, and levels of 

care provided. 

b. Data Collection and Reporting During 

a Public Health Emergency 

(1). Background: COVID–19 Public 

Health Emergency Temporary 

Exemption and Its Impact on the Public 

Reporting Schedule 

Under authority of section 319 of the 

Public Health Service (PHS) Act, the 

Secretary declared a PHE effective as of 

January 27, 2020. On March 13, 2020, 

the President declared a national state of 

emergency under the Stafford Act, 

effective March 1, 2020, allowing the 

Secretary to invoke section 1135(b) of 

the Act (42 U.S.C. 1320b–5) to waive or 

modify the requirements of titles XVIII, 

XIX, and XXI of the Act and regulations 

to the extent necessary to address the 

COVID–19 PHE. Many waivers and 

modifications were made effective as of 

March 1, 2020 46 47 in accordance with 

the president’s declaration. On March 

27, 2020, we sent a guidance 

memorandum under the subject title, 

‘‘Exceptions and Extensions for Quality 

Reporting Requirements for Acute Care 

Hospitals, PPS-Exempt Cancer 

Hospitals, Inpatient Psychiatric 

Facilities, Skilled Nursing Facilities, 

Home Health Agencies, Hospices, 

Inpatient Rehabilitation Facilities, LongTerm Care Hospitals, Ambulatory 

Surgical Centers, Renal Dialysis 

Facilities, and MIPS Eligible Clinicians 

Affected by COVID–19’’ 48 to the 

Medicare Learning Network (MLN) 

Connects Newsletter and Other 

Program-Specific Listserv Recipients,49

hereafter referred to as the March 27, 

2020 CMS Guidance Memorandum. In 

that memo, which applies to HIS and 

CAHPS Hospice Survey, CMS granted 

an exemption to the HQRP reporting 

requirements for Quarter 4 (Q4) 2019 

(October 1, 2019 through December 31, 

2019), Quarter 1 (Q1) 2020 (January 1, 


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2020 through March 30, 2020), and 

Quarter 2 (Q2) 2020 (April 1, 2020 

through June 30, 2020). We discuss the 

impact to the HIS here, and the impact 

to the CAHPS Hospice Survey further in 

section F.10.b.4. For HIS, the quarters 

are defined based on submission of HIS 

admission or discharge assessments. 

The exemption has impacted the 

public reporting schedule. Since 

launching Hospice Compare in 2017, 

HIS-measures have been reported using 

4 quarters of data. The 4 quarters 

included are the most recent data that 

have gone through Review and Correct 

processes, have been issued in a 

provider preview report, and have time 

allotted for addressing requests for data 

suppression before being publicly 

reported. As discussed in the FY 2017 

Hospice Wage Index and Payment Rate 

Update final rule (81 FR 52183), CMS 

requires at least 4 quarters of data to 

establish the scientific acceptability for 

our HIS-based quality measures. For 

CAHPS-based measures, we have 

reported CAHPS measures using eight 

rolling quarters of data on Hospice 

Compare since 2018. In the FY 2017 

Hospice Wage Index and Payment Rate 

Update final rule (81 FR 52143), we 

stated that we would continue CAHPS 

reporting with eight rolling quarters on 

an ongoing basis. This original public 

reporting schedule included the 

exempted quarters of Q4 2019 and Q1 

and Q2 2020 in six refreshes for HIS and 

11 refreshes for CAHPS. Table 13 

displays the original schedule for public 

reporting prior to the COVID–19 PHE. 

BILLING CODE 4120–01–P 

BILLING CODE 4120–01–C 

During the spring and summer of 

2020, we conducted testing to inform 

decisions about publicly reporting data 

for those refreshes which include 

exempt data. The testing helped us 

develop a plan for posting data as early 

as possible, for as many hospices as 

possible, and with scientific 

acceptability similar to standard 

threshold for public reporting. The 

following sections provide the results of 

our testing and explain how we used the 

results to develop a plan that we believe 

allows us to achieve these objectives as 

best as possible. 

(2). Update on Use of Q4 2019 Data and 

Data Freeze for Refreshes in 2021 

In the March 27, 2020 Guidance 

Memorandum, we stated that we should 

not include any post-acute care (PAC) 

quality data that are greatly impacted by 

the exemption in the quality reporting 

programs. Given the timing of the 

COVID–19 PHE onset, we determined 

that we would use any data that was 

submitted for Q4 2019. We conducted 

analyses of those data to ensure that 

their use was appropriate. In the 

original schedule (Table 13) the 

November 2020 refresh includes Q4 

2019 data for HIS- and CAHPS-based 

measures (Q1 through Q4 2019 for HIS 

data and Q1 2018 through Q4 2019 for 

CAHPS data) and is the last refresh 

before Q1 2020 data are included. 

Before proceeding with the November 

2020 refresh, we conducted testing to 

ensure that, even though we made an 

exception to reporting requirements for 

Q4 2019 in March 2020, public 

reporting would still allow us to 

publicly report data for a similar 

number of hospice providers, as 

compared to standard reporting. 

Specifically, we compared submission 

rates in Q4 2019 to average annual rates 

(Q4 2018 through Q3 2019) to assess the 


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TABLE 13: Original Public Reporting Schedule with Refreshes Affected by 

COVID -19 PHE E xemp f ions £ or th e HQRP 

Quarter Refresh HIS Quarters in Original CAHPS Quarters in Original Schedule 

Schedule for Care Compare for Care Compare 

*November 2020 Ql 2019- Q4 2019 Ql 2018-Q4 2019 

*February 2021 Q2 2019- Ql 2020 Q2 2018-Q 1 2020 

*May 2021 Q3 2019-Q2 2020 Q3 2018-Q2 2020 

* August 2021 Q4 2019- Q3 2020 Q4 2018-Q3 2020 

*November 2021 Ql 2020- Q4 2020 Q 1 2019-Q4 2020 

*February 2022 Q2 2020-Ql 2021 Q2 2019-Ql 2021 

tMay 2022 Q3 2020-Q2 2021 Q3 2019-Q2 2021 

t August 2022 Q4 2020-Q3 2021 Q4 2019-Q3 2021 

tNovember 2022 Ql 2021-Q4 2021 Q 1 2020-Q4 2021 

tFebruary 2023 Q2 2021-Ql 2022 Q2 2020-Ql 2022 

tMay 2023 Q3 2021-Q2 2022 Q3 2020-Q2 2022 

*Exemption affects both HIS and CARPS data for refresh; tExemption affects only CARPS data for 

refresh. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42579 

extent to which hospices had taken 

advantage of the exemption, and thus 

the extent to which data and measure 

scores might be affected. We observed 

that the HIS data submission rate for Q4 

2019 was in fact 1.8 percent higher than 

the previous CY (Q4 2018). For the 

CAHPS Hospice Survey, 2.1 percent 

more hospices submitted data in Q4 

2019 than in Q4 2018. We note that Q4 

2019 ended before the onset of the 

COVID–19 PHE in the United States 

(U.S.). Thus, we proceeded with 

including these data in measure 

calculations for the November 2020 

refresh. 

As for Q1 and Q2 2020, we 

determined that we would not use HIS 

or CAHPS data from these quarters for 

public reporting given the timing of the 

COVID–19 PHE onset. All refreshes, 

during which we decided to hold these 

data constant, included more than 2 

quarters of data that were affected by the 

CMS-issued COVID reporting 

exceptions; thus we did not have an 

adequate amount of data to reliably 

calculate and publicly display provider 

measures scores. Consequently, we 

determined to freeze the data displayed, 

that is, holding data constant after the 

November 2020 refresh without 

subsequently updating the data through 

November 2021. This decision was 

communicated to the public in a Public 

Reporting Tip Sheet, which is located 

at: https://www.cms.gov/Medicare/ 

Quality-Initiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/ 

HQRP-Requirements-and-Best-Practices. 

(3). Public Reporting of HIS-based 

Measures With Fewer Than Standard 

Numbers of Quarters Due to COVID–19 

PHE Exemption in February 2022 

As noted previously, we used Q4 

2019 data for public reporting in 

November 2020 and froze that data for 

the February, May, August, and 

November 2021 refreshes. This 

addressed five of the six COVID–19 

PHE-affected quarters for HIS-based 

measures, and five of the 11 COVID–19 

PHE-affected quarters of CAHPS-based 

measures. 

Because November 2020 refresh data 

will become increasingly out-of-date 

and thus less useful for consumers, we 

analyzed whether it would be possible 

to use fewer quarters of data for the last 

refresh affected by the exemption 

(February 2022) and thus more quickly 

resume public reporting with updated 

quality data. Using fewer quarters of 

more recent data, the first option, would 

require that (1) a sufficient percentage of 

providers would still likely have enough 

assessment data to report quality 

measures (reportability); and (2) fewer 

quarters would likely produce similar 

measure scores for hospices, and thus 

not unfairly represent the quality of care 

hospices provide during the period 

reported in a given refresh (reliability). 

To assess these criteria, we conducted 

reportability and reliability analysis 

using 3 quarters of data in a refresh, 

instead of the standard 4 quarters of 

data for reporting HIS-based measures. 

Specifically, we used historical data to 

calculate HIS-based quality measures 

under two scenarios: 

• Standard Public Reporting (SPR) 

Scenario: We used data from the four 

quarters of CY 2019, which represent 

CY 2020 public reporting in the absence 

of the temporary exemption from the 

submission of PAC quality data, as the 

basis for comparing simulated 

alternatives. For HIS-based measures, 

we used quarters Q1 through Q4 2019. 

• COVID–19 PHE Affected Reporting 

(CAR) Scenario: We calculated quality 

measures using Q2 2019, Q3 2019, and 

Q4 2019 data, to simulate using only Q3 

2020, Q4 2020, and Q1 2021 data for 

public reporting. 

The HIS Comprehensive Assessment 

Measure is based on the receipt of care 

processes at the time of admission. 

Therefore for the COVID–19 Affected 

Reporting (CAR) Scenario, we excluded 

data for patient stays with admission 

dates in Q1 2019. 

For each scenario, we calculated the 

reportability as the percent of hospices 

meeting the 20-case minimum for public 

reporting (the public reporting 

threshold). To test the reliability of 

restricting the providers included in the 

Standard Public Reporting (SPR) 

Scenario to those included in the CAR 

Scenario, we performed three tests. 

First, we evaluated measure correlation 

using the Pearson and Spearman 

correlation coefficients, which assess 

the alignment of hospices’ HIS 

Comprehensive Assessment Measure 

scores between scenarios. Second, for 

each scenario, we conducted a split-half 

reliability analysis and estimated intraclass correlation (ICC) scores, where 

higher scores imply better internal 

reliability. Modest differences in ICC 

scores between scenarios would suggest 

that using fewer quarters of data does 

not impact the internal reliability of the 

results. Third, we estimated reliability 

scores. A higher value in these scores 

indicates that HIS Comprehensive 

Assessment Measure values are 

relatively consistent for patients 

admitted to the same hospice and 

variation in the measure reflects true 

differences across providers. 

Testing results show that the CAR 

scenario—specifically using 3 quarters 

of data for the HIS Comprehensive 

Assessment Measure—demonstrates 

acceptable levels of reportability and 

reliability. As displayed in Table 14, the 

number of providers who met the public 

reporting threshold for the HIS 

Comprehensive Assessment Measure 

decreases by 236 (or by 5.2 percentage 

points) when reporting three versus four 

quarters of data. In the FY 2014 Hospice 

Wage Index and Payment Rate Update 

final rule (78 FR 48234) we stated that 

reportability of 71 percent through 90 

percent is acceptable. Therefore using 3 

quarters of data for the HIS 

Comprehensive Assessment Measure 

would achieve acceptable reportability 

shown in Table 14. 

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Table 14 indicates that the reliability 

of the HIS Comprehensive Assessment 

Measure scores is similar for the CAR 

and SPR scenarios. Testing also yielded 

correlation coefficients above 0.9, 

indicating a high degree of agreement 

between hospices’ HIS Comprehensive 

Assessment Measure scores when using 

3 or 4 quarters of data. The results also 

show that th e HIS Comprehensive 

Assessment Measure’s ICC for CAR and 

SPR scenarios are similar, with only a 

0.02 difference. This implies high 

internal reliability of the measure in 

both scenarios. The median reliability 

scores for the HIS Comprehensive 

Assessment Measure are also very 

similar in both CAR and SPR scenarios. 

This indicates that scores estimated 

using 3 quarters of data continue to 

capture provider-level differences and 

that admission-level scores remain 

consistent within hospices. 

In Table 15, we explore changes in 

hospices’ relative rankings between the 

SPR and CAR scenarios. For each 

scenario, we divided hospices in 

quintiles based on their HIS 

Comprehensive Assessment Measure 

score, such that higher scores are in a 

higher quintile. Changes in a hospices’ 

quintile from the SPR to CAR scenario 

would indicate a re-ranking of hospices 

when using 3 quarters compared to 4 

quarters. Over 93 percent of hospices 

remain in the same quintile, suggesting 

that the ranking of hospices is fairly 

stable between the SPR and CAR 

scenarios. 


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TABLE 14: Reportability: Percent of Providers Meeting Measure Public 

R epor f mg Th res h 0 Id s 

Reportability 

COVID-19 Affected Reuorting Standard Public Reuorting 

Measure (CAR) (SPR) Difference 

Met Threshold Met threshold (CAR-SPR) 

# (%) Providers # (%) Providers 

HIS Comprehensive 3,842 (83.9%) 4,078 (89.1%) -236 (-5.2%) Assessment Measure 

TABLE 15: Reliability: Correlations, Split-Half Testing, and Reliability 

Score for COVID-19 Affected (CAR) and Standard Public Reporting (SPR) 

Scenarios 

Correlation 

between CAR and Split-Half Reliability 

SPR Testin2: Reliability Score 

ICC ICC Difference Median Median Difference 

Measure Pearson Spearman (CAR) (SPR) (CAR- Score Score (CARSPR) (CAR) (SPR) SPR) 

HIS 

Comprehensive 0.98 0.96 0.95 0.93 0.02 97.5 97.7 -0.2 Assessment 

Measure 

ICC = Intra-class Coefficient 

TABLE 16: Performance: Comparison of Quintile Rankings between 

COVID-19 PHE Affected (CAR) and Standard Public Reporting (SPR) Scenarios 

Overall Rural Providers Urban Providers 

%Same % CAR % CAR % Same % CAR % CAR %Same % CAR % CAR 

Measure Quintile Lower Higher Quintile Lower Higher Quintile Lower Higher 

Quintile Quintile Quintile Quintile Quintile Quintile 

HIS 

Comprehensive 93.4% 2.4% 4.2% 93.5% 2.1% 4.4% 93.3% 2.5% 4.2% Assessment 

Measure 
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BILLING CODE 4120–01–C 

We also used the results presented in 

Table 16 to assess the option of 

reporting Q4 2019, Q3 2020, Q4 2020, 

and Q1 2021 for the February 2022 

refresh. This option maintains 

requirements in the FY 2017 Hospice 

Wage Index and Payment Update final 

rule for publicly reporting 4 quarters of 

data, but it requires using some data that 

are more than 2 years old. Also, the 

relatively high number of hospices that 

meet the public reporting threshold in 

the CAR scenario, relative to the SPR 

scenario, with just 3 quarters of data 

justify the use of 3 quarters in the 

unusual circumstances of the COVID–19 

PHE and its associated exemptions. 

We are finalizing our proposal that, in 

the COVID–19 PHE, we would use 3 

quarters of HIS data for the final affected 

refresh, the February 2022 public 

reporting refresh of Care Compare for 

the Hospice setting. Using 3 quarters of 

data for the February 2022 refresh 

would allow us to begin displaying Q3 

2020, Q4 2020, and Q1 2021 data in 

February 2022, rather than continue 

displaying November 2020 data (Q1 

2019 through Q4 2019). We believe that 

updating the data in February 2022 by 

more than a year relative to the 

November 2020 freeze data would assist 

consumers by providing more relevant 

quality data and allow hospices to 

demonstrate more recent performance. 

Our testing results indicate we can 

achieve these positive impacts while 

maintaining high standards for 

reportability and reliability. Table 16 

summarizes the comparison between 

the original schedule for public 

reporting with the revised schedule 

(that is, frozen data) and with the 

proposed schedule that is, using 3 

quarters in the February 2022 refresh. 

We solicited public comment on this 

proposal to use 3 quarters of HIS data 

for the February 2022 public reporting 

refresh. We received many comments 

this proposal on related questions about 

publicly reporting claims-based 

measures using data from the COVID–19 

PHE. A summary of the comments 

received regarding public reporting and 

our responses those comments appear 

below. 

