Here is the CMS document, “
Medicare and Medicaid Programs: Hospice Conditions of Participation.” We were alerted that the document contains some changes regarding language provisions from the previous conditions of participation. Addressing these language provisions may present a challenge for some hospices servicing diverse populations. HFA’s 2009 teleconference will focus on ways of understanding the impact of cultural diversity at the end of life.
From the CMS document,on p. 52, Section 418.52 [emphasis added]:
3. Condition of Participation: Patient’s rights (Proposed §418.52)
We proposed to replace the existing CoP, Informed consent, at §418.62, with a new patient rights CoP. The proposed patient rights CoP was divided into five standards. The first standard,”(a) Notice of rights,” would have required hospices to develop a notice of rights, including information about advance directives and the hospice’s controlled drug policies. Under the proposed requirement, hospices would have been required to present the notice of rights verbally (meaning spoken) and in writing to patients and families in a language and manner that they are able to understand. This would have occurred before the hospice furnished care to a patient and family. Hospices would also have been required to document the patient’s or representative’s understanding of the notice of rights.
In standard (b), “Exercise of rights and respect for property and person,” we proposed that the patient would be able to exercise his or her rights, be respected, voice grievances, and not be subjected to discrimination or reprisal. We also proposed that hospices would investigate and report all alleged violations of patient rights, and take appropriate corrective action where necessary.
[continued]
Comment: A majority of commenters on this issue expressed concern about the proposed requirement that hospices provide a notice of the patient’s rights and responsibilities verbally, as well as in writing, in a language and manner that the patient would understand. Many of these commenters requested that hospices not be required to furnish written notices in obscure or otherwise uncommon languages. Other commenters requested that the choice of language(s) used to communicate be left to the discretion of each hospice or that the communication be done in accordance with guidance issued by the Department of Health and Human Services (HHS) related to Title VI of the Civil Rights Act of 1964, Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. Still other commenters requested that we specifically recognize in the regulation that interpreters, family or otherwise, be permitted to facilitate communication of the notice of rights to patients and families.
Response: We recognize that this is an area of concern for hospices, as it may be challenging for hospices to communicate with patients who speak languages other than English. However, ensuring that patients are aware of their rights and how to exercise them are vital components of improving overall hospice quality and patient satisfaction. If patients are unaware of their rights or the methods and protections available for exercising those rights, then hospices cannot expect to receive valid feedback from patients on ways to improve their services. Without the valid feedback, true quality measurement and improvement cannot exist. Therefore, we believe it is in the interest of patients and hospices to ensure that all patients, regardless of their communication needs, are informed of their patient rights.
Even so, we are sensitive to the concerns of hospice providers. The HHS guidance on Title VI (August 8, 2003, 68 FR 47311) applies to those entities that receive federal financial assistance from HHS, including hospices. This guidance presents four areas for hospices to consider when developing and implementing strategies to meet the needs of limited English proficient persons. The guidance recognizes the role of professional translation services, as well as family and friends of the patient, in communicating important information to patients, including the notice of rights. Hospices are already expected to comply with the HHS guidance, and doing so will enable them to comply with the requirements of the proposed rule.
Using family and friends as translators should not be the communication plan of choice for the hospice for its patients who do not speak English, unless the patient specifically requests this approach. Hospices should make all reasonable efforts to secure a professional, objective translator for hospice-patient communications, including those involving the notice of patient rights. Furthermore, hospices should make all reasonable efforts to have written copies of the notice of rights available in the language(s) that are commonly spoken in the hospice’s service area. For those patients who speak uncommon languages in areas where professional translators for those languages are not readily available, using family and friends of the patient is an acceptable option.
[continued]
Comment: Some commenters asked that we clarify what type of documentation would be necessary to demonstrate that the hospice provided patients with a notice of rights and that the patient or representative demonstrated an understanding of the rights. A majority of commenters noted that language in the proposed rule, “demonstrated an understanding of,” was imprecise and difficult to measure.
Additional commenters suggested that language from the home health agency CoPs at 42 CFR 484.10 should be used in the hospice CoPs. Section 484.10 states that “the HHA must maintain documentation that it has complied with the requirements of this section.” This language, commenters noted, would allow hospices to determine in their own policies how the documentation would be handled. Several other commenters suggested that hospices be required to obtain the patient’s or family’s signature, confirming that they received the notice of rights.
Response: We agree that a more precise requirement will help hospices ensure that patients and families are fully informed about the notice of rights. Furthermore, we agree that more precise language will help hospices ensure that they are in compliance with our documentation requirements. Therefore, this final rule at §418.52(a)(3) states, “The hospice must obtain the patient’s or representative’s signature confirming that he or she has received a copy of the notice of rights and responsibilities.”
Later, on p.564 CMS calculates the burden of compliance for hospices of the above [emphasis added]:
Condition of participation: Patient’s rights (§418.52)
Section 418.52(a)(1) states that a hospice must provide the patient or representative with verbal and written notice of the patient’s right and responsibilities. The notification must be presented in a manner and language consistent with the patient’s ability to comprehend the information. Section 418.52(a)(2) requires a hospice to inform and distribute written information on its policies concerning advance directives. The information must include a description of applicable State laws. Section 418.52(a)(3) states that a hospice must obtain the patient’s or representative’s signature confirming that he or she has received a copy of the notice of rights.
The burden associated with the notification requirements contained in §418.52(a) is the time and effort necessary for a hospice to: develop the notification form; provide, both verbally and in writing, the patient or the patient’s representative with a notice of patient’s rights; inform and distribute information pertaining to its policies on advance directives and applicable State laws; obtain signatures from the either the patient or representative confirming receipt of a copy of the notice of rights. There are 2,872 hospices that must comply with the aforementioned requirements. We estimate that it will take each hospice 8 hours to develop the form and 5 minutes to meet the requirements in §418.52(a)(1-3). We estimate that each hospice will on average provide 303 notifications per year for a total one time burden of 22,976 hours and annual burden of 72,518 hours.
CMS also requires communication with patients and representatives regarding the safe use and disposal of controlled drugs be done in a language and manner they can understand, p. 587, Section 418.106(e) [emphasis added]:
Section 418.106(e) discusses the standard for labeling, disposing and storing of drugs and biologicals.
Specifically, §418.106(e)(2)(i) states that a hospice must have a written policy for the management and disposal of controlled drugs in the patient’s home. As required by §418.106(e)(2)(i)(A), a hospice must provide a copy of the written policy required in §418.106(e)(2)(i) to the patient, and his/her representative and family. Additionally, the hospice must discuss the hospice policy for managing the safe use and disposal of controlled drugs with the patient or representative and the family in a language and manner they can understand to ensure that these parties are educated regarding the safe use and disposal of controlled drugs, as required by §418.106(e)(2)(i)(B).
Section 418.106(e)(2)(i)(C) requires a hospice to document in a patient’s clinical record that the written policy for managing controlled drugs was provided and discussed. Section 418.106(e)(2)(ii) states that a hospice maintain current and accurate records of the receipt and disposition of all controlled drugs.
The burden associated with the requirements contained in §418.106(e)(2) is the time and effort necessary to provide a written copy of the policy on the management and disposal of controlled drugs in the patient’s home to the patient representative and family. There is also some burden associated with the hospice explaining the policy to the patient or representative and the family. In addition, there is a burden associated with documenting in the patient’s clinical record that the written policy for managing and controlled drugs was provided and discussed. We believe the burden associated with the aforementioned requirements is exempt from the PRA under 5 CFR 1320.3(b)(2), as they are part of the usual and customary business practice for hospices.
Labels: hospice and palliative care