CMS Issues Hurricane Response Guidance

All of us at NHPCO are thinking of our hospice colleagues in Texas, Louisiana, and Florida and the patients and families they serve as they continue to struggle with the massive flooding and devastation of Hurricane Harvey and brace for the impact of Hurricane Irma.  For other hospices, this is a reminder to make sure that emergency preparedness policies and procedures are in place and planning has been done, since  EMERGENCIES AND NATURAL DISASTERS CAN HAPPEN ANYWHERE AT ANY TIME. 

  1. CMS Guidance for Hospice Operations
    CMS has issued guidance to providers in Texas and Louisiana in the aftermath of Hurricane Harvey, including Q&As specifically for hospices.Some providers may have questions about how care should be provided, what to do with patients who have relocated, and what timeframe requirements continue to exist.  CMS provides answers to many of those questions in the Q&A – the hospice section begins on page 17.  Here are a few Q&As published by CMS that provide examples of information for hospice providers:


QUESTION: If a hospice provider cannot provide care for its patients, can these patients transfer to another hospice provider?

ANSWER: Under the Social Security Act at § 1812(d)(2)(C) and CMS regulations at 42 C.F.R. § 418.30(a), a Medicare beneficiary may transfer from one hospice agency to another hospice for any reason once per election period. If a Medicare beneficiary has already utilized this one-time right to transfer but needs to move again because of a public health emergency, § 1861(dd)(5)(D) of the Act provides for a hospice agency to arrange with another hospice for the delivery of services in extraordinary circumstances. We would not deem a change in hospice under these circumstances to be a voluntary transfer under 42 C.F.R. § 418.30 (i.e., the beneficiary would still be entitled to a voluntary transfer after a transfer for “extraordinary circumstances”).


QUESTION: How should a hospice that temporarily receives a patient from another hospice handle administration of that patient’s care plan if the patient arrives with no alternate caregiver information, and/or the admissions officer believes that the patient may be legally incompetent to make health care decisions for him/herself?

ANSWER: Under CMS rules, the health and safety of the patient always comes first. The receiving hospice should complete an assessment of the patient to identify immediate needs and establish a plan of care with the interdisciplinary group (IDG). The receiving hospice should make every effort to contact the original hospice and/or attending physician to discuss the previously implemented plan of care and, if necessary, to determine if the patient is legally competent. If the receiving hospice has access to the plan of care established by the original hospice every attempt should be made to follow the plan if the needs of the patient are such that the original plan will provide the appropriate interventions.

There are other questions and answers related to Hurricane Harvey to hospices from CMS.  Click here to see the entire list.

2.  CMS Guidance for Hospice Quality Reporting

Hospices in the path of hurricane Harvey may have difficulty meeting the deadlines for submission of HQRP data.  Follow the directions provided on the HQRP website for more details on submitting an extension or exemption request.

Under current regulatory requirements, a hospice must request an extension/exception to the reporting of required quality data within 30 days of the event when there are extraordinary circumstances beyond the control of the hospice provider.  CMS does state, however, that “This process does not preclude CMS from granting extensions/exceptions to hospices not requesting an extension/exception when an extraordinary circumstance, such as an act of nature affects an entire region or locale.”

Quality Reporting Definitions

  1. Extraordinary Circumstances:
    Natural or man-made disasters preventing timely submission of quality data. A disaster may be widespread or affect multiple structures or isolated and affect a single site only.
  2. Extension:
    Submission deadline extended. CMS can extend submission deadlines for the specified deadlines for 30 to 45 days beyond the scheduled due date applicable to other facilities.
  3. Exemption:
    Submission deadline waived. CMS can exempt a facility from submitting quality data for the specified deadlines without impact on the Annual Payment Update.

Timeframes when Extension/Exception is Granted

When an extension/exception is granted, a hospice will not incur payment reduction penalties for failure to comply with the requirements of the HQRP.  Under the finalized process, a hospice may request an extension/exception of the requirement to submit quality data for a specified time period by submitting a written request to CMS.

This process does not preclude CMS from granting extensions/exceptions to hospices not requesting an extension/exception when an extraordinary circumstance, such as an act of nature affects an entire region or locale.

When an extension/exception to hospices in a region or locale is granted, CMS will communicate the decision through routine channels to hospices and vendors, including, but not limited to, Open Door Forums, ENews and notices on the CMS Hospice Quality Reporting website.

3.  HIPAA during a Disaster

The HIPAA Privacy Rule allows patient information to be shared to assist in disaster relief efforts, and to assist patients in receiving the care they need. In addition, while the HIPAA Privacy Rule is not suspended during a public health or other emergency, the Secretary of HHS may waive certain provisions of the Privacy Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act.

If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule which include:

  • the requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b))
  •  the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a))
  • the requirement to distribute a notice of privacy practices (45 CFR 164.520)
  • the patient’s right to request privacy restrictions (45 CFR 164.522(a))
  • the patient’s right to request confidential communications (45 CFR 164.522(b))

For Hurricane Harvey, President Trump has declared Hurricane Harvey a disaster and HHS Secretary Tom Price has declared a public health emergency.

Read more information about HIPAA during disasters from HHS.

View the Hurricane Harvey & HIPAA Bulletin: Limited Waiver of HIPAA Sanctions and Penalties During a Declared Emergency.

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