Comment: We received several 

comments supporting our proposal to 

begin public reporting in February 2022 

using Q3 and Q4 of 2020 and Q1 of 

2021. These commenters also suggested 

that CMS post a statement that the data 

displayed include care provided during 

the COVID–19 PHE on Care Compare 

until August 2023. One commenter 

opposed the public reporting of any 

quality data collected during the 

COVID–19 PHE (not just the Q1 and Q2 

2020 which were subject to the 

exemptions), because of the impact 

COVID–19 had on hospice processes 

and operations. 

Response: We appreciate the 

commenters’ support for this proposal. 

In response to the commenter who did 

not support this proposal, we would 

like to emphasize that, while we 

recognize that the impact of COVID–19 

has impacted the hospice community, 

we also believe that we have a 

responsibility to consumers to make 

informed decisions about selecting care. 

Providing information for decisionmaking is all the more important during 

and in the wake of a COVID–19 PHE, 

when our health as a nation has been 

shaken. 

We disagree with commenters that 

notices should be posted on Care 

Compare regarding the inclusion of data 

from the COVID–19 PHE as such notice 

would not help consumers distinguish 

between hospices in their region. 

Instead, we will continue to post 

national averages for quality measures, 

and will add state scores for all 

measures no earlier than May 2022. This 

information will help consumers 

understand relative performance at 

national and local levels in light of the 

COVID–19 PHE. 

Given the overall positive response to 

our proposal, we believe that the 

proposed approach balances fairness to 

providers with a commitment to 

transparency and information for 

consumers. 

Comment: Several commenters 

expressed concern about publicly 

reporting claims-based measures using 

data from care provided during the 

COVID–19 PHE. Specifically, they 

stated that claims from the COVID–19 

PHE would not reflect typical hospice 

services. Comments specific to HCI 

noted that abnormalities due to the 

COVID–19 PHE would affect all of the 

indicators, while those for HVLDL 

indicated that the number of in-person 

visits likely fell during the COVID–19 

PHE due to patient and caregiver 

preferences, with implications for 

quality measurement. The commenters 

recommended that CMS post a notice on 

Care Compare to ensure consumers 

understand the context, with particular 

attention to the fact that telehealth visits 

are not captured in claims reporting. 

Response: We appreciate commenters’ 

concerns about publicly reporting 

claims from the COVID–19 PHE. As 

stated earlier, we pre-emptively issued 

the March 27, 2020 CMS Guidance 

Memorandum making 2019 Q4 and Q1 

and Q2 2020 exempt from reporting 

requirements. In that Memorandum, we 

stated that we would not include any 

post acute care (PAC) quality data that 

are greatly impacted by the exemption 

in the quality reporting programs. Given 

the timing of the COVID–19 PHE onset 

in the U.S., we determined that we 

would use data that were submitted for 

Q4 2019. We will apply the principles 

of this Memorandum to new claimsbased measures for hospice. Thus, we 

will publicly report claims data for care 

delivered in Q4 2019 and Q3 2020 

onward, but we will not publicly report 

claims data for care delivered Q1 and 

Q2 of 2020. This approach aligns with 

what we are doing for the other PAC 

setting Quality Reporting Programs, 

including home health (see section 

III.G). 

We acknowledge that the COVID–19 

PHE did not end at the beginning of Q3 

2020. Our testing indicates that claims 

data from the COVID–19 PHE are 

generally stable. Although the number 

of visits in did visibly decline in 2020, 

we remain committed to re-initiating 

publicly reporting of claims data 

beginning in Q3 2020 for the following 

reasons: (i) We believe that we have an 

important commitment to consumers of 

hospice care to empower them to make 

informed decisions. This is particularly 

important during the COVID–19 PHE; 

(ii) With annual reporting of claims 

data, we can reasonably state that the 

COVID–19 PHE affected hospices 

nationally in a similar way. Given that 

HCI is scored relative to the national 

average, scores will be accounted for as 

part of the measure calculation. To the 

extent there have been regional 

differences, we will also provide state 

scores for both HCI and HVLDL no 

earlier than May 2022, so that 

consumers can benchmark to more local 

realities. 

We respectfully disagree with 

commenters who have requested that 

we post a notice on Care Compare 

alerting consumers to potential 

abnormalities in claims data wholly or 

partially coming from COVID–19 PHE 

(excluding Q1 and Q2 2020). Despite the 

COVID–19 PHE, we would expect that 

hospices would still provide 

comprehensive care to hospice patients 

during the pandemic, and believe that 

telehealth visits are not full substitutes 

for care provided in person, particularly 

in the case of the visits measured in the 

HVLDL and HCI measures. We 

acknowledge that there may have been 

an increase in refusals during the 

COVID–19 PHE. However, this increase 

would likely impact hospices in a 

region similarly, and thus will not 

impact a hospice’s score relative to local 

competitors. We will include state 

average scores to further ensure any 

regional differences in the impact of the 


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COVID–19 PHE on hospices are 

captured for consumers. For these 

reasons, adding disclaimer text as 

suggested would not help consumers 

seeking information make decisions 

about care options. 

Final Decision: We are finalizing our 

proposal to resume public reporting of 

HIS quality measures in February 2022 

using data from Q3 and Q4 of 2020 and 

Q1 of 2021. 

(4). Proposal for Public Reporting of 

‘‘CAHPS Hospice Survey-based 

Measures’’ Due to COVID–19 PHE 

Exemption 

Prior to COVID–19 PHE, the CAHPS 

Hospice Survey publicly reported the 

most recent eight rolling quarters of 

data. We propose to continue to report 

the most recent 8 quarters of available 

data after the freeze, but not to include 

the data from the exempted quarters of 

Q1 and Q2 of 2020 as issued in the 

March 27, 2020 Guidance Memorandum 

with the effected quarters. The optional 

data submission for Q4 2019 results in 

publicly reporting of that data since the 

CAHPS Hospice Survey from that 

quarter were not impacted. The data 

submitted for Q4 2019 referred to deaths 

that occurred prior to COIVD–19. For 

the CAHPS Hospice Survey, 2.1 percent 

more hospices submitted data in Q4 

2019 than in the same quarter a year 

earlier. 

Like HIS, our goal is to report as much 

of the most recent CAHPS Hospice 

Survey data as possible, to display data 

for as many hospices as possible, and to 

maintain the reliability of the data. 

Similar to HIS, the CAHPS Hospice 

Survey reviewed the data for 

reportability using fewer quarters than 

normal. However, we found that using 

fewer than 8 quarters of data would 

have two important negative impacts on 

public reporting. First, it would reduce 

the proportion of hospices that would 

have CAHPS Hospice Survey data 

displayed on Care Compare. An analysis 

of the 8 quarters of data from Q1 2018 

through Q4 2019 (publicly reported in 

November 2020) shows there were 5,041 

active hospices. Of these hospices: 2,941 

(58.3 percent) had 30+ completes for 

those 8 quarters, and had scores 

publicly reported. Fewer hospices, 

2,328 (46.2 percent), would have had 

30+ completes if 4 quarters of data were 

used to calculate scores and 1,970 (39.1 

percent) would have 30+ completes if 3 

quarters were used to calculate scores. 

In addition, the overall reliability of the 

CAHPS scores would decline with fewer 

quarters of data. For these reasons, we 

determined the best course of action 

would be to continue to publicly report 

the most recent 8 quarters of data, but 

exempting Q1 and Q2 2020. This will 

allow us to maximize the number of 

hospices that will have CAHPS scores 

displayed on Care Compare, protect the 

reliability of the data, and report as 

much of the most recent data as 

possible. 

CMS froze CAHPS data starting with 

the November 2020 refresh and 

concluding with the November 2021 

refresh. We propose that starting with 

the February 2022 refresh, CMS will 

display the most recent 8 quarters of 

CAHPS Hospice Survey data, excluding 

Q1 and Q2 2020. We will resume public 

reporting by displaying 3 quarters of 

post-exemption data, plus five quarters 

of pre-exemption data. (Please see Table 

18.) We propose that in each refresh 

subsequent to February 2022, we will 

report one more post-exemption quarter 

of data and one fewer pre-exemption 

quarter of data until we reach eight 

quarters of post-exemption data in May 

of 2023. We further propose that as of 

August 2023, we will resume reporting 

a rolling average of the most recent 8 

quarters of data. Table 18 specifies the 

quarters for each refresh. This will allow 

us to report the maximum amount of 

new data, maintain reliability of the 

data, and permit the maximum number 

of hospices to receive scores. In 

addition, Table 18 shows the proposed 

CAHPS public reporting schedule 

during and after the data freeze. 


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TABLE 17: Original, Revised and Proposed Schedule for Refreshes Affected 

b COVID-19 PHE Exem tions 

Quarter Refresh 

November 2020 

February 2021 

May 2021 

August 2021 

November 2021 

February 2022 

HIS Quarters in Original 

Schedule for Care Compare 

number of uarters 

Ql 2019- Q4 2019 (4) 

Q2 2019- Ql 2020 (4) 

Q3 2019-Q2 2020 (4) 

Q4 2019- Q3 2020 (4) 

Ql 2020- Q4 2020 (4) 

Q2 2020-Ql 2021 (4) 

HIS Quarters in revised/proposed 

Schedule for Care Compare (number of 

uarters 

QI 2019- Q4 2019 (4) 

Note: The shaded cells represent data frozen (posted and held constant on Care Compare) due to COVID19PHE. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42583 

We sought public comment on this 

proposal to publicly report the mostrecently available 8 quarters of CAHPS 

data starting with the February 2022 

refresh and going through the May 2023 

refresh on Care Compare because we 

cannot publicly report Q1 2020 and Q2 

2020 data due to the COVID–19 PHE. 

Comment: One commenter agreed 

with our proposal to report the eight 

most recent quarters of data for the 

CAHPS Hospice Survey, skipping the 

exempted quarters. They also requested 

that Care Compare provide information 

to users explaining that the published 

data included pre-COVID quarters. They 

wanted this continued until all 

publicly-reported data is from after the 

exempted quarters. 

Response: We thank the commenter 

and will take this into consideration as 

information for Care Compare is 

developed. We will work with 

colleagues to provide information on 

Care Compare that alerts users the 

composition of the data. 

Final Decision: We are finalizing our 

proposal to publicly report the mostrecently available 8 quarters of CAHPS 

data starting with the February 2022 

refresh and going through the May 2023 

refresh on Care Compare because we 

cannot publicly report Q1 2020 and Q2 

2020 data due to the COVID–19 PHE. 

c. Quality Measures To Be Displayed on 

Care Compare in FY 2022 and Beyond 

(1). Removal of the Seven ‘‘Hospice Item 

Set Process Measures’’ From Public 

Reporting 

We are finalizing our proposal to 

remove the seven HIS process measures 

from the HQRP as individual measures, 

and no longer applying them to the FY 

2024 APU and thereafter. We are 

finalizing our proposal to remove the 

seven HIS process measures no earlier 

than May 2022 refresh from public 

reporting on Care Compare and from the 

Preview Reports but continue to have it 

publicly available in the data catalogue 

at https://data.cms.gov/provider-data/ 

topics/hospice-care. 

We solicited public comment on this 

proposal to remove the seven HIS 

process measures from public reporting 

on Care Compare. We received several 

comments from various stakeholders. A 

summary of the comments we received 

on this proposal and our responses to 

those comments appear below. 

Comment: The majority of 

commenters supported the removal of 

the seven HIS process measures no 

earlier than May 2022. However, a 

number of comments suggested that 

CMS continue providing the option for 

consumers to view detailed information 

about the individual measures that 

make up the HIS Comprehensive 

Assessment measure for transparency. 

One commenter who opposed the 

proposal to remove the seven HIS 

measures expressed concern that such a 

removal runs counter to the objectives 

of Care Compare to provide a 

personalized experience. Some 

comments expressed concern about the 

public’s ability to be aware of and find 

the seven HIS measure scores in the 

Provider Data Catalogue. 

Response: CMS does not believe that 

the public display of the individual 

process measures on Care Compare will 

add value for consumers. The 

individual measures show performance 

for only one process and do not 

demonstrate whether the hospice 

provides high-quality care overall, as an 

organization. Conversely, the HIS 

Comprehensive Assessment Measure, 

which is a single composite measure, 

differentiates hospices by holding them 

accountable for completing all seven 

process measures to ensure these core 

hospice services are completed for all 

patients. This interdisciplinary, holistic 

scope of the HIS Comprehensive 

Assessment Measure better aligns with 

the public’s expectations for hospice 

care. We maintain transparency since 


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TABLE 18: Proposed CAHPS Hospice Survey Public Reporting Quarters During 

and After the Freeze 

Febru 2022 

Ma 2022 

Au ust2022 

November 2022 

Febru 2023 

Ma 2023 

*The grey shading refers to the frozen quarters. 

Q4 2018-Q4 2019, 

Q3 2020-Ql 2021 

Ql 2019-Q4 2019, 

Q3 2020-Q2 2021 

Q2 2019-Q4 2019, 

Q3 2020-Q3 2021 

Q3 2019-Q4 2019, 

Q3 2020-Q4 2021 

Q4 2019, 

Q3 2020-Q 1 2022 

Q3 2020-Q2 2022 
42584 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

stakeholders, who are interested in the 

seven HIS measures, will have access to 

the Provider Data Catalogue where they 

can find all HIS component measure 

scores. 

We respectfully disagree that having 

the seven HIS measures listed is more 

transparent and understandable for 

consumers than a concise summary: 

Market research conducted by our teams 

has found that ‘‘less is more’’ for Care 

Compare consumers, who become 

overwhelmed by too much information. 

In fact, these findings were one of the 

primary reasons we have transitioned 

from Hospice Compare and the other 

individual compare sites to Care 

Compare. 

We appreciate the concern that 

consumers may not know about the 

component measure scores in the 

Provider Data Catalogue. As we prepare 

to update Care Compare for the removal 

of the seven measures, we will consider 

ways to make consumers of Care 

Compare aware of this additional data, 

if they are interested in viewing them. 

Comment: Several commenters 

expressed concern about the public’s 

ability to understand the meaning of the 

HIS Comprehensive Measure without 

being able to see the seven component 

measures. These commenters provided 

general and specific suggestions about 

how to display the HIS Comprehensive 

Measure on Care Compare if the seven 

HIS measures are removed. Several 

other commenters also suggested 

posting a disclaimer that the HIS 

Comprehensive measure only comes 

from the admission item set and may 

not be reflective of subsequent care. 

Response: We appreciate that the 

presentation of the seven HIS measures 

helped consumers understand the 

content of the HIS Comprehensive 

Measure. As we prepare to update Care 

Compare for their removal, we will 

consider ways to revise the measure 

description for the HIS Comprehensive 

Measure on Care Compare so that it 

adequately explains the elements 

contained in the measure. 

As for the request to notify consumers 

that the measure is based on admission 

alone, we do not believe this would 

help consumers use the measure to 

compare and select hospices, as 

intended. The HIS Comprehensive 

Measure, like any given quality 

measure, is one part of a portfolio of 

measures intended to provide a holistic 

view of care. No single quality measure 

within the portfolio is expected, or 

necessarily intended, to provide that 

view on its own. As we determine the 

most appropriate way to display the 

measure, we will ensure that the scope 

of the HIS Comprehensive Measure is 

clear for consumers, who can use the 

information with other information on 

the website to make their decisions. 

Comment: A number of commenters 

suggested that CMS continue providing 

the option for hospices to view detailed 

information about the individual 

measures that make up the HIS 

Comprehensive Assessment measure to 

support quality improvement. 

Response: We will ensure that the 

confidential QM reports continue to 

include the seven HIS process measures, 

in addition to the HIS Comprehensive 

Assessment Measure. This helps 

hospices apply quality improvement 

processes to continue improving their 

performance on the HIS Comprehensive 

Assessment Measure. 

Final Decision: We are finalizing our 

proposal to remove the seven HIS 

process measures no earlier than the 

May 2022 refresh from public reporting 

on Care Compare and from the Preview 

Reports but continue to have them 

publicly available in the data catalogue. 

(2). Calculating and Publicly Reporting 

‘‘Claims-Based Measure’’ as Part of the 

HQRP 

In the HIS V3.00 Paperwork 

Reduction Act Submission (OMB 

control number: 0938–1153, CMS– 

10390), we finalized a proposal to adopt 

HVLDL into the HQRP for FY 2021. We 

are also proposing in this rule to adopt 

the HCI into the HQRP for FY2022. In 

this section, we presented three 

proposals related to calculating and 

reporting claims-based measures, with 

specific application to HVLDL and HCI. 

