Does the new federal hospice guidance let Tennessee residential hospices skip the registered-nurse-on-every-shift staffing rule?

Plain-English summary

A residential hospice in Tennessee has to follow two layers of nursing-staffing rules: the federal Medicare/Medicaid Conditions of Participation (the rules a facility must satisfy to bill Medicare), and the Tennessee Department of Health's licensing rule for residential hospices. The two rules are written differently. The federal rule (42 C.F.R. § 418.110(b)(2)) says that "if at least one patient in the hospice facility is receiving general inpatient care, then each shift must include a registered nurse who provides direct patient care." A more recent CMS interpretive guideline added that, when no patient is receiving general inpatient care (only respite or routine care), it is "not automatically necessary" to have an RN providing direct care on every shift.

The Tennessee licensing rule, Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a), is broader: a residential hospice "must provide nursing care and services by, or under the supervision of, a registered nurse (R.N.) at all times." It does not say "only when general inpatient care is being delivered." It says "at all times."

Senator Burks asked whether the looser federal interpretive guideline changes (preempts or modifies) the stricter Tennessee rule. AG Cooper said no. Two reasons:

1. The federal rule itself (42 C.F.R. § 418.116) tells hospices that they have to comply with all applicable federal, state, and local laws, including state licensing requirements. The federal rule defers to state licensing.

2. CMS's own "Principles of Documentation" guidance for surveyors (Chapter 9, Exhibit 7A of the State Operations Manual, Principle #6) says that when federal and state requirements differ in stringency, the entity has to comply with the more stringent of the two.

So a Tennessee residential hospice still has to have nursing care provided by, or under the supervision of, an RN at all times, regardless of which level of care its patients are receiving. The new federal interpretive guideline relaxing direct-RN-care requirements at the federal level does not give a Tennessee facility permission to do less than what the state licensing rule requires.

A subtle point worth noticing: Tennessee's rule says "by or under the supervision of" an RN, not "with an RN providing direct care." That is a less demanding standard than the federal "direct patient care by an RN on every shift" rule that applies in general-inpatient situations. So in a general-inpatient situation, the federal rule is actually the more demanding one (RN must be present and providing direct care), and the federal rule controls. In a non-general-inpatient situation (only respite or routine care), the Tennessee rule is the more demanding one (must have at least RN supervision at all times), and the Tennessee rule controls. Either way, the hospice complies by satisfying both.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

CMS has issued multiple updates to the hospice Conditions of Participation and to the State Operations Manual since 2010. Tennessee Department of Health rules have also been renumbered and revised. Anyone working on a real Tennessee hospice compliance question should pull the current version of 42 C.F.R. Part 418, the current State Operations Manual hospice chapter, and the current Tennessee residential-hospice rules in Chapter 1200-08-15, rather than relying on the citations as they read in 2010.

Common questions

Q: What's "general inpatient care" in a hospice?
A: One of the four levels of hospice care recognized by Medicare. It is short-term inpatient care in a hospice or contract facility for pain control or acute or chronic symptom management that cannot be managed at home or in another setting. The other three levels are routine home care, continuous home care, and inpatient respite care. The federal RN-on-every-shift rule kicks in only when at least one patient in the facility is receiving the general inpatient level of care.

Q: Why does the federal rule treat respite care differently?
A: Because respite care is not for symptom management. It is short-term inpatient care provided to give the patient's caregivers a break. The acuity is generally lower. Federal regulators concluded that requiring an RN to provide direct care on every shift was not always clinically necessary in a facility serving only respite or routine-care patients.

Q: When does federal law preempt state licensing rules?
A: Generally, only when Congress (or the relevant federal regulator) intends to preempt and clearly says so, or when state law is impossible to comply with alongside federal law, or when state law obstructs the purposes of federal law. CMS hospice rules do the opposite of preempting state licensing: 42 C.F.R. § 418.116 expressly tells facilities to follow state and local licensing law. The State Operations Manual reinforces that surveyors apply the more stringent of the two requirements.

Q: What does "by or under the supervision of an RN" actually mean in a Tennessee hospice?
A: The Tennessee rule defines "supervision" elsewhere (Tenn. Comp. R. & Regs. 1200-08-15-.01(77)) as "authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity." Periodic supervision is required if the person being supervised is not a licensed or certified assistant. So an LPN or hospice aide can deliver care if an RN has provided initial direction and continues periodic inspection. The RN does not have to be standing at the bedside on every shift.

