Department of Health and Human Services, Centers for Medicare & Medicaid Services: Medicare Program; FY 2026 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Program Requirements
Highlights
GAO reviewed the Health and Human Services, Centers for Medicare & Medicaid Services' (CMS) new rule entitled "Medicare Program; FY 2026 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Program Requirements." GAO found that the final rule (1) updates the hospice wage index, payment rates, and aggregate cap amount for fiscal year (FY) 2026; (2) finalizes changes to the admission to hospice regulations and the hospice face-to-face attestation requirements under the certification of terminal illness regulations; (3) includes technical changes to the hospice telehealth policy and wage index; (4) includes a technical correction to the regulatory text; and (5) provides updates to the Hospice Quality Reporting Program requirements.
Enclosed is our assessment of CMS's compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Charlie McKiver, Assistant General Counsel, at (202) 512-5992.
B-337742
August 21, 2025
The Honorable Mike Crapo
Chairman
The Honorable Ron Wyden
Ranking Member
Committee on Finance
United States Senate
The Honorable Brett Guthrie
Chairman
The Honorable Frank Pallone, Jr.
Ranking Member
Committee on Energy and Commerce
House of Representatives
The Honorable Jason Smith
Chairman
The Honorable Richard Neal
Ranking Member
Committee on Ways and Means
House of Representatives
Subject: Department of Health and Human Services, Centers for Medicare & Medicaid Services: Medicare Program; FY 2026 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Program Requirements
Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major rule promulgated by the Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) entitled “Medicare Program; FY 2026 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Program Requirements” (RIN: 0938-AV49). We received the rule on August 6, 2025. It was published in the Federal Register on August 5, 2025. 90 Fed. Reg. 37404. The stated effective date of the rule is October 1, 2025.
According to CMS, this rule updates the hospice wage index, payment rates, and aggregate cap amount for fiscal year (FY) 2026; finalizes changes to the admission to hospice regulations and the hospice face-to-face attestation requirements under the certification of terminal illness regulations; includes technical changes to the hospice telehealth policy and wage index; includes a technical correction to the regulatory text; and provides updates to the Hospice Quality Reporting Program requirements.
The Congressional Review Act (CRA) requires a 60-day delay in the effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later. 5 U.S.C. § 801(a)(3)(A). This rule was published in the Federal Register on August 5, 2025. 90 Fed. Reg. 37404. The House received the rule on August 6, 2025. 171 Cong. Rec. H3697 (daily ed. Aug. 15, 2025). The rule has a stated effective date of October 1, 2025. Therefore, the stated effective date is less than 60 days from the date of publication in the Federal Register and the date of receipt by Congress.[1]
Enclosed is our assessment of CMS's compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Charlie McKiver, Assistant General Counsel, at (202) 512-5992.
Shirley A. Jones
Managing Associate General Counsel
Enclosure
cc: Calvin E. Dukes II
Regulations Coordinator
Department of Health and Human Services
ENCLOSURE
REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE
ISSUED BY THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE & MEDICAID SERVICES
ENTITLED
“MEDICARE PROGRAM; FY 2026 HOSPICE WAGE INDEX AND PAYMENT
RATE UPDATE AND HOSPICE QUALITY REPORTING PROGRAM REQUIREMENTS”
(RIN: 0938-AV49)
(i) Cost-benefit analysis
The Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) prepared an analysis of the costs and benefits for this rule. 90 Fed. Reg. 37404, 37426–29 (Aug. 5, 2025). CMS estimated that the aggregate impact of the payment provisions in the rule will result in an increase of $750 million in payments to hospices. Id. at 37426.
(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603–605, 607, and 609
CMS determined that this rule will have a significant economic impact on a substantial number of small entities, and prepared an analysis, which, along with the regulatory impact analysis, constituted the agency's Final Regulatory Flexibility Analysis. 90 Fed. Reg. 37404, 37429–30.
(iii) Agency actions relevant to sections 202–205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532–1535
CMS determined that this rule will not have an effect on state, local, or tribal governments, in the aggregate, or on the private sector, of $100 million in 1995 dollars, updated annually for inflation, in any one year. 90 Fed. Reg. 37404, 37430.
(iv) Other relevant information or requirements under acts and executive orders
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
On April 30, 2025, CMS published a proposed rule. 90 Fed. Reg. 18568. CMS stated that they received comments from various interested parties. 90 Fed. Reg. 37404, 37407–28. CMS responded to comments in the rule. Id.
In addition, CMS made technical changes to its regulations in the rule that were not included in the proposed rule. Id. at 37425. CMS stated that while the Administrative Procedure Act (APA) generally requires agencies to provide public notice and an opportunity to comment on rulemakings, APA includes an exception when the agency finds for good cause that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest, and that there was good cause to waive notice-and-comment rulemaking for the two technical changes. Id. Specifically, CMS determined that notice-and-comment rulemaking was unnecessary for a technical change to conform a date in the regulations with the underlying statute, which extended the use of telehealth by a hospice physician or hospice nurse practitioner to conduct a face-to-face encounter for the sole purpose of hospice recertification through September 30, 2025. Id. CMS further determined that notice-and-comment rulemaking was unnecessary for the inclusion of wage indexes for the Northern Mariana Islands and American Samoa in the fiscal year 2026 hospice wage index because CMS applied the existing methodology to the circumstances of the Northern Mariana Islands and American Samoa, and those two territories have historically and are currently receiving payment using the specified wage index, which is Guam's wage index. Id. at 37425–26.
Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501–3520
In its submission to us, CMS indicated the Act is not applicable to this rule.
Statutory authorization for the rule
CMS promulgated this rule pursuant to section 1302 of title 42, United States Code.
Executive Order No. 12866 (Regulatory Planning and Review)
CMS stated that this rule is significant under the Order and was submitted to the Office of Management and Budget for review. 90 Fed. Reg. 37404, 37426.
Executive Order No. 13132 (Federalism)
CMS determined that this rule does not have federalism implications. 90 Fed. Reg. 37404, 37430.
[1] The 60-day delay in effective date does not apply if the agency finds for good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates the finding and a brief statement of its reasons in the rule. 5 U.S.C. §§ 553(b)(B), 808(2). Here, although CMS did not specifically mention CRA's delayed effective date requirement, the agency found good cause to waive notice and comment procedures with respect to two technical changes in the rule that were not included in the proposed rule, and CMS incorporated a brief statement of reasons. Specifically, CMS determined that notice-and-comment rulemaking was unnecessary for a technical change to conform a date in the regulations with the underlying statute, which extended the use of telehealth by a hospice physician or hospice nurse practitioner to conduct a face-to-face encounter for the sole purpose of hospice recertification through September 30, 2025. CMS further determined that notice-and-comment rulemaking was unnecessary for the inclusion of wage indexes for the Northern Mariana Islands and American Samoa in the FY 2026 hospice wage index because CMS applied the existing methodology to the circumstances of the Northern Mariana Islands and American Samoa, and those two territories have historically and are currently receiving payment using the specified wage index, which is Guam's wage index. See 90 Fed. Reg. at 37425–26.