First, we are finalizing our proposal to 

extract claims data to calculate claimsbased measures at least 90 days after the 

last discharge date in the applicable 

period, which we will use for quality 

measure calculations and public 

reporting on Care Compare. For 

example, if the last discharge date in the 

applicable period for a measure is 

December 31, 2022, for data collection 

January 1, 2022, through December 31, 

2022, we would create the data extract 

on approximately March 31, 2023, at the 

earliest. We would use those data to 

calculate and publicly report the claimsbased measures for the CY2022 

reporting period. This is similar to those 

finalized in other PAC settings, 

including the CY 2017 Home Health 

Prospective Payment System final rule 

(81 FR 76702), FY 2017 Inpatient 

Rehabilitation Facility Prospective 

Payment System final rule (81 FR 

52056), and the FY 2017 Long Term 

Care Hospital Prospective Payment 

System final rule (81 FR 56762). 

We are finalizing the proposed 

timeframe which allows us to balance 

providing timely information to the 

public with calculating the claims-based 

measures using as complete a data set as 

possible. We recognize the 

approximately 90-day ‘‘run-out’’ period 

is shorter than the Medicare program’s 

current timely claims filing policy 

under which providers have up to 1 

year from the date of discharge to 

submit claims. However, several months 

lead-time is necessary after acquiring 

the data to conduct the claims-based 

calculations. If we were to delay our 

data extraction point to 12 months after 

the last date of the last discharge in the 

applicable period, we would not be able 

to deliver the calculations to hospices 

sooner than 18 to 24 months after the 

last discharge. 

To implement this process, hospices 

would not be able to submit corrections 

to the underlying claims snapshot or 

add claims (for those claims-based 

measures) to this data set at the 

conclusion of the 90-day period 

following the last date of discharge used 

in the applicable period. Therefore, we 

would consider the hospice claims data 

to be complete for purposes of 

calculating the claims-based measures at 

this point. Thus, it is important that 

hospices ensure the completeness and 

correctness of their claims prior to the 

claims ‘‘snapshot.’’ 

Second, we are finalizing our 

proposal to update the claims-based 

measures used for the HQRP annually. 

Specifically, we will refresh claimsbased measure scores on Care Compare, 

in preview reports, and in the 

confidential CASPER QM preview 

reports annually. This periodicity of 

updates aligns with most claims-based 

measures across PAC settings. 

Third, we are finalizing our proposal 

to calculate claims-based measure 

scores based on one or more years of 

data. We considered several factors to 

determine the number of years to 

include in measure calculations. Using 

only 1 year (4 quarters) of data, as is 

currently done for HIS-based quality 

measures reported on Care Compare, 

allows us to share with the public only 

the most up-to-date information and 

best reflects current realities. Having 

only the most recent data can also help 

incentivize hospices with lower scores 

to make changes and have the results of 

their effort be reflected in better scores. 

At the same time, we want to report 

measures scores to the public for as 

many hospices as possible, including 

small hospices. Currently, only 

Medicare-certified hospices with more 

than 20 patient stays each year have 

quality measure results publicly 

available on Care Compare. This public 

reporting threshold protects the privacy 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42585 

of patients who seek care at smaller 

hospices. However, due to the 

threshold, at least some hospices will 

not achieve the minimum patient stays 

within 1 year. This means that their 

scores will not be displayed on Care 

Compare, and consumers will not have 

information about them to inform their 

decisions about selecting a hospice. 

Using more years of data allows more of 

these hospices to meet this threshold. 

We conducted reportability testing for 

HCI and HVLDL to help us consider 

how best to balance the need for recent 

data with the need for transparency in 

reporting the HQRP claims-based 

measures. Specifically, we conducted a 

simulation using 2 years of data. We 

then calculated the change in the 

number of hospices which achieved the 

minimum reporting standard. We also 

compared the measure scores of the 

hospices that meet the reporting 

threshold when we use 2 years of data 

with hospices that meet the threshold 

using only 1 year of data. 

Results for both HCI and HVLDL 

indicate that using 2 years of data 

increases reportability. For HVLDL, 

combining 2 years of data (FY 2018 to 

FY 2019) allows an additional 326 

hospices to share measure scores, or 

33.8 percent of the hospices that do not 

meet the reporting threshold in FY 2019 

alone. For HCI, combining 2 years of 

data (FY 2018 to FY 2019 data) allows 

an additional 277 to report HCI measure 

scores on Care Compare, or 43.2 percent 

of the hospices that do not meet the 

reporting threshold in FY 2019 alone. 

Our simulations indicate that the 

hospices that only meet the reporting 

threshold when using 2 years of data 

have performance scores substantially 

lower than average. For HVLDL, where 

higher scores indicate better quality of 

care, the national average score was 65.5 

percent in FY 2019, where 965 hospices 

did not meet the reportability threshold. 

After pooling data using FY 2018 to FY 

2019, 326 additional hospices met the 

reportability threshold, or 33.8 percent 

of those previously missing. Those 

addition 326 hospices had an average 

HVLDL score of just 43.3 percent, about 

20 percentage points lower than the 

hospices meeting the reportability 

threshold using FY 2019 alone national 

average score for this HVLDL measure. 

The results for HCI similarly show 

that the hospices with reportable data 

when using two-pooled years of data 

had lower HCI scores compared to the 

national average when using just FY 

2019 data. Higher HCI scores indicate 

better performance. As Figure 2 shows, 

a larger numbers of hospices among the 

277 hospices that only meet the 

reporting threshold when using 2 years 

of data had HCI scores between four and 

eight, while a larger number of hospices 

in the FY 2019 population had a perfect 

score of 10. 


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TABLE 19: Two years of Data Increases Reportability for HVLDL and HCI 

Quality Excluded hospices Additional hospices meeting % of hospices that did not 

Measure when using one year of threshold with two years of data meet threshold in FY 2019 

data (FY 2019) alone (FY 2018 - FY 2019), relative 

to FY 2019 alone 

HVLDL 965 326 33.8% 

HCI 641 277 43.2% 
42586 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

Given these findings, we are finalizing 

our proposal to use 2 years of data to 

publicly report HCI and HVLDL in 2022. 

The use of 2 years or 8 quarters of 

quality data is already publicly reported 

for the quality measures related to the 

CAHPS Hospice Survey so hospices are 

familiar with this approach. We plan to 

consider multiple years of data, like the 

2 years of data, for other claims-based 

measures proposed in subsequent years. 

We believe it is important to support 

consumers by sharing information on 

the performance of hospices that have 

lower scores, and to incentivize those 

hospices to improve. The results 

demonstrate that using multiple years of 

data help include more hospices that 

have lower performance rates for 

HVLDL and HCI in public reporting on 

Care Compare. While using more years 

of data would allow us to report 

measures for even more hospices, it 

would involve sharing data that are no 

longer relevant, and display scores that 

do not reflect recent hospice 

improvement efforts. 

We solicited public comment on these 

proposals related to the use of 2 years 

of data for claims-based measures and 

public reporting of claims measures in 

general and their application to HVLDL 

and HCI specifically. We received 

several comments from various 

stakeholders on this proposal. A 

summary of the comments we received 

on this proposal and our responses to 

those comments appear below: 

Comment: A few commenters 

expressed concern that hospices would 

not be able to view data close to real 

time, which might inhibit the ability to 

use the score to inform continuous 

quality improvement. 

Response: We agree that there is a lag 

time between the delivery of care and 

the calculation and reporting of the 

claims-based quality measures, 

including HCI. However, the time is 

needed. After the data extract is created 

after the 90-day run-off, it takes several 

months to incorporate other data needed 

for the calculations. We then need to 

generate and check the calculations 

before posting for confidential reporting. 

Our proposal for using the 90-day runoff strikes a balance between allowing 

time for hospices to make corrections to 

their claims, while also seeking to post 

more rather than less up-to-date 

information. We have streamlined our 

processes as much as possible, and time 

is needed to go through these steps to 

ensure accurate publication of quality 

measure data. 

Comment: Several commenters 

requested that CMS issue confidential 

reports with hospices’ claims-based 

measure scores in CASPER to help 

hospices understand and validate their 

scores before they are publicly reported. 

Response: Section 1814(i)(5)(E) of the 

Act requires that the Secretary establish 

procedures for making HQRP data 

available to the public and ensure that 

hospices have the opportunity to review 

HQRP data before their release to the 

public. We will provide this 

opportunity to review for claims-based 

measures in a process similar to HISbased measures. Hospices can review 

and correct their HIS data before the 

Data Correction Deadline; for claims 

data, hospices will be able to ensure that 

the data are accurate through the end of 

the 90-day run-off period. Subsequently, 

as with HIS-based measures, we will 

implement a 30-day preview period for 

claims-based measures, which will 

serve as the final opportunity for 

hospices to review their data and alert 

CMS about any errors in the measure 

calculations they identify. Should a 

hospice believe they have found an 

error with an HIS or claims-based 

measure calculation as displayed in 

their preview reports, they can request 

a review, and we will suppress if the 

review finds the calculation 

problematic. We refer readers to the 

HQRP website at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospiceQuality-Reporting/Public-ReportingHIS-Preview-Reports-and-Requests-forCMS-Review-of-HIS-Data, which we 

will revise to include further 

information on public reporting of 

claims as well as HIS data. This page 

covers information about for accessing 

reports and an email address should 

hospices have questions regarding any 

of the above-mentioned reports or 

processes. 


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Figure 2: Percent of hospices meeting the public reporting threshold based on 1 (FY 

2019) or 2 pooled years (FY 2018 to FY 2019) of data, by Hospice Care Index score 

45.0% 

40.0% 

35.0% 

30.0% 

25.0% 

20.0% 

15.0% 

10.0% 

5.0% 

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0 

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■ HCI Score (2019}; n=4,155 ■ HCI Score (combined}, small-missing hospices; n=277 

Source: 100% Medicare claims, Federal Fiscal Years 2018-2019. 

-- ~ 

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- 10 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42587 

50MedPAC. 2020. Report to the Congress: 

Medicare Payment Policy | March 2020. http://

medpac.gov/docs/default-source/reports/mar20_

medpac_ch12_sec.pdf?sfvrsn=0. Accessed June 13, 

2021. 

In addition to the Preview Report, we 

will also include claims-based measure 

scores in the Hospice Agency-Level QM 

Report in CASPER. This report is 

intended to support quality 

improvement for hospices. Measure 

scores will be updated annually in the 

QM Report as they will in the Preview 

Report and on Care Compare and the 

Provider Data Catalogue. 

Comment: We received several 

comments with a request for CMS to 

consider quarterly as opposed to annual 

reporting of claims-based measures to 

best support continuous quality 

improvement activities. 

Response: Our proposal to update 

annually reflects our understanding that 

claims measures reflect business 

practices that are slow to change. For 

example, for HCI, as we discussed in the 

proposed rule, we compared index 

scores calculated for the same hospice 

using annual claims from Federal FY 

2017 and 2019. The analysis found that 

83% of hospices had HCI scores that 

were 0–1 percentage points different in 

FY2019 relative to their FY2017 scores. 

These results indicate that a hospice’s 

HCI scores would not normally fluctuate 

a great deal from one year to the next, 

and that they will fluctuate even less 

from quarter to quarter. Thus, quarterly 

updates would not necessarily provide 

meaningful support to hospices seeking 

to improve their quality of care. Instead, 

progress on HCI will occur over longer 

time frames, and annual updates are 

sufficient to support hospices’ efforts to 

improve. 

Other PAC settings show similar 

findings regarding the stability of claims 

measures compared to assessment 

scores, which we update quarterly. In 

the home health setting, for example, 

national median scores for OASIS-based 

measures tend to increase, while the 

acute care hospitalization measure 

remains steady (Figure 3). 

At the same time, reporting claimsbased measures does require additional 

labor. Given the findings about stability 

in claims measure scores, and the cost 

of updating more frequently, all PAC 

settings update claims-based measures 

annually. Hospital claims-based 

measures are also updated annually. 

The HQRP seeks to align with the other 

settings. 

Given the findings and 

considerations, we believe that our 

proposal to provide annual updates is 

appropriate. However, we will remain 

open to reconsidering the frequency of 

reporting claims across all PAC settings 

in the future, should data after 

implementation indicate that such 

change is warranted. 

Comment: One commenter expressed 

concern that CMS would obtain the data 

from cost reports, which would not 

allow them time to understand or 

preview the measures before they were 

publicly reported. 

Response: We will not pull claims 

data for calculating the measures from 

cost reports. Instead, it will come from 

our research database that contains 

Medicare files including fee-for-service 

claims data. As stated, data source and 

timing will allow time for hospices to 

preview their measure scores before 

they are publicly reported. 

Comment: We received comments in 

support of the proposal to use two years 

of data for publicly reporting HVLDL 

and HCI. One of these commenters 

expressed support for making the 

reporting more inclusive of smaller 

hospices, to encourage them to also 

improve the quality of care they 

provide. Other commenters suggested 

using a 1-year time frame, so as to make 

the measure score more reflective of 

current operations and performance, 

and thus more understandable and 

useful for providers and consumers. 

Some commenters recommended 

adding a disclaimer that the data are 

two years old and do not reflect the 

current status of hospice performance. 

Response: We agree that there are 

benefits to reporting just one year of 

data. However, we also believe that we 

must strike a balance between the 

benefits of reporting fewer years of more 

timely data with the need to be more 

inclusive of smaller hospices, which 

MedPAC has found have higher live 

discharge rates than larger hospices.50 In 

other settings, some claims-based 

measures also use two or even three 

years of data for reporting. For example, 

as part of the Home Health Quality 

Reporting Program, the Potentially 

Preventable 30-Day Post-Discharge 

Readmission measure is reported using 

three years of data, while Medicare 

Spending Per Beneficiary and Discharge 

to Community measures are reported 

using two years of data. We also 

considered using three years of data for 

HVLDL and HCI, and determined that 

three years did not yield the same 

benefit (that is, inclusion of hospices) 

relative to cost (that is, lag in reporting), 

and thus proposed using two years of 

data. With two years of data, 50 percent 


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Figure 3. National median values over time 100 a2015qs 

2015q4 

1!116ql 

1!116q2 

•1!116q3 

•201&!4 

2017q1 

a2017q2 

•2017q3 

a2017q4 

•-1 •-2 •-3 

·-· 20191!1 

a2019q2 

•2019q4 -3 

•2020l!1 

•2020l!2 

•2020l!J 

•2020l!4 

•2021q1 

•2021'12 
42588 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

of the data come from the more recent 

year, and hospices should still be able 

to see their scores change as their 

performance improves. 

Final Decision: We are finalizing as 

proposed our proposals to use 90-day 

run-off data to calculate claims-based 

measures, to update claims-based 

measure scores annually, and to use 

eight quarters of data to report HVLDL 

and HCI. 

(3). Publicly Report the Hospice Care 

Index and ‘‘Hospice Visits in the Last 

Days of Life’’ Claims-Based Measures 

As discussed previously, we are 

finalizing our proposal to publicly 

report the HCI and HVLDL using 2 

years, which is 8 quarters of Medicare 

claims data. We will publicly report the 

HCI and HVLDL beginning no earlier 

than May 2022, and to include it in the 

Preview Reports no sooner than the May 

2022 refresh. The publicly-reported 

version of HCI on Care Compare will 

only include the final HCI score, and 

not the component indicators. The 

Preview Reports will reflect the HCI as 

publicly reported. 

We solicited public comment on this 

proposal for HCI and HVLDL public 

reporting on Care Compare no sooner 

than May 2022. A summary of the 

comments we received on this proposal 

and our responses to those comments 

appear below: 

Comment: Many commenters 

requested clarification on the reporting 

period for initial reporting. They also 

requested clarification on the logistics of 

the reporting process—in particular, 

when specifications would be available. 

Response: We appreciate the 

opportunity to provide clarification. If 

released in May 2022 using eight 

quarters of data, the HCI and HVLDL 

measure reporting period would begin 

with FY2021 (Q1, Q2, and Q3 2021 and 

Q4 2020). The next four quarters would 

be Q3 2020 and Q2, Q3, and Q4 of 

2019—that is, past quarters adding up to 

eight quarters but omitting Q1 and Q2 

of 2020, which were exempt from 

quality reporting (please see section 

10.b.(2) above, ‘‘Update on Use of Q4 

2019 Data and Data Freeze for Refreshes 

in 2021’’). As provided in sections III 

F(3). ‘‘Addition of a ‘‘claims-based 

index measure’’, the Hospice Care 

Index’’ and III F(4). ‘‘Update on the 

Hospice Visits in the Last Days of Life 

(HVLDL) and Hospice Item Set V3.00’’, 

we gave sufficient information in the 

proposed rule and this final rule to 

calculate HCI and HVLDL and access 

specifications. The HQRP will post a 

revised QM Users’ Manual that contains 

HCI and HVLDL no later than October 

1, 2021 at: https://www.cms.gov/ 

Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospiceQuality-Reporting/Current-Measures. 