Q: What happens if a Tennessee residential hospice follows only the federal interpretive guideline and skips the state licensing requirement?
A: It risks a state licensure deficiency citation. State licensing surveys are separate from Medicare certification surveys (they often happen at the same visit, but apply different standards). A facility that fails the state licensing standard may lose its license to operate as a residential hospice in Tennessee, and a hospice that loses state licensure is generally also disqualified from Medicare/Medicaid certification.

Q: Does this opinion cover hospice services delivered in a patient's home?
A: No. The state regulation at issue here is the rule for residential hospice facilities (Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a)). Home-care hospice services have a different regulatory framework.

Background and statutory framework

Hospice care in the United States is heavily federally regulated through the Medicare hospice benefit. To be paid by Medicare, a hospice must comply with the Conditions of Participation in 42 C.F.R. Part 418. Within Part 418, the staffing rules differ by setting. § 418.110 governs hospices that operate their own inpatient facility. Subsection (b)(2) requires that "if at least one patient in the hospice facility is receiving general inpatient care, then each shift must include a registered nurse who provides direct patient care." § 418.108(b)(2) covers facilities that provide short-term inpatient respite care; the respite-facility rule requires 24-hour nursing services that meet patients' nursing needs but does not separately require an RN to provide direct patient care on every shift.

The CMS interpretive guideline at issue, written for surveyors interpreting § 418.110(b)(2), clarified that an RN need not be assigned to every shift to provide direct patient care if the only patients in the facility are receiving respite or routine levels of care, because the trigger for the RN-direct-care requirement is general inpatient care. The guideline did not amend the regulation; it just told surveyors how to apply the regulation when no patient was receiving general inpatient care.

The Tennessee licensing rule sits independently of all of that. Tennessee licenses residential hospices through the Department of Health's Board for Licensing Health Care Facilities. Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a) states: "Nursing services. The residential hospice must provide nursing care and services by, or under the supervision of, a registered nurse (R.N.) at all times." It is a categorical, around-the-clock RN-availability requirement. It does not condition the requirement on the level of care being delivered.

Two federal authorities resolve the apparent tension. 42 C.F.R. § 418.116 directs the hospice and its staff to "operate and furnish services in compliance with all applicable Federal, State and local laws and regulations related to the health and safety of patients. If State or local law provides for licensing of hospices, the hospice must be licensed." That sends the facility to state licensing law. The CMS State Operations Manual Chapter 9, Exhibit 7A, "Principles of Documentation," at Principle #6 ("Citation of State or Local Code Violations"), provides that "in the event of a difference in the stringency of a Federal certification requirement and a corresponding State or local (e.g., licensing) requirement, the entity is to comply with the more stringent of the two." So the federal regime expressly defers to a more stringent state licensing standard.

The opinion notes a 2009 Tennessee statutory amendment (2009 Pub. Chap. 36, § 2, amending Tenn. Code Ann. § 68-11-201) that softened the language of one general definition of "hospice services" from "shall be provided" twenty-four hours a day to "shall be available" twenty-four hours a day pursuant to the patient's plan of care. The opinion concluded that amendment did not change the analysis because the regulatory rule actually controls staffing in inpatient settings, and that rule still requires twenty-four-hour nursing.

Bottom line for compliance officers: the residential hospice plans staffing to satisfy both the federal rule (RN providing direct care on every shift if any patient is on general inpatient care) and the state rule (RN supervising care at all times in any residential hospice). The federal interpretive guideline does not change either requirement.

Citations and references

Federal regulations:

• 42 C.F.R. § 418.110(b) (24-hour nursing services in hospice facility)
• 42 C.F.R. § 418.110(b)(2) (RN providing direct patient care on each shift when general inpatient care being provided)
• 42 C.F.R. § 418.108(b)(2) (respite-care facility nursing requirements)
• 42 C.F.R. § 418.116 (compliance with applicable federal, state, and local laws; licensing)

Tennessee statutes and rules:

• Tenn. Code Ann. § 68-11-201 (Health Facilities Act definitions, as amended by 2009 Pub. Chap. 36)
• Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a) (residential hospice nursing services)
• Tenn. Comp. R. & Regs. 1200-08-15-.01(77) (definition of "supervision")

