Hospice DAL Notes Enforcement Discretion for Certain Regulations

The Department of Health (DOH) last week issued a Dear Administrator Letter (DAL) regarding certain 1135 Centers for Medicare and Medicaid Services (CMS) waivers pertaining to hospice. DOH will exercise enforcement discretion when conducting surveillance surveys for those hospice agencies that are acting in accordance with the requirements of the federal waivers detailed below, but are not acting in accordance with the commensurate state regulations:

• 10 NYCRR §793.7(a)(6)(v)(b), which requires that volunteers provide services in an amount that, at a minimum, equals 5 percent of the total patient care hours of all paid hospice employees and contract staff.
  • Related federal regulation and waiver: 42 CFR §418.78(e), which requires hospices to use volunteers (including at least 5 percent of patient care hours). This federal regulation has been waived by CMS because it is anticipated that hospice volunteer availability and use will be reduced related to COVID-19 surge and potential quarantine. (Retroactively waived to March 1, 2020.)
• 10 NYCRR §793.7(n), which requires a registered nurse to make an on-site visit to the patient’s home no less frequently than every 14 days to assess the quality of care and services provided by the aide and to ensure that services ordered by the hospice interdisciplinary group meet the patient’s need. Provided, however, that in order for DOH to consider exercising enforcement discretion with respect to this regulation, the hospice provider must assess the quality of care every 14 days through means of telehealth and must conduct an on-site visit every 21 days.
  • Related federal regulation and waiver: 42 CFR §418.76(h), which requires a nurse to conduct an on-site visit every two weeks, including waiving the requirement for a nurse or other professional to conduct an on-site visit every two weeks to evaluate if aides are providing care consistent with the care plan, as this may not be physically possible for a period of time. (Retroactively waived to March 1, 2020.)
• 10 NYCRR §793.3(e), which requires the hospice interdisciplinary group to update the comprehensive assessment in collaboration with the individual’s attending physician, if any, as frequently as the condition of the patient requires, but no less frequently than every 15 days.
  • Related federal regulation and waiver: 42 CFR §418.54(d), only to the extent necessary to modify the timeframes for updates to the comprehensive assessment by extending the time necessary to complete the required assessments from 15 to 21 days. (Retroactively waived to March 1, 2020.)

Providers should note that the determination to exercise enforcement discretion, while offering some flexibility, still allows the Department to penalize providers when deemed appropriate. The enforcement discretion by DOH is effective until the Public Health Emergency has officially ended, upon expiration of the 1135 waiver provisions or the expiration of Executive Order 202, whichever is sooner.

DOH also issued another DAL recently regarding certain home care and hospice waiver provisions and noted its plan to exercise enforcement discretion. That DAL is available here.

For a current list of all CMS blanket waivers, click here. CMS waivers specific to hospice can be found here.

Contact: Meg Everett, meverett@leadingageny.org, 518-867-8871