Comment: We received several 

comments expressing concern about the 

timing for publicly reporting HVLDL 

and HCI on Care Compare and the 

Provider Data Catalogue. Commenters 

requested sufficient time to understand 

the measures, set up monitoring systems 

(sometimes with vendor support), assess 

trends in their performance relative to 

national benchmarks, and develop plans 

for quality improvement, as CMS 

normally provides. One noted that this 

time is needed in particular because 

visits on claims have not previously 

impacted hospice quality scores or 

payment. Others noted that the delay 

could allow time for additional analysis 

of the measure, and for more 

transparency about the rationale for it. 

Many of these commenters requested 

that CMS wait a year (until 2023) to 

publicly report the measures, while also 

requesting to confidential reports with 

the claims-based measures as soon as 

possible. One commenter requested a 

minimum of 6 months from the date 

final specifications are available for 

EMR and other vendors to respond to 

any changes in the HQRP. 

Response: As stated in section III 

F(3)(e). ‘‘Form, Manner and Timing of 

Data Collection and Submission’’, we 

have provided and will consolidate in 

the Users’ Manual specifications for HCI 

and HVLDL in time to meet 

commenters’ stated needs. In addition, 

we will provide hospices with 

confidential reporting of their HVLDL 

and HCI measure scores in the AgencyLevel QM report after this rule is 

finalized—after August 2021. This 

would allow sufficient time to complete 

the activities related, which is what we 

normally aim to give providers to 

understand and prepare for public 

reporting of a new measure, if we 

publicly report in May 2022. We believe 

that the QM report and Provider 

Preview report will provide an 

indication on how well the hospice is 

performing as well as opportunities to 

provide CMS feedback on technical 

issues with the measures. To further 

support the hospice community, we will 

also provide education, training, and 

additional opportunities for hospices to 

receive information about the measures 

through open door forums or other 

venues. 

Although these measures represent 

the first time that hospices are held 

accountable for visits information in 

claims, the measures reflect ideas about 

best practice and compliance that 

hospices have already known. While we 

are committed to provide time for 

understanding and preparation, we are 

not committed to ensuring that all 

hospices achieve high scores on the new 

measures before publicly reporting 

them. For these reasons, we believe that 

no additional dry run period is 

warranted. 

Comment: A commenter suggested 

that CMS should not use claims data 

from a time period before a measure is 

finalized through rulemaking. 

Response: Our practice across all PAC 

settings has been to allow the use of 

claims data originating from before the 

finalization of a proposal to adopt a 

claims-based measure. For example, for 

the Home Health QRP, we finalized the 

Potentially Preventable 30-Day PostDischarge Readmission Measure in the 

CY 2017 Home Health QRP Rule (81 FR 

76770 through 76775) for reporting with 

three consecutive years of claims data 

beginning with the CY 2018 Home 

Health QRP. 

Comment: Commenters recommended 

using simple language to describe 

HVLDL on Care Compare, to ensure that 

the average consumer will understand 

it. For HVLDL, one commenter 

suggested that CMS notify consumers 

that the measure does not capture visits 

from chaplains, volunteers, hospice 

aides, and complementary therapies, 

among others. For HCI, several 

commenters expressed concern about 

CMS’s ability to help consumers 

interpret it in a way that helps support 

informed decision-making. For example, 

an average consumer might misinterpret 

higher scores for live discharges or 

avoidance of general inpatient care as 

favorable. 

Response: We also believe in the 

importance of using simple language on 

Care Compare to ensure consumers can 

easily use and appropriately interpret 

quality information that we provide for 

their decision-making. As with any 

measure included in the HQRP, we are 

committed to providing all users with 

the necessary information to understand 

the intent and application of measures 

in the HQRP. Before we publicly report 

this measure, we will provide resources 

to aid the public in interpreting publicly 

displayed quality data. For HVLDL 

specifically, we will list the multidisciplinary team member visits that are 

included in the measure as part of the 

measure description displayed on Care 

Compare. 

For the public display of HCI, our 

measure development contractor 

convened two small caregiver 

workgroups to gather impressions and 

input on the value of HCI for 

consumers. The caregivers were 

generally receptive and positive about 

the HCI as an additional measure for the 


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Hospice QRP, and expressed interest in 

the indicator-level information as well 

as the index score to better understand 

the hospice. Their response confirmed 

our understanding that the data 

included in HCI will be useful for 

patients and families as they compare 

and select hospice providers. Based on 

the caregivers’ feedback, we proposed 

reporting the HCI as a single score to 

report on Care Compare, while 

providing the indicator scores in the 

Provider Data Catalog (PDC). We will 

continue to apply ideas shared by the 

Caregiver Workgroup participants as we 

refine plans for the measure’s public 

display to minimize the risk of 

misinterpretation. 

Final Decision: We are finalizing as 

proposed to publicly report the HCI and 

HVLDL beginning no earlier than May 

2022, and to include it in the Preview 

Reports no sooner than the May 2022 

refresh. 

(4). Update on Publicly Reporting for 

the ‘‘Hospice Visits When Death is 

Imminent (HVWDII) Measure 1’’ and the 

‘‘Hospice Visits in the Last Days of Life 

(HVLDL) Measure’’ 

As discussed earlier, the HIS V3.00 

PRA Submission, CMS–10390 (OMB 

control number: 0938–1153), finalized 

the proposal to replace the HVWDII 

measure pair with a re-specified version 

called HVLDL, which is a single 

measure based on Medicare claims. 

Relatedly, in the HIS V3.00 PRA 

Submission, CMS–10390 (OMB control 

number: 0938–1153), we finalized the 

proposal to remove Section O from the 

HIS. As stated in section 1814(i)(5)(E) of 

the Act, we establish procedures for 

making all quality data submitted by 

hospices under § 418.312 available to 

the public. Thus, we would have 

continued to publicly report HVWDII 

Measure 1 data through the November 

2021 refresh. Because of the data freeze, 

HVWDII Measure 1 data from the 

November 2020 refresh, covering HIS 

admissions during Q1 through Q4 2019, 

will be publicly displayed for all 

calendar year 2021 refreshes. We may 

retain the November 2020 refresh for 

HVWDII Measure 1 for one or more 

refreshes in 2022, when there will be no 

HIS Section O data, if doing so will 

allow us to consolidate changes and 

thus operate more efficiently. 

D. Update on Transition From Hospice 

Compare to Care Compare and 

Provider Data Catalog 

In September 2020, we launched Care 

Compare, a streamlined redesign of 

eight existing CMS healthcare compare 

tools available on Medicare.gov, 

including Hospice Compare. Care 

Compare provides a single user-friendly 

interface that patients and family 

caregivers can use to make informed 

decisions about healthcare based on 

cost, quality of care, volume of services, 

and other data. With just one click, 

patients can find information that is 

easy to understand about doctors, 

hospitals, nursing homes, and other 

health care services instead of searching 

through multiple tools. 

For the last six years, Medicare’s 

Hospice Compare has served as the 

cornerstone for publicizing quality care 

information for patients, family 

caregivers, consumers, and the 

healthcare community. The new website 

builds on the eMedicare initiative to 

deliver simple tools and information to 

current and future Medicare 

beneficiaries. Drawing on lessons 

learned through research and 

stakeholder feedback, Care Compare 

includes features and functionalities 

that appeal to Hospice Compare 

consumers. By offering an accessible 

and user-friendly interface and a simple 

design that is optimized for mobile and 

tablet use, it is easier than ever to find 

information that is important to patients 

when shopping for healthcare. 

Enhancements for mobile use will give 

practical benefits like accessing the tool 

using a smartphone that can initiate 

phone calls to providers simply by 

clicking on the provider’s phone 

number. 

In conjunction with the Care Compare 

launch, we have made additional 

improvements to other CMS data tools, 

to help Medicare beneficiaries compare 

costs. Specifically, the Provider Data 

Catalog (PDC) better serves innovators 

and stakeholders who are interested in 

detailed CMS data and use interactive 

and downloadable datasets like those 

currently available on 

data.Medicare.gov. The PDC now makes 

quality datasets available through an 

improved Application Programming 

Interface (API), allowing innovators in 

the field to easily access and analyze the 

CMS publicly-reported data and make it 

useful for patients. 

e. Update on Additional Information on 

Hospices for Public Reporting 

In the FY 2019 Hospice Wage Index 

and Payment Rate Update and Hospice 

Quality Reporting Requirements final 

rule (83 FR 38622), we finalized plans 

to publicly post information from the 

Medicare Provider Utilization and 

Payment Data: Hospice Public Use File 

(PUF) and other publicly-available CMS 

data to Hospice Compare or another 

CMS website. Hospice PUF data are 

available for CY 2014 through CY 2016. 

Beginning with CY 2017 data, hospice 

PUF data are public as part of the PostAcute Care and Hospice Provider 

Utilization and Payment PUF (hereafter 

PAC PUF). For more information, please 

visit the PAC PUF web page at: https:// 

www.cms.gov/Research-Statistics-Dataand-Systems/Statistics-Trends-andReports/Medicare-Provider-ChargeData/PAC2017. Both the Hospice and 

PAC PUFs provide information on 

services provided to Medicare 

beneficiaries by hospice providers. 

Specifically, they contain information 

on utilization, payment (Medicare 

payment and standard payment), 

submitted charges, primary diagnoses, 

sites of service, and beneficiary 

demographics organized by CCN (6-digit 

provider identification number) and 

state. 

PUF data, along with clear text 

explaining the purpose and uses of this 

information and suggesting consumers 

discuss this information with their 

healthcare provider, first displayed in a 

consumer-friendly format on Hospice 

Compare in May 2019. Beginning May 

2021, we will begin to display 

additional information from the PAC 

PUF on Care Compare. This additional 

information includes hospices’ 

beneficiary characteristics such as the 

percentage of patients enrolled in 

Medicare Advantage. In addition, 

consumers will see whether a hospice 

provided services to Medicare 

Advantage enrollees or patients who 

have coverage under both Medicaid and 

Medicare, also called dual eligible 

patients. The data for these additional 

characteristics are pulled directly from 

the PAC PUF file and provide potential 

hospice service patients and family 

caregivers with more detail prior to 

selecting a hospice. 

As finalized in the FY 2019 Hospice 

Wage Index and Payment Update final 

rule (83 FR 38622), we also improved 

access to publicly-available information 

about hospices’ compliance with 

Hospice QRP requirements. Specifically, 

we already post the annual Hospice 

APU Compliant List on the HQRP 

Requirements and Best Practices web 

page. This document displays the CCN, 

name, and address of every hospice that 

successfully met quality reporting 

program requirements for the fiscal year. 

Hospices are only considered compliant 

if they meet the standards for HIS and 

CAHPS reporting, as codified in 

§ 418.312. Consumers can now access 

the Hospice APU compliance file from 

Care Compare, enabling them to 

determine if a particular hospice is 

compliant with CMS’ quality reporting 

requirements. 


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42590 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

51Azar, A. M. (2020 March 15). Waiver or 

Modification of Requirements Under Section 1135 

of the Social Security Act. Public Health 

Emergency. https://www.phe.gov/emergency/news/ 

healthactions/section1135/Pages/covid19- 

13March20.aspx. 

52 (2020, March 27). Exceptions and Extensions 

for Quality Reporting Requirements for Acute Care 

Hospitals, PPS-Exempt Cancer Hospitals, Inpatient 

Psychiatric Facilities, Skilled Nursing Facilities, 

Home Health Agencies, Hospices, Inpatient 

Rehabilitation Facilities, Long-Term Care Hospitals, 

Ambulatory Surgical Centers, Renal Dialysis 

Facilities, and MIPS Eligible Clinicians Affected by 

COVID–19. Centers for Medicare & Medicaid 

Services. .https://www.cms.gov/files/document/ 

guidance-memo-exceptions-and-extensions-qualityreporting-and-value-based-purchasingprograms.pdf. 

G. January 2022 HH QRP Public 

Reporting Display Schedule with Fewer 

than Standard Number of Quarters Due 

to COVID–19 Public Health Emergency 

Exemptions 

1. Background and Statutory Authority 

We include this Home Health 

proposal in this rule because we plan to 

resume public reporting for the HH QRP 

with the January 2022 refresh of Care 

Compare. In order to accommodate the 

exception of 2020 Q1 and Q2 data, we 

are proposing to resume public 

reporting using 3 out of 4 quarters of 

data for the January 2022 refresh. In 

order to finalize this proposal in time to 

release the required preview report 

related to the refresh, which we release 

3 months prior to any given refresh 

(October 2021), we need the rule 

containing this proposal to finalize by 

October 2021. 

The HH QRP is authorized by section 

1895(b)(3)(B)(v) of the Act. Section 

1895(b)(3)(B)(v)(II) of the Act requires 

that for 2007 and subsequent years, each 

HHA submit to the Secretary in a form 

and manner, and at a time, specified by 

the Secretary, such data that the 

Secretary determines are appropriate for 

the measurement of health care quality. 

To the extent that an HHA does not 

submit data in accordance with this 

clause, the Secretary shall reduce the 

home health market basket percentage 

increase applicable to the HHA for such 

year by 2 percentage points. As 

provided at section 1895(b)(3)(B)(vi) of 

the Act, depending on the market basket 

percentage increase applicable for a 

particular year, the reduction of that 

increase by 2 percentage points for 

failure to comply with the requirements 

of the HH QRP and further reduction of 

the increase by the productivity 

adjustment (except in 2018 and 2020) 

described in section 1886(b)(3)(B)(xi)(II) 

of the Act may result in the home health 

market basket percentage increase being 

less than 0.0 percent for a year, and may 

result in payment rates under the Home 

Health PPS for a year being less than 

payment rates for the preceding year. 

For more information on the policies we 

have adopted for the HH QRP, we refer 

readers to the following rules: 

• CY 2007 HH PPS final rule (71 FR 

65888 through 65891). 

• CY 2008 HH PPS final rule (72 FR 

49861 through 49864). 

• CY 2009 HH PPS update notice (73 

FR 65356). 

• CY 2010 HH PPS final rule (74 FR 

58096 through 58098). 

• CY 2011 HH PPS final rule (75 FR 

70400 through 70407). 

• CY 2012 HH PPS final rule (76 FR 

68574). 

• CY 2013 HH PPS final rule (77 FR 

67092). 

• CY 2014 HH PPS final rule (78 FR 

72297). 

• CY 2015 HH PPS final rule (79 FR 

66073 through 66074). 

• CY 2016 HH PPS final rule (80 FR 

68690 through 68695). 

• CY 2017 HH PPS final rule (81 FR 

76752). 

• CY 2018 HH PPS final rule (82 FR 

51711 through 51712). 

• CY 2019 HH PPS final rule with 

comment period (83 FR 56547). 

• CY 2020 HH PPS final rule (84 FR 

60554 through 60611). 

• CY 2021 HH PPS final rule (85 FR 

70326 through 70328). 

2. Public Display of Home Health 

Quality Data for the HH QRP 

Section 1895(b)(3)(B)(v)(III) of the Act 

requires the Secretary to establish 

procedures for making HH QRP data, 

including data submitted under sections 

1899B(c)(1) and 1899B(d)(1) of the Act, 

available to the public. Such public 

display procedures must ensure that 

HHAs have the opportunity to review 

the data that will be made public with 

respect to each HHA prior to such data 

being made public. Section 1899B(g) of 

the Act requires that data and 

information regarding PAC provider 

performance on quality measures and 

resource use or other measures be made 

publicly available beginning not later 

than 2 years after the applicable 

specified ‘‘application date’’. 

We established our HH QRP Public 

Display Policy in the CY 2016 HH PPS 

final rule (80 FR 68709 through 68710). 

In that final rule, we noted that the 

procedures for HHAs to review and 

correct their data on a quarterly basis is 

performed through CASPER along with 

our procedure to post the data for the 

public on our Care Compare website. 

We have communicated our public 

display schedule, which supports our 

Public Display Policy, on our websites 

whereby the quarters of data included 

are announced. 

3. Proposal To Modify HH QRP Public 

Reporting To Address CMS’ Guidance 

To Except Data During the COVID–19 

PHE Beginning January 2022 Through 

July 2024 

We proposed to modify our public 

display schedule to display fewer 

quarters of data than what we 

previously finalized for certain HH QRP 

measures for the January 2022 refresh. 