Federal sub-regulatory guidance:

• CMS Hospice Program Interpretive Guideline § 418.110(b)(2) (interim final guidance)
• CMS State Operations Manual, Chapter 9, Exhibit 7A, "Principles of Documentation," Principle #6 ("Citation of State or Local Code Violations")

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-032.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Standards for Nursing Services in Residential Hospices

QUESTION

Whether a federal interpretive guideline contained in the recent interim final Hospice Program Interpretive Guidance that specifically interprets 42 C.F.R. § 418.110(b)(2) and does not require that each shift include a registered nurse who provides direct patient care in all circumstances preempts or modifies the applicable Tennessee Department of Health rule regarding nursing services in residential hospices, Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a).

OPINION

No. Interpretive Guideline § 418.110(b)(2), which is contained in the recent interim final Hospice Program Interpretive Guidance promulgated by the Department of Health and Human Services, Centers for Medicare and Medicaid Services, Center for Medicaid and State Operations/Survey and Certification Group ("CMS"), and which is related to the 42 C.F.R. Part 418 Conditions of Participation for hospices and specifically interprets 42 C.F.R § 418.110(b)(2), neither preempts nor modifies the applicable Department of Health rule regarding nursing services in residential hospices, Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a). 42 C.F.R. § 418.116 requires that the hospice and its staff furnish services in compliance with all federal, state and local laws, including state or local law that provides for licensing of hospices. Further, the "Principles of Documentation" for the Statement of Deficiencies promulgated by CMS as Chapter 9, Exhibit 7A to the Medicare State Operations Manual clarify that in the event there is a difference between the stringency of a federal certification requirement and a corresponding state or local licensing requirement, the entity is to comply with the more stringent of the two requirements.

ANALYSIS

The rules of the Tennessee Department of Health, Board for Licensing Health Care Facilities, Standards for Residential Hospices regarding "Basic Hospice Functions," provide in Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a):

(a) Nursing services. The residential hospice must provide nursing care and services by, or under the supervision of, a registered nurse (R.N.) at all times.

1. Nursing services must be directed and staffed to assure the nursing needs of patients and residents are met.

2. Patient and resident care responsibilities of nursing personnel must be specified.

3. Hospice services and HIV care services must be provided in accordance with recognized standards of practice.

4. Nursing services include the authorization of a Registered Nurse to pronounce the death of a patient or resident.

In addition, 42 C.F.R. § 418.110(b) provides:

(b) Standard: Twenty-four hour nursing services.

(1) The hospice facility must provide 24-hour nursing services that meet the nursing needs of all patients and are furnished in accordance with each patient's plan of care. Each patient must receive all nursing services as prescribed and must be kept comfortable, clean, well-groomed, and protected from accident, injury, and infection.

(2) If at least one patient in the hospice facility is receiving general inpatient care, then each shift must include a registered nurse who provides direct patient care.

Your question emanates from an updated Hospice Program Interpretive Guideline that represents the most recent guidance related to the 42 C.F.R. Part 418 Conditions of Participation for hospices, the relevant section of which is set out above. The recently promulgated Interpretive Guideline section for § 418.110(b)(2) states:

The general inpatient care provided in a facility for pain control or acute or chronic symptom management, which cannot be managed in other settings, is a different level of care than respite care. It is not automatically necessary to have an RN assigned to every shift to provide direct patient care if the only hospice patients in a facility are receiving the respite or routine levels of care. Staffing for a facility solely providing the respite or routine home care levels of care to hospice patients should be based on each patient's care needs. The requirements for nursing services for respite care are located at § 418.108(b)(2).

(Emphasis added.)¹

The distinction between the condition of participation required by § 418.110(b)(2) (regarding hospices that provide inpatient care directly) and that reflected in § 418.108(b)(2) (regarding facilities that provide short-term inpatient care for respite purposes) concerns whether the patient must be provided direct patient care by a registered nurse, not merely whether a registered nurse is required to be present on each shift. In fact, § 418.110(b)(2) mandates that "[i]f at least one patient in the hospice facility is receiving general inpatient care, then each shift must include a registered nurse who provides direct patient care." On the other hand, § 418.108(b)(2) contains no such requirement for provision of direct patient care by a registered nurse: "The facility providing respite care must provide 24-hour nursing services that meet the nursing needs of all patients and are furnished in accordance with each patient's plan of care. Each patient must receive all nursing services as prescribed and must be kept comfortable, clean, well-groomed, and protected from accident, injury, and infection."

