Payment Matters: CMS Capitulates, Issues Ruling Granting Relief in Hospice Cap Challenges


In the face of losing multiple court challenges to the validity of the beneficiary counting methodology in the hospice cap regulation (42 C.F.R. § 418.309(b)), CMS has now acquiesced by issuing Ruling CMS-1355-R [PDF] on April 14, 2011. Under the Ruling, CMS will grant relief to any hospice provider that has a properly pending administrative appeal on this issue. The relief involves recalculating the hospice cap by prorating beneficiaries among the years in which they received hospice care, instead of counting them only in one year. CMS will also presumably seek to remand pending court cases for a similar recalculation.


As discussed in a previous Payment Matters article “Two More Courts Invalidate CMS's Regulations for Calculating Hospice Cap”, a number of United States district courts have held that CMS’s counting methodology, which counts a beneficiary only in a single year, is invalid because it is contrary to the express direction in the enabling statute to allocate a patient’s stay across multiple fiscal years “to reflect the proportion of hospice care that each such individual was provided in a previous or subsequent accounting year” (42 U.S.C. § 1395f(i)(2)(C)).

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:


Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.