Under authority of section 319 of the 

PHS Act, the Secretary declared a PHE 

effective as of January 27, 2020. On 

March 13, 2020, the President declared 

a national state of emergency under the 

Stafford Act, effective March 1, 2020, 

allowing the Secretary to invoke section 

1135(b) of the Act (42 U.S.C. 1320b–5) 

to waive or modify the requirements of 

titles XVIII, XIX, and XXI of the Act and 

regulations to the extent necessary to 

address the COVID–19 PHE. Many 

waivers and modifications were made 

effective as of March 1, 2020 in 

accordance with the President’s 

declaration.51

On March 27, 2020, we sent a 

guidance memorandum under the 

subject title, ‘‘Exceptions and 

Extensions for Quality Reporting 

Requirements for Acute Care Hospitals, 

PPS-Exempt Cancer Hospitals, Inpatient 

Psychiatric Facilities, Skilled Nursing 

Facilities, Home Health Agencies 

(HHAs), Hospices, Inpatient 

Rehabilitation Facilities, Long-Term 

Care Hospitals, Ambulatory Surgical 

Centers, Renal Dialysis Facilities, and 

MIPS Eligible Clinicians Affected by 

COVID–19’’ to the MLN Connects 

Newsletter and Other Program-Specific 

Listserv Recipients,52 hereafter referred 

to as the March 27, 2020 CMS Guidance 

Memorandum. In the March 27, 2020 

CMS Guidance Memo, we granted an 

exception to the HH QRP reporting 

requirements under the HH QRP 

exceptions and extension requirements 

for Quarter 4 (Q4) 2019 (October 1, 2019 

through December 31, 2019), Q1 2020 

(January 1, 2020 through March 30, 

2020), and Q2 2020 (April 1, 2020 

through June 30, 2020). The HH QRP 

exception applied to the HH QRP 

Outcome and Assessment Information 

Set (OASIS)-based measures, claimsbased measures, and HH CAHPS 

Survey. We discuss the impact to the 

OASIS and claims here, and discuss to 

the HH CAHPS further in section III.G. 

4, Update on Use of Q4 2019 HH QRP 

Data and Data Freeze for Refreshes in 

2021. For the OASIS, the exempted 

quarters are based upon admission and 

discharge assessments. 

A subset of the HH QRP measures has 

been publicly displayed on Home 


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Health Compare (HH Compare) since 

2003. Under the current HH QRP public 

display policy, Home Health Compare 

uses 4 quarters of data to publicly 

display OASIS-based measures, and 4 or 

more quarters of data to publicly display 

claims-based measures. We use four 

rolling quarters of data to publicly 

display Home Health Care Consumer 

Assessment of Healthcare Providers and 

Systems (HH CAHPS) Survey measures 

on Care Compare. As of September 

2020, HH QRP OASIS, claims-based, 

and HH CAHPS Survey measures are 

reported on the www.medicare.gov’s 

Care Compare website. As of December 

2020, the data is no longer reported on 

the www.medicare.gov’s Home Health 

Compare website. 

The exception granted under the 

March 27, 2020 CMS Guidance Memo 

impacted the HH QRP public display 

schedule. We proposed resuming 

publicly displaying HH QRP claimsbased measures in January 2022 based 

upon the quarters of data specified for 

each of the claims-based measures. 

Table 20 displays the original schedule 

for public reporting of OASIS and HH 

CAHPS Survey measures prior to the Q1 

and Q2 2020 data impacted by the 

COVID–19 PHE. 


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During the spring and summer of 

2020, we conducted testing to inform 

decisions about publicly displaying HH 

QRP data for those refreshes which 

include data from the exception period 

of October 1, 2019 through June 30, 


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TABLE 20: Original Public Reporting Schedule with Refreshes 

Quarter HH Quarters in Original Schedule for HH CAHPS Survey Quarters in 

Refresh Care Compare Ori2inal Schedule for Care Compare 

October 2020 OASIS, ACR, & ED quality measure (QM): Q2 2019-Ql 2020 

Ql 2019- Q4 2019 

DTC, MSPB: Ql 2018- Q4 2019 (8) 

PPR: Ql 2017- 04 2019 (12) 

*January 2021 OASIS, ACR, & ED QM: Q2 2019- Ql 2020 

DTC, MSPB: Ql 2018- Q4 2019 (8) 

PPR: Ql 2017- Q4 2019 (12) Q3 2019- Q2 2020 

*April 2021 OASIS, ACR & ED QM: Q3 2019- Q2 2020 

DTC, MSPB: Ql 2018- Q4 2019 (8) 

PPR: QI 2017- 04 2019 (12) 04 2019-03 2020 

*July 2021 OASIS, ACR & ED QM: Q4 2019-Q3 2020 Q 1 2020 - Q4 2020 

DTC, MSPB: Ql 2018- Q4 2019 (8) 

PPR: Ql 2017- 04 2019 (12) 

*October 2021 OASIS, ACR & ED QM: Ql 2020- Q4 2020 Q2 2020-Ql 2021 

DTC, MSPB: Ql 2019- Q4 2020 (8) 

PPR: Ql 2018- Q4 2020 (12) 

* January 2022 OASIS, ACH & ED QM: Q2 2020- Ql 2021 Q3 2020 - Q2 2021 

DTC, MSPB: Ql 2019 -Q4 2020 (8) 

PPR: 01 2018-04 2020 (12) 

t* April 2022 OASIS, ACR & ED QM: Q3 2020-Q2 2021 Q4 2020 - Q3 2021 

DTC, MSPB: Ql 2019-Q4 2020 (8) 

PPR: Ql 2018 - 04 2020 (12) 

tJuly 2022 OASIS, ACR & ED QM: Q4 2020-Q3 2021 Ql 2021 - Q4 2021 

DTC, MSPB: Ql 2019- Q4 2020 (8) 

PPR: Ql 2018- Q4 2020 (12) 

tOctober 2022 OASIS, ACR & ED QM: Ql 2021-Q4 2021 Q2 2021 - Ql 2022 

DTC, MSPB: Ql 2020- Q4 2021 (8) 

PPR: 01 2019- Q4 2021 (12) 

tJanuary 2023 OASIS, ACR & ED QM: Q2 2021-Ql 2022 Q3 2021 - Q2 2022 

DTC, MSPB: Ql 2020- Q4 2021 (8) 

PPR: QI 2019- Q4 2021 (12) 

tApril 2023 OASIS, ACR & ED QM: Q3 2021-Q2 2022 Q4 2021 - Q3 2022 

DTC, MSPB: Ql 2020- Q4 2021 (8) 

PPR: Ql 2019- 04 2021 (12) 

tJuly 2023 OASIS, ACR & ED QM: Q4 2021-Q3 2022 

DTC, MSPB: Ql 2020- Q4 2021 (8) 

PPR: 01 2019- Q4 2021 (12) Q 1 2022-Q4 2022 

ttOctober 2023 OASIS, ACR, ED Use: Ql 2022-Q4 2022 Q2 2022 - Q 1 2023 

DTC, MSPB: Ql 2021- Q4 2022 (8) 

PPR: 01 2020- 04 2022 (12) 

ttJanuary 2024 OASIS, ACR, ED Use: Q2 2022-Ql 2023 Q3 2022 -Q2 2023 

DTC, MSPB: QI 2021- Q4 2022 (8) 

PPR: Ql 2020- Q4 2022 (12) 

tt April 2024 OASIS, ACR, ED Use: Q3 2022-Q2 2023 Q4 2022-Q3 2023 

DTC, MSPB: Ql 2021- Q4 2022 (8) 

PPR: Ql 2020- Q4 2022 (12) 

tt July 2024 OASIS, ACR, ED Use: Q4 2022-Q3 2023 Ql 2023-Q4 2023 

DTC, MSPB: Ql 2021- Q4 2022 (8) 

PPR: Ql 2020- Q4 2022 (12) 

October 2024 OASIS, ACR, ED Use: Ql 2023-Q4 2023 Q2 2023 - Ql 2024 

DTC, MSPB: Ql 2022- Q4 2023 (8) 

PPR: Ql 2021- Q4 2023 (12) 

*Exceptions affect both OASIS and RR CARPS Survey data for refresh; tExceptions affect only RR CARPS Survey 

measures and some claims-based measures for refresh; tt Exceptions affect only some claims-based measures. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42593 

2020 (hereafter ‘‘excepted data’’). The 

testing helped us develop a plan for 

displaying HH QRP data that are as upto-date as possible and that also meet 

scientifically-acceptable standards for 

publicly displaying those data. We 

believe that the plan allows us to 

provide consumers with helpful 

information on the quality of home 

health care, while also making the 

necessary adjustments to accommodate 

the exception granted to HHAs. The 

following sections provide the results of 

our testing for OASIS and claims and 

explain how we used the results to 

inform a proposal for accommodating 

excepted data in public reporting. HH 

CAHPS discussion is further in section 

III.G.4. 

4. Update on Use of Q4 2019 HH QRP 

Data and Data Freeze for Refreshes in 

2021 

In the March 27, 2020 Guidance 

Memorandum, we stated that we should 

not include any PAC quality data that 

are greatly impacted by the exception 

granted in the quality reporting 

programs. Given the timing of the 

COVID–19 PHE onset, we determined 

that we would not use HH QRP OASIS, 

claims, or HH CAHPS data from Q1 and 

Q2 of 2020 for public reporting, and that 

we would assess the impact of the 

COVID–19 PHE on HH QRP data from 

Q4 2019. In the original schedule (Table 

20), the October 2020 refresh included 

Q4 2019 measure based on OASIS and 

HH CAHPS data and is the last refresh 

before Q1 2020 data are included. 

Before proceeding with the October 

2020 refresh, we conducted testing to 

ensure that publicly displaying Q4 2019 

data would still meet our standards 

despite granting an exception to HH 

QRP reporting requirements for Q4 

2019. Specifically, we compared 

submission rates in Q4 2019 to average 

rates in other quarters to assess the 

extent to which HHAs had taken 

advantage of the exception, and thus the 

extent to which data and measure scores 

might be affected. We observed that the 

quality data submission rate for Q4 2019 

was in fact 0.4 percent higher than the 

previous calendar year (Q4 2018). We 

note that Q4 2019 ended before the 

onset of the COVID–19 pandemic in the 

U.S. Thus, we proceeded with including 

Q4 2019 data in measure calculations 

for the October 2020 refresh. 

Because we excepted HHAs from the 

HH QRP reporting requirements for Q1 

and Q2 2020, we did not use OASIS, 

claims, or HH CAHPS data from these 

quarters. All refreshes, during which we 

decided to hold this data constant, 

included more than 2 quarters of data 

that were affected by the CMS-issued 

COVID reporting exceptions, thus we 

did not have an adequate amount of 

data to reliably calculate and publicly 

display provider measures scores. 

Consequently, we determined to freeze 

the data displayed, that is, holding data 

constant after the October 2020 refresh 

without subsequently updating the data 

through October 2021. We 

communicated this in a Public 

Reporting Tip Sheet, which is located 

at: https://www.cms.gov/files/ 

document/hhqrp-pr-tipsheet081320final-cx-508.pdf. 

5. Application of the COVID–19 PHE 

Affected Reporting (CAR) Scenario To 

Publicly Display Certain HH QRP 

Measures (Beginning in January 2022 

Through July 2024) 

We also proposed to use the CAR 

scenario for refreshes for January 2022 

for OASIS and for refreshes from 

January 2022 through July 2024 for 

some claims-based measures. There are 

several forthcoming HH QRP refreshes 

for which the original public reporting 

schedule included other quarters from 

the quality data submission exception. 

These refreshes for claims-based 

measures, OASIS-based measures, and 

for HH CAHPS Survey measures are 

outlined in Table 20. 

Because October 2020 refresh data 

will become increasingly out-of-date 

and thus less useful for the public, we 

analyzed whether it would be possible 

to use fewer quarters of data for one or 

more refreshes and thus reduce the 

number of refreshes that continue to 

display October 2020 data. Using fewer 

quarters of more up-to-date data 

requires that: (1) A sufficient percentage 

of HHAs would still likely have enough 

OASIS data to report quality measures 

(reportability); and (2) using fewer 

quarters of data to calculate measures 

would likely produce similar measure 

scores for HHAs, and thus not unfairly 

represent the quality of care HHAs 

provided during the period reported in 

a given refresh (reliability). 

To assess these criteria, we conducted 

reportability and reliability analysis 

excluding the COVID–19 affected 

quarters of data in a refresh instead of 

the standard number of quarters of data 

for reporting for each HH QRP measure 

to model the impact of not using Q1 or 

Q2 2020 Specifically, we used historical 

data to calculate HH quality measures 

under two scenarios: 

• Standard Public Reporting (SPR) 

Scenario: We used HH QRP data from 

CY 2017 through 2019 to build the 

standard reported measures, to 

represent as a proxy CY 2020 public 

reporting in the absence of the 

temporary exemptions from the 

submission of OASIS quality data, as 

the basis for comparing simulated 

alternatives. This entails using 4 

quarters of CY 2019 HH QRP data to 

model the OASIS based measures that 

are normally calculated using 4 quarters 

of data. This also entailed using 4 

quarters of HH QRP data from CY 2019 

for the all-cause hospitalization and 

emergency department use claims-based 

measures, 8 quarters of HH QRP data 

from CY2018 and CY2019 for Medicare 

spending per beneficiary (MSPB) and 

discharge to community (DTC) claimsbased measures; and or 12 quarters from 

January 2017 to December 2019 for the 

potentially preventable readmission 

claims-based measure. 

• COVID–19 Affected Reporting 

(CAR) Scenario: We calculated OASISbased measures using 3 quarters of HH 

QRP CY 2019 data to simulate using 

only Q3 2020, Q4 2020, and Q1 2021 

data for public reporting. We calculated 

claims-based measures using HH QRP 

CY 2017 to 2019 data, to simulate using 

the most recent data while excluding 

the same quarters (Q1 and Q2) that are 

relevant from the COVID–19 PHE 

exception. We used 3 quarters of HH 

QRP data from CY 2019 for the all-cause 

hospitalization and emergency 

department use claims-based measures 

and 6 quarters of data from HH QRP CY 

2018 and CY 2019 were used for both 

the Medicare spending per beneficiary 

and discharge to community claimsbased measures. We used 10 quarters of 

HH QRP data from CY 2017 to 2019 to 

calculate the CAR scenario for the 

potentially preventable readmissions 

claims-based measure. For both claims 

and OASIS-based measures, the quarters 

used in our analysis were the most 

recently available data that exclude the 

same quarters (Q1 and Q2) as that are 

relevant from the COVID–19 PHE 

exception, and thus take seasonality 

into consideration. 

The OASIS-based measures are based 

on the start of care and calculated using 

admission dates. Therefore, under the 

CAR scenario we excluded data for 

OASIS-based measures for HHA patient 

stays with admission dates in Q1 and 

Q2 2019. To assess performance in these 

scenarios, we calculated the 

reportability as the percent of HHAs 

meeting the 20-case minimum for public 

reporting (the public reporting 

threshold, or ‘‘PRT’’). We evaluated 

measure reliability using the Pearson 

and Spearman correlation coefficients, 

which assess the alignment of HHs 

measure scores between scenarios. To 

calculate the reliability results, we 

restricted the HHAs included in the SPR 

Scenario to those included in the CAR 

Scenario. 


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42594 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

Testing results showed that using the 

CAR scenario would achieve 

scientifically acceptable quality measure 

scores for the HH QRP. As displayed in 

Table 21, the percentage of HHAs that 

met the public display threshold for the 

OASIS-based measure decreases by 5.5 

percentage points or less for all but one 

QM, the Influenza Immunization for the 

Current Flu Season in the CAR scenario 

versus SPR scenario. CMS has 

traditionally used a reportability 

threshold of 70 percent, meaning at least 

70 percent of HHAs are able to report at 

least 20 episodes for a given measure, as 

the standard to determine whether a 

measure should be publicly reported. By 

this standard, we consider a decrease of 

5.5 percentage points or less 

scientifically acceptable. The change in 

reportability for the Influenza 

Immunization for the Current Flu 

Season measure is related to the 

seasonality of this measure, which 

includes cases that occur during the flu 

season only. 

Under the CAR scenario, the January 

2022 refresh data would cover Q3 and 

Q4 of 2020 and Q1 of 2021, which occur 

during the flu season. This simulation 

included Q2 through Q4 of 2019, which 

crosses the flu season. Thus, the 

reportability of the actual data used is 

likely to be better than this simulation. 

Therefore, in general, using CAR 

scenario for the OASIS and claimsbased measures would achieve 

acceptable reportability for the HH QRP 

measures. Testing also yielded 

correlation coefficients above 0.85, 

indicating a high degree of agreement 

between HH measure scores when using 

the CAR scenario or the SPR scenario. 