As is set out above, the applicable state licensing rule, Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a), requires that the residential hospice provide nursing care and services by, or under the supervision of, a registered nurse at all times. In turn, Tenn. Comp. R. & Regs. 1200-08-15-.01(77) defines "supervision" as "[a]uthoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity. Periodic supervision must be provided if the person is not a licensed or certified assistant, unless otherwise provided in accordance with these regulations."

Both the applicable federal regulations and guidelines, as well as Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a), require the provision of twenty-four hour nursing services in an inpatient/residential hospice setting.² However, neither federal nor state law requires the provision of direct patient care by a registered nurse in all hospice circumstances. The above state regulation requires that the residential hospice provide nursing care and services by, or under the supervision of, a registered nurse at all times, while 42 C.F.R. § 418.110(b)(2) requires that "each shift must include a registered nurse who provides direct patient care," but only "[i]f at least one patient in the hospice facility is receiving general inpatient care."

Even if there were a conflict between the requirements of 42 C.F.R. § 418.110(b)(2) and Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a) (and we do not believe that there exists any direct conflict between the two provisions), then neither the federal requirement nor its corollary Interpretive Guideline would preempt or modify a more stringent state licensing requirement. The reason for this is twofold. First, § 418.116 requires that "[t]he hospice and its staff must operate and furnish services in compliance with all applicable Federal, State and local laws and regulations related to the health and safety of patients. If State or local law provides for licensing of hospices, the hospice must be licensed." Second, the "Principles of Documentation" for the Statement of Deficiencies promulgated by CMS as Chapter 9, Exhibit 7A to the Medicare State Operations Manual clarify that in the event there is a difference between the stringency of a federal certification requirement and a corresponding state or local [licensing] requirement, the entity is to comply with the more stringent of the two requirements. These "Principles of Documentation" are guidelines that include a general discussion of the legal aspects of the Statements of Deficiencies and identify and explain the principles considered in the citations of deficiencies.³ Principle #6, "Citation of State or Local Code Violations," provides in pertinent part:

Federal certification requirements are uniform throughout the United States. However, States and localities may have additional requirements that the entity must meet in order to continue to operate within those jurisdictions. Some licensing requirements may be more stringent or prescriptive than Federal requirements. Licensure surveys are conducted to determine an entity's compliance with specific State or local laws or regulations. Entities that do not meet the State or local requirements for licensure may not be certified for participation in the Medicare/Medicaid programs.

In the event of a difference in the stringency of a Federal certification requirement and a corresponding State or local (e.g., licensing) requirement, the entity is to comply with the more stringent of the two.

Based on the above, it is our opinion that Interpretive Guideline § 418.110(b)(2), relative to 42 C.F.R. § 418.110(b)(2), neither preempts nor modifies the applicable Department of Health rule regarding nursing services in residential hospices, Tenn. Comp. R. & Regs. 1200-08-15-.06(1)(a).

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

SARA E. SEDGWICK
Senior Counsel

Requested by:

The Honorable Charlotte Burks
State Senator
304 War Memorial Building
Nashville, TN 37243-0215

¹ The "Procedures and Probes" that follow the above Interpretive Guideline for § 418.110(b)(2) provide: "Ask the hospice for a schedule of RN personnel for the past month and inquire about the mechanism to ensure an RN provides direct patient care on each shift." (emphasis added).

² We note that 2009 Pub. Chap. 36, § 2, amended Tenn. Code Ann. § 68-11-201(26) by deleting the second sentence in its entirety, which had read: "Hospice services shall be provided twenty-four (24) hours a day, seven (7) days a week," and substituting instead the following: "Hospice services shall be available twenty-four hours a day, seven (7) days a week pursuant to the patient's hospice plan of care." Such amendment became effective April 8, 2009, and currently is incorporated in a newly-designated subsection (28). However, we do not believe that this recent statutory amendment alters our analysis since the language in § 418.108(b)(2) and § 418.110(b)(1) discussed above requires the provision of twenty-four hour nursing services in an inpatient hospice setting.

³ These deficiencies are to be documented on a specific form (the record of the survey wherein the survey team documents and justifies its determination of compliance and informs the provider or supplier regarding its status of compliance with the requirements for participation in the federal programs).