HHS Hospice Cap Regulation Held Invalid by New Mexico District Court

In Zia Hospice v. Sebelius, CV 09-0055 CG/LFG and CV 09-1108 CG/ACT, the New Mexico District Court followed the trend set by numerous other courts, including the 5th and 9th Circuit Courts, in relation to the hospice cap regulation, 42 C.F.R. §418.309(b)(1). The Court held 42 C.F.R. §418.309(b)(1) invalid because the regulation does not comply with the relevant federal statute, 42 U.S.C. §1395f(i)(2).

According to the Court, the statute requires the Department of Health and Human Services (“HHS”) to “count hospice care beneficiaries proportionally over the number of years in which they received such care.” The regulation, on the other hand, allows HHS to only count “hospice care recipients in the year in which they received the bulk of their hospice care.” Based on the plain language of the statute, the Court determined that since Congress has spoken to the exact matter of the hospice cap calculation, no deference was due to the regulation. The Court rejected the Defendant’s argument that the statute is ambiguous.

For more information regarding hospice providers please contact Abby Pendleton, Esq., or Jessica L. Gustafson, Esq., at (248) 996-8510 or (212) 734-01218, or visit the HLP website.