BILLING CODE 4120–01–P 


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TABLE 21: HH QRP Measure Results Under the SPR and CAR Scenarios 

Reportabilitv Reliability 

Measure Reference % providers % providers Change in% Pearson Spearman 

Name meetingPRT meetingPRT Providers Correlation Correlation 

(Standard (COVID-19 meetingPRT 

Public Affected 

Reporting, SPR Reporting, CAR 

Scenario) Scenario) 

86.2 81.9% 4.3% .97 .91 

Application of 

Percent of Long 

Term Care Hospital 

Patients with an 

Admission and 

Discharge 

Functional 

Assessment and a 

Care Plan that 

Addresses Function 

(NQF 2631) 

Changes in Skin 80.9% 75.9% 5% .85 .87 

Integrity Post-Acute 

Care Pressure 

Ulcers/Injuries 

Drug Regimen 86.2% 81.9% 4.3% .99 .96 

Review 

Percent of Residents 86.1% 81.7% 4.4% .89 .88 

Experiencing One or 

More Falls with 

Major Injury (NQF 

#0674) 

Influenza 81.9% 70.7% 11.2% .92 .90 

Immunization 

Received for Current 

Flu Season 

Timely Initiation of 86.2% 81.9% 4.3% .97 .95 

Care (NQF #0526) 

Improvement in 80.4% 75.6% 4.8% .98 .97 

Ambulation (NQF 

#0167) 

Improvement in Bed 80.1% 75.2% 4.9% .98 .97 

Transfer (NQF 175) 

Improvement in 80.8% 75.7% 5.1% .98 .97 

Bathing (NQF 

#0174) 

Improvement in 79.1% 73.6% 5.5% .98 .97 

Dyspnea 

Improvement in 79.1% 73.8% 5.3% .98 .97 

Management of Oral 

Medications (NQF 

#0176) 

Discharge to 86.5 81.7 4.8% .95 .96 

Community (DTC) 

(NQF 3477) 

Medicare Spending 91.3 89.8 1.5% .94 .94 

per Beneficiary 

(MSPB) 
42596 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

We proposed to use the CAR scenario 

for the last of the refreshes affecting 

OASIS-based measures, which will 

occur in January 2022. We also 

proposed to use the CAR scenario for 

refreshes from January 2022 through 

July 2024 for some claims-based 

measures. 

Our proposal to adopt the CAR 

scenario for the January 2022 refresh 

would allow us to begin displaying 

recent data in January 2022, rather than 

continue displaying October 2020 data 

(Q1 2019 through Q4 2019). We believe 

that updating the data in January 2022 

by more than a year relative to the 

October 2020 freeze data can assist the 

public by providing more relevant 

quality data and allow CMS to display 

more recent HHA performance. 

Similarly, using fewer than standard 

numbers of quarters for claims-based 

measures that typically use eight or 

twelve months of data for reporting 

between January 2022 and July 2024 

will allow us to begin providing more 

relevant data sooner. Our testing results 

indicate we can achieve these positive 

impacts while maintaining high 

standards for reportability and 

reliability. Table 22 and Table 23 

summarize the comparison between the 

original schedule for public reporting 

with the revised schedule (that is, 

frozen data) and also with the proposed 

public display schedule under the CAR 

scenario (that is, using 3 quarters in the 

January 2022 refresh), for OASIS- and 

claims-based measures respectively. 

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Reportability Reliability 

Measure Reference % providers % providers Change in% Pearson Spearman 

Name meetingPRT meetingPRT Providers Correlation Correlation 

(Standard (COVID-19 meetingPRT 

Public Affected 

Reporting, SPR Reporting, CAR 

Scenario) Scenario) 

Acute care 80.9 75.8 5.1% .88 .87 

Hospitalization (AH) 

(NQF #0171) 

Emergency 80.9 75.8 5.1% .91 .90 

Department Use 

(EDU) (NQF# 

0173) 

TABLE 22: Original, Revised and Proposed Schedule for Refreshes Affected by 

COVID-19 PHE Exce tions for HH OASIS-based QMs 

Quarter Refresh 

October 2020 

January 2021 

April 2021 

July 2021 

October 2021 

January 2022* 

OASIS Quarters in Original OASIS Quarters in revised/proposed 

Schedule for Care Compare Schedule for Care Compare (number of 

number of uarters uarters 

QI 2019- Q4 2019 (4) 

Q2 2019- Ql 2020 (4) 

Q3 2019-Q2 2020 (4) 

Q4 2019- Q3 2020 (4) 

QI 2020- Q4 2020 (4) 

Q2 2020-Ql 2021 (4) 

Note: The shades cells represent data frozen due to the COVID-19 PHE. 

* OASIS data with 3 versus 4 quarters of data 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42597 

We solicited public comments on the 

proposal to use the CAR scenario to 

publicly report HH OASIS in January 

2022 and claims-based measures 

beginning with the January 2022 

through July 2024 refreshes. A summary 

of the comments we received on this 

proposal and our responses to those 

comments appear below: 

Comment: We received many 

comments supporting HH QRP reporting 

to resume beginning January 2022. One 

commenter suggested including a 

statement that data cover care provided 

during the COVID–19 PHE for eight 

quarters. 

Response: We thank commenters for 

their support of this proposal on public 

reporting for refreshes affected by the 

exceptions. However, we do not agree 

with the commenter who suggested 

including a statement on Care Compare 

regarding the inclusion of data from the 

COVID–19 PHE because such an 

announcement will not help consumers 

distinguish between HHAs in their 

region. Instead, we will continue to post 

state and national averages for HH QRP 

measures. This information will help 

consumers understand relative 

performance at national and local levels 

in light of the COVID–19 PHE. 

Given the overall positive response to 

our proposal, we believe that the 

proposed approach balances fairness to 

providers with a commitment to 

transparency and information for 

consumers. 

Final Decision: We are finalizing our 

proposal to use the CAR scenario for 

refreshes for January 2022 for OASISbased measures and for refreshes from 


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TABLE 23: Original, Revised, and Example Schedule for Refreshes Affected by 

COVID-19 PHE Exce tions for HH Claims-based QMs 

Quarter Refresh 

*Dates are for 

example only---

Actual Dates will be 

provided subre ulator 

October 2020 

January 2021 

April 2021 

July 2021 

October 2021 

January 2022* 

October 2022* 

October 2023 * 

October 2024 t 

Claims-based Quarters in Original 

Schedule for Care Compare (number 

of quarters) 

ACH, ED Use: Q2 2019- QI 2020 (4) 

DTC, MSPB: QI 2018- Q4 2019 (8) 

PPR: 1 2017- 4 2019 12 

ACH, ED Use: Q3 2019-Q2 2020 (4) 

DTC, MSPB: QI 2018- Q4 2019 (8) 

PPR: QI 2017- Q4 2019 12 

ACH, ED Use: Q4 2019- Q3 2020 (4) 

DTC, MSPB: QI 2018- Q4 2019 (8) 

PPR: QI 2017- Q4 2019 12 

ACH, ED Use: QI 2020- Q4 2020 (4) 

DTC, MSPB: QI 2019- Q4 2020 (8) 

PPR: 1 2018- 4 2020 12 

ACH, ED Use: Q2 2020-Ql 2021 (4) 

DTC, MSPB: QI 2019- Q4 2020 (8) 

PPR: QI 2018- Q4 2020 (12) 

ACH, ED Use: QI 2021-Q4 2021 (4) 

DTC, MSPB: QI 2020- Q4 2021 (8) 

PPR: QI 2019- Q4 2021 (12) 

ACH, ED Use: QI 2022-Q4 2022 (4) 

DTC, MSPB: QI 2021- Q4 2022 (8) 

PPR: QI 2020- Q4 2022 (12) 

ACH, ED Use: QI 2023-Q4 2023 (4) 

DTC, MSPB: QI 2022- Q4 2023 (8) 

PPR: 1 2021- 4 2023 12 

Claims-based Quarters in 

revised/proposed Schedule for Care 

Compare (number of quarters) 

*Quarters are for example only---

Actual Quarters will be provided subregulatory 

ACH, ED Use: Q3 2020-Ql 2021 (3) 

DTC, MSPB: QI 2019- Q4 2019; 

Q3 2020-Q4 2020 (6) 

PPR: QI 2018-Q4 2019 

Q3 2020 - 4 2020 10 

ACH, ED Use: QI 2021-Q4 2021 (4) 

DTC, MSPB: Q3 2020-Q4 2020 (6) 

PPR: QI 2019-Q4 2019 

Q3 2020 - Q4 2021 10 

ACH, ED Use: QI 2022-Q4 2022 (4) 

DTC, MSPB: QI 2021- Q4 2022; 

(8) 

PPR: Q3 2020-Q4 2020 

1 2021- 4 2022 10 

ACH, ED Use: QI 2023-Q4 2023 (4) 

DTC, MSPB: QI 2022- Q4 2023 (8) 

PPR: 1 2021- 4 2023 12 

Note: The shades cells represent data frozen due to COVID-19 PHE. DTC, MSPB and PPR measures are 

updated annually in October. 

* Refreshes with few quarters of certain claims data. 

t Refresh with the original public reporting schedule resuming for claims data. 
42598 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

January 2022 through July 2024 for 

some claims-based measures. 

6. Update to the Public Display of HH 

CAHPS Measures Due to the COVID–19 

PHE Exception 

Since April 2012, we have publicly 

displayed four quarters of HH CAHPS 

data every quarter, in the months of 

January, April, July, and October. The 

COVID–19 PHE Exception applied to Q1 

and Q2 of 2020. Those excepted 

quarters cannot be publicly displayed 

and resulted in the freezing of the 

public display using Q1 2019 through 

Q4 2019 data for the refreshes that 

would have occurred from October 2020 

through October 2021, as shown in 

Table 24. Beginning with January 2022, 

we will resume reporting four quarters 

of HH CAHPS data. The data for the 

January 2022 refresh are Q3 2020 

through Q2 2021. These are the same 

quarters that would have been publicly 

displayed despite the COVID–19 PHE. 

Table 24 summarizes this discussion. 

IV. Requests for Information 

A. Fast Healthcare Interoperability 

Resources (FHIR) in Support of Digital 

Quality Measurement in Post-Acute 

Care Quality Reporting Programs— 

Request for Information 

Through the proposed rule, we sought 

input on the following steps that would 

enable transformation of CMS’ quality 

measurement enterprise to be fully 

digital (86 FR 19765): 

a. What EHR/IT systems do you use and 

do you participate in a health 

information exchange (HIE)? 

b. How do you currently share 

information with other providers and 

are there specific industry best practices 

for integrating SDOH screening into 

EHR’s? 

c. What ways could we incentivize or 

reward innovative uses of health 

information technology (IT) that could 

reduce burden for post-acute care 

settings, including but not limited to 

hospices? 

d. What additional resources or tools 

would post-acute care settings, 

including but not limited to hospices 

and health IT vendors find helpful to 

support testing, implementation, 

collection, and reporting of all measures 

using FHIR standards via secure APIs to 

reinforce the sharing of patient health 

information between care settings? 

e. Would vendors, including those 

that service post-acute care settings, 

including but not limited to hospices, be 

interested in or willing to participate in 

pilots or models of alternative 

approaches to quality measurement that 

would align standards for quality 

measure data collection across care 

settings to improve care coordination, 

such as sharing patient data via secure 

FHIR API as the basis for calculating 

and reporting digital measures? 

f. What could be the potential use of 

FHIR dQMs that could be adopted 

across all QRPs? 

We plan to continue working with 

other agencies and stakeholders to 

coordinate and to inform our 


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TABLE 24: HH CAHPS Public Reporting Quarters During and After the Freeze 

October 2020-October 2021 * QI 2019 - Q4 2019 

Q3 2020-Q2 2021 

January 2022** 

Q4 2020-Q3 2021 

April 2022 

QI 2021-Q4 2021 

July 2022 

Q2 2021-Q 1 2022 

October 2022 

Q3 2021-Q2 2022 

January 2023 

Q4 202 l -Q3 2022 

April 2023 

QI 2022-Q4 2022 

July 2023 

*The grey shading refers to the frozen quarters. 

* *Resume rolling of most recent four rolling quarters of data. These are the same rolling quarters that 

would have displayed regardless of the COVID-19 PHE. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42599 

transformation to dQMs leveraging 

health IT standards. While we stated 

that we would not be responding to 

specific comments submitted in 

response to this Request for Information 

in the FY 2022 Hospice Wage Index 

final rule, we will actively consider all 

input as we develop future regulatory 

proposals or future sub-regulatory 

policy guidance. Any updates to 

specific program requirements related to 

quality measurement and reporting 

provisions would be addressed through 

separate and future notice- andcomment rulemaking, as necessary. 

Comments: We received many 

comments expressing support for the 

adoption of a standardized definition of 

dQM in the hospice setting and the use 

of Fast Healthcare Interoperability 

Resources (FHIR) to support quality 

measurements in the HQRP. Many 

commenters noted that there is a great 

deal of variation among FHIR systems, 

which could impede the adoption of a 

standard system across hospices. 

Commenters also expressed issues 

surrounding interoperability capabilities 

of EHR vendor systems noting that 

currently, some EHR vendors do not 

include features important for 

interoperability as a part of their base 

product, which would represent 

additional costs for hospices which can 

lead to affordability issues for many 

providers. Furthermore, commenters 

noted that interoperability challenges 

lead to complications when sharing 

health information with other providers. 

They encouraged HHS to continue 

pursuing adoption of FHIR APIs for 

health IT vendors. 

We also received several comments 

responding to how CMS should 

incentivize the use of HIT. Commenters 

noted that hospices were not included 

in the EHR Incentive Program, which 

provided grants to hospices to develop 

HIT systems. We received many 

comments emphasizing that financial 

incentives would encourage providers 

to adopt new HIT systems and work to 

reduce burden using FHIR and EHR. 

Commenters also encouraged CMS to 

provide early testing and education for 

providers on HIT and to provide a 

structured FHIR transition framework 

for key stakeholders. 

We also received several comments 

explaining the various EHR/HIT systems 

currently in use, as well as discussions 

surrounding health information 

exchange with other providers. 

Response: While we stated that we 

would not be responding to specific 

comments submitted in response to this 

RFI in the FY 2022 Hospice Wage Index 

final rule, we appreciate all of the 

comments and interest in this topic. We 

will continue to take all concerns, 

comments, and suggestions into account 

as we consider Fast Healthcare 

Interoperability Resources (FHIR) in 

support of Digital Quality Measurement 

in Post-Acute Care Quality Reporting 

Programs. 

B. Closing the Health Equity Gap in 

Post-Acute Care Quality Reporting 

Programs—Request for Information 

While hospice is not included in the 

Improving Medicare Post-Acute Care 

Transformation Act of 2014 (IMPACT 

Act of 2014) (Pub. L. 113–185), we 

sought comment on the possibility of 

revising measure development, and the 

collection of other data that address 

gaps in health equity in HQRP (86 FR 

19766). Any potential health equity data 

collection or measure reporting within a 

CMS program that might result from 

public comments received in response 

to this solicitation would be addressed 

through a separate notice-and-comment 

rulemaking in the future. We invited 

public comment on the following: 

• Recommendations for quality 

measures, or measurement domains that 

address health equity, for use in the 

HQRP. 

• Suggested parts of SDOH 

standardized patient assessment data 

elements adoption that could apply to 

hospice in alignment with national data 

collection and interoperable exchange 

standards. This could include collecting 

information on race, ethnicity, and 

certain SDOH, including preferred 

language, interpreter services, health 

literacy, transportation and social 

isolation. This could also include 

guidance on any additional items, 

including standardized patient 

assessment and data elements that could 

be used to assess health equity in the 

care of hospice patients, for use in the 

HQRP. 

• Ways CMS can promote health 

equity in outcomes among hospice 

patients. We were also interested in 

feedback regarding whether including 

facility-level quality measure results 

stratified by social risk factors and 

social determinants of health (and 

relevant proxies, such as dual eligibility 

for Medicare and Medicaid, and race) in 

confidential feedback reports could 

allow facilities to identify gaps in the 

quality of care they provide. (For 

example, methods similar or analogous 

to the CMS Disparity Methods which 

provide hospital-level confidential 

results stratified by dual eligibility for 

condition-specific readmission 

measures currently included in the 

Hospital Readmission Reduction 

Program (84 FR 42496 through 42500)). 

• Methods that commenters or their 

organizations use in employing data to 

reduce disparities and improve patient 

outcomes, including the source(s) of 

data used, as appropriate. 

• Given the importance of structured 

data and health IT standards for the 

capture, use, and exchange of relevant 

health data for improving health equity, 

the existing challenges providers’ 

encounter for effective capture, use, and 

exchange of health information, such as 

data on race, ethnicity, and other social 

determinants of health, to support care 

delivery and decision making. 

While we stated that we would not be 

responding to specific comments 

submitted in response to this RFI in the 

FY 2022 Hospice Wage Index final rule, 

we appreciate all of the comments and 

interest in this topic. We will continue 

to take all concerns, comments, and 

suggestions into account as we continue 

work to address and develop policies on 

this important topic. It is our hope to 

provide additional stratified information 

to providers related to race and 

ethnicity if feasible. The provision of 

stratified measure results will allow 

hospices to understand how they are 

performing with respect to certain 

patient risk groups, to support these 

providers in their efforts to ensure 

equity for all of their patients, and to 

identify opportunities for improvements 

in health outcomes. 

