In the Know

CMS Extends Designation of “Extraordinary Circumstance” for Hospice Nurse Staffing Purposes
January 07, 2019
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Arnall Golden Gregory LLP

Citing findings from the Bureau of Labor Statistics which indicate a shortage of nurses through 2024, the Centers for Medicare and Medicaid Services (CMS) issued a Memorandum - extended its designation of the nursing shortage as an "extraordinary circumstance."  Such extension allows hospice agencies to continue taking advantage of an exception to the regulatory provision requiring hospices to routinely provide substantially all core services directly by hospice employees, except where temporary contract staff or an arrangement with another hospice provider to supplement hospice employees is necessary to meet the needs of patients under extraordinary or other non-routine circumstances.  See 42 CFR § 418.64.  Thus, the designation enables hospices unable to meet the necessary staffing needs to utilize contracted staff in addition to their full time nursing staff.

In Quality, Safety & Oversight Memorandum No. QSO-19-03-Hospice, dated Dec. 21, 2018, CMS stated that the extraordinary circumstances designation applies only to hospice nurses and extends through September 30, 2020.

Despite the designation, however, CMS emphasized that providers utilizing contract nurses must maintain documentation of their continuing efforts to secure direct nursing employees and the extent to which any such contract nurses are trained in the hospice philosophy and the effective provision of services based upon the established plan of care for each patient.

Because the use of contract nurses under Section 418.64 is intended to be temporary, CMS instructed surveyors to be alert to any situations in which providers are utilizing contracted nursing services in lieu of direct nursing services.  As a result, despite the extraordinary circumstances designation, providers should be aware of the extent of the nursing shortage in their particular area, maintain contemporaneous documentation of their efforts to find direct hires, and if necessary, step up their recruitment efforts to avoid over-reliance on contract nurses.