Fifth and Ninth Circuit Courts of Appeals Issue Decisions Affirming Invalidity of Hospice Cap Regulation

Since 1982, Medicare Part A has included a hospice benefit for terminally ill patients. Currently, qualified patients are entitled to unlimited hospice benefits (provided that a physician certifies qualification every 60 days). However, reimbursement to providers for hospice care is subject to a “cap” that is calculated by multiplying a per-beneficiary rate (adjusted annually for inflation) by the “number of Medicare beneficiaries.” As the average length of hospice admission has grown and as more hospice patients’ stays have extended across multiple fiscal years, providers have begun to be adversely impacted by the method of calculating the “number of Medicare beneficiaries” demanded by a regulation promulgated by the Department of Health and Human Services (HHS).

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