2. Public Comments Summarized 

We received many comments about 

the use of standardized patient 

assessment data in the hospice setting to 

assess health equity and social 

determinants of health (SDOH). Many 

commenters noted a 2019 Abt 

Associates and RAND Corporation study 

which excluded hospices from the 

standardized data elements for patient 

assessment denominator, citing that 

hospice patients have a different goal of 

care which does not align with 

standardized data elements for patient 

assessment. Commenters encouraged 

CMS to only utilize certain aspects of 

standardized data elements for patient 

assessment (specifically, Z-codes 55–65) 

in collecting health equity data. We also 

received some comments which 

expressed that standardized data 

elements for patient assessment does 

not currently capture the current 

understanding of SDOH. 

We also received feedback from 

several commenters about additional 

factors which should be considered 

when collecting data about health 

equity and disparities. We noted several 

categories, including: culture, spiritual 

beliefs, food insecurity, access to 

interpreter services, health literacy, 


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caregiving, housing scarcity, marital 

status, and socioeconomic status. 

Commenters encouraged CMS to stratify 

quality measures by demographic data, 

social risk factors, and social 

determinants of health. 

We also noted a comment 

encouraging CMS to implement a bestpractice assessment for the collection of 

demographic and SDOH data. A 

commenter noted that there is not a 

standard initial nursing or social worker 

assessment that currently screens for 

SDOH. 

One commenter also expressed a 

desire to include permanent telehealth 

provisions in the QRP, as that would 

help improve rural healthcare access. 

We appreciate all the comments and 

interest in this topic. We believe that 

this input is very valuable in the 

continuing development of the CMS 

health equity quality measurement 

efforts. We will continue to take all 

concerns, comments, and suggestions 

into consideration for future 

development and expansion of our 

health equity quality measurement 

efforts. 

V. Waiver of Proposed Rulemaking 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register and invite public comment on 

the proposed rule before the provisions 

of the rule are finalized, either as 

proposed or as amended in response to 

public comments, and take effect, in 

accordance with the Administrative 

Procedure Act (APA) (Pub. L. 79–404), 

5 U.S.C. 553, and, where applicable, 

section 1871 of the Act. Specifically, 5 

U.S.C. 553 requires the agency to 

publish a notice of the proposed rule in 

the Federal Register that includes a 

reference to the legal authority under 

which the rule is proposed, and the 

terms and substance of the proposed 

rule or a description of the subjects and 

issues involved. Further, 5 U.S.C. 553 

requires the agency to give interested 

parties the opportunity to participate in 

the rulemaking through public comment 

before the provisions of the rule take 

effect. Similarly, section 1871(b)(1) of 

the Act requires the Secretary to provide 

for notice of the proposed rule in the 

Federal Register and a period of not less 

than 60 days for public comment for 

rulemaking carrying out the 

administration of the insurance 

programs under title XVIII of the Act. 

Section 1871(b)(2)(C) of the Act and 5 

U.S.C. 553 authorize the agency to 

waive these procedures, however, if the 

agency for good cause finds that notice 

and comment procedures are 

impracticable, unnecessary, or contrary 

to the public interest and incorporates a 

statement of the finding and its reasons 

in the rule issued. 

We are revising the provisions at 

§ 418.306(b)(2) to change the payment 

reduction for failing to meet hospice 

quality reporting requirements from 2 to 

4 percentage points. This policy will 

apply beginning with FY 2024 annual 

payment update (APU). Specifically, the 

Act requires that, beginning with FY 

2014 through FY 2023, the Secretary 

shall reduce the market basket update 

by 2 percentage points and beginning 

with the FY 2024 APU and for each 

subsequent year, the Secretary shall 

reduce the market basket update by 4 

percentage points for any hospice that 

does not comply with the quality data 

submission requirements for that FY. 

We noted this revised statutory 

requirement in our proposed rule (86 FR 

19726) and are codifying the revision at 

§ 418.306(b)(2). While we received 

comments, this update is statutorily 

required and self-implementing. Notice 

and comment are unnecessary because 

we are conforming the regulation to 

statute and there is no discretion on the 

part of the Secretary. 

VI. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 30- 

day notice in the Federal Register and 

solicit public comment before a 

collection of information requirement is 

submitted to OMB for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 requires that we 

solicit comment on the following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

A. ICRs Regarding Hospice QRP 

We are revising the provisions at 

§ 418.306(b)(2) to change the payment 

reduction for failing to meet hospice 

quality reporting requirements from 2 to 

4 percentage points. This policy will 

apply beginning with FY 2024 annual 

payment update (APU). Specifically, the 

Act requires that, beginning with FY 

2014 through FY 2023, the Secretary 

shall reduce the market basket update 

by 2 percentage points and beginning 

with the FY 2024 APU and for each 

subsequent year, the Secretary shall 

reduce the market basket update by 4 

percentage points for any hospice that 

does not comply with the quality data 

submission requirements for that FY. 

We noted this revised statutory 

requirement in our proposed rule (86 FR 

19726) and are codifying the revision at 

§ 418.306(b)(2). While we received 

comments, this update is statutorily 

required and self-implementing. Notice 

and comment are unnecessary because 

we are conforming the regulation to 

statute and there is no discretion on the 

part of the Secretary. The HQRP 

proposals would not change provider 

burden or costs. 

• For the proposal to remove the 7 

HIS measures from the HQRP, we do not 

propose any changes to the requirement 

to submit the HIS admission assessment 

since we continue to collect the data for 

these 7 HIS measures in order to 

calculate the more broadly applicable 

NQF # 3235, the Hospice and Palliative 

Care Composite Process Measure—HISComprehensive Assessment Measure at 

Admission. 

• The proposal to add the HCI also 

would not change provider burden or 

costs since it is a claims-based measure 

that CMS calculates from the Medicare 

claims data. 

• Likewise, the proposal to publicly 

report the claims-based HVLDL quality 

measure would not result in reduced 

provider burden and related costs. The 

reduction in provider burden and costs 

occurred when we replaced the HISbased HVWDII quality measure via the 

HIS-information collection request (ICR) 

–CMS–10390 (OMB Control Number: 

0938–1153 (Expiration date: February 

29, 2024). 

• Finally, the Home Health proposal 

would not change provider burden or 

costs since it only affects the number of 

quarters used in the calculation of 

certain claims-based measures for the 

public display for certain refresh cycles. 

B. ICRs Regarding Hospice CoPs 

We are revising the provisions at 

§ 418.76(c)(1) that requires the hospice 

aide to be evaluated by observing an 

aide’s performance of the task with a 

patient. This revision is subject to the 

PRA; however, the information 

collection burden associated with the 

existing requirements at § 418.76(c)(1) 

are accounted for under the information 

collection request currently approved 

OMB control number 0938–1067 

(Expiration date: March 31, 2024). We 

requested public comment in 

determining if the time and effort 

necessary to comply with implementing 

the use of the pseudo-patient for 

hospice aide training at § 418.76(c)(1) 


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Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42601 

would reduce burden on the provider. 

While comments were overwhelmingly 

supportive, we did not receive any 

comments that would support burden 

changes. 

We are also revising the provisions at 

§ 418.76(h)(1)(iii) to state that if an area 

of concern is verified by the hospice 

during the on-site visit, then the hospice 

must conduct, and the hospice aide 

must complete, a competency 

evaluation related to the deficient and 

related skill(s) in accordance with 

§ 418.76(c). While many commenters 

indicated that the proposed changes 

increase efficiency of training, none 

provided specific information or data to 

describe a change in burden. 

Additionally, we believe that both the 

requirements at § 418.76(h) are exempt 

from the PRA. In accordance with the 

implementing regulations of the PRA at 

5 CFR 1320.3(b)(2), we believe 

competency evaluations are a usual and 

customary business practice and we 

state as such in the information 

collection request associated with the 

Hospice CoPs—CMS–10277 (OMB 

control number 0938–1067). Therefore, 

we are not seeking OMB approval for 

any information collection or 

recordkeeping activities that may be 

conducted in connection with the 

revisions to § 418.76(h). 

VII. Regulatory Impact Analysis 

A. Statement of Need 

This final rule meets the requirements 

of our regulations at § 418.306(c) and 

(d), which require annual issuance, in 

the Federal Register, of the hospice 

wage index based on the most current 

available CMS hospital wage data, 

including any changes to the definitions 

of CBSAs or previously used MSAs, as 

well as any changes to the methodology 

for determining the per diem payment 

rates. This final rule also updates 

payment rates for each of the categories 

of hospice care, described in 

§ 418.302(b), for FY 2022 as required 

under section 1814(i)(1)(C)(ii)(VII) of the 

Act. The payment rate updates are 

subject to changes in economy-wide 

productivity as specified in section 

1886(b)(3)(B)(xi)(II) of the Act. Lastly, 

section 3004 of the Affordable Care Act 

amended the Act to authorize a quality 

reporting program for hospices, and this 

rule discusses changes in the 

requirements for the HQRP in 

accordance with section 1814(i)(5) of 

the Act. 

B. Overall Impacts 

We estimate that the aggregate impact 

of the payment provisions in this rule 

will result in an increase of $480 

million in payments to hospices, 

resulting from the hospice payment 

update percentage of 2.0 percent for FY 

2022. The impact analysis of this rule 

represents the projected effects of the 

changes in hospice payments from FY 

2021 to FY 2022. Using the most recent 

complete data available at the time of 

rulemaking, in this case FY 2020 

hospice claims data as of January 15, 

2021, we apply the current FY 2021 

wage index with the current labor 

shares. Using the same FY 2020 data, we 

apply the FY 2022 wage index and the 

current labor share values to simulate 

FY 2022 payments. We then apply a 

budget neutrality adjustment so that the 

aggregate simulated payments do not 

increase or decrease due to changes in 

the wage index. Then, using the same 

FY 2020 data, we apply the FY 2022 

wage index and the current labor share 

values to simulate FY 2022 payments 

and compare simulated payments using 

the FY 2022 wage index and the 

proposed revised labor shares. We then 

apply a budget neutrality adjustment so 

that the aggregate simulated payments 

do not increase or decrease due to 

changes in the labor share values. 

Certain events may limit the scope or 

accuracy of our impact analysis, because 

such an analysis is susceptible to 

forecasting errors due to other changes 

in the forecasted impact time period. 

The nature of the Medicare program is 

such that the changes may interact, and 

the complexity of the interaction of 

these changes could make it difficult to 

predict accurately the full scope of the 

impact upon hospices. 

We have examined the impacts of this 

rule as required by Executive Order 

12866 on Regulatory Planning and 

Review (September 30, 1993), Executive 

Order 13563 on Improving Regulation 

and Regulatory Review (January 18, 

2011), the Regulatory Flexibility Act 

(RFA) (September 19, 1980, Pub. L. 96– 

354), section 1102(b) of the Social 

Security Act, section 202 of the 

Unfunded Mandates Reform Act of 1995 

(March 22, 1995; Pub. L. 104–4), 

Executive Order 13132 on Federalism 

(August 4, 1999), and the Congressional 

Review Act (5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Section 3(f) of Executive Order 

12866 defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule: (1) Having an annual 

effect on the economy of $100 million 

or more in any 1 year, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by OMB. 

A regulatory impact analysis (RIA) 

must be prepared for major rules with 

economically significant effects ($100 

million or more in any 1 year). Based on 

our estimates, OMB’s Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is 

‘‘economically significant’’ as measured 

by the $100 million threshold, and 

hence also a major rule under Subtitle 

E of the Small Business Regulatory 

Enforcement Fairness Act of 1996 (also 

known as the Congressional Review 

Act), 5 U.S.C. 804(2). Accordingly, we 

have prepared a RIA that, to the best of 

our ability presents the costs and 

benefits of the rulemaking. 

C. Detailed Economic Analysis 

1. Hospice Payment Update for FY 2022 

The FY 2022 hospice payment 

impacts appear in Table 25. We tabulate 

the resulting payments according to the 

classifications (for example, provider 

type, geographic region, facility size), 

and compare the difference between 

current and future payments to 

determine the overall impact. The first 

column shows the breakdown of all 

hospices by provider type and control 

(non-profit, for-profit, government, 

other), facility location, facility size. The 

second column shows the number of 

hospices in each of the categories in the 

first column. The third column shows 

the effect of using the FY 2022 updated 

wage index data. This represents the 

effect of moving from the FY 2021 

hospice wage index to the FY 2022 

hospice wage index. The fourth column 

shows the effect of the final rebased 

labor shares. The aggregate impact of the 

changes in column three and four is 

zero percent, due to the hospice wage 

index standardization factor and the 


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42602 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

labor share standardization factor. 

However, there are distributional effects 

of the FY 2022 hospice wage index. The 

fifth column shows the effect of the 

hospice payment update percentage as 

mandated by section 1814(i)(1)(C) of the 

Act, and is consistent for all providers. 

The 2.0 hospice payment update 

percentage is based on the 2.7 percent 

inpatient hospital market basket update, 

reduced by a 0.7 percentage point 

productivity adjustment. The sixth 

column shows the effect of all the 

proposed changes on FY 2022 hospice 

payments. It is projected that aggregate 

payments would increase by 2.0 

percent; assuming hospices do not 

change their billing practices. As 

illustrated in Table 25, the combined 

effects of all the proposals vary by 

specific types of providers and by 

location. 

In addition, we are providing a 

provider-specific impact analysis file, 

which is available on our website at 

https://www.cms.gov/Medicare/ 

Medicare-Fee-for-Service-Payment/ 

Hospice/Hospice-Regulations-andNotices.html. We note that simulated 

payments are based on utilization in FY 

2020 as seen on Medicare hospice 

claims (accessed from the CCW in May 

2021) and only include payments 

related to the level of care and do not 

include payments related to the service 

intensity add-on. 

As illustrated in Table 25, the 

combined effects of all the proposals 

vary by specific types of providers and 

by location. 


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TABLE 25: Impact to Hospices for FY 2022 

FY2022 FY2022 Overall 

Updated FY2022 Hospice Total 

Hospice Subgroup Hospices Wage Labor Payment Impact 

Data Share Update forFY 

% 2022 

All Hospices 4,995 0.0% 0.0% 2.0% 2.0% 

Freestanding/Non-Profit 597 0.0% 0.0% 2.0% 2.0% 

Freestanding/For-Profit 3,273 0.0% 0.0% 2.0% 2.0% 

Freestanding/Government 39 0.2% 0.0% 2.0% 2.2% 

Freestanding/Other 370 -0.3% 0.0% 2.0% 1.7% 

Facility/HHA Based/Non-Profit 361 0.0% 0.0% 2.0% 2.0% 

Facility/HHA Based/For-Profit 189 0.1% 0.1% 2.0% 2.2% 

Facility/HHA Based/Government 88 0.0% 0.4% 2.0% 2.4% 

Facility/HHA Based/Other 78 0.4% -0.1% 2.0% 2.3% 

Subtotal: Freestanding Facility Type 4,279 0.0% 0.0% 2.0% 2.0% 

Subtotal: Facility/HHA Based Facility 716 0.1% 0.0% 2.0% 2.1% T e 

Subtotal: Non-Profit 958 0.0% 0.0% 2.0% 2.0% 

Subtotal: For Profit 3,462 0.0% 0.0% 2.0% 2.0% 

Subtotal: Government 127 0.1% 0.1% 2.0% 2.2% 

Subtotal: Other 448 -0.2% 0.0% 2.0% 1.8% 

Freestanding/Non-Profit 138 -0.1% 0.3% 2.0% 2.2% 

Freestanding/For-Profit 355 -0.2% 0.4% 2.0% 2.2% 

Freestanding/Government 19 0.2% 0.3% 2.0% 2.5% 

Freestanding/Other 48 -0.4% 0.5% 2.0% 2.1% 

Facility/HHA Based/Non-Profit 146 -0.3% 0.3% 2.0% 2.0% 

Facility/HHA Based/For-Profit 44 0.3% 0.4% 2.0% 2.7% 

Facility/HHA Based/Government 66 -0.1% 0.3% 2.0% 2.2% 

Facility/HHA Based/Other 45 0.3% 0.3% 2.0% 2.6% 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42603 

2. Regulatory Review Cost Estimation 

If regulations impose administrative 

costs on private entities, such as the 

time needed to read and interpret this 

rule, we should estimate the cost 

associated with regulatory review. Due 

to the uncertainty involved with 

accurately quantifying the number of 

entities that will review the rule, we 

assume that the total number of unique 

commenters on last year’s proposed rule 

will be the number of reviewers of this 

rule. We acknowledge that this 

assumption may understate or overstate 

the costs of reviewing this rule. It is 

possible that not all commenters 

reviewed last year’s rule in detail, and 

it is also possible that some reviewers 

chose not to comment on the proposed 

rule. For these reasons we thought that 

the number of past commenters would 

be a fair estimate of the number of 

reviewers of this final rule. We also 


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Freestanding/For-Profit 2,918 0.1% 0.0% 2.0% 

Freestanding/Government 20 0.1% -0.1% 2.0% 

Freestanding/Other 322 -0.3% 0.0% 2.0% 

Facility/HHA Based/Non-Profit 215 0.1% -0.1% 2.0% 

Facility/HHA Based/For-Profit 145 0.1% 0.1% 2.0% 

Facility/HHA Based/Government 22 0.2% 0.4% 2.0% 

Facility/HHA Based/Other 33 0.5% -0.2% 2.0% 

New England 156 -0.6% -0.2% 2.0% 

Middle Atlantic 277 -0.7% -0.1% 2.0% 

South Atlantic 582 0.3% 0.2% 2.0% 

East North Central 563 -0.2% 0.1% 2.0% 

East South Central 258 -0.2% 0.5% 2.0% 

West North Central 409 0.0% 0.2% 2.0% 

West South Central 981 -0.3% 0.3% 2.0% 

Mountain 506 0.2% 0.0% 2.0% 

Pacific 1,214 0.5% -0.8% 2.0% 

Outlying 49 -1.4% 2.3% 2.0% 

0 - 3,499 RHC Days (Small) 1,120 0.1% -0.2% 2.0% 

3,500-19,999 RHC Days (Medium) 2,232 0.0% 0.0% 2.0% 

20,000+ RHC Days (Large) 1,643 0.0% 0.0% 2.0% 

Source: FY 2020 hospice claims data from CCW accessed on May 11, 2021. 

