January 21, 2003

Mr. Thomas A. Scully
Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Hubert H. Humphrey Building, Room 443-G
200 Independence Avenue, SW
Washington, DC 20201
ATTN: CMS-1022-P

RE: Comments on the proposed rule to revise existing regulations that govern coverage and payment for hospice care under the Medicare program.

Dear Administrator Scully:

I am writing on behalf of the American Psychological Association (APA) to respond to the Federal Register Notice of November 22, 2002 that invited comments on the proposed rule to revise existing regulations governing coverage and payment for hospice care under the Medicare program. As the largest scientific and professional organization representing psychology in the United States and the world's largest association of psychologists, APA is pleased to provide these comments and recommendations to the Centers for Medicare and Medicaid Services (CMS) to help to further strengthen the hospice program.

The 21st century is likely to bring greater demands for palliative and psychosocial support services near the end of life. The rate of aging of the U.S. population is expected to accelerate for the next half century, and new medical technologies and treatments are expected to extend the lives of those with chronic and terminal conditions. Trends in the use of the Medicare hospice benefit during the 1990s indicate that beneficiaries with all types of terminal illnesses are making use of hospice services in greater numbers every year. It is clear that a substantial portion of the growth is attributable to the outstanding leadership of CMS and the hospice movement, which has championed the notion of a decent or "good" death, free of unnecessary suffering for patents, families, and caregivers.

The legislative history associated with the original hospice legislation emphasized the significant need for counseling services, such as bereavement and nutrition counseling, not only for the hospice patient but also for the patient's family. This is reflected in the legislation and in the regulations that require an individual with counseling expertise to be included as a member of the interdisciplinary team that develops the plan of care, 42 Code of Federal Regulations (C.F.R.) Section 418.68. The regulations also specifically list "counseling" as one of the eight service areas to be addressed by the plan of care, 42 C.F.R. Section 418.202 (d). In practice, counseling services delivered in hospice care typically involve generalized approaches that focus on the provision of social support and psychological comfort to patients and families near the end of life. Although supportive counseling is effective and sufficient for large numbers of patients near the end of life, a substantial proportion of hospice patients requires more sophisticated approaches.

Numerous studies indicate that patients near the end of life frequently suffer from undiagnosed or poorly treated depression, cognitive impairment, and/or pain. The differential diagnosis and treatment of these three interrelated sources of suffering is quite complex and thus requires the use of providers with extensive training in proven approaches. Furthermore, pre-existing mental disorders and prior traumatic experiences of patients and/or family members can lead to complicated grief and anticipatory grief reactions that require highly specialized assessment and intervention techniques. It is our view that many doctoral-level psychologists who, on average, have completed seven years of academic training and a year or more of supervised clinical experience before licensure, are uniquely qualified to provide the types of assessments and treatments needed for these types of complicated cases. We would argue that providers who are not specifically trained to diagnose and treat such complications should not be treating these types of cases without consultation from those with the requisite training.

In this regard, we are pleased that the proposed rule seeks to clarify that Medicare hospice care includes not only those specific services listed in Section 1861 (dd) (1) of the Act but also any service otherwise covered by Medicare that is needed for the palliation and management of the terminal illness. As you know, psychological services are covered by Medicare Part B, and this clarification should be important to further facilitate the delivery of appropriate mental health services to hospice patients. Unfortunately, the proposed rule does not address the need to provide for adequate reimbursement for these services. As a result, the promise of hospice program expansion and improvement offered by the proposed rule is negated by the absence of an adequate means to pay for these critically needed services.

It is our view that adequate statutory authority already exists to provide for the reimbursement of services offered to hospice patients by psychologists in an analogous manner as for physicians. Currently, physicians' services furnished to the hospice agency are reimbursed by the hospice program in two ways. First, administrative services provided by physicians are covered by the limitations of the daily rate established by the Hospice Act and are paid for by Part A of Medicare. Second, medical services provided to hospice patients by physicians who are employees or contractors of the hospice agency are reimbursed to the agency at the regular rates established for those services under Part B of Medicare, with the total reimbursements to physicians limited only by the overall cap for total payments to each hospice. As psychologists also have rates established by Part B of Medicare, authority clearly exists for the reimbursement of psychologists for services provided to hospice patients. Additional statutory and legislative history supports the payment of psychologists by the hospice program. In this regard, current law authorizes psychologists and physicians, unlike other health care professionals, to bill Medicare directly for all patient services, including those furnished to inpatients of hospitals or other agencies, reimbursed under Part B of Medicare (Section 1861{ii} of the Social Security Act).

We would urge that the proposed rule be amended and expanded to address the payment of psychologists for services to hospice patients. We believe that this can be done within existing law in a manner completely parallel to the manner in which the services of physicians, who are either employees of the hospice or have a contractual relationship with the hospice, are charged to Medicare. The proposed rule would clarify that services provided by these physicians are charged to Medicare at "an amount equivalent to 100 percent of the physician fee schedule," 42 C.F.R. Section 418.304 (b). Nothing in the original hospice statute authorizes this procedure. Yet it is pursuant to, and consistent with, the traditional assignment of the physician's billing rights to the health care institution to which he/she is affiliated as provided for in the underlying Medicare statute. In a similar manner, and consistent with underlying statutory authorities, we would urge that the proposed rule, Section 418.304 (b), be amended and expanded to specifically provide for the billing by the hospice for services rendered by psychologists to hospice patients at 100% of the allowable fee schedule amount for the services of psychologists. Psychologists are reimbursed under Medicare Part B according to a fee schedule also and have billing rights comparable to physicians, which would be assigned to the hospice. We would stress that without this clarification, CMS is essentially guaranteeing that professional mental health services cannot be delivered to hospice patients, since the rates provided for the four non-physician billing categories (i.e., routine home care, continuous home care, inpatient respite care, and inpatient general care) are so limited as to discourage the provision of these services.

The incremental cost to the hospice program resulting from a clarification included in the proposed rule regarding reimbursement of psychologists, as proposed, would be de-minimus. It would be limited by existing program requirements. Specifically, services of psychologists would be provided to hospice patients only as recommended in the plan of care. Additionally, the cost of these services would need to be within the overall cap as provided in 42 C.F.R. Section 418.309, which limits total payments to each hospice.

Finally, the hospice statute requires that all services, except attending physician services, be provided by the hospice agency and paid for by the hospice daily rate. This limitation does not apply, however, to services unrelated to the terminal illness, 42 C.F.R. 418.24; 42 U.S.C. 1345 d (d). The regulations offer no guidance to clarify this provision, even though the statute refers to "guidelines" to be issued by the Secretary. In order to provide appropriate palliative care to a hospice patient, it is essential to recognize and treat pre-existing and/or chronic mental disorders. It is important to note that mental disorders can be entirely unrelated to terminal illnesses and yet still substantially compromise a patient's capacity to benefit from hospice services and other forms of palliative care if treatment is not provided. We would urge that this matter be addressed in the proposed rule and adequate guidance be given for the identification and continued treatment of underlying mental disorders unrelated to the terminal illness.

On behalf of the American Psychological Association, we greatly appreciate this opportunity to provide comments on the proposed rule to revise existing regulations that govern coverage and payment for hospice care under the Medicare program. If you would like any additional information, please contact John Anderson, Ph.D., of APA's Office on AIDS, at (202) 336-6051, or Diane Pedulla, J.D., of APA's Regulatory Affairs Office, at (202) 336-5889.

Sincerely,

L. Michael Honaker, Ph.D.

Chief Operating Officer/Deputy Chief Executive Officer

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