Region Key: 

New England=Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont 

Middle Atlantic=Pennsylvania, New Jersey, New York 

South Atlantic=Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South 

Carolina, Virginia, West Virginia 

East North Central=Illinois, Indiana, Michigan, Ohio, Wisconsin 

East South Central=Alabama, Kentucky, Mississippi, Tennessee 

West North Central=Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota 

West South Central=Arkansas, Louisiana, Oklahoma, Texas 

Mountain=Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Wyoming 

Pacific= Alaska, California, Hawaii, Oregon, Washington 

Outlying=Guam, Puerto Rico, Virgin Islands 

2.1% 

2.0% 

1.7% 

2.0% 

2.2% 

2.6% 

2.3% 

1.2% 

1.2% 

2.5% 

1.9% 

2.3% 

2.2% 

2.0% 

2.2% 

1.7% 

2.9% 

1.9% 

2.0% 

2.0% 
42604 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

recognize that different types of entities 

are in many cases affected by mutually 

exclusive sections of the final rule, and 

therefore, for the purposes of our 

estimate we assume that each reviewer 

reads approximately 50 percent of the 

rule. 

Using the wage information from the 

Bureau of Labor Statistics (BLS) for 

medical and health service managers 

(Code 11–9111); we estimate that the 

cost of reviewing this rule is $114.24 per 

hour, including overhead and fringe 

benefits (https://www.bls.gov/oes/ 

current/oes_nat.htm). This final rule 

consists of approximately 72,000 words. 

Assuming an average reading speed of 

250 words per minute, it would take 

approximately 2.4 hours for the staff to 

review half of it. For each hospice that 

reviews the rule, the estimated cost is 

$274.18 (2.4 hour × $114.24). Therefore, 

we estimate that the total cost of 

reviewing this regulation is $14,531.54 

($274.18 × 53 reviewers). 

D. Accounting Statement and Table 

As required by OMB Circular A–4 

(available at https://

www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/A4/ 

a-4.pdf), in Table 26, we have prepared 

an accounting statement showing the 

classification of the expenditures 

associated with the provisions of this 

final rule. Table 26 provides our best 

estimate of the possible changes in 

Medicare payments under the hospice 

benefit as a result of the policies in this 

rule. This estimate is based on the data 

for 4,995 hospices in our impact 

analysis file, which was constructed 

using FY 2020 claims available in May 

2021. All expenditures are classified as 

transfers to hospices. 

E. Regulatory Flexibility Act (RFA) 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses if a rule has a significant 

impact on a substantial number of small 

entities. The great majority of hospitals 

and most other health care providers 

and suppliers are small entities by 

meeting the Small Business 

Administration (SBA) definition of a 

small business (in the service sector, 

having revenues of less than $8.0 

million to $41.5 million in any 1 year), 

or being nonprofit organizations. For 

purposes of the RFA, we consider all 

hospices as small entities as that term is 

used in the RFA. The Department of 

Health and Human Services practice in 

interpreting the RFA is to consider 

effects economically ‘‘significant’’ only 

if greater than 5 percent of providers 

reach a threshold of 3 to 5 percent or 

more of total revenue or total costs. The 

effect of the FY 2022 hospice payment 

update percentage results in an overall 

increase in estimated hospice payments 

of 2.0 percent, or $480 million. The 

distributional effects of the final FY 

2022 hospice wage index do not result 

in a greater than 5 percent of hospices 

experiencing decreases in payments of 3 

percent or more of total revenue. 

Therefore, the Secretary has certified 

that this rule will not create a significant 

economic impact on a substantial 

number of small entities. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

a MSA and has fewer than 100 beds. 

This rule will only affect hospices. 

Therefore, the Secretary has certified 

that this rule will not have a significant 

impact on the operations of a substantial 

number of small rural hospitals (see 

Table 25). 

F. Unfunded Mandates Reform Act 

(UMRA) 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

also requires that agencies assess 

anticipated costs and benefits before 

issuing any rule whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation. In 2021, that 

threshold is approximately $158 

million. This rule is not anticipated to 

have an effect on state, local, or tribal 

governments, in the aggregate, or on the 

private sector of $158 million or more 

in any 1 year. 

G. Federalism 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on state and local 

governments, preempts state law, or 

otherwise has Federalism implications. 

We have reviewed this rule under these 

criteria of Executive Order 13132, and 

have determined that it will not impose 

substantial direct costs on state or local 

governments. 

H. Conclusion 

We estimate that aggregate payments 

to hospices in FY 2022 will increase by 

$480 million as a result of the market 

basket update, compared to payments in 

FY 2021. We estimate that in FY 2022, 

hospices in urban areas will experience, 

on average, 2.0 percent increase in 

estimated payments compared to FY 

2021. While hospices in rural areas will 

experience, on average, 2.2 percent 

increase in estimated payments 

compared to FY 2021. Hospices 

providing services in the Outlying and 

South Atlantic regions would 

experience the largest estimated 

increases in payments of 2.9 percent 

and 2.5 percent, respectively. Hospices 

serving patients in areas in the New 

England and Middle Atlantic regions 

would experience, on average, the 


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TABLE 26: Accounting Statement: 

Classification of Estimated Transfers and Costs, From FY 2021 to FY 2022 

Cate~ory Transfers 

Annualized Monetized Transfers $ 480 million * 

From Whom to Whom? Federal Government to Medicare 

Hospices 

*The net increase of $480 million in transfer payments is a result of the 2.0 percent hospice payment 

update compared to payments in FY 2021. 
Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 42605 

lowest estimated increase of 1.2 percent 

in FY 2022 payments. 

This final regulation is subject to the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.) and has been 

transmitted to the Congress and the 

Comptroller General for review. 

I, Chiquita Brooks-LaSure, 

Administrator of the Centers for 

Medicare & Medicaid Services, 

approved this document on July 23, 

2021. 

List of Subjects in 42 CFR Part 418 

Health facilities, Hospice care, 

Medicare, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR 

chapter IV as set forth below. 

PART 418—HOSPICE CARE 

■ 1. The authority citation for part 418 

continues to read as follows: 

Authority: 42 U.S.C. 1302 and 1395hh. 

■ 2. Section 418.3 is amended by adding 

definitions for ‘‘Pseudo-patient’’ and 

‘‘Simulation’’ in alphabetical order to 

read as follows: 

§ 418.3 Definitions. 

* * * * * 

Pseudo-patient means a person 

trained to participate in a role-play 

situation, or a computer-based 

mannequin device. A pseudo-patient 

must be capable of responding to and 

interacting with the hospice aide 

trainee, and must demonstrate the 

general characteristics of the primary 

patient population served by the 

hospice in key areas such as age, frailty, 

functional status, cognitive status and 

care goals. 

* * * * * 

Simulation means a training and 

assessment technique that mimics the 

reality of the homecare environment, 

including environmental distractions 

and constraints that evoke or replicate 

substantial aspects of the real world in 

a fully interactive fashion, in order to 

teach and assess proficiency in 

performing skills, and to promote 

decision making and critical thinking. 

* * * * * 

■ 3. Section 418.24 is amended by: 

■ a. Revising paragraphs (c) 

introductory text and (c)(9); 

■ b. Adding paragraph (c)(10); 

■ c. Redesignating paragraphs (d) 

through (g) as paragraphs (e) through 

(h); and 

■ d. Adding a new paragraph (d). 

The revisions and additions read as 

follows: 

§ 418.24 Election of hospice care. 

* * * * * 

(c) Content of hospice election 

statement addendum. For hospice 

elections beginning on or after October 

1, 2020, in the event that the hospice 

determines there are conditions, items, 

services, or drugs that are unrelated to 

the individual’s terminal illness and 

related conditions, the individual (or 

representative), non-hospice providers 

furnishing such items, services, or 

drugs, or Medicare contractors may 

request a written list as an addendum to 

the election statement. The election 

statement addendum must include the 

following: 

* * * * * 

(9) Name and signature of the 

individual (or representative) and date 

signed, along with a statement that 

signing this addendum (or its updates) 

is only acknowledgement of receipt of 

the addendum (or its updates) and not 

the individual’s (or representative’s) 

agreement with the hospice’s 

determinations. If the beneficiary (or 

representative) refuses to sign the 

addendum, the hospice must document 

on the addendum the reason the 

addendum was not signed and the 

addendum would become part of the 

patient’s medical record. If a nonhospice provider or Medicare contractor 

requests the addendum, the non-hospice 

provider or Medicare contractor are not 

required to sign the addendum. 

(10) Date the hospice furnished the 

addendum. 

(d) Timeframes for the hospice 

election statement addendum. (1) If the 

addendum is requested within the first 

5 days of a hospice election (that is, in 

the first 5 days of the hospice election 

date), the hospice must provide this 

information, in writing, to the 

individual (or representative), nonhospice provider, or Medicare 

contractor within 5 days from the date 

of the request. 

(2) If the addendum is requested 

during the course of hospice care (that 

is, after the first 5 days of the hospice 

election date), the hospice must provide 

this information, in writing, within 3 

days of the request to the requesting 

individual (or representative), nonhospice provider, or Medicare 

contractor. 

(3) If there are any changes to the plan 

of care during the course of hospice 

care, the hospice must update the 

addendum and provide these updates, 

in writing, to the individual (or 

representative) in order to communicate 

these changes to the individual (or 

representative). 

(4) If the individual dies, revokes, or 

is discharged within the required 

timeframe for furnishing the addendum 

(as outlined in paragraphs (d)(1) and (2) 

of this section, and before the hospice 

has furnished the addendum, the 

addendum would not be required to be 

furnished to the individual (or 

representative). The hospice must note 

the reason the addendum was not 

furnished to the patient and the 

addendum would become part of the 

patient’s medical record if the hospice 

has completed it at the time of 

discharge, revocation, or death. 

(5) If the beneficiary dies, revokes, or 

is discharged prior to signing the 

addendum (as outlined in paragraphs 

(d)(1) and (2) of this section), the 

addendum would not be required to be 

signed in order for the hospice to 

receive payment. The hospice must note 

(on the addendum itself) the reason the 

addendum was not signed and the 

addendum would become part of the 

patient’s medical record. 

* * * * * 

■ 4. Section 418.76 is amended by 

revising paragraphs (c)(1) and (h)(1)(iii) 

to read as follows: 

§ 418.76 Condition of participation: 

Hospice aide and homemaker services. 

* * * * * 

(c) * * * 

(1) The competency evaluation must 

address each of the subjects listed in 

paragraph (b)(3) of this section. Subject 

areas specified under paragraphs 

(b)(3)(i), (iii), (ix), (x), and (xi) of this 

section must be evaluated by observing 

an aide’s performance of the task with 

a patient or pseudo-patient. The 

remaining subject areas may be 

evaluated through written examination, 

oral examination, or after observation of 

a hospice aide with a patient or a 

pseudo-patient during a simulation. 

* * * * * 

(h) * * * 

(1) * * * 

(iii) If an area of concern is verified by 

the hospice during the on-site visit, then 

the hospice must conduct, and the 

hospice aide must complete, a 

competency evaluation of the deficient 

skill and all related skill(s) in 

accordance with paragraph (c) of this 

section. 

* * * * * 

■ 5. Section 418.306 is amended by 

revising paragraph (b)(2) to read as 

follows: 


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42606 Federal Register / Vol. 86, No. 147 / Wednesday, August 4, 2021 / Rules and Regulations 

§ 418.306 Annual update of the payment 

rates and adjustment for area wage 

differences. 

* * * * * 

(b) * * * 

(2) For fiscal years 2014 and through 

2023, in accordance with section 

1814(i)(5)(A)(i) of the Act, in the case of 

a Medicare-certified hospice that does 

not submit hospice quality data, as 

specified by the Secretary, the payment 

rates are equal to the rates for the 

previous fiscal year increased by the 

applicable hospice payment update 

percentage increase, minus 2 percentage 

points. Beginning with fiscal year 2024 

and subsequent fiscal years, the 

reduction increases to 4 percentage 

points. Any reduction of the percentage 

change will apply only to the fiscal year 

involved and will not be taken into 

account in computing the payment 

amounts for a subsequent fiscal year. 

* * * * * 

■ 6. Section 418.309 is amended by 

revising paragraphs (a)(1) and (2) to read 

as follows: 

§ 418.309 Hospice aggregate cap. 

* * * * * 

(a) * * * 

(1) For accounting years that end on 

or before September 30, 2016 and end 

on or after October 1, 2030, the cap 

amount is adjusted for inflation by using 

the percentage change in the medical 

care expenditure category of the 

Consumer Price Index (CPI) for urban 

consumers that is published by the 

Bureau of Labor Statistics. This 

adjustment is made using the change in 

the CPI from March 1984 to the fifth 

month of the cap year. 

(2) For accounting years that end after 

September 30, 2016, and before October 

1, 2030, the cap amount is the cap 

amount for the preceding accounting 

year updated by the percentage update 

to payment rates for hospice care for 

services furnished during the fiscal year 

beginning on the October 1 preceding 

the beginning of the accounting year as 

determined pursuant to section 

1814(i)(1)(C) of the Act (including the 

application of any productivity or other 

adjustments to the hospice percentage 

update). 

* * * * * 

■ 7. Section 418.312 is amended by 

revising paragraph (b) to read as follows: 

§ 418.312 Data submission requirements 

under the hospice quality reporting 

program. 

* * * * * 

(b) Submission of Hospice Quality 

Reporting Program data. (1) 

Standardized set of admission and 

discharge items Hospices are required to 

complete and submit an admission 

Hospice Item Set (HIS) and a discharge 

HIS for each patient to capture patientlevel data, regardless of payer or patient 

age. The HIS is a standardized set of 

items intended to capture patient-level 

data. 

(2) Administrative data, such as 

Medicare claims data, used for hospice 

quality measures to capture services 

throughout the hospice stay, are 

required and fulfill the HQRP 

requirements for § 418.306(b). 

(3) CMS may remove a quality 

measure from the Hospice QRP based on 

one or more of the following factors: 

(i) Measure performance among 

hospices is so high and unvarying that 

meaningful distinctions in 

improvements in performance can no 

longer be made. 

(ii) Performance or improvement on a 

measure does not result in better patient 

outcomes. 

(iii) A measure does not align with 

current clinical guidelines or practice. 

(iv) The availability of a more broadly 

applicable (across settings, populations, 

or conditions) measure for the particular 

topic. 

(v) The availability of a measure that 

is more proximal in time to desired 

patient outcomes for the particular 

topic. 

(vi) The availability of a measure that 

is more strongly associated with desired 

patient outcomes for the particular 

topic. 

(vii) Collection or public reporting of 

a measure leads to negative unintended 

consequences other than patient harm. 

(viii) The costs associated with a 

measure outweigh the benefit of its 

continued use in the program. 

* * * * * 

Dated: July 27, 2021. 

Xavier Becerra, 

Secretary, 

Department of Health and Human Services. 

[FR Doc. 2021–16311 Filed 7–29–21; 4:15 pm] 

BILLING CODE 4120